05-002403 Martha Ann Gates vs. Gadsden County School Board Status: Closed Recommended Order on Monday, February 13, 2006.

Summary: The evidence did not show that Petitioner was the subject of racial discimination, even though the rationale for not hiring was not necessarily based on fact, but more on intuition; moreover, the committee was composed of mixed race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTHA ANN GATES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2403

)

GADSDEN COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to Noti ce a hearing was held on October 3, 2005 ,

before the Honorable Diane Cleavinger, Administrative Law Judge,

Division of Administrative Hearings , in Quincy, Florida.

APPEARANCES

For Petitioner: Marie A. Mattox , Esquire

Marie A. Ma ttox, P.A.

310 Bradford Road

Tallahassee, Florida 32303

For Respondent: Deborah S. Minnis , Esquire

Ausley and McMullen

Post Office Box 391

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent committed

an unlawful employment practice against Petitioner based on race

or otherwise violated Chapter 760, Florida Statutes.

PRELIMINARY STATEM ENT

On October 11 , 200 4 , Petitioner, Martha Ann Gates, filed a

Charge of Discrimination against Respondent, Gadsden County

School Board. The Charge of D iscrimination alleged that

Respondent discriminated against Petitioner based on her race

when the Board failed to hire Petitioner for a S ite C oordinator

position under its 21 st Century Grant program. On March 25 ,

2005, t he Florida Commission on Human Relations (FCHR) entered

its Notice of Determination: No Cause on Petitioner’s Charge

and advised Petition er of her right to file a Petition For

Relief in this matter. On April 25, 2005, Petitioner filed a

Petition for Relief against Respondent. The Petition

essentially allege d th e same act of discrimination as the

original Charge of Discrimination. The Pet ition For Relief was

forwarded to the Division of Administrative Hearings. The one -

volume Transcript was filed on October 21, 2005.

At the hearing , Petitioner testified in her own behalf and

presented the testimony of four witnesses . Additionally,

Petiti oner offered ten exhibits into ev idence. Respondent

presented the testimony of one witness and offered nine exhibits

into evidence.

Petitioner and Respondent filed Proposed Recommended Orders

on November 29, 2005.

FINDINGS OF FACT

1 . Petitioner , who is Caucasian , was employed by the

Gadsden County School Board as a teacher in 1972 . Since that

time , other than a n absence of three year s , she taught in the

Gadsden County School system for 29 years.

2 . Petitioner graduated from F lorida State University

(FSU) in 1971 with a b achelor of sc ience degree in elementary

and early childhood education . In the early 1980’s she obtained

a m aster of s cience degree from FSU in reading - K - 12 and language

arts. She also had continuous in - service training ov er the 29

years she taught in Gadsden County.

3 . Petitioner has certifications to teach in English and

language arts and has received recognition as a teacher from the

National Board. Such National Board recognition signifies that

Ms. Gates is consi dered an “outstanding” teacher in her area of

specialization. Additionally , a t the time of her recognition by

the National Board , Ms. Gates was one of only 1500 teachers

nationwide to receive this honor.

4 . Petitioner taught six t h grade with the ma jority of her

time spent as a reading instructor working with at - risk children

in Gadsden County.

5 . Petitioner was the reading instructor for both the

Quincy Middle School until it closed and then for the Carter -

Parra more Middle School. She continu ed in th at position until

Carter - Parramore closed and the school was moved to Shanks

Middle School. While at Carter - Parramone, Petitioner began

working with Edna Hussein - Forehand, a fellow Gadsden County

School Board employee , doing Saturday tutoring/ment oring for

children who needed extra support and help in reading.

6 . The Saturday program provided one - on - one instruction

for at - risk children and eventually became know n as th e Help One

Student To Succeed ( HOSTS ) program . In fact, Petitioner helped

bring HOSTS to the Gadsden County School system.

7. The HOSTS program was a prescribed instructional

reading and language arts program that paired students with

parents in order to promote reading through mentoring. It was

held during the school day . Data collection and compilation of

the program’s impact were required.

8. In 1998 or 19 9 9, Petitioner became th e site facilitator

for the HOSTS program at her school. In that capacity , she

worked with at - risk children, including children who w ere

scoring below a verage on standardized tests. She provided

lesson plans and help to the volunteers in the program. More

than that, Petitioner was instrumental in the program’s success

and helped in the program ’s receiving a National Exemplary

Status a ward. The award was based on the success of the program

in achieving positive academic and attitudinal results and in

reducing the number of disciplinary referrals for the children

who participated in the HOSTS program. Clearly, Ms. Gates had

been involv ed in disciplinary decisions and in maintaining

discipline in the classroom for some 29 years. She was also

involved in disciplinary matters in the HOSTS program and in the

Saturday mentoring program.

