07-000794 Mary L. Young vs. Florida Agricultural And Mechanical University Status: Closed Recommended Order on Wednesday, June 25, 2008.

Summary: Petitioner failed to establish prima facie case of race discrimination because she did not show that she was qualified for tenure and promotion, due to lack of accepted publication articles, or that Respondent`s reason for tenure denial was pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY L. YOUNG, )

)

Petitioner, )

)

vs. ) Case No. 07-0794

)

FLORIDA AGRICULTURAL )

MECHANICAL UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal proceeding and hearing as

noticed, before P. Michael Ruff, duly-designated Administrative

Law Judge of the Division of Administrative Hearings in

Tallahassee, Florida, on February 19 and 20, 2008. The

appearances were as follows:

APPEARANCES

For Petitioner: Mary L. Young, pro se

Post Office Box 5452

Tallahassee, Florida 32314

For Respondent: Elizabeth T. McBride, Esquire

Florida A & M University

Office of the General Counsel

Lee Hall, Suite 300

Tallahassee, Florida 32307

STATEMENT OF THE ISSUES :

The issues to be resolved in this proceeding concern whether an unlawful employment practice was imposed upon the

Petitioner by the Respondent, based upon her race, through a

denial of her tenure and resultant termination from employment,

as well as whether the Petition for Relief was timely filed, and

therefore jurisdictional.

PRELIMINARY STATEMENT

This cause arose when the Petitioner, Mary L. Young, was

informed by the Florida Agricultural and Mechanical University

(FAMU) (Respondent), that her employment would be terminated as

of May 6, 2006. The letter by which she was so informed was

dated June 22, 2005. The reason for her termination was

described in that letter as being that the Petitioner had not

met the Respondent's requirements for academic tenure, and

therefore continued employment. This is because the applicable

rules related to such academic status require that faculty in a

tenure-earning position must be nominated for tenure by the end

of six years of continuous, full-time service, or given notice

that further employment will not be available if tenure is not

to be granted. Fla. Admin. Code R. 6C-5.940(1)(e) and 6C3-

10.211(5)(a).

On September 1, 2005, the Respondent University advised the

Petitioner that she was being denied tenure because of

insufficient documentation of any scholarly publications. She

was also advised in that letter of her right to appeal the

University's decision, as outlined in its complaint procedure in

Florida Administrative Code Rule 6C3-10.232. Apparently the

Petitioner requested a review of her application in order to

alter the decision in her favor, amounting to a "step one

review" request. Dr. Debra Austin, then the University's

Provost, advised the Petitioner by letter of December 5, 2005,

that the step-one review had been completed and that the

Respondent University would not recommend her for tenure. It

again advised her of her right to "appeal" to the Interim

President, or the Division of Administrative Hearings, within 30

days of receiving the Respondent's letter. That letter included

direction on how to request a formal proceeding with the

Division of Administrative Hearings.

According to Ms. Austin, the reviewer for the step-one

review had agreed that the Petitioner did not satisfy the tenure

requirements, referenced above, for scholarly publications,

although that reviewer recommended the Petitioner to receive

tenure based on her years of service. There is no provision in

the relevant tenure rule or regulations of the University,

however, providing for the substitution of years of service for

the scholarly publications proof requirements. Years of service

do not substitute for the requirement for the number of

scholarly publications referenced in the rule.

The Petitioner thereafter had a meeting with the Interim

President of the University, Dr. Castell Bryant, on March 8,

2006, concerning reconsideration of her tenure application. The

Petitioner was informed by the Respondent, by letter of April 3,

2006, that the tenure decision would not be reversed and the

University would maintain its position of recommending denial of

tenure to the University Board of Trustees. The Board of

Trustees makes the final decision in tenure application

situations.

The Petitioner thereafter filed a Charge of Discrimination

on July 7, 2006, with the Florida Commission on Human Relations

(Commission). She alleged in that filing that she was denied

tenure based upon her age and sex and that the failure to grant

tenure also involved discriminatory retaliation.

Thereafter, on October 30, 2006, she filed another charge

of discrimination with the Commission, alleging this time that

the failure to grant tenure was based upon her race.

A Determination of "No Cause" was issued by the Commission

regarding the claim of age, sex discrimination and retaliation

by its Notice of January 8, 2007. The Petitioner filed a

Petition for Relief from that decision by the Commission on

February 12, 2007, and the Petition was referred to the Division

of Administrative Hearings on February 15, 2007, and given Case

Number 07-0793.

Another Notice of Determination was issued by the

Commission concerning the second filed Charge of Discrimination

based upon the Petitioner's race. That Notice was entered by

the Commission on January 10, 2007. The Petitioner filed a

Petition for Relief concerning that determination, regarding the

racial discrimination charge, on February 12, 2007. It was also

referred to the Division of Administrative Hearings and given

DOAH Case No. 07-0794. The two cases were consolidated by Order

of the Administrative Law Judge on May 18, 2007.

