07-001113 Gerald E. Toms, Jr. vs. Marion County School Board Status: Closed Recommended Order on Friday, August 17, 2007.

Summary: Petitioner did not demonstrate that Respondent discriminated against him on the basis of his age. For each position sought, Respondent had a legitimate, non-discriminatory basis for hiring other candidates.

Case No. 07-1113

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERALD E. TOMS, JR., ) ) ) ) ) ) ) ) ) )

Petitioner, RECOMMENDED ORDER

vs.

MARION COUNTY SCHOOL BOARD,

Respondent.

On June 21, 2007, a hearing was held in Ocala, Florida,

pursuant to the authority set forth in Sections 120.569 and

120.57(1), Florida Statutes. The case was considered by Lisa

Shearer Nelson, Administrative Law Judge.

APPEARANCES

For Petitioner: Leonard H. Klatt, Esquire

7753 S.W. State Road 200

Ocala, Florida 34476

For Respondent: Mark E. Levitt, Esquire

Richard M. Pierro, Jr., Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 225

Tampa, Florida 33606

STATEMENT OF THE ISSUE

Whether Respondent has committed an unlawful employment

practice in violation of Chapter 760, Florida Statutes, and if

so, what remedy should be ordered?

PRELIMINARY STATEMENT

On August 14, 2006, Petitioner filed a complaint with the

Florida Human Relations Commission (the Commission), alleging

that the Marion County School District (School District) had

discriminated against him in its hiring practices based upon his

age. On February 19, 2007, the Commission issued a Notice of

Determination of No Cause, and on March 5, 2007, Petitioner filed

a Petition for Relief. On March 8, 2007, the matter was referred

to the Division of Administrative Hearings for assignment of an

administrative law judge.

The case was originally noticed for hearing May 9, 2007.

Petitioner obtained counsel and moved for a continuance. By

Order dated May 1, 2009, the motion was denied without prejudice

to file an amended motion in compliance with Florida

Administrative Code Rule 28-106.204(3). Upon the filing of an

Amended Motion, the May 9, 2007, hearing was canceled and re-

scheduled for June 21, 2007.

On June 14, 2007, Respondent filed its Witness List in

compliance with the Order of Pre-Hearing Instructions. On

June 19, 2007, Respondent filed a Motion to Dismiss or in the

Alternative to Exclude Witnesses and Exhibits, asserting that

Petitioner had failed to provide to Respondent any witness or

exhibit lists, or copies of its proposed exhibits. That same

day, Petitioner filed a response stating that he had served

Respondent with his list of witnesses and exhibits that day, and

that his witnesses and exhibits were also witnesses and exhibits

to be used by Respondent. A telephone conference was conducted

June 20, 2007. Inasmuch as the file did not reflect that any

discovery had been conducted by either party, and all of the

witnesses and exhibits Petitioner intended to use were also going

to be used by Respondent, Respondent had not demonstrated

prejudice by Petitioner's failure to timely comply with the Order

of Pre-Hearing Instructions. Therefore, the Motion to Dismiss or

in the Alternative to Exclude Witnesses and Exhibits was denied.

At hearing, Petitioner presented the testimony of three

witnesses and Petitioner's Exhibits numbered 1 through 11 were

admitted into evidence. Respondent presented the testimony of

two witnesses, and Respondent's Exhibits numbered 1 through 4

were admitted.

At the close of Petitioner's case, he had presented evidence

related to the successful candidates of 7 positions out of over

130 positions for which he had applied. Petitioner then moved

for a continuance, asserting that the undersigned should consider

evidence related to all 130 positions. Given the lack of

discovery conducted pursuant to the Rules of Civil Procedure, the

motion was denied.

The transcript of the proceedings was filed with the

Division July 27, 2007. The parties were given until August 6,

2007, to file their proposed recommended orders. Both

submissions were timely filed and have been carefully considered.

In his Proposed Recommended Order, Petitioner appears to take

issue with the selection of other candidates for only three of

the positions for which he applied and presented evidence at

hearing. However, all seven positions are addressed in this

Recommended Order.

FINDINGS OF FACT

1. Petitioner is a Caucasian male born December 30, 1952.

At present he is 54 years old.

2. Petitioner holds a bachelor's degree in criminology from

Florida State University, which he obtained in 1976. He also

holds a juris doctorate from Florida Coastal School of Law,

obtained in December 1999. In between these two degrees,

Petitioner's employment history, included with his application

for employment with the School District, indicates that in 1976

he worked at Graham's Dairy farm; from 1979-1980, he worked in

telephone communications doing telephone installation, repair,

and telephone cable splicing for an unknown employer; and in 1981

he worked for GTE of Florida performing telephone installation

and repair.