9 . After her success in the HOSTS program and pr ior to

September 2003, Ms. Gates , along with a handful of other

employees of Respondent , spearheaded the effort to bring the

21st Century Grant program to the Gadsden County School system.

The Grant pr ogram was a partnership between the Gadsden County

Sch ool Board and another community entity. The program was

offered after school, beginning each school day around 3:00 to

3:15 p.m. It served at - risk children similar to the children

Ms. Gates had been teaching and helping throughout her career.

Given her teaching career and her voluntary efforts to help

children succeed, Ms. Gates clearly believed in the Grant

program and in helping a difficult population of children to

succeed.

10. In 2003, The Board advertised for five part - time Site

Coordinator positions for the 21 st Century Grant program. The

positions were located at select schools in Gadsden County,

including Shanks where Petitioner taught. The advertised

qualifications were:

1. Bachelor of Science degree or higher

with a Masters’ degree pr eferred.

2. Supervisory skills.

3. Knowledge of the Gadsden County School

District’s operations and procedures.

4. Ability to work with children, adults,

community members and parents.

11. Essential Job Responsibilities listed in the

adver tisement were:

1. Organize and Supervise the decision -

making process.

2. Provide clear direction and support to

teachers and staff.

3. Make clear job responsibilities and

roles for all staff.

4. Supervise care and maintenance of

community center school s, equipment and

property.

5. Coordinate center schedule.

6. Assist Program Director in periodic

reviews of staff performance.

7. Monitor collection and maintenance of

student records and progress.

8. Review program performance through on -

going assessm ents and provide feedback to

Program Director.

9. Coordinate facilities and supervise

extr a - curricular activities.

10. Facilitate communication among staff,

parents, students, and community.

11. Investigate and document all related

incidents.

12. Assist P rogram Director in on - going

assessment to ensure quality implementation

and success in activities that 1) improve

students’ mastery of academic skills . . .

through individualized assistance, 2) reduce

juvenile risk - taking behaviors and promote

healthy lif estyles through quality, fun

after school and summer programs, and 3)

stren gthen families through increased

parental participation in their child’s

academic and social success and through

extended learning programs addressing adult

needs.

13. Special proje cts . . . .

12. The posted Vacancy Announcement , as well as the

application for th ese position s , also required three references.

However, most of the applicants were district employees who had

references on file with the Board . Such filed referenc es were

accepted by Respondent as meeting the references required by the

posted Notice of Vacancy and the application . Therefore,

failure to submit references with the application did not

disqualify the applicant. There was no evidence that acceptance

of already - filed references in this application process was

unreasonable or a pre - text to promote job applicant s who did not

submit references with their application s . Indeed , several

applicants did not submit such references.

13. Van Riggins, a forme r employee of Respondent, was the

Director of the 21st Century Grant program. Mr. Riggins is

African - American.

14 . In September 2003 , Ms. Gates applied fo r the Site

Coordinator position for the 21st Century Grant program located

at Shanks , where she knew the children the program would serve .

At the time of her application, she ha d been working with the

type of children served by the Grant program for about 26 years.

Additionally, the program would overlap with the reading program

Ms. Gates taught o n Saturdays. She submitted the three required

reference forms with her application . Each of her letters of

reference show s that Petitioner was considered by her

supervisors and peers as “excellent” or “good” in her

performance with Respondent.

15 . Unquestionably, Petitioner met the qualifications for

this position. In fact, Petitioner had ex tensive experience in

every category of the essential job responsibilitie s for this

position and was already performing similar duties in the

various positions she held at the time of her application.

16 . The interview panel for the site coordinator positions

consisted of Vann Riggins ; Tammy McGriff F arlin, African -

American and then Coordinator of the HOSTS program ; Maurene

Daughan, Caucasian, then Grant Co ordinator for the Board ; and

Ann Taylor, Caucasian.

17 . In addition to Petitioner, other applicants for the

five positions were Carla Galvin, African - Am erican ; Debby

Thompson, Caucasia n ; Doris Jean Black, race unkn own ; Rayford E.