This case was set for hearing three times, on May 8, 2007,

October 25, 2007, and November 15, 2007. Each of those hearings

was cancelled and the case continued, based upon cause shown,

and by agreement of the parties. The delay in completing the

formal hearing was addressed by the Order of the undersigned

entered November 13, 2007, referencing delays in discovery,

primarily caused by the Petitioner's failure to respond to the

Respondent's Request for Production and Petitioner's counsel's

withdrawal from the case, which was granted, several months

previously. The parties were advised that no additional

discovery delays would be entertained, and by subsequent Notice

of Hearing the matter was set for hearing on February 19, 2008,

and heard on that day and February 20, 2008.

In the meantime, the Petitioner voluntarily dismissed DOAH

Case No. 07-0793 on or about June 22, 2007. Thus the case

proceeding to hearing was only that related to the charge of

discrimination based upon race, embodied in the Case No. 07-

0794.

The cause came on for hearing as noticed, at which the

Petitioner testified on her own behalf. The Petitioner also

presented 14 exhibits, 12 of which were admitted into evidence,

and presented the testimony of four witnesses in addition to

herself. Petitioner's Exhibits 12 and 13 were not admitted on

the basis of being inadmissible hearsay.

The Respondent's exhibits A through G and I through K, as

well as H, L, M, and P were admitted into evidence, for a total

of 14. The Respondent presented the testimony of five

witnesses.

Upon concluding the proceeding, the parties ordered a

Transcript thereof. The parties also requested an extended

schedule for submitting proposed recommended orders.

Thereafter, one extension thereof was requested and obtained.

The Proposed Recommended Orders were timely submitted and have

been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, at times pertinent hereto, was an

Assistant Professor of Business Education. She was employed by

the Respondent, FAMU and had worked in that capacity for a

number of years since 1988, prior to which she had been employed

by the Respondent University as an instructor. The Respondent,

FAMU, is a university which is a part of the State of Florida

University system, administered by the Board of Governors of the

State University System, as well as its own Board of Trustees.

2. The Petitioner was employed by the Respondent since

1983. She began as an instructor but was promoted to Assistant

Professor of Business Education in 1988. In January 1999, she

began working in a tenure-earning position as an Assistant

Professor in the College of Education's Department of Business

and Technology Education. She also served as chair of the

department from 1998 through 2004.

3. Florida Administrative Code Rules 6C-5.940(1)(e) and

6C3-10.211(5)(a) allow a period of six years during which one

situated as the Petitioner, in a tenure-earning position, in

continuous, full-time service, must earn and be granted tenure.

If tenure is not earned and granted during that period, the

Respondent must give notice to such an employee that further

employment beyond the end of the seventh year of employment,

without tenure, is not possible.

4. The Petitioner applied for tenure on September 17,

2004. That tenure application was denied, which engendered the

dispute involved in this proceeding. Prior to that application,

however, at some point during her employment in a tenure-earning

position, the Petitioner had previously applied for tenure, but

the previous application had also been denied. That denial was

presumably with leave for her to re-apply for tenure at a later

time during her six year tenure-earning time period.

5. After the Petitioner began her employment she received

a copy of the applicable tenure criteria. The tenure criteria

for scholarly publication require that a tenure candidate show

that at least three publications by that candidate have at least

been accepted for publication or have actually been published.

Publications include books, monographs, and articles in

national, regional, state or local journals, which meet peer

review requirements. The publication requirements also mandate

additional publication credit, which may include individual

citations in quotations in a text or credits for scholarly

endeavors. The requirements also contain the condition that at

least two papers must be presented at state, regional or

national professional meetings.

6. The Petitioner's tenure application was submitted on

September 17, 2004, and included references to three

publications used by the Petitioner as meeting the publication

requirements for tenure: a) a project for spring 2005 entitled

"Professional Report Writing" with reference to Thomson

Publishing Company; b) a 2005 project entitled "English and

Grammar Skills Review for Business" also with reference to

Thomson; and c) a 2005 project entitled "Charles Spencer Smith,"

with reference to the "Oxford Press."

7. During the hearing, in her Exhibits 10 and 11, the

Petitioner presented the cover pages of two of the projects, the

"Professional Report Writing" text, as well as the "English and

Grammar Skills Review for Business" text, in an attempt to prove

compliance with the publication requirement for tenure. There

was no showing, however, that the Respondent was provided with

any documentation by the Petitioner during the tenure

application process showing that these publications had been

accepted by publishers for any of the projects.

8. In September 2004, the Tenure and Promotion Committee

within the College of Education (COE) was composed of Chair-

Person Dr. Mary Newell, Dr. Arland Billups, Dr. Bernadette

Kelly, Dr. Maria Okeke, and Dr. Theresa Shotwell. Dr. Shotwell

did not vote on the Petitioner's tenure application to avoid the

appearance of impropriety because she was chair of the

department to which Petitioner belonged at the time.

9. The COE Tenure and Promotion Committee considered the

tenure application of the Petitioner and a secret ballot was

held, resulting in a unanimous vote against granting tenure.

The four members who testified in this hearing stated that they

were not motivated by considerations of race when they

considered the Petitioner's application.