3. In 1985 Petitioner was the operations manager for Ocala

Mack Sales, handling small claims and tag and title work. In

1989, he returned to the telephone industry, splicing cable.

There is no indication of the time frame or duration of each job.

No credible explanation was given for the significant gaps in his

work history, or the reasons for leaving the various jobs listed.

4. Beginning in 1993, Petitioner substituted for a three-

month period at Fort King Middle School in Ocala, Florida. This

three-month period is the only experience in the education field

that Petitioner possesses.

5. That same year, Petitioner began taking additional

classes at the community college level part time in an effort to

go to medical school. He also stayed home caring for his

children. When he was unsuccessful in getting admitted to

medical school, he turned his efforts to law school.

6. Beginning in 2001, after graduating from law school and

passing the bar exam, Petitioner worked as an attorney for the

Department of Children and Families. In April 2004, he resigned

in lieu of termination. 1/ After an eight-month period of

unemployment, he was hired in November 2004 as a corrections

officer with the Florida Department of Corrections, and remains

in that position today.

7. In 2004, Petitioner began applying for teaching

positions in Marion County. To that end, he has applied for and

received Statements of Status of Eligibility from the Florida

Department of Education indicating that he is eligible for a

temporary certificate in the areas of chemistry and biology,

grades 6-12, for the period June 22, 2004, through June 22, 2007.

8. The job description for a teaching position in the

School District indicates that a candidate must have a bachelor's

degree from an accredited institution and be certified by the

State of Florida or have district vocational certification.

School District Policy 6.10 requires that all personnel be

appointed as prescribed by Florida Statutes and applicable rules

of the School Board and the State Board of Education. The job

description also lists the following in terms of required

knowledge, skills and abilities:

Knowledge of child growth and development,

especially of characteristics of children in

the age group assigned. Knowledge of

prescribed curriculum. Knowledge of current

educational research. Basic understanding

and knowledge of use of current technology.

Knowledge of learning styles and skill in

using varied teaching methods to address

student learning styles. Skill in oral and

written communication with students, parents,

and others. Ability to plan and implement

activities for maximum effectiveness.

Ability to effectively assess levels of

student achievement, analyze test results,

and prescribe actions for improvement.

Ability to maintain appropriate student

supervision so that students have a safe and

orderly environment in which to learn.

Ability to work effectively with peers,

administrators, and others.

9. Certification by the Department of Education in the

subject matter to be taught is generally required. The School

District may waive certification in a particular area only when

there is a critical need for teachers in that area and there are

no certified teachers available. Even in that instance, the

School District usually looks for a closely related certification

area. For example, when trying to fill special education

positions, the School District will look first for applicants

certified in reading if no one certified in special education is

available.

10. In addition to certification for individual subject

areas, a teacher may obtain what is referred to as a middle

grades integrated certification. Someone with this certification

is preferred over other applicants in a middle school setting,

because they can teach science, social studies, language arts and

math, giving principals more flexibility in filling positions

that might include teaching in more than one area. Petitioner

does not hold a middle grades integrated certification.

11. Petitioner has applied for 32 science teaching

positions, two biology positions and one chemistry position in

the School District.

12. In addition to these 35 science-related positions,

Petitioner has applied for 47 additional teaching positions in

the reading and exceptional education, areas for which he

understands there is a critical need, and in criminology and

legal systems, areas where he believes he has practical

experience. Because he is not certified in these areas, they

would be considered out-of-field. Petitioner could only be

considered for those positions in the event that there was no

qualified and appropriately certified candidate available. He has

also applied for approximately 50 other positions for which he is

not certified.

13. Petitioner has received five interviews for positions

within the Marion County School District. He has received no

offers of employment.

14. The School District fills vacancies for teachers in

several different ways. A person already working as a teacher in

the School District may request a transfer, for example, to a

different subject area for which they are qualified or to a

different school. Under the teachers' collective bargaining

agreement with the School District, that teacher is automatically

considered as the preferred candidate for any vacancy consistent

with their request, unless the principal at the hiring school

presents a compelling reason why they should not be hired. Under

these circumstances, no vacancy would be advertised.

15. The School District also encourages applicants to

participate at an annual district-wide Job Fair. At that Job

Fair, principals at different levels (high school, middle school,

elementary school) are available to conduct interviews.

