05-002405 Gessner T. Harris vs. Lake County School District Status: Closed Recommended Order on Thursday, April 13, 2006.

Summary: In failure-to-promote cases, where there are disparities of qualifications, the burden does not shift unless "no reasonable" person in the exercise of impartial judgment could have chosen the candidate selected.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GESSNER T. HARRIS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 2405

)

LAKE COUNTY SCHOOL DISTRICT, )

)

Respondents. )

)

RECOMMENDED ORDER

Upon due notice , a disputed - fact hearing was held in this

case on December 13 - 14, 2005, in Leesburg, Florida, before

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

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Larry H. Colleton, Esquire

The Colleton Law Firm, P.A.

Post Office Box 677459

Orlando, Florida 32867

For Respondent: Stephenie J. McCulloch, Esquire

McLin & Burnsed, P.A.

Post Office Box 491357

Leesburg, Florida 34749 - 1357

STATEMENT O F THE ISSUE

Whether Respondent E mployer is guilty of an unlawful

employment practice , pursuant to Chapter 760, Florida Statutes,

by its failure to promote Petitioner, an African - American

female, and its promotion of a Caucasian female who was less

qualifi ed.

PRELIMINARY STATEMENT

On November 29, 2004, Petitioner filed a Charge of

Discrimination with the Equal Employment Opportunity Commission

and the Florida Commission on Human Relations (FCHR). Therein,

she alleged that Respondent School Board of Lake C ounty,

Florida, had discriminated against her based upon her race

because it did not select her for promotion to Property Control

Specialist on or about January 13, 2004.

FCHR entered a Determination: No Cause, on May 31, 2005.

Petitioner timely - filed a Petition for Relief.

The cause was referred to the Division of Administrative

Hearings on or about July 5, 2005. Respondent's Motion for

Summary Final Order was denied by a November 23, 2005, Order.

At the commencement of the disputed - fact hearing, in

r esponse to Respondent's Motion in Limine, Petitioner withdrew

her retaliation claim so that the only issues to be tried were

promotion entitlement, entitlement to back pay at the promotion

level, and attorney's fees.

At the disputed - fact hearing, Petition er testified on her

own behalf and presented the oral testimony of Darlene Elliot

and Chloe Womack. Petitioner's Exhibit 1 and Exhibits 8 through

12 were admitted in evidence.

Respondent cross - examined the witnesses called by

Petitioner and presented th e oral testimony of Paul Haskins,

Rebecca Nelsen, Sonja Charlene Gore, Laura Dee Sullivan, Jane

Adams, Beth Minnix, and Barbara Harper. Respondent's Exhibits

2 - 12 and 14 - 16 were admitted in evidence. Exhibit R - 2 was the

deposition of Ann Isaacs with atta chments. Exhibit R - 3 was the

deposition of Stephen Miller.

Joint Exhibit A, the parties' Joint Stipulation filed on

September 2, 2005, was also admitted in evidence.

A three - volume Transcript was filed on January 5, 200 6 .

Each party timely - filed its res pective Proposed Recommended

Order which has been considered in preparing this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is an African - American female.

2. Respondent School Board of Lake County, Florida, is the

corporate body politic resp onsible for the administration of

schools within the Lake County School District.

3. At all times material, Paul Haskins (Caucasian male)

was the supervisor of the Warehouse and Grounds Department. In

that capacity, he supervised the functions of Plant Operations,

Central Warehouse, Grounds, and Property Control, including the

Property Control Specialist position. Mr. Haskins has been

employed with the School Board for approximately 33 years. For

the past 20 years of his employment with the School Boar d,

Mr. Haskins has served in a supervisory capacity. In that

position, he has the authority to hire and fire employees under

his supervision. Mr. Haskins made the decision to hire Jane

Adams (a Caucasian female) for the Property Control Specialist

positi on in 2003 - 2004. His hiring of Ms. Adams is the subject

of Petitioner's charge of discrimination/Petition for Relief.

4. In 1976 - 1977 Petitioner worked for the federal

government at Robbins Air Force Base as a clerk typist , where

she performed numerou s duties at Pay Grade GS XI, Civil Service

Supervisor.

5. While at Robbins Air Force Base, Petitioner held the

position of Shipping Clerk. In her last year at Robbins Air

Force Base, she held a temporary position supervising four

clerks.

6. Petitione r continued work at MacDill Air Force Base,

where she concluded her civil service career of over 10 years.