10. Once the individual college tenure and promotion

committee votes on a tenure application, the matter is elevated

for consideration by the University-Wide Tenure and Promotion

Committee (University Committee). That committee considered the

Petitioner's application for tenure on January 18, 2005, and

voted to recommend approval of the application for tenure by a

vote of 10 yeas, 1 nay, and 2 abstentions.

11. The University Committee then considered the

Petitioner's application for promotion from Assistant Professor

to Associate Professor, on February 23, 2005. That promotion

apparently requires approval of tenure status, because the

committee voted to recommend denial of the application for the

promotion.

12. During the time the Petitioner's tenure and promotion

applications were pending, Dr. Larry Robinson served as the

Vice-President of Academic Affairs and as Provost of the

university. Dr. Robinson reviewed the Petitioner's tenure

application after the University Committee and recommended

against granting her tenure. His decision, according to his

testimony, was not racially motivated, but rather he explained

that the Petitioner's application was recommended to be denied

by him because he to thought it lacked sufficient documentation

of scholarly publications.

13. The Interim President of the Respondent University

during the time the Petitioner's tenure and promotion

applications were pending was Dr. Castell Bryant. Dr. Bryant

was responsible for making a final review or consideration at

the University level, taking into account recommendations of the

tenure committees reporting to her. She then had the duty to

nominate for tenure, or to decline nomination, to the

University's Board of Trustees. The Board of Trustees had the

authority to make final decisions concerning tenure

applications. The Board would not consider a tenure application

without a nomination by the University President.

14. Dr. Bryant did not nominate the Petitioner for tenure

to the Board of Trustees. She informed the Petitioner by letter

of June 22, 2005, that the Petitioner's application for tenure

was not approved for submission to the Board of Trustees.

Dr. Bryant's letter to Dr. Young, in which she denied tenure,

seems to indicate that Dr. Bryant was under the misapprehension

that the University Committee had voted against recommending

tenure when, in fact, it had voted in favor of tenure.

Nonetheless, Dr. Bryant declined to nominate the Petitioner for

tenure to the Board of Trustees, which act constituted a final

denial, subject to the Petitioner's review rights concerning the

decision.

15. Dr. Deborah Austin was the Provost and Vice-President

for Academic Affairs after Dr. Robinson left that position in

September of 2005. She was requested to review the Petitioner's

tenure denial, so Dr. Austin requested a "step-one grievance"

reviewer, Dr. Charles MaGee, to review the Petitioner's tenure

application.

16. Dr. McGee found that the Petitioner's application did

not satisfy the College of Education's tenure criteria

(concerning scholarly publications) but he did recommend that

the Petitioner actually receive tenure based upon her many years

of service. Dr. Austin, however, did not agree with his

assessment. She stated that the requirements for tenure don't

provide for a substitution of the tenure criteria concerning

scholarly publications and sponsored research, for years of

service.

17. In her letter of December 5, 2005, to the Petitioner

Dr. Austin stated this reason for disagreement with Dr. McGee's

assessment. She informed the Petitioner that this was the

second time that she had applied for tenure and that, indeed,

most faculty members are not given more than one opportunity to

apply for tenure at the University. In that letter she also

informed the Petitioner that she could file an appeal of the

decision with Dr. Bryant within 30 days of receipt of the "step-

one response" or file for an Administrative Proceeding with the

Division of Administrative Hearings. She also advised the

Petitioner of the steps to take in order to file a request for a

proceeding before the Division of Administrative Hearings.

18. Dr. William Tucker who testified on behalf of the

Petitioner, and who has participated in faculty tenure review

committees during his years at FAMU, pointed out that Dr.

Bryant, the Interim President, had somehow misunderstood the

university committee's vote. Dr. Tucker, however, indicated

that he agreed with Dr. Austin that 22 years of service does not

suffice as a criterion for granting tenure, although he did not

agree with Dr. Austin's conclusion on the issue of tenure. The

Petitioner sent a letter to Dr. Bryant requesting an appeal of

Dr. Austin's decision (to Dr. Bryant) on January 4, 2006. She

enclosed with that letter the cover pages for two of her

projects and indicated that she thought they would serve as

documentation for two of three publications needed for tenure.

On April 3, 2006, Dr. Bryant sent a letter to the Petitioner as

a follow-up to a meeting between those two on March 8, 2006,

regarding re-consideration of the Petitioner's tenure

application. Dr. Bryant indicated in that letter that, after

thorough review of her tenure application package, Dr. Bryant

found no reason to reverse the tenure decision previously made.

19. The Petitioner contends that a comparator employee,

Dr. Nancy Fontaine, was given an additional year to apply for

tenure when she failed to achieve tenure and that the Petitioner

was not accorded that opportunity. Dr. Fontaine is white. The

Petitioner thus maintains that Dr. Fontaine was treated better

than she and is a comparator employee outside her protected

class.