Candidates do not necessarily interview for particular positions;

they interview with whatever principals are available.

16. Finally, applicants may be called to interview with

principals for openings at individual schools, should there not

be a qualified applicant requesting a transfer or under

"conditional contract" with the District. Conditional contracts

will be discussed in more detail below.

17. During interviews at the Job Fair, principals use

standardized interview questions that have been approved by the

School District. The standardized interview questions have eight

categories of questions based upon qualities one would expect to

find in a teacher: 1) likes kids; 2) dependable; 3) content

knowledge; 4) ability to manage; 5) motivation; 6) positive

attitude; 7) team player; and 8) communication.

18. The interviewer selects a question from each category

to ask the applicant, and awards one to three points per

question, based on whether the answer exceeds expectations, meets

expectations or does not meet expectations. The highest total

score an applicant can receive based on his or her answers to

these questions is 24. Principals may only choose from the

questions provided. They may clarify a question should an

applicant ask them to, but they may not ask other questions.

19. If the principal is favorably impressed by an applicant

and has a vacancy at his or her school in the area for which the

applicant is certified, the principal may offer that applicant a

position at the interview. If they have no such position

available but think the candidate would be a good hire for the

School District, they may offer what is referred to as a

conditional contract.

20. A conditional contract does not entitle the applicant

to a job. However, as vacancies arise within the School

District, if there are individuals with conditional contracts

that are qualified for the vacancies, those individuals are

referred to the hiring principal for consideration. The hiring

principal chooses from among those candidates with conditional

contracts, and if there is only one such candidate, he or she

would, absent extraordinary circumstances, get the job.

21. Petitioner participated in the School District's Job

Fair in June 2006. He was interviewed by Lisa Krysalka, the

principal at Belleview Middle School. When Petitioner appeared

for his interview at the Job Fair, he was not wearing a suit and

did not bring a resume. Ms. Krysalka's notes reflect that he did

tell her he had served as a substitute 10 years before.

22. Based on his answers to the standardized questions,

Ms. Krysalka gave Petitioner an overall score of nine. She

ranked his answers as not meeting expectations for eight out of

nine questions. Her scoring was reasonable in light of the

answers he gave. For example, when asked to describe his

classroom management plan, Petitioner indicated that he had no

plan because he did not have problems with discipline. When

Petitioner was asked how he would get his students excited about

entering the classroom, he stated that most kids are excited

already, and he would have a plan (although unspecified) and

stick to it. Other answers he gave were either not responsive to

the questions asked or did not relate to a school setting or to

work with children. Ms. Krysalka felt some of Petitioner's

responses were unrealistic and showed that he was unprepared to

teach middle school in today's climate.

23. Ms. Krysalka's assessment is reasonable. Petitioner's

answers to these standardized questions do not demonstrate that

he possessed the knowledge, skills and abilities required to

perform as a teacher in the Marion County School District.

24. Petitioner interviewed at individual schools outside

the purview of the Job Fair. None of those interviews resulted

in offers for a teaching position.

25. While Petitioner testified that he has applied for

dozens of positions, he presented evidence regarding only seven

of those positions. The qualifications for the successful

candidates for the positions are listed below.

26. Petitioner admitted at hearing that he had no personal

knowledge as to the qualifications of any of these candidates.

He simply felt that, given the number of positions for which he

applied, the only reasonable explanation for his not getting a

teaching position was his age.

27. Matthew Bates was born in 1981, and is younger than

Petitioner. He has a B.A. in history and is working on his

master's degree in educational leadership. He has passed the M/J

Integrated Certification exam. Bates was originally hired in

September 2005 at Dunellen Middle School for a "split" position,

teaching both seventh grade science and language arts. Mr. Bates

requested and was granted a transfer within the School District

under the collective bargaining agreement to fill a vacant

seventh grade science position at the same school. Consistent

with the School District's collective bargaining agreement, no

other candidate was considered or interviewed.

28. Petitioner has not established that he is equally

qualified or more qualified than Mr. Bates for the position

sought.

29. Ronald Long was born in February 1981, and is younger

than Petitioner. Mr. Long was selected for a science position at

Forest High School. He holds a B.S. degree in biology; served as

a substitute teacher for the School District during the 2003-2004

school year, and was an assistant and junior varsity basketball

coach at Trinity Catholic High School during that time.