7. During the course of her civil service experience,

Petitioner was Custodian of Records, Classified Air Craft

Designs.

8. Immediately prior t o being hired by Respondent,

Petitioner worked in a clerical position for the City of Eustis,

Florida.

9. Petitioner has been employed with Respondent Lake

County School Board for approximately 17 years.

10. Petitioner was hired by Respondent in Apri l of 1988,

as a Maintenance Worker III.

11. In 1992, Petitioner was promoted to the position of

Fiscal Assistant II with Respondent's Maintenance Department .

She continues to be employed in that capacity today.

12. Petitioner has worked for Respondent in the capacity

of Fiscal Assistant II for approximately 15 years. However, she

has never worked under the supervision of Mr. Haskins and has

never worked directly with Ms. Adams.

13. The Fiscal Assistant II position is an accounting

support position an d does not require an accounting degree.

14. The duties Petitioner performs as a Fiscal Assistant

II include assisting and preparing the documents related to

budgets and purchase orders in the maintenance department. She

prepares orders for materials fo r that department. She

maintains property for the department with respect to its

locations, and if the materials have a value of over $1,000.00,

Petitioner is responsible for in - putting the dat a in the SA 400

computer software system , which is Respondent 's current

financial network. Petitioner is very skilled in using the SA

400 , but Petitioner's computer system work has been primarily

office or secretarial work related to accounting for its four

million dollar budget.

15. By the date of hearing, Pet itioner had completed over

30 semester hours at Lake - Sumter Community College in Leesburg,

Florida, towards an Associate of Arts degree. The hearing

occurred nearly two years after any date material to the

promotion involved in this case.

16. In December 2003, Darlene Elliot (Caucasian female),

Respondent's Property Control Specialist , announced her

retirement. The Property Control Specialist position operated

under the umbrella of the Warehouse and Grounds Department,

managed by Mr. Haskins. The openin g was posted and advertised.

The pay grade for the position was Level Eleven.

17. Current School Board employees could apply for the

upcoming vacancy simply by providing a letter of intent or

completing an application for the position. Several applican ts

applied for the position.

18. Petitioner submitted a letter of interest, along with

her resume which detailed her qualifications and background for

the position.

19. Ms. Adams submitted only an application, which was not

signed or dated.

20. Sev eral other employees from different departments

also submitted their letters of intent for the Property Control

Specialist position.

21. Mr. Haskins unilaterally selected only six applicants

to be interviewed. All the applicants selected to be

interview ed were already employees of Respondent. Petitioner

and Ms. Adams were among them.

22. The six applicants interviewed were: Petitioner,

Ms. Adams, Sonja Charlene Gore, Stephen Miller, Debra Parker,

and Laura D. Sullivan. Of the applicants, both Ms. Gore and

Petitioner are African - American , and both are Fiscal Assistants .

The remainder of the applicants are Caucasian. All six

applicants, with the exception of Mr. Miller, were female.

Mr. Miller also was a Fiscal Assistant II, with a background in

d ata processing and records keeping . He also had already earned

an associate's degree. Ms. Sullivan was a Grounds W orker III

with prior bookkeeping experience. Ms. Parker's experience is

not clear.

23. Petitioner's charge of discrimination initially sta ted

an allegation of sex discrimination, but she did not pursue that

claim at the disputed - fact hearing.

24. The job description for the Property Control

Specialist position listed the requisite job duties for that

position. Among the requisite job duti es were: performing

audit and inventory procedures pursuant to state and federal

statutes and pursuant to rules of the Auditor General; in -

servicing each school's new property custodian and insuring

correct records at each school; coordinating purchasing ,

bookkeeping , and warehouse and grounds maintenance with each

school ; tagging all new equipment; processing tags, titles and

registrations on rolling stock; reconciling property records

with expenditures; working with various auditors; preparing

lists of e quipment and rolling stock for insurance renewal each

year; coordinating disposal of surplus equipment; and preparing

and reviewing audit reports and dispositions to go to the School

Board.

25. The Property Control Specialist job description also

sets fo rth the necessary knowledge and skills for that position.

Among the knowledge and skills listed are: knowledge of

accounting procedures; knowledge of equipment used in school s ;

ability and desire to establish and maintain an amiable

relationship with ven dors and all School Board personnel;

physically move student desks, chairs, and equipment from one

cost center to another; ability to withstand extreme heat and

cold for extended periods of time; ability to lift 30 lbs ; and

ability to walk, bend, stoop, an d climb stairs. Also, a valid

Florida Driver ' s License was required, and a high school diploma

or a GED was preferred.