Blitch, Caucasia n ; Cedric Fabian Chandler , African - American ;

Irene Ford, African - American ; Michelle Denise Tayl or, Africa n -

American ; and Marshall Lewis Williams, African - American. Debby

Thompson limited her application to the position available at

Chattahoochee Elementary School. Ms. Gates and Carla Galvin

limited their application s to Shanks. Irene Ford preferred the

position at Shanks, but did not limit her application to a

specific school. Doris Black limited her application to Shanks,

Chattahoochee E lementary, East G adsden Elementary and a school

in Greensboro. Cedric Chandler limited his application to

Stewart Street Elementary School. Marshall Williams limited his

application to Havanna Middle School. The other applicants did

not limit their application s to a pos ition at a specific school.

Thus, the applicants competing for the Shanks position were

Ms . Gates ; Carla Galvin, the successful applicant ; Doris Black ;

Rayford Blitch ; Irene Ford ; and Michelle Taylor.

18 . Carla Galvin had a b achelor’s degree in educ ation.

She did not ha ve a m aster’s d egree. She held a Florida teaching

certificate in middle grade English. She had taught school

since 1988 and had about 1 5 years ’ teaching experience. She

occasionally volunteered for the Saturday reading program. Th e

evidence did not show that Ms. Galvin often helped at the

Saturday program. Nor did the evidence show that Ms. Galvin had

the extensive experience of Petitioner. As a teacher, she

worked with some at - risk children. Ms. Galvin was also

nominated for Di strict Teacher of the Year and was one of the

finalists for that award. Ms. Galvin was qualified for the

position of Site Coordinator.

19. Doris Black held a Florida teaching certificate in

elementary education and varying exceptionalities. She w as an

exceptional student education (ESE) teacher at Shanks and had

been working with ESE and at - risk children for over 20 years.

The evidence did not show what college degree Ms. Black had

obtained. She was qualified for the position of S ite

C oordinator . However, her qualifications are not at issue here.

20. Rayford Blitch had an impressive resume since, during

his 30 - year career, he had been a guidance counselor, school

psychologist , and school principal in high school and adult

education in Gads den County. He had extensive administrative

experience. Mr. Blitch held a teaching certificate in

administration, adult education, guidance counseling, school

principal, school psychologist and school social work. He held

a b achelor’s degree in criminol ogy, special education and

administration. He was experienced in testing and documentation

of programs. However, he had retired in 2001 and the committee

members were concerned about his ability to re - integrate into

the school system and his general comm itment to the program.

The committee’s concerns were vague, but did form a reasonable

basis for not recommending Mr. Blitch for the position of S ite

Co ordinator at Shanks. The evidence did not demonstrate that

the committe e ’ s rational e was a pre - text for racial

discrimination.

21. Irene Ford held a Florida teaching certificate in

elementary education. The evidence did not demonstra te the

B atchelor’s degree she had attained in college. Ms. Ford began

teaching in 1967 and had taught for about 36 yea rs. She had

retired from the Gadsden County school system in 2003. The

committee, generally, scored Ms. Ford lower than either

Petitioner or Ms. Galvin. Her qualifications are not at issue

here.

22. Michelle Taylor held a Florida teaching certific ate in

middle grade social studies. She held a b achelor’s degree in

sociology and psychology and a Master’s degree in political

science - public administration. She had been teaching since 1993

and had about 10 years ’ experience as a teacher. Her

qualific ations are not at issue here.

23 . All the applicants were interviewed for the S ite

C oordinator positions by the committee . During the interview

process, the applicants were all asked the same set of pre -

established questions. There were no specific questions

regarding student discipline. However , discipline wa s an

important aspect of the position . One of the questions asked of

applicants was to relate any additional strengths the applicant

believed he or she had for the position.

24. Durin g her interview, Ms. Gates in listing her

strengths, volunteered that she did not like to discipline

students . A l t hough this was not one of the interview questions,

Ms. Gates ’ statement was noted in the interview notes of three

of the four committee membe rs . Ms. Gates was never asked to

qualify her statement nor to explain what she meant. At no time

did Petitioner ever state during her interview or at any other

time that she could “do everything except handle discipline , ” as

Mr. Riggins indicated in his affidavit to FCHR during its

investigation of this matter.

25. Mr. Riggins, the only interview committee member

marking Ms. Galvin higher than Ms. Gates, did not write anything

on his interview package about any discipline comments made by

Ms. Gates. However, the comment was noted in his mind and

brought up during the discussion following completion of all the

scoring and interviews.