Mr. Long's resume also indicates that he has worked with the Boy

Scouts and several basketball teams at both the high school and

college level. Based on his interview and experience, Milford

Lankford, the principal at Forest High School, believed Long to

be the better qualified candidate.

30. Petitioner was interviewed for the position at Forest

High School. At the time of his interview, Mr. Lankford was

filling two positions in the science department. The first

position was filled by Mr. Downs, who was 63 years old at the

time he was hired. However, based on his interview, Mr. Lankford

did not feel that Petitioner had the skills necessary to be

successful in the classroom. His impression was confirmed after

Petitioner interviewed with his assistant principal, Ms. Bounds.

Mr. Lankford had eliminated Petitioner from consideration by the

time he offered the second position to Mr. Long. In any event,

his determination that Mr. Long was better qualified for the

position is reasonable.

31. David Mahfood, was born in 1983 and is younger than

Petitioner. He was selected for a physics position at one of the

high schools in the School District. The position required that

the applicant be highly qualified in and certified to teach

physics, and Mr. Mahfood met those qualifications. Petitioner is

not certified in physics, as required for this position.

32. Bret Mills, born in 1982, is also younger than

Petitioner. He has a middle grades integrated certification.

Mr. Mills holds a B.S. in animal biology and while his resume

does not reflect any teaching experience, it does reflect

experience working with children in church and little league, as

well as working as a literacy program leader while at the

University of Florida. Mr. Mills' certification was preferable

for the position being advertised.

33. Petitioner did not establish that he was equally or

more qualified than the successful candidate for this position.

34. Michael Orloff was hired for a seventh grade science

position at West Port Middle School. Mr. Orloff was born in

1958, and is four years younger than Petitioner. He has a B.S.

in marketing with a minor in chemistry. He was interviewed by

Greg Dudley, the principal of West Port Middle School during the

Job Fair. Based upon a favorable interview, he was offered a

position at that school in accordance with School District

policy. There is no evidence that Mr. Dudley even knew of Toms'

application at the time that he offered Mr. Orloff the job.

35. Mr. Richard Williams was born in 1971, and is younger

than Petitioner. He was offered a position teaching science at

Howard Middle School. Mr. Williams holds a B.S. degree in

biology and a master's degree in environmental management. He

also has experience as a resource teacher with Eckerd's Youth

Alternatives and served in the Peace Corps as a forestry

extension agent. Mr. Williams originally worked beginning in

September 2005 as a substitute teacher at Howard Middle School.

He participated in the 2006 Job Fair and interviewed with the

incoming principal at Howard Middle School. Based on his

outstanding scores on the Job Fair Interview, he was offered a

job immediately. Petitioner was not a candidate brought to the

attention of the hiring principal at the time of the Job Fair.

As previously indicated, Petitioner's interview scores at the

same Job Fair were not impressive.

36. Unlike Petitioner, Mr. Williams' degrees and experience

are in fields related to the area he was hired to teach.

Mr. Williams was the more qualified candidate for the position

for which he was hired.

37. Finally, Kristen Wood was born in 1982 and is younger

than Petitioner. She was hired to teach agriculture and biology.

Ms. Wood graduated from the University of Florida with a major in

agricultural education and had a teaching internship in

agriculture. She was also certified to teach in both biology and

agriculture, and had significant experience with the Florida

Future Farmers of America Association. Petitioner is not

certified in agriculture and had less experience related to

education. Ms. Wood was the more qualified applicant for the

position sought.

CONCLUSIONS OF LAW

38. The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties to this

action in accordance with Sections 120.569 and 120.57(1), Florida

Statutes.

39. Petitioner has the burden of proving by a preponderance

of the evidence that the Respondent committed an unlawful

employment practice. Florida Department of Transportation v.

J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

40. Petitioner's complaint is based on perceived violations

of Section 760.10(1)(a), Florida Statutes, which makes it an

unlawful employment practice for an employer to "discharge or

fail or refuse to hire any individual, or otherwise to

discriminate against any individual with respect to compensation,

terms, conditions, or privileges of employment, because of the

individual's race, color, religion, sex, national origin, age,

handicap, or marital status."

