08-001928 Michael J. Pappas vs. County Of Bay, Florida/School Board Status: Closed Recommended Order on Thursday, January 8, 2009.

Summary: The evidence did not show discrimination based on sex (male) when Petitioner was not hired for several teaching positions filled by more qualified females and one male.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL J. PAPPAS, )

)

Petitioner, )

)

vs. ) Case No. 08-1928

)

BAY COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Diane

Cleavinger, Administrative Law Judge with the Division of

Administrative Hearings, on October 2, 2008, in Panama City,

Florida.

APPEARANCES

For Petitioner: Michael J. Pappas, pro se

6208 North Lagoon Drive

Panama City Beach, Florida 32408

For Respondent: Robert C. Jackson, Esquire

Harrison, Sale, McCloy, Duncan

& Jackson, Chtd. 304 Magnolia Avenue

Post Office Drawer 1579

Panama City, Florida 33402-1579

STATEMENT OF THE ISSUE

The issue in this proceeding is whether Petitioner was the

subject of unlawful employment practice based on sex.

PRELIMINARY STATEMENT

On August 29, 2007, Petitioner, Michael J. Pappas

(Petitioner), filed a Charge of Discrimination against

Respondent, Bay County school Board (Board or Respondent). The

Charge alleged that Petitioner was subjected to an unlawful

employment practice based on his sex when Respondent failed to

hire him for a teaching position in June 2007.

The allegations of sexual discrimination were investigated

by the Florida Commission on Human Relations (FCHR). On

March 20, 2008, FCHR issued a “Notice of Determination: No

Cause,” which advised Petitioner that he had 35 days from the

date of the Notice to request an administrative hearing. On

April 9, 2008, Petitioner filed a Petition for Relief. The

Petition reiterated the allegations in his Charge.

At the final hearing, Petitioner presented the testimony of

seven witnesses. Respondent presented the testimony of two

witnesses. Additionally, the parties offered 17 exhibits into

evidence.

After the hearing, Respondent filed a Proposed Recommended

Order on November 21, 2008. Petitioner did not submit a

Proposed Recommended Order.

FINDINGS OF FACT

1. Since November 2006, Petitioner, Michael J. Pappas, was

a male employee of Respondent, Bay County School Board.

Initially, he was employed as a part-time substitute teacher at

Patronis Elementary School (Patronis). Patronis has an “A”

ranking under Florida’s school accountability program and was

ranked as a Top 100 School in 2005. Eventually, Petitioner

became a full-time para-professional (aide) assigned to work

exclusively with an autistic child enrolled at the school.

Ellie Spivey (female), the principal at Patronis, recommended

Petitioner for the full-time position. Petitioner was hired

under an annual contract.

2. In addition to his employment with Respondent,

Petitioner served as Captain of a Dolphin tour boat he operated

out of Panama City.

3. In his para-professional position, Petitioner worked

with Art Beakley (male) and Mary Martin (female). Both were

third grade teachers at Patronis. Mr. Beakley was Petitioner’s

direct supervisor and, like Petitioner, had been recommended for

his teaching position by Ellie Spivey.

4. Petitioner’s performance as a para-professional was

mixed. At best, both teachers indicated Petitioner’s

performance was adequate, when he was present at the school.

Often Petitioner was absent from school or left school early to

go on dolphin tours. Petitioner often did not notify either

teacher that he would be absent. Petitioner told Mr. Beakley

that he could make more money as a boat captain on the dolphin

tours. On the days Petitioner was absent, the autistic

student’s mother would act as his caretaker during the day.

5. Eventually, both teachers complained to the principal

about Petitioner’s absences from school. The principal did not

discipline Petitioner because the absences were taken on

allowable personal leave days. However, Petitioner’s clear

preference for working the dolphin tours as opposed to working

at the school did not reflect well on his dedication or

enthusiasm for a career at the school.

6. Brooke Loyed, an Assistant Principal at Patronis,

evaluated Petitioner’s employment based on her observations of

Petitioner. She was unaware of Mr. Beakley’s and Ms. Martin’s

complaints regarding Petitioner’s absences. On April 3, 2007,

Petitioner received a good evaluation with no problems noted.

7. However, funding for Petitioner’s para-professional

position was not available for the next school term. In mid-to-

late April 2007, Petitioner was advised his contract would not

be renewed.

8. That same month, after learning of the non-renewal,

Petitioner asked Mr. Beakley and Ms. Martin for a letter of

recommendation. Mr. Beakley reluctantly agreed to give

Petitioner a letter of recommendation and drafted a letter

highlighting Petitioner’s good-qualities. The letter did not

mention Petitioner’s absences and lack of enthusiasm.

9. Initially, Ms. Martin refused to sign the letter by

making excuses about why she had not signed the letter drafted

by Mr. Beakley. However, she finally signed the letter so that

Petitioner would stop asking her to do so. Ms. Martin now

regrets that she signed the letter.