20. The Petitioner's evidence, however, does not establish

that Dr. Fontaine and the Petitioner are actually similarly-

situated employees. The Petitioner was not sure why

Dr. Fontaine was initially denied tenure, but stated in her

testimony that Dr. Fontaine was given another year to write an

article or whatever she needed to do to qualify for tenure. The

Petitioner did not, however, show that Dr. Fontaine lacked the

same number of scholarly publications that the Petitioner lacked

at the time of the tenure application, or that lack of

publications was even the reason for Dr. Fontaine's initial

tenure denial. She expressed no clear information in her

testimony or other evidence as to what frailty, or degree of it,

attended Dr. Fontaine's tenure application which was initially

denied.

21. Moreover, the Petitioner had a six-year period, as

would any university personnel in tenure earning positions, to

apply for tenure and then to re-apply if tenure were not granted

on the first effort. The Petitioner, however, during that six-

year period did not satisfy the Respondent's written scholarly

publication requirement.

22. The Petitioner adduced no persuasive evidence to show

at what point in her tenure-seeking effort Dr. Fontaine was when

she was denied tenure, and then given an additional year to earn

tenure. It may be that Dr. Fontaine had a substantial portion

of her six-year allowable period for tenure-earning still ahead

of her. The evidence does not show.

23. In any event, although the Petitioner attempts to

compare the results of Dr. Fontaine's grievance process

regarding her tenure denial to the Petitioner's application

process, denial, and ultimate result, by way of showing

disparate treatment, the evidence still does not show that

Dr. Fontaine is a similarly-situated employee. When she was

denied tenure, the Petitioner asked for a review of that

decision and was granted one. As a result of that review,

Dr. McGee recommended her for tenure, but acknowledged that she

did not meet the requirement for scholarly publication. His

recommendation had no binding effect, in any event, with regard

to the Provost's and the Interim President's ultimate decision

on the matter. Despite his recommendation, Provost Austin and

Interim President Bryant chose not to grant tenure to the

Petitioner on the basis of her publication deficiencies.

24. Dr. Fontaine, on the other hand, used the complete

grievance process under the university rules to file a complaint

against the university pursuant to Florida Administrative Code

Rule 6C3-10.232. During this process Dr. Fontaine requested

additional time to apply for and earn tenure and, as a result,

in a settlement of the dispute by settlement agreement,

Dr. Fontaine was given another year to apply for tenure. The

Petitioner, however, although being informed by Provost Robinson

in his September 1, 2005, letter to the Petitioner that she

could use that process, chose not to do so. The Petitioner also

conceded that she did not request additional time to satisfy

tenure requirements.

25. Therefore, the Petitioner and Dr. Fontaine are not

truly comparable and similarly-situated employees in the above-

referenced particulars.

26. Parties settle litigation for many reasons. Often the

motivations are grounded in practicalities, such as limitation

of litigation expenses balanced against the perceived likelihood

of a successful litigated result. There is no evidence that the

decision by FAMU to enter into a settlement agreement with

Dr. Fontaine, whereby she was accorded additional time to

qualify for tenure, was predicated, in any way, on

Dr. Fontaine's race. There is no sufficiently detailed evidence

to support a finding that the factual circumstances of

Dr. Fontaine's tenure application, and its grant-versus denial

consideration, were substantially similar to that of the

Petitioner's.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2007).

28. In view of the conclusions below concerning

jurisdiction of the subject claim, it would not appear that

jurisdiction has been established, pursuant to Section

760.11(1), Florida Statutes (2007). Nonetheless, an analysis

and discussion of the parties' evidence, and conclusions of law

on the merits of the claim and the defense against it, are made

infra as well.

29. In resolving such disputes Florida and federal courts

have determined that Chapter 760, Florida Statutes, closely

mirrors Title VII of the Civil Rights Act of 1964, as amended,

at 42 U.S.C. Section 2000E et seq . and therefore that federal

decisions interpreting Title VII and applying it to case

situations of similar factual and legal issues, are persuasive

when construing Florida Civil Rights claims arising under

Chapter 760, Florida Statutes. See Florida Department of

Community Affairs v. Bryant , 580 So. 2d 1205 (Fla. 1st DCA

1991); and Harper v. Blockbuster Entertainment Corp. , 139 F.3d

1385, 1387 (11th Cir. 1998). A complainant must file a

complaint with the Florida Commission on Human Relations

(Commission) within 365 days of the alleged violation, pursuant

to Section 760.11(1), Florida Statutes. The initial charge in

this instance was filed on July 7, 2006, wherein the Petitioner

charged discrimination based upon age and gender as well as

retaliation. That claim however, was dismissed as to all three

of those reasons. A second and separate charge involving racial

discrimination was filed on October 30, 2006. This charge has

been challenged as being untimely and therefore non-

jurisdictional. That second charge identified the date of the

most recent discrimination as having occurred June 22, 2005.

The charge therefore should have been filed no later than

June 22, 2006, in order to be jurisdictional.