26. The Property Control Specialist position was described

as very physical. Many audits are performed in the summer, and

much of the work is done out in the field, which can be very hot

and dusty.

2 7 . Mr. Haskins, Beth Minnix (Caucasian female), and

Barbara Harper (Caucasian female), participated in interviewing

the six candidates selected for interviews. However, the

selection of o ne of the interviewees to fill the position was

made unilaterally by Mr. Haskins.

2 8 . The retiring Ms. Elliot had hurt feelings because

Mr. Haskins did not make her a member of the interview team.

29 . During the six interviews, Ms. Minnix and Ms. Harpe r

did not ask the interviewees questions, but they were encouraged

to take notes and privately offer their opinions to Mr. Haskins

on each of the applicants interviewed. They were also intended

to serve as witnesses, in the event that Mr. Haskins needed t hem

to recall an applicant's response. They were also intended to

observe Mr. Haskins ' conduct of the interviews.

30. Ms. Adams has a high school education and has worked

as a farm worker and a custodian. For 14 years she has been a

grounds worker in Respondent's employ. She was familiar with

all the schools in the District and had done heavy duty

deliveries and pest control at most of them. She had covered

for Ms. Minni x, Mr. Haskins ' Purchasing Agent, during

Ms. Minnix's two pregnancies and had be en cross - trained by her

in purchasing. Ms. Harper , Mr. Haskins' Fiscal Assistant , was

also familiar with Ms. Adams ' training, experience, and

personality, because Ms. Adams had covered for Ms. Harper during

Ms. Harper's vacation.

31. At the time of the i nterviews, Ms. Adams had worked

for the School Board for approximately 14 years, and her current

primary function was pest control. She was initially hired in a

custodial position. Five months later, she was promoted to the

position of Grounds Worker III . At all times during her 14

years of employment with the School Board, she had worked under

Mr. Haskins' supervision. Over that period of time, she had

performed various duties such as "jack rabbit" mail courier to

all the schools; general secretarial w ork; answering phones;

filing; processing purchase and work orders; inventory and

warehouse receiving; tagging inventory, property, and equipment;

transferring property; performing custodial work; using the SA

400 computer system; inventorying and auditing of physical,

tangible property; payroll; setting up new schools' physical

plants; pest control; and supervision and direction of summer

employees.

32. A few of Ms. Adams' foregoing skills and functions had

been performed under Ms. Elliot's direction. However, a lot of

Ms. Adams' work for Ms. Elliott , which was directly that of the

position she sought in 2003 - 2004, had occurred 10 years before

the vacancy at issue.

33. In approximately 1994, Mr. Haskins, who was always

Ms. Elliot's supervisor, had gi ven Ms. Elliot a choice of

selecting either Ms. Adams or Ronnie Calloway to become her

assistant Property Control Specialist . Ms. Elliot had selected

Ronnie Calloway (an African - American male) over Ms. Adams (a

Caucasian female). In Ms. Elliot's view, Ms . Adams was not

dependable, was consistently tardy in her arrival at work; and

took off early from work. However, Ms. Elliot had no factual

knowledge that Ms. Adams was abusing sick or annual leave.

Indeed, there is affirmative evidence that Ms. Adams of ten left

work early with permission to care for a sick husband. In

Ms. Elliot's opinion, Mr. Calloway was an excellent worker in

every respect, so she hired him. Ms. Elliot did no interviewing

for the assistant position to which she promoted Mr. Calloway at

that time.

34. Mr. Calloway retired after approximately six years.

His position was filled by another male (race unspecified).

35. After Ms. Elliot hired Mr. Calloway as her assistant

Property Control Specialist about 1994 , Ms. Adams did much le ss

work with property control. However, over the intervening years

until 2003 - 2004, Ms. Adams had sporadically worked in the

property control office for Ms. Elliot , helping her in some

periods less than others .

36. Race was not discussed during the inte rviews conducted

by Mr. Haskins to replace Ms. Elliot or during any of the

discussions among the interviewers regarding the candidates.