26 . Af ter the interviews, the committee members

independently scored each application. Petitioner received the

following scores from each of the persons sitting on the

interview committee:

Committee Member Score

Ann Taylor 33

Maurine Daughan 18

Tammy McGriff Farlin 1 4.5

Vann Riggins 16

TOTAL SCORE 81.5

27 . Carla Galvin received a lower overall score than

Ms. Gates from the interview Committee. Ms. Galvin scored as

follows:

Committee Member Score

Ann Taylor 25.5

Maurine Daughan 14

Tammy McGriff Farlin 11

Vann Riggins 21

TOTAL SCORE 71.5

28 . T hree of the four panelist sco red Ms. Gates higher

than Ms. Galvin . Mr. Riggins scored Ms. Galvin higher than

Ms. Gates.

29. Scores alone were not determinative of the committee’s

ultimate recommendation of an applicant for a position. As

indicate d , the committee discusses each candidate and considers

any other information or opinions of committee members regarding

the applicants . At least two of the committee members had know n

Ms. Gates for many years, had worked with her and had a high

regard fo r her abilities as a teacher and her dedication to

improving at risk children. Mr. Riggins knew of both Ms. Gates

and Ms. Galvin, but did not have any knowledge specific to

either applicant other than he felt they were both good

teachers. The other commi ttee members were slightly more

familiar with Ms. Galvin and recognized that she was a good

teacher. As with Ms. Gates, they assumed Ms. Galvin could

discipline students , since she had been teaching for a number of

years and discipline i s part of the job.

30 . During the group discu ssions of the applicants,

Mr. Riggins raised concern about Ms. Gates’ statement that she

did not like discipline. He noted that d iscipline was an

importa nt concern at all the Grant site locations since the Site

Co o rdinator would be the only authority figure on location and

would be responsible for handling any disciplinary problems that

might arise. There would be no prin cipal or backup

administrator to help the Site Coordinator maintain discipline

or handle a problem that might arise. Although vague and based

more on intuition, Mr. Riggins felt that Ms. Galvin could

“control the whole operation better” from a discipline

standpoint. The evidence did not show that Mr. Riggins ’ concern

was a pre - text for racial discriminati on. In this instance,

committee members gave Mr. Riggins ’ opinion about the ability of

the candidates in fulfilling the duties of the S ite C oordinator

great weight since he was the d irector of the Grant program.

The group reached a consensus that Ms. Gal vin was the be tter

candidate for the position and unanimously recommended her for

the Shanks position.

31 . Out of five Site Coordinator positions to be filled,

only one position was filled by a white applicant, Debby

Thompson. However, this fact doe s not demonstrate that the

committee members were motivated by race in recommending

Ms . Gates for the Shanks position.

32. Admittedly, Ms. Gates would seem to be the best

candidate and the fact that she was not recommended for the

Shanks position cau sed her to leave the Gadsden County School

System and cost the School System an excellent teacher and

mentor. However, the majority of the duties and

responsibilities of the 21st Century Site Coordinator position

did not involve being in the classroom and involved only

occasional mentoring . The duties were mostly administrative

and, since this was a new program , the d irector, Mr. Riggins ,

was the person most aware of the nature of the position which he

would oversee. Mr. Riggins’ concerns over discipline were

sufficient to overcome the higher score of at least two

committee members and his regard for Ms. Gates. Deference by

the racially - mixed committee to his concern over Ms. Gates’

ability to discipline was not unreasonable and not shown to be a

pretext for racial discrimination. Therefore, the Petition For

Relief should be dismissed.

CONCLUSIONS OF LAW

33 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. § 120.57(1), Fla. Sta t. (2005)

34 . Under the McDonnell Douglas framework, the Petitioner

has the burden to establish by a preponderance of the evidence

an inference of discrimination by establishing a prima facie

case. McDonnell Corp. v. Green ., 411 U.S. 992, 802, 93 S . Ct.

1817,36 L. Ed. 2d 668 (1973). Once the Petitioner has

established the elements of a prima facie case, the burden of

going forward with the evidence shifts to the employer to

articulate a non - discriminatory basis for its employment action.

Texas Dep t. of Community Affairs v. Burdine , 450 U.S. 248, 253,

101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). If the employer meets

this burden , the Petitioner must show by a preponderance of the

evidence that the pro ffered reason was pretextual or otherwise

motivated by unlawful reasons . St. Mary’s Honor Center v.