30. The Petitioner had argued that this was merely an

amendment to the original charge (although it was processed by

the Commission as a separate case) but the Respondent countered

by arguing that the new charge was not legally encompassed by

the initial charge filed on July 7, 2006, which had been based

on sex and age discrimination. Although racial discrimination

might be fairly embraced by an initial charge of national origin

discrimination, no federal or state decisional law or other

authority has been cited for the proposition that a racial

discrimination charge is reasonably contemplated as being a sub-

set or related charge to an initial charge of gender or age

discrimination.

31. The Petitioner argued during the hearing that she had

decided to include a allegation of racial discrimination only

after discovering that a white professor, Dr. Nancy Fontaine,

had been allowed an additional year to seek and earn tenure.

This extension was granted to Dr. Fontaine in 2003. Once an

employee has notice and believes that there has been an improper

motive for an employment decision, then the employee must bring

allegations related to that decision with the filing of the

charge in the proper time period.

32. The Petitioner conceded at hearing that she had heard

about Dr. Fontaine's situation, and the granting of more time to

earn tenure, within approximately the first year after

Dr. Fontaine's extension was granted. Evidence has shown that

the extension was granted in 2003. The Petitioner therefore

would have learned of Dr. Fontaine's extension by some time in

2004 or, at the very latest, in early 2005. Since the

Petitioner filed her initial charge in July 2006, she already

knew of Dr. Fontaine's being granted the additional year for

tenure earning before she filed her initial charges and

therefore could have filed the race-related charge at that time

and did not. Her claim for racial discrimination is thus time-

barred pursuant to the above statutory section. See Williams v.

Shands at Alachua General Hospital and Santa Fe Health Care ,

DOAH Case No. 98-2539 Recommended Order January 8, 1999; (Final

Order filed July 16, 1999) (striking as untimely a Petitioner's

attempt to add age to a Petition for Relief filed after

receiving a "determination of No Cause" on an initial charge of

race discrimination); Haynes v. State of Florida, Department of

Insurance , 11 FLLW F. D497 (So. Dist. Fla. 1998) (holding that a

later-filed FCHR age discrimination and retaliation claim did

not amend a plaintiff's original equal employment opportunity

commission complaint based upon race discrimination; also

finding that the age discrimination and retaliation claims were

not reasonably related to the plaintiff's original race

discrimination claim to permit consideration of those claims

outside of the EEOC 300-day limitations period for filing).

33. There is no basis to apply the Doctrine of Equitable

Tolling based upon the evidence. The Petitioner initially

claimed and testified that she did not know about Dr. Fontaine

and her situation prior to filing her initial charge with the

Commission. The Petitioner later testified that she simply

forgot to add race as a charge when she filed her first charge

of retaliation and gender and age discrimination. This

contradicts her initial contention that she was unaware of

Dr. Fontaine's situation, involving a second chance to earn

tenure, at the time the Petitioner filed her original FCHR

charge.

34. There was no evidence to show, however, that she was

duped or misled into not timely filing the charge of racial

discrimination at issue in this case, which was filed on

October 30, 2006, almost four months after the expiration of the

365-day period for filing the Charge. There were no other

extenuating circumstances to justify her failure to file the

charge of racial discrimination based upon the Dr. Fontaine

situation, within 365 days of June 22, 2005, or earlier when she

was on notice of Dr. Fontaine's situation. The Doctrine of

Equitable Tolling would therefore not apply.

35. The limitations period in Chapter 760, Florida

Statutes, begins to run when the Petitioner knew or reasonably

should have known that she was discriminated against. Wakefield

v. Cordis Corp. , 211 Fed. Appx. 834, 836 (11th Cir. 2006);

Carter v. West Publishing Company , 225 F.3d 1258, 1265 (11th

Cir. 2000). Even if the Petitioner was unaware of all the facts

regarding the mechanisms of the alleged discrimination,

equitable tolling would be inappropriate if the Petitioner was

aware that the Respondent was purportedly violating her right to

be free from racial discrimination in her employment. See Ross

v. Buckeye Cellulose Corp. , 980 F.2d 648, 660 (11th Cir. 1993).

Equitable tolling is an extraordinary remedy that is applied

sparingly. Wakefield v. Cordis Corp. , supra . The Petitioner

bears the burden of showing it to be appropriate. Ross v.

Buckeye Cellulose Corp. , supra , at 661. There was no showing

that action of the Commission, the Respondent, or any other

person or entity induced the Petitioner to thus delay exercising

her rights under Chapter 760, Florida Statutes. "One who fails

to act diligently cannot invoke equitable principles to excuse

that lack of diligence." Justice v. U.S. , 6 F.3d 1474, 1480

(11th Cir. 1993) citing Baldwin County Welcome Center v. Brown ,

466 U.S. 147, 151-152 (1984). Inasmuch as the racial

discrimination claim at issue in this case was not timely filed,

it must be deemed to be barred and the case should be dismissed

on that basis for lack of jurisdiction.