41. An employer's liability for discrimination on the basis

of age is dependent on a determination that the employer's

decision was actually motivated by age. Dancy-Pratt v. School

Board of Dade County , 2001 U.S. Dist. LEXIS (S.D. Fla. 2001). To

establish a prima facie case of discrimination based on his age,

Petitioner must show that 1) he was a member of the protected age

group of persons between the ages of forty and seventy; 2) he was

subjected to adverse employment actions; 3) he was qualified for

the position(s) for which he applied; and 4) lost the position to

a younger individual. McDonnell Douglass Corp. v. Green , 411

U.S. 792, 802-804 (1973); Cooper v. Southern Co. , 390 F.3d 695,

724 (11th Cir. 2004); Van Hoorhis v. Hillsborough Board of County

Commissioners , 2007 U.S. Dist. LEXIS 33996 (M.D. Fla. May 9,

2007).

42. Once a petitioner establishes a prima facie case, the

burden of proof shifts to the employer to produce evidence that

the petitioner was rejected for a legitimate, non-discriminatory

reason. Once the employer meets this burden of production, the

petitioner has the ultimate burden of showing that the

articulated reason for the employer's decision is pre-textual. A

petitioner may meet this burden by pointing to weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the proffered explanation. Brooks v. County

Commission of Jefferson County , 446 F.3d 1160, 1162 (11th Cir.

2006); EEOC v. Joe's Stone Crabs, Inc. , 296 F.3d 1265, 1272-1273

(11th Cir. 2002). However, a reason is not pretext for

discrimination "unless it is shown both that the reason was

false, and that discrimination was the real reason." St. Mary's

Honor Ctr. v. Hicks , 509 U.S. 502, 515 (1993); Brooks , 446 F.3d

at 1163.

43. Petitioner has demonstrated that he is within a

protected class, in that he was over 40 years old at the time he

applied for the positions in question. He has also shown that he

was not hired for any of the positions for which he applied,

thereby suffering an adverse employment action.

44. Petitioner has conceded that with respect to the

positions filled by Williams, Mills, Mahfood and Wood, he has not

established a prima facie case for employment discrimination.

45. With respect to the positions filled by Bates, Long and

Orloff, Petitioner claims that he has established a prima facie

case and that the reason given for the selection of the

successful candidates in each instances was pretextual.

46. Petitioner has demonstrated that, for these three

positions, he was a candidate over 40 years old; he did not get

the desired position; he met the minimum qualifications for the

position; and someone younger than Petitioner was hired.

Therefore, with respect to the positions offered to Bates, Long

and Orloff, Petitioner has presented a prima facie case of

discrimination.

47. With respect to each of these positions, the School

District has produced evidence that its hiring decisions were

based on the superior qualifications of the successful

candidates. With the production of this evidence, any

presumption of discrimination disappears. Cooper v. Southern

Co. , 390 F.3d 695, 725 (11th Cir. 2004).

48. Petitioner has failed to present any credible evidence

to rebut the reasons given by the School District for its hiring

decisions. In each instance, the School District has presented

credible, persuasive evidence to support its hiring decision. It

is not enough for Petitioner to claim that he meets the minimum

requirements for the positions. As stated by the Eleventh

Circuit:

[T]he burden shifted to [the complaining

applicant] to "meet the proffered reason head

on and rebut it, and the employee cannot

succeed by simply quarreling with the wisdom

of that reason." Chapman v. AI Transp. , 229

F.3d [1012, 1030 (11th Cir. 2000)(en banc)].

A plaintiff must show that the disparities

between the successful applicant's and her

own qualifications were "of such weight and

significance that no reasonable person, in

the exercise of impartial judgment, could

have chosen the candidate selected over the

plaintiff." Cooper v. S.Co. , 390 F. 3d 695,

732 (11th Cir. 2004), cert. denied , 126 S.Ct.

478, 163 L.Ed. 2d 363 (2005).

Brooks , 446 F.3d at 1163; see also Ash v. Tyson Foods, Inc. , 546

U.S. 454, 457 (2006), on remand , 2006 U.S. App. LEXIS 19750 (11th

Cir. 2006).

49. In each instance, a comparison of the Petitioner's

qualifications to that of the successful candidate's simply does

not reveal a disparity in qualifications mandating selection of

the Petitioner. Moreover, whether Petitioner met the

requirements for the positions he sought, or even whether he was

the most qualified, is not dispositive. The question is whether

the decisionmaker in each instance honestly believed that

Petitioner did not meet the criteria for employment or that he

was not the best candidate for the job. Cooper , 390 F.3d at 729.

50. Petitioner's argument that discrimination is the only

plausible basis for his not being selected for employment in

light of the sheer number of positions sought is without merit.

First, only those instances where Petitioner has placed into

evidence information about the job sought and the candidate

chosen can be or have been considered in this proceeding.