10. In May 2007, Ms. Spivey was developing classes and

personnel pairings for the next school term. She asked Kara

Powell, a teacher at Patronis, if she was willing to work with a

full-time para-professional in her classroom. Ms. Spivey did

not indicate to Ms. Powell who the para-professional would be.

Ms. Powell was not aware that Petitioner’s contract would not be

renewed for the next term. Ms. Powell told Ms. Spivey that she

would not be interested in working with a para-professional in

her classroom if that person was Petitioner.

11. Ms. Powell told Ms. Spivey that Petitioner made her

uncomfortable because he would sit very close to her in the

lunchroom and that he sometimes made comments she did not care

for. She also told Ms. Spivey that Petitioner had once invited

her and some other female teachers to go on a dolphin tour in

their bathing suits without their husbands. Ms. Powell felt the

invitation was inappropriate and made for sexual purposes. The

evidence did not demonstrate that Petitioner invited the

teachers to go on a dolphin tour for inappropriate reasons.

12. From Petitioner’s point of view, the invitation was

made to a group of teachers sitting as a group in the cafeteria

during a light-hearted conversation at the table. He invited

his co-workers because he thought they might enjoy going on a

dolphin tour. He limited the invitation to his co-workers

because his boat was not big enough to take spouses or

boyfriends.

13. On the other hand, other teachers confirmed

Ms. Powell’s story, and also indicated that Mr. Powell made them

feel uncomfortable. Since the school year was through and

Petitioner’s contract was not going to be renewed, Ms. Spivey

did not investigate further and did not take any formal action

against Petitioner regarding the reports of these teachers.

14. Eventually, due to the lack of funds, Petitioner’s

contract expired and was not renewed. There was no evidence

that demonstrated the non-renewal of Petitioner’s contract was

based on Petitioner’s gender.

15. In the summer of 2007, Patronis had several open

teaching positions. Respondent advertised the positions for 5

days. Eventually, the District Office developed an applicant

list for Patronis and forwarded it to the school. There were

over 90 applicants on the list, of which almost 95 percent were

female. A minimum of five applicants was required to be

interviewed by the school with the same questions and scoring

form used for each candidate.

16. In June and July 2007, interviews for the open

teaching positions were held at Patronis. Ms. Spivey and

Ms. Loyed selected Petitioner for an interview. Other

candidates were Sarah Patterson, Jessica Kelley, Debra Holbrook,

Kim Rogers, Sasha Aufschieider and Jana Jackins.

17. Petitioner did not have a good interview and did not

promote himself or his qualifications during the interview. He

was not particularly enthusiastic or upbeat about teaching.

Other than his application, Petitioner did not bring any letters

of recommendation or updated resume to the interview. He did

not provide the Bleakley letter discussed earlier. He did not

discuss current teaching methods or techniques even though the

interview questions provided him an opportunity to do so.

Importantly, Petitioner did not appear to be current with those

methods. From his application, it was clear that he had

received his teaching degree over 20 years ago and had had no

full-time classroom teaching experience since that time.

Petitioner refused to be considered for a special education

teaching position. The refusal did not reflect well on his

dedication or enthusiasm for teaching. Petitioner also had no

“English as a second language (ESOL)” experience or

certification. ESOL certification is a desirable skill for

teachers today. Because of the poor interview and given the

recent allegations that he made other teachers uncomfortable,

Petitioner was not offered any of the open positions at

Patronis. The evidence did not demonstrate that the reasons for

not hiring Petitioner were invalid or a pretext to mask

discriminatory action.

18. The successful applicants for the open positions at

Patronis were Sarah Patterson, Jessica Kelley, Debra Holbrook,

Kim Rogers, Sasha Aufschieider and Jana Jackins. All of the

candidates hired for the open positions were female. However,

that fact alone is not demonstrative of discrimination given the

fact that the applicant pool was almost 95 percent female. The

evidence demonstrated that all of these candidates were more

qualified for the open teaching positions than Petitioner. All

of the applicants had better interviews. All showed more

enthusiasm and dedication to teaching. All demonstrated that

they had knowledge of the latest teaching methods and

techniques. Finally, all scored higher in the interview.

19. Kim Rogers had three years of teaching experience at a

Title I school. Her Title I experience was a good indication

that she had experience in teaching at-risk children. Sarah

Patterson had a year of classroom experience and ESOL

certification. She also was known to be a very hard worker at

school. Jessica Kelley and Debra Holbrook were new teachers who

had recently completed their teaching internship at Patronis.

Both were current in the latest teaching methods and techniques

and had demonstrated such during the interview. Both were

highly thought of by their teaching peers. Sasha Aufschieider

was ESOL-certified. She also was highly recommended by her

peers. Likewise, Jana Jackins was highly recommended by her

teaching peers.