36. Assuming arguendo that the claim is not so barred, an

analysis will be made concerning whether the Petitioner

presented a prima facie case of racial discrimination, whether

the Respondent articulated and advanced a legitimate, non-

discriminatory reason for the employment action taken and,

finally, whether the Petitioner, in the face of that showing,

came forward with evidence to show that the Respondent's reasons

for the denial of tenure and promotion, were a pretext for what

really amounted to racial discrimination. In this regard the

cases of Texas Department of Community Affairs v. Burdine , 450

U.S. 248 (1981); and McDonnell-Douglas Corporation v. Green , 411

U.S. 792 (1973) are instructive as to the elements of proof, the

shifting burdens of going forward with evidence and the ultimate

burden of proof or persuasion. See also St. Mary's Honor Center

v. Hicks , 509 U.S. 502 (1993). A Petitioner may establish a

prima facie case with statistical proof of a pattern of

discrimination or direct evidence of discrimination, or the

Petitioner may rely on circumstantial evidence to establish

discriminatory intent.

37. In order to prove a prima facie case the Petitioner

must prove that she is a member of a protected class; that she

was qualified to do her job or attain the status sought,

(tenure); that she was subjected to an adverse employment

action; and that her employer treated similarly-situated

employees who were outside of her protected class more

favorably. The Petitioner has shown that she is a member of a

protected class as a minority or a Black employee and that she

was subjected to an adverse employment action involving the

denial of tenure. She does not offer persuasive evidence

showing that she was qualified for tenure, however. Therefore,

she does not meet the qualification standard referenced as part

of the prima facie showing required by case law, nor does she

establish that the purported comparator employee, who is not a

member of her protected class, was actually a similarly situated

employee who was treated more favorably.

38. Concerning the second criteria referenced above for

establishment of her prima facie case for disparate treatment

discrimination, the Respondent's College of Education tenure

criteria applicable to the Petitioner and her situation in this

case outline the requirements for scholarly publications as

follows:

In the College of Education, faculty members

in a tenure earning position-Assistant

Professor, Associate Professor and

Professor-are eligible for tenure.

Criteria are as the following:

4. Scholarly publication

(A) Publishes or shows acceptance of at

least three publications including books,

monographs, articles in local, state,

regional and national journals, and others

which meet the peer review process.

Abstracts/proceedings are not included.

(Exhibit C in evidence).

39. Evidence adduced at the hearing and culminating in the

above findings of fact shows that the Petitioner did not meet

this criterion for the granting of tenure. The Petitioner's own

testimony and her January 4, 2006, letter to Interim President

Bryant revealed that she understood that three publications were

necessary. Pursuant to the greater weight of the persuasive

evidence, the Petitioner lacked the three necessary publications

as specifically required by the university's criteria.

40. The Petitioner listed the following three publications

on her application: (a) Professional Report Writing, First

Edition, Thomson Southwestern Publishing; (b) English and

Grammar Skills Review for Business, First Edition, Thomson; and

(c) Charles Spencer Smith, Oxford Press. The greater weight of

the persuasive, credible evidence shows that purported

publications did not meet the criteria because they were neither

published at the time tenure was applied for nor were they even

accepted for publication.

41. In an attempt to show that her first project met the

tenure criteria, the Petitioner produced a November 8, 2004,

contract between Thomson Custom Publishing and the Petitioner,

in evidence as Exhibit "M." The contract was not signed by the

Petitioner until November 17, 2004, however. Thus the

Petitioner's contract had not been established with Thomson

prior to her September 17, 2004, tenure application. The

Petitioner was unable to prove that the contract signified an

acceptance of a particular manuscript for publication.

Testimony from all four members of the COE committee, as well as

Dr. Robinson, indicated that the Petitioner did not submit a

manuscript or other evidence that Thomson promised to publish,

any of her work. Thus that project did not meet the published,

or accepted for publication, requirement specified in the tenure

criteria.

42. The Petitioner also contended that "Professional

Report Writing" was published by 2005 and that she was using the

text in her class during the Spring 2005 semester. These

assertions are not deemed accurate. The book itself was entered

into evidence as Exhibit "9." A review of the publication page

of the book reveals that it was not even published until 2006.

In view of the greater weight of the persuasive and credible

testimony and evidence, the Petitioner's assertion that she had

used the book during her spring 2005 class and had left a copy

of the book for Dr. Robinson to review prior to his making a

decision in his 2005 review of her application, as well as her

assertion that she had submitted copies of the cover of the book

along with her tenure application to the university committee,

is not factually accurate.

43. In order to substantiate her claim that her second

project, "English and Grammar Skills Review for Business," met

the tenure criteria, the Petitioner produced the same agreement

used in her attempt to substantiate her first publication. The

contract date again was November 8, 2004, which shows that she

had neither published the work, or received acceptance for

publication, prior to submitting her September 17, 2004,

application for tenure. Here again, the Petitioner did not show

that the project was either published or accepted for

publication as required by the tenure criteria.