Second, there is no impediment to Petitioner applying for

thousands of positions for which he is either not qualified or

only marginally so. The number of positions applied for is

simply irrelevant. What matters is whether he was qualified for

the positions and whether the School District had a legitimate,

non-discriminatory reason for hiring someone else on a job-by-job

basis. Here, they clearly did.

51. Petitioner also requests in its Proposed Recommended

Order that the School District's use of a Job Fair be invalidated

as violating State and Federal anti-discrimination laws. This

claim is made for the first time in Petitioner's Proposed

Recommended Order and is not reflected in his complaint filed

with the Florida Human Relations Commission. Inasmuch as the

claim was not included its original request for hearing, it is

beyond the scope of this proceeding. Cooper , 390 F.3d at 732.

52. Finally, Respondent requests that it be awarded

attorneys' fees and costs for this proceeding pursuant to

Sections 57.105 and 120.595, Florida Statutes. 2/ Respondent

asserts that Petitioner's claims are frivolous under the

standards enunciated under both statutes.

53. Section 57.105, Florida Statutes, provides in pertinent

part:

(4) A motion by a party seeking sanctions

under this section must be served but may not

be filed with or presented to the court

unless, within 21 days after service of the

motion, the challenged paper, claim, defense,

contention, allegation, or denial is not

withdrawn or appropriately corrected.

(5) In administrative proceedings under

chapter 20, an administrative law judge shall

award a reasonable attorney's fee and damages

to be paid to the prevailing party in equal

amounts by the losing party and a losing

party's attorney or qualified representative

in the same manner and upon the same basis as

provided in subsections (1)-(4). . . .

54. The record in this case does not indicate that

Respondent has complied with the "safe harbor" provision of

Section 57.105(4). This omission precludes fees under Section

57.105. See Burgos v. Burgos , 948 So. 2d 918 (Fla. 4th DCA

2007).

55. Section 120.595, Florida Statutes, provides in

pertinent part:

(1)(b) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reasonable attorney's

fee to the prevailing party only where the

nonprevailing adverse party has been

determined by the administrative law judge to

have participated in the proceeding for an

improper purpose.

(c) In proceedings pursuant to s. 120.57(1),

and upon motion, the administrative law judge

shall determine whether any party

participated in the proceeding for an

improper purpose as defined by this

subsection. In making such determination,

the administrative law judge shall consider

whether the nonprevailing adverse party has

participated in two or more other such

proceedings involving the same prevailing

party and the same project as an adverse

party and in which such two or more

proceedings the nonprevailing adverse party

did not establish either the factual or legal

merits of its position, and shall consider

whether the factual or legal position

asserted in the instant proceeding would have

been cognizable in the previous proceedings.

In such event, it shall be rebuttably

presumed that the nonprevailing adverse party

participated in the pending proceeding for an

improper purpose.

* * *

(e) For the purpose of this subsection:

1. "Improper purpose" means participation

in a proceeding pursuant to s. 120.57(1)

primarily to harass or to cause unnecessary

delay or for frivolous purpose or to

needlessly increase the cost of litigation,

licensing, or securing the approval of an

activity.

56. Under the standards quoted above, Petitioner did not

participate in this proceeding for an improper purpose.

Therefore, Respondent's request for attorney's fees and costs is

denied.

RECOMMENDATION

Upon consideration of the facts found and conclusions of law

reached, it is

RECOMMENDED:

That a final order be entered dismissing Petitioner's

complaint and denying Respondent's request for attorney's fees

and costs.

DONE AND ENTERED this 17th day of August, 2007, in

Tallahassee, Leon County, Florida.

S

LISA SHEARER NELSON

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 17th day of August, 2007.

ENDNOTES

1/ While Respondent sought a negative inference from the fact

that Petitioner's resignation from the Department of Children and

Family Services was in lieu of termination, no such inference is

appropriate. There are a multitude of reasons a person may be

asked to resign from his position, many of them having nothing to

do with the employee's abilities or work product. Absent any

evidence that Petitioner's work at DCFS was substandard, his

resignation is simply that: a resignation.

2/ Respondent indicates in its Proposed Recommended Order that it

is seeking fees pursuant to Section 120.659. The correct

reference is to Section 120.595.

COPIES FURNISHED:

Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 101

Tampa, Florida 33606

Leonard H. Klatt, Esquire

Klatt & Sivic, P.A.

7753 Southwest State Road 200

Ocala, Florida 34476-7049

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions to

this recommended order should be filed with the agency that will

issue the final order in this case.