37. Mr. Haskins asked the same initial questions of each

applicant. Those questions were: (1) T ell me about yourself

f rom school up to today's date, including education and

employment; (2) Tell me what you know about the Property Control

Specialist position; (3) Why are you applying for this position;

(4) Explain a situation where you had a conflict and how you

handled th e situation; and (5) Tell me about your knowledge of

all the various computer programs that you have used.

38. After his initial six questions, Mr. Haskins then

asked follow - up questions based upon each applicant's individual

responses to the initial que stions posed.

39. Each applicant also was required to draft and type a

letter on the topic o f why s/he should be hired for the

position. Ms. Harper administered that portion of the interview

process to each of the interviewees in another room. 1/

40. After the interviews, Mr. Haskins scored the

applicants in the following nine categories, which he deemed

important for the position: appearance; verbalization;

knowledge; experience; technology skills; compatible with

operations; physical demands per job description; written

expression; and initiative.

41. Mr. Haskins' scoring methodology was his own and had

not been previously approved by Respondent's School Board or

Human Resources Director. No standard criteria was used. No

key for assigning scores was used. The assignment of points was

at Mr. Haskins' will. No School Board requirement provided

otherwise.

42. Prior to the interviews, Mr. Haskins had knowledge of

Ms. Adams' work performance for him over the whole of her

employment. He had conduct ed evaluations of Ms. Adams' work

performance each year. Each of his evaluations had complimented

her positive attitude, her flexibility in the various tasks

assigned to her, her ability to fill in wherever needed, or her

initiative in enhancing her compu ter skills. Prior to

conducting the interviews in December 2003, Mr. Haskins also had

knowledge that Ms. Adams had a very good rapport with the school

principals, custodians, and other personnel from working out in

the schools, got on well with the other office staff, and had

taken some computer classes.

43. It is entirely possible, and, frankly, probable, that

Mr. Haskins allowed his prior high opinion of Ms. Adams to color

his rating of her interview sheet. However, there is no

indicator that race or racial animus played any part in his

scoring system or in his actual scoring of any interviewee.

44. Indeed, Ms. Elliot (Caucasian female) and Chloe Womack

(African - American female), both of whom testified on

Petitioner's behalf, would not say they bel ieved race affected

Mr. Haskins' dealings with employees. T hey both testified that

African - Americans were only hired by Ms. Haskins for outside

jobs , and Ms. Womack testified that Fiscal Assistants like

herself and Petitioner had always been discouraged f rom applying

for work in the Grounds and Warehouse category by being told how

dusty and physical it was. 2/ However, Ms. Womack further

testified that "the good old buddy" system was apparent in

Mr. Haskins' office and that those who worked there, includin g

Ms. Adams, probably got preferential treatment in promotions for

that reason, as well as for having more inside knowledge of the

jobs there. This belief that office preference or favoritism

was the reason for promoting from within the W arehouse and

G rou nds D epartment or from the vicinity of Mr. Haskins' office

also was expressed by other witnesses who had been applicants

for the promotion in question. Ms. Elliot testified that she

had no factual information that Mr. Haskins discriminated in

hiring on th e basis of race but that she felt he discriminated

on the basis of whom he liked and disliked. She conceded she

did not know how he came to like some people, and not others,

and that she could not relate his dislikes specifically to

race. 3 /

45. Mr. Ha skins scored each applicant on a possible 100

points. He assigned total scores to the applicants as follows:

Jane Adams 94; Charlene Gore 91; Stephen Miller 81; Petitioner

80; Dee Sullivan 78; and Debra Parker 65.

46. Charlene Gore, an African - American female who received

the second highest score of all applicants, testified that she

did not feel that there was anything racially discriminatory

about the selection process or the selection of Ms. Adams. Had

she felt there were race discrimination, she wou ld have

complained about it.

47. Ms. Adams, Ms. Gore, and Petitioner were scored by

Mr. Haskins as follows:

Adams Gore Petitioner

(Caucasian) (African - (African -

American) American)

Appearan ce 10 10 10

Verbalization 8 10 8

Knowledge 10 8 5

Experience 15 10 10

Technology Skills 13 14 13

Compatible with Operations 10 9 8

Physical Demands per

Job Description 10 10 10

Written Expression 8 10 9

Initiative 10 10 7

94 91 80

48. No weighting clearly in favor of the Caucasian

candidate over the African - American candidates is evident in the

foregoing scores rated by Mr. Haskins. Ms. Adams was rated

highest , by comparison to the others, in the categories of

knowledge, experience and compatible with operations. All three

of these categories were ones in which Mr. Haskins had

personally observed Ms. Adams over many years.