44. Her third project was the biographical project

concerning Charles Spencer Smith. In order to substantiate her

use of that project as supportive of her compliance with the

tenure criteria, the Petitioner offered a letter from Harvard

University dated October 11, 2005, more than one year after her

application for tenure had been filed. She also submitted

copies of the covers for two papers, one on Charles Spencer

Smith and the other on William Henry Holtzclaw (Exhibit 7 and 8

respectively). These documents have no other date affixed

except the date 2004, and they contain no identifiable

publishing company markings. The Harvard University letter

indicated that the volume of work for which these articles were

submitted would not be published until 2008. The letter does

not otherwise show with certainty that the Petitioner's work was

accepted without any conditions. The date of the letter alone

shows that the Petitioner, at the time of filing her application

for tenure, did not have evidence that she had published the

Charles Spencer Smith article or that it had been accepted for

publication. She thus failed to show by submitting this

evidence that she had met the required scholarly publication

standard for tenure.

45. The testimony of the four members of the COE tenure

committee as well as that of Dr. Robinson, as Provost,

established that the Petitioner failed to meet the tenure

criteria for publications either published or accepted for

publication. Three of the Petitioner's witnesses also

acknowledged that letters or contracts from publishers alone do

not establish that an article or other scholarly work has been

actually accepted for publication.

46. The Petitioner has therefore not established that the

tenure criteria for scholarly publications has been met during

the time period available for tenure application and

consideration of the application. Thus, she has not established

that she was qualified to receive tenure and related promotion.

Therefore, the element of her prima facie case, referenced

above, concerning qualification for a position, or qualification

to receive tenure and promotion in this instance, has not been

established. Therefore that element of the prima facie case

fails and with it the Petition for Relief.

47. It is appropriate, however, to also address the

Petitioner's contention that Dr. Nancy Fontaine, a white

professor at FAMU, is an appropriate "comparator employee,"

"similarly situated" to the circumstances surrounding the

Petitioner's application, and more favorably treated by the

Respondent.

48. The Petitioner argues that Dr. Fontaine was given an

additional year to apply for tenure when it was initially

denied. Pursuant to the opinion in Maniccia v. Brown , 171 F.3d

1364 at 1562, (11th Cir. 1999), a petitioner must establish that

other non-minority employees used as comparators " . . . are

similarly situated in all relevant respects."

49. The difficulty with the Petitioner's position in this

regard is that she did not establish that Dr. Fontaine was

similarly situated. She did not establish through her testimony

or otherwise why Dr. Fontaine was initially denied tenure. It

may not have been related to publications at all, or it may have

been, but might have been a frailty of a different degree than

that of the Petitioner. It is pointless to speculate in this

regard because the evidence adduced does not establish the

precise reason for Dr. Fontaine's tenure denial, nor the reason

she was accorded an additional year to qualify for tenure.

50. It is noteworthy, as found above, that Dr. Fontaine

was accorded the additional time to qualify for tenure after her

denial as a result of a negotiated settlement, after she pursued

the entire course of the university's internal grievance

procedure. That in itself is a different circumstance from that

attendant to the Petitioner's application for tenure and her

efforts in obtaining review of her application denial. She did

not pursue the Respondent's internal grievance procedure as did

Dr. Fontaine.

51. The Petitioner also did not establish that

Dr. Fontaine lacked the same number of scholarly publications

approved that the Petitioner lacked, or that she lacked any at

all; rather, her tenure denial might have been for a different

reason. Moreover, it should be remembered that the Petitioner

had a six-year period to apply for tenure and then re-apply, but

still failed to satisfy the written criteria for tenure

established by the Respondent's rules.

52. Concerning Dr. Fontaine's pursuit of the grievance

procedure at FAMU, the Petitioner attempts to compare its result

with the result in her own case to show disparate treatment.

After being denied tenure the Petitioner was granted another

review, and as a result Dr. McGee recommended her for tenure,

but for a different reason (years of service). He acknowledged

that she did not meet the requirement for scholarly publication.

Despite the recommendation, both Provost Austin and Interim

President Bryant decided not to grant tenure because of the

publications deficiencies.

53. Dr. Fontaine, however, used the entire grievance

process by filing a complaint against the Respondent under

Florida Administrative Code Rule 6C3-10.232. Dr. Fontaine

requested additional time to establish tenure as part of this

grievance process and was given another year to establish

tenure. Provost Robinson informed the Petitioner in his

September 1, 2005, letter that she could use that same process

but Petitioner chose not to do so. The Petitioner also conceded

that she did not request additional time to satisfy the tenure

requirements. Therefore, it was not established that the

Petitioner and Dr. Fontaine were comparable employees as to the

methods they used to pursue their grievances against the

Respondent, and it cannot be concluded that the different

results they achieved were not due to the different methods they

used, in seeking to have their tenure application denials

reviewed.

54. In summary, the Petitioner has not established that

she and Dr. Fontaine were similarly-situated employees who were

treated disparately and, more favorably, in Dr. Fontaine's case.

Although Dr. Fontaine was not a member of the protected class

occupied by the Petitioner, it was not shown that, in being

treated differently by the employer in terms of her tenure

application and grievance review process, that she was similarly

situated to the Petitioner. Thus the Petitioner has not

established a prima facie case for this additional reason, as

further elucidated in the above findings of fact.