Hicks , 509 U.S. 502, 511, 112 S. Ct. 2742, 125 L. Ed. 2d 407

(1993). At all times, the ultimate burden of proof remains with

the Petitioner and even if the Petitioner succeeds in

discrediting the employer’ s proffered reasons, the trier of fact

may conclude that the employer did not intentionally

discriminate against the Petitioner . Reves v. Sanderson

Plumbing Prods., Inc. , 530 U.S. 133, 148, 120 S. Ct. 2097, 147

L. Ed. 2d 105 (2000).

3 5 . In order to establish a prima facie case, the

Petitioner must demonstrate that:

(i) she belongs to a protected class;

(ii) she was qualified for and applied for

a position that the employer was seeking to

fill;

(iii) despite her qualifications , she was

rejected ; and

(iv) the position was filled with an

individual outside the protected class.

McDonnell Douglas , supra .

36. In this case, Petitioner has established that she is a

member of a protected class, that she was qualifie d for and

applied for the S hanks Site Coordinator position, that despite

her qualifications she was rejected, and that the position w as

filled by an individual outside the protected class, i.e. , Carla

Galvin. Therefore, Petitioner has established a prima facie

case of discriminatio n based on her race. See Vessels v.

Atlanta Independent School System , 408 F.3d 763 (11th Cir.

2005) .

37 . Having established a prima facie case , Resp ondent has

the burden to articulate a legitimate non - discriminatory reason

for its failure to hire P etitioner for the Shanks Site

Coordinator position. As indicated, t he burden of proof on the

Board is on e of production and not of proof. Texas Department

of Community Affairs v. Burdine, 450 U.S. 24 8, 257 - 58, 101 S.

Ct. 1089, 1096; St. Mary’s , supra .; a nd Burdine , supra .

38 . In this case, the Board articulated a legitimate non -

discriminatory reason for the decision to not hire Ms. Gates for

the Shanks position . The Board’s articulated reason t hrough the

interview committee was that Ms. Gates iden tified herself as

someone who did not like to discipline students. Ms. Gates’

statement raised concerns primarily with the program Director

and eventually with all the committee members t hat she was not

the best applicant to fill a position where the succ essful

applicant would be the only a dministrator on - s ite and would be

responsible for maintaining discipline of the students. The

fact that the committee members deferred to Mr. Riggins on the

disciplinary issue , even though they assumed both Ms. Gates an d

Ms. Galvin could and did discipline students as teachers , was

reasonable since the d irector was in the best position to know

what duties he expected the Site Coordinator to perform. Even

though Ms. Gates was arguably better qualified for the position ,

g iven her years of experience, such experience does not overcome

or demonstrate the illegitimacy of the rationale discussed by

the committee and this racially - mixed committee’s decision to

recommend Ms. Galvin. Further, the evidence did not show that

the d ifference in qualifications between Ms. Gates and

Ms. Galvin w as so significant that a reasonable, impartial

person could not have chosen Ms. Galvin over Ms. Gates.

Alexander v. Fulton County , 207 F.3d 1303, 1340 (11th Cir.

2000). Gofield v. Goldkist Inc . , 267 F.3d 1264, 1268 (11th Cir.

2001).

39. “[D]isparities in qualifications are not enough in and

of themselves to demonstrate discriminatory intent unless those

disparities are so apparent as virtually to jump off the page

and slap you in the fa ce.” Lee v. GTE Florida, Inc. , 226 F.3d

1249, 1254 (11th Cir. 2000) (quoting Deines v. Texas Dep’t of

Protective and Regulatory Servs. , 164 F.3d 227, 280 (5th Cir.

1999). In the instant case, the disparity in the qualifications

between Ms. Gates and Ms. Galvin is not so dramatic , given the

other considerations discussed above that a reasonable fact -

finder could infer discrimination based on such disparities in

qualifications. Both candidates were qualified, both were

considered good teachers. In short, t here was no substantial

evidence to demon strate that Respondent’s articulated reason was

pretextual. See Cooper v. Southern Co. , 390 F.3d 695, 725 (11th

Cir. 2004) ; Bass v. Bd. Of County Commissioners, 256 F.3d 1095,

1108 (11th Cir. 2001) . Therefore , th e Petition For Relief

should be dismissed.

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 finding that no unlawful employment pr actice occurred and

dismissing the Petition For Relief .

DONE AND ENTERED this 13 th day of February , 2006 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative He arings

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 13 th day of February , 2 006 .

COPIES FURNISHED :

Cecil Howard, General Counsel

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Marie Mattox, Esquire

Law Office of Marie A. Mattox, P.A.

310 East Bradford Road

Tallahassee, Florida 32303

Deborah Stephens Minnis, Esquire

Ausley & McMullen, P.A.

Post Office Box 391

Tallahassee, Florida 32302

NOTICE OF RIGHT TO SU BMIT 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 .