49. Mr. Haskins testified that he co nsidered a good

attitude to be important for the Property Control Specialist

position. He also looked for an individual who would fit in

with the structure of his department. He explained that the

nature of the position required the Property Control Spec ialist

to possess the ability to work cooperatively with the other

individuals in the department and in the School District. He

wanted to select a person with "people skills" who had the

demonstrated ability to handle conflict effectively and deal

with sc hool administrators regarding sensitive issues.

50. Upon Mr. Haskins ' inquiry during the interview,

Petitioner cited as an example of handling conflict, an incident

where another employee asked her to order supplies and she

replied , "I can’t buy pencil s, that’s not my job. I don’t do

that. I buy trucks." This response caused Mr. Haskins concern

that Petitioner would not be a good fit for the position. Her

answer was confrontational , and Mr. Haskins had concerns with

her willingness to multi - task and to be flexible in performing

job duties. Mr. Haskins explained that the employees who work

under him are often called upon to perform tasks that are

technically outside their job description.

5 1 . Petitioner has been critiqued in a past evaluation by

a d ifferent supervisor for her lack of ability to maintain

composure when dealing with stressful situations with co - workers

or vendors. However, Petitioner has been evaluated as improving

in this regard.

5 2 . At one point during her interview, Petitioner's voice

became elevated when describing a perception that the women in

her department did not get along, and asserted that such a

perception was not accurate. Petitioner became very loud and

confrontational, and spoke about the topic for several minutes.

T his left a bad impression with the whole of the interview

committee. 4 /

5 3 . Mr. Haskins perceived Petitioner as lacking knowledge

of what the Property Control Specialist position entailed,

particularly in comparison to Ms. Adams , because when he asked

P etitioner during the interview what she knew about the Property

Control Specialist position, she replied, "You go out and tag

property, I guess." Ms. Adams' response included a detailed

explanation of the process and paperwork involved in the

position she sought.

5 4 . Several of the applicants, including Petitioner,

Ms. Gore, and Mr. Miller had experience as fiscal assistants.

Experience as a fiscal assistant and working with budgets were

not preferred criteria for Mr. Haskins and the remainder of his

co mmittee, nor did the y feel such qualifications warrant ed any

particular weight in considering the requirements for the

Property Control Specialist position.

55 . Mr. Haskins selected Ms. Adams for the position. He

felt Ms. Adams was the most qualified applicant, since she was

familiar with many of the duties of a Property Control

Specialist and had experience in performing them. He may have

believed her experience under Ms. Elliot was greater than it

actually was or not realized that much of her experi ence with

Ms. Elliot was remote in time ( see Finding s of F act 32 and 35) ,

but a mong the relevant duties Ms. Adams had performed prior to

the interviews were: taking inventory; tracing and reconciling

any discrepancies in inventory; servicing property cust odians;

coordinating with schools; purchasing; bookkeeping; warehouse

and grounds, and maintenance; tagging new equipment; transfer of

equipment when cost centers separate, move, or disband; and

working with various auditors. Mr. Haskins also had observed

Ms. Adams perform receiving, accounts payable, work on the

budget; other work involving accounts procedures and

mathematical computations. He observed that she kept her

secretarial and computer skills up - to - date and was very

knowledgeable of all the equi pment used in schools. Because of

the physicality of her then - current job position, he felt

Ms. Adams also had demonstrated the physical ability to lift 30

pounds, move equipment, and withstand extreme heat and cold.

Ms. Adams also demonstrated the abili ty to make decisions and to

work independently. She was familiar with the relevant computer

program, the SA 400 , and had been authorized to use it since

2000.

56 . Ms. Minnix and Ms. Harper agreed with Mr. Haskins'

assessment of Ms. Adams as the most q ualified applicant for the

position.