55. Assuming arguendo that a prima facie case of racial

discrimination has been proven by the Petitioner, the employer

then has the burden to produce evidence of a legitimate, non-

discriminatory reason for the adverse action. See St. Mary's

Honor Center v. Hicks , 509 U.S. 502, 506 (1993). The Respondent

established, with multiple witnesses, and documentary evidence,

the requirement for scholarly publications to be considered in

the process of determining awards of tenure and the Petitioner's

failure to meet that requirement. The Petitioner acknowledged

that she did not have approval for publications at the time of

her application and that she did not submit such proof during

the course of her appeal. In a January 4, 2006, letter to

Interim President Bryant wherein she asked for review of her

denial, the Petitioner only mentioned that she had documentation

for two of the three required publications. Neither this letter

nor other evidence received at hearing confirmed that the two

articles were actually published or accepted for publication.

The Petitioner did not establish that her application for tenure

showed that the articles had been accepted for publication.

56. If the requirement is that the Petitioner show

publication or acceptance of publication at the time application

for tenure is made, then merely signed contracts executed after

submitting an application cannot meet those requirements. The

Petitioner's publisher contracts were signed well after she

submitted her application and after the COE tenure and promotion

committee reviewed her application. Further, her manuscripts

were not submitted until after the contracts were signed. Thus

it was impossible for them to have been accepted for publication

even at the point the contracts were signed. Therefore, the

Respondent established its reasoning, in accordance with its

rules, for denying tenure, that the publication requirements had

simply not been met, after a six-year opportunity for the

Petitioner to do so.

57. If an employer/Respondent makes its showing of a

legitimate, non-discriminatory reason for the employment action

at issue, the burden to go forward with evidence contrary to

that shifts to the Petitioner, to show that the reason

articulated by the employer is a pretext for what was really a

discriminatory action. St. Mary's Honor Center , Id. at 515,

516. Normally this would be established by a Petitioner or

complainant by demonstrating that the reason asserted by the

employer is really false and that the real reason was

intentional discrimination. The Petitioner has not established

such a pretext in this case. She, in effect, has nothing but

her own view or opinion of the reasons for the university's

action to refute the evidence adduced by the Respondent's

witnesses, and to some extent, by her own witnesses.

58. She offered no evidence to show that any person

associated with the Respondent who had any duty, responsibility,

or effect on the tenure decision at issue, exhibited any

indicium of racial discrimination. A Petitioner's mere opinion

regarding the discriminatory basis or motivation for employment

action does not suffice to establish that discriminatory animus

was present with regard to the making of the decision. Earley

v. Champion International Corporation , 907 F.2d 1077 (11th Cir.

1990); William v. Hager Hinge Company , 916 F. Supp. 1163 (Middle

Dist. Ala. 1995).

59. Both Dr. Robinson and every member of the COE tenure

and promotion committee denied any consideration of race in

connection with their recommendation that the Petitioner be

denied tenure. At least two of the Petitioner's witnesses

corroborated the fact that race was not a consideration in the

review of the Petitioner's application and the ultimate denial

of her tenure. In view of the reasons found and concluded

above, there was no persuasive, credible evidence to show that

the Respondent's disparate decision with regard to Dr.

Fontaine's application for tenure, versus its decision with

regard to the Petitioner's request, was based on any

consideration of race.

60. The Petitioner herself even proposed a non-

discriminatory reason for her tenure denial, which was that

Dr. Shotwell disliked her and wanted her department chair.

Dr. Shotwell played no part in the proceedings according to the

evidence. She recused herself because she was the Petitioner's

department head. Even if she managed to influence the vote on

the Petitioner's tenure application, inasmuch as the COE tenure

and promotion committee voted unanimously to deny tenure, the

Petitioner still presented no evidence to show that it was

motivated by any racially discriminatory animus. The committee

decision was only a recommendation, in any event.

61. In summary, the Respondent has met its burden of

establishing a legitimate, non-discriminatory reason for the

employment action it took, in denying the Petitioner tenure and

related promotion because of her failure to meet the publication

requirement set by the Respondent university's rules. The

Petitioner, on the other hand, produced no credible, persuasive

evidence to show that the reason given by the Respondent for the

adverse action was actually a pretext for what amounted to

racial discrimination.

RECOMMENDATION

Having considered the foregoing Findings of Fact and

Conclusions of Law, the candor and demeanor of the witnesses,

and the pleadings and the arguments of the parties, it is,

therefore,

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Petition in its

entirety.

DONE AND ENTERED this 25th day of June, 2008, in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of June, 2008.

COPIES FURNISHED :

Mary L. Young

Post Office Box 5452

Tallahassee, Florida 32314

Elizabeth T. McBride, Esquire

Florida A & M University

Office of the General Counsel

Lee Hall, Suite 300

Tallahassee, Florida 32307

Cecil Howard, General Counsel

Florida Commission 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

Glen Bassett, Esquire

Renee S. Gordon, Esquire

Office of the Attorney General

The Capitol, Plaza Level 01

Tallahassee, Florida 32399

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.