57 . In an attempt to establish a pattern of racial

discrimination by Mr. Haskins, Ms. Elliot testified that years

prior to her retirement, Mr. Haskins had given her a choice of

selecting whom she wanted to assist in her office and had

approved her selection of Ronnie Calloway, an African - American

male, to assist her instead of Jane Adams. ( See Finding of Fact

33 .) This does not pass muster as discrimination against

African - Americans. Ms. Elliot then testified th at on multiple

occasions , several Caucasian male employees called Mr. Calloway

"Shine;" that Mr. Haskins heard them; and that Mr. Haskins,

himself, had referred to Mr. Calloway as "Shine." Mr. Haskins

vehemently denied ever using that term. Mr. Haskins t estified

without refutation that he had overheard another employee use

that term toward Mr. Calloway, and thereafter, in the presence

of several other employees, he had reprimanded the employee for

using the racially derogatory nickname. Mr. Calloway neve r

reported any further problems to Mr. Haskins, so Mr. Haskins

believed the problem with the nickname "Shine" had been

resolved. Ms. Elliot conceded that Mr. Ca l l oway previously told

her he was not offended by the nickname, anyway.

58 . Likewise, to establish a pattern of racially disparate

treatment, Ms. Elliot asserted that an African - American male who

smelled of alcohol was fired, while three Caucasian males who

smelled of some controlled chemical substance were not fired.

Her evidence on this iss ue was not corroborated by anyone, and

it was not clearly indicated what was known by Mr. Haskins or

anyone else in management about any of the four men.

59 . Petitioner believed that Mr. Haskins did not select

her for the Property Control Specialist posi tion because of her

race. She testified that she did not know of any African -

American females that Mr. Haskins had ever hired; knew of only

two African - American males he had hired; and believed that none

of the African - American males Mr. Haskins had hired worked

inside the office , as opposed to working in the warehouse or in

the grounds.

6 0 . Petitioner admittedly was unaware of how many

individuals Mr. Haskins had hired in the last 20 years, of how

many African - Americans applied for open positions under

Mr. Haskins' supervision or control during that time, or of any

instance where Mr. Haskins hired a less qualified Caucasian

candidate over a more qualified African - American candidate.

6 1 . The greater weight of the evidence demonstrates that

Mr. Haski ns has hired at least 20 African - Americans for

positions under his supervision in the Warehouse and Grounds

Department, including Petitioner's daughter for a summer job.

The evidence also demonstrates that there were only three

employees who actually work ed in the office setting for the

majority of the day. Of those positions, there was very little

turnover. Caucasians have been hired to replace Caucasians

recently.

6 2 . However , the credible evidence as a whole demonstrates

that Mr. Haskins hired Ronni e Calloway as an assistant Property

Control Specialist in the office upon Ms. Elliot's request, and

hired Archie Mitchell, who worked in the warehouse. Both were

African - American males.

6 3 . One element of office turnover appears to have been

Bernice Od ums, an African - American female fiscal assistant, who

voluntarily took early retirement six months to a year after a

reorganization placed her in Mr. Haskins' office, under the

supervision of, or at least in close contact with, Ms. Harper

and Ms. Minnix. Ms. Elliot and Ms. Womack credibly represented

that Ms. Odums was desperately unhappy due to her relocation and

the atmosphere in the W arehouse and Grounds Office. However,

whether Ms. Odums' extreme unhappiness was the result of the

physical move of her office , was the result of being overseen by

others as opposed to being in charge of fiscal matters in the

way she had been previously, was the result of having a mere

secretary with no prior fiscal experience placed over her as a

superior, was the result o f personality problems among the

women , was the result of racial animus , or was the result of

something else entirely is simply not clear. No racial reason

for Ms. Odums' tearful retirement was clearly proven.

CONCLUSIONS OF LAW

6 4 . The Division of Admin istrative Hearings has

jurisdiction over the parties and subject matter of this cause,

pursuant to Sections 120.57(1), 120.569, and 760.11, Florida

Statutes.

65 . Florida law prohibits employers from discriminating

against employees on the basis of race.

66 . Disparate treatment claims require proof of

discriminatory intent either through direct or circumstantial

evidence. See Harris v. Shelby County Board of Education , 99

F.3d 1078 (11th Cir. 1996), which observed that "a plaintiff

must, by either dire ct or circumstantial evidence, demonstrate

by a preponderance of the evidence, that the employer had a

discriminatory intent to prove disparate treatment claim."

67 . To establish a prima facie case of discriminatory

failure to promote based on circumsta ntial evidence, Petitioner

must show: (1) that she is a member of a protected class; (2)

that she was qualified for and applied for the promotion; (3)

that she was rejected; and (4) that another equally or less

qualified employee who was not a member of t he protected class

was promoted. See Barron v. Federal Reserve Bank of Atlanta ,

129 F. Appx. 512 (11th Cir. April 19, 2005, citing Denney v.

City of Albany , 247 F.3d 1172, 1183 (11th Cir. 2001). Once the

complainant establishes the prima facie case of di scriminatory

failure to promote, Respondent has the burden of producing a

legitimate, non - discriminatory reason for its decision. Cooper

v. Southern Co. , 390 F.3d 695, 725 (11th Cir. 2004) , reversed in

part on other grounds in Ash v. Tyson Foods, Inc . , 12 6 S. Ct.

1195 (February 21, 2006), discussed infra. If such a reason is

produced, the Petitioner has the ultimate burden of proving the

reason given by the employer to be a pretext for unlawful

discrimination. See Denney v. City of Albany , supra .

68 . He rein, Petitioner has demonstrated a prima facie case

of discrimination based on race, in that she is a member of a

protected class (African - American); she qualified for and

applied for the position of Property Control Specialist ; she was

not hired for the position; and a Caucasian female with less

fiscal experience received the promotion.

69 . In reaching the foregoing conclusion of law, the

undersigned has given Petitioner the benefit of the doubt that

fiscal experience was an important criteri on in this hiring

decision. However, the evidence is clear that fiscal experience

of the secretarial type that Petitioner possessed was not a high

priority, if considered at all, by the interview committee and

the decision - maker, Mr. Haskins .

7 0 . More to the point, however, is that Respondent has

presented a legitimate non - discriminatory reason for hiring the

Caucasian female, Ms. Adams. According to Mr. Haskins, he

believed that Ms. Adams was the most qualified applicant for the

job based on her knowledge of the p osition, her experience, and

her personality and attitude.

7 1 . In rebuttal of Respondent's stated reasons for denying

Petitioner a promotion, the Petitioner put forth two arguments:

First, she asserted that a pattern of discrimination existed, in

that ov er a 17 - year period, Mr. Haskins had never hired an

African - American. This was not proven. Second, Petitioner

asserted that Ms. Adams had less experience, was less

knowledgeable in the area of property control and the school

system, was not part of the p urchasing unit, and was unfamiliar

with the procedures and guidelines set forth by the School

Board. However, the most that Petitioner was able to

demonstrate was that there were disparities in Petitioner's and

Ms. Adams' qualifications. Prior cases have held that

d isparities in qualifications are not enough, in and of

themselves, to demonstrate discriminatory intent , unless those

disparities are so apparent as to virtually "jump off the page

and slap you in the face." See Cooper v. Southern, Co. , supra . ;

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

2000), citing Lee v. GTE Florida, Inc. , 226 F.3d 1249, 1253 - 54

(11th Cir. 2000). Within the last month , the United States

Supreme Court has articulated a less flamboyant test. In Ash v.

Tyson F oods, Inc. , supra , that court stated:

" The visual image of words jumping off the

page to slap you (presumably a court) in the

fac e is unhelpful and imprecise as an

elaboration of the standard for inferring

pretext from superior qualifications .

Federal cou rts, including the Court of

Appeals for the Eleventh Circuit in a

decision it cited here, have articulated,

various other standards, see , e. g . Cooper

supra ., at 732 (noting that " disparities in

qualifications must be of such weight and

significance that no reasonable person, in

the exercise of impartial judgment, could

have chosen the candidate selected over the

plaintiff for the job in question " (internal

quotation marks omitted)); Raad v. Fairbanks

North Star Borough School Dist. , 323 F.3d

1185, 1194 (CA9 2003) (holding that

qualifications evidence standing alone may

establish pretext where the plaintiff's

qualifications are " clearly superior " to

those of the selected job applicant); Aka v.

Washington Hospital Center , 332 U.S. App.

D.C. 256, 156 F.3d 1284, 1294 (CADC 1998)

( en banc ) (concluding the fact finder may

infer pretext if " a reasonable employer

would have found the plaintiff to be

significantly better qualified for the

job " ), and in this case the Court of Appeals

qualified its statement by suggesti ng that

superior qualifications may be probative of

pretext when combined with other evidence,

see 129 Fed. Appx., at 533 . This is not the

occasion to define more precisely what

standard should govern pretext claims based

on superior qualifications. Today 's

decision, furthermore, should not be read to

hold that petitioners' evidence necessarily

showed pretext. The District Court

concluded otherwise. It suffices to say

here that some formulation other than the

test the Court of Appeals articulated in

this cause would better ensure that trial

courts reach consistent results.

7 2 . Attempting to apply these directions, it is here

concluded that Petitioner probably did possess more fiscal -

related job experience and more recent fiscal - related job

experience th an Ms. Adams. However, two of the other

interviewees, one African - American female (Gore) , and one

Caucasian male (Miller) , also possessed more, or different,

fiscal experience than Ms. Adams and were likewise denied the

position. One Caucasian female (Su llivan) with similar, but

different experience , also was denied the position. One

Caucasian female (Parker) whose qualifications are not clear was

also denied the position. Under these conditions, a

discriminatory intent related to race is not so obvious as to

jump off the page and slap one in the face. In addition to

fiscal - related experience, which was not very important to him,

Mr. Haskins was looking for other qualifications, which he rated

more highly: flex i bility, the ability to get along with peop le

out in the field, and being a "good fit" with his current staff.

Given these additional considerations, Petitioner's

qualifications are not "clearly superior" to those of Ms. Adams

or any other candidate.

73. On the whole, it cannot be said that "no reasonable

person in the exercise of impartial judgment could have chosen

Ms. Adams over Petitioner."

7 4 . Apparently, Mr. Haskins hired Ms. Adams for the job of

Property Control Specialist on the basis of , at best, more

familiarity with her work ethic an d experience than sho w ed up in

the interview questions, or at worst, on the basis of old -

fashioned favoritism. Like it or not, this attitude of hiring

someone who is easy to get along with or who is personally

preferred by the one who does the hiring is n ot considered

unlawfully discriminatory, even where it benefits a friend or

relative at the expense of a more qualified, protected person.

See Neal v. Roche , 349 F.3d 1246, 1251 (10th Cir. 2003), citing

Brandt v. Shop'n Save Warehouse Foods, Inc. , 108 F.3 d 935, 938

(8th Cir. 1997). See also Department of Corrections v.

Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991) to the same

effect. Unlike Chandler , there are insufficient acts of prior

discrimination or of pattern discrimination herein to support a

conc lusion that race played any part in the promotion of

Ms. Adams over Petitioner.

75 . In Fl or ida , an employer may promote for any reason,

even a discriminatory one, provided the basis of his

discrimination is not one of the forbidden reasons listed in

Flo rida Statutes Section 760.10(1)(a): race, color, religion,

sex, national origin, age, handicap, or marital status.

Friendship, personality, and favoritism may not be good reasons

to promote, and they are certainly not fair reasons , but Chapter

760 does no t forbid them .

76 . Here, Petitioner scored lower in some areas than

Ms. Adams; in some, she scored higher. She was never the second

highest scorer. The second highest scorer was ano t her African -

American female. Petitioner would not be entitled to the

p osition under any construction of the facts , and she has not

demonstrated that the reasons given by the Respondent for the

promotion of Ms. Adams were a pretext .

77 . The burden of proof is upon Petitioner. A burden of

production only is upon Respondent. Respondent having produced

evidence of a non - discriminatory reason for the employment

action taken, and Petitioner having been unable to refute same,

Petitioner cannot prevail.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

La w, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief and

Charge of Discrimination.

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

Tallahassee, Leon County, Florida.

S

______________ _____________________

ELLA JANE P. DAVIS

Administrative Law Judge

Division 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.u s

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of April, 2006.

ENDNOTES

1/ This Finding of Fact is made o n the weight of the credible

evidence as a whole and is contrary to Petitioner's testimony

that Ms. Adams adminis tered the typing test to Petitioner.

2/ This latter statement is not credible in that of the six

finalists (interviewees) selected by Mr. Haskins in 2003 - 2004,

at least three were fiscal assistants.

3 / This F inding of Fact is directed specifically to t he

testimony about Mr. Haskins' hiring and promotion practice s.

S ee also F indings of F act 57 - 6 3 , concerning testimony about

Mr. Haskins ' racial attitudes, generally.

4 / On rebuttal, P etitioner attempted to show that she was not

loud or confrontational o n this topic and that the discussion of

trucks ( see F inding of F act 5 0 ) never occurred in the interview.

The former explanation is a matter of opinion. The latter

explanation is not persuasive.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida C ommission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry H. Colleton, Esquire

The Co lleton Law Firm, P.A.

Post Office Box 677459

Orlando, Florida 32867

Stephenie J. McCulloch, Esquire

McLin & Burnsed, P.A.

Post Office Box 491357

Leesburg, Florida 34749 - 1357

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.