20. When Petitioner discovered that he would not be

offered a position, he complained to Dr. Richardson at the

District Office. At the time, he did not indicate that he

thought he had been discriminated against based on his sex.

Instead, he indicated that he thought he had been promised a

position. Dr. Richardson determined that the District hiring

policies had been followed. She offered to help Petitioner and

contacted the principals at Cedar Grove Elementary School, a

Title I school, and Surfside Middle School.

21. On July 19, 2007, Petitioner interviewed at Cedar

Grove Elementary for a position involving remediation of

students who failed the FCAT. The school and the position

required an enthusiastic and motivated person who could work

with high-risk, failing students.

22. The interview was conducted by the principal, Billy

May (male). Petitioner performed adequately in his interview

with Mr. May. Petitioner was not selected for the position.

The successful candidate, Heather Six (female), was more

qualified for the position. She scored higher and had ESOL

certification. Indeed, there was no evidence that demonstrated

Petitioner was discriminated against based on his sex when he

was not hired for the Cedar Grove position.

23. Similarly, Petitioner was not hired for the position

at Surfside Middle School. The interview was conducted by the

principal, Sue Harrell (female). Petitioner again did

adequately in the interview. The successful candidate for the

position was Kenneth Stem (male). As with Cedar Grove, there

was no evidence of discrimination or pretext in the hiring of

Mr. Stem over Petitioner and the Petition for Relief should be

dismissed.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

cause. § 120.57(1), Fla. Stat.

25. Under the provisions of Section 760.10(1), Florida

Statutes, it is unlawful employment practice for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual’s race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) . . . to discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice

under this section, or because that person

has made a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or hearing under

this section.

26. FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes. See

Brand vs. Florida Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); Florida Dept. of Community Affairs vs. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991).

27. The Supreme Court of the United States established in

McDonnell-Douglass Corp. vs. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be used in cases alleging discrimination

under Title VII, which are persuasive in cases such as the one

at bar. This analysis was reiterated and refined in St. Mary’s

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

28. Pursuant to this analysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate, non-

discriminatory reason for the action taken against Petitioner.

Once this non-discriminatory reason is offered by Respondent,

the burden then shifts back to Petitioner to demonstrate that

the offered reason is merely a pretext for discrimination. As

the Supreme Court stated in Hicks , before finding

discrimination, “[t]he fact finder must believe the plaintiff’s

explanation of intentional discrimination.” Hicks , 509 U.S. at

519.

29. In Hicks , the Court stressed that even if the fact-

finder does not believe the proffered reason given by the

employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id .

30. In order to establish a prima facie case of

discrimination, Petitioner must demonstrate that:

a. Petitioner is a member of a protected

class;

b. Petitioner is qualified for the

position;

c. Petitioner was subject to an adverse

employment decision; and,

d. Petitioner was treated less favorably

than similarly situated persons outside the

protected class.

Canino v. EEOC , 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia ,

684 F.2d 729 (11th Cir. 1982); and Lee v. Russell County School

Board , 684 F.2d 769 (11th Cir. 1984).

31. In this case, the evidence failed to demonstrate that

Petitioner was discriminated against on the basis of his sex

when he was not hired by Respondent for an open teaching

position. Indeed, the evidence demonstrated that Petitioner was

treated the same as other candidates since all candidates went

through the same interview process. Additionally, the evidence

was clear that Petitioner was either less qualified than the

successful candidates or was of the same gender as the

successful candidate. In short, the successful candidates were

not similarly situated to Petitioner.

32. At Patronis, Petitioner did not perform well in his

interview. He did not demonstrate that he was familiar with the

latest teaching techniques or methods. He did not have full-

time classroom experience and he was not ESOL certified. The

successful candidates had these characteristics.

33. At Cedar Grove, Petitioner’s interview was adequate.

However, he was not as qualified as the successful candidate who

was ESOL certified. At Surfside, Petitioner was the same gender

as the successful candidate.

34. Moreover, even assuming Petitioner made out a prima

facie case, Respondent articulated a legitimate, non-retaliatory

reason for not hiring Petitioner. See Mitchell v. USBI, Co. ,

186 F.3d 1352, 1354 (11th Cir. 1999) (“This Court repeatedly has

stated that it will not second-guess a company’s legitimate

assessment of whether an employee is qualified for a particular

position.”); Elrod v. Sears, Roebuck and Co. , 939 F.2d 1466,

1470 (11th Cir. 1991) (courts are not super-personnel

departments that reexamine an entity’s business decisions; the

only question is whether the employer gave an honest explanation

of its behavior). Respondent provided legitimate reasons for

selecting the successful candidates for the teaching positions

that were open. There was no evidence to suggest that those

reasons were invalid or a pretext to hide discrimination.

Therefore, the Petition for Relief should be dismissed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law,

it is,

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing the Petition for Relief.

DONE AND ENTERED this 8th day of January, 2009, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 8th day of January, 2009.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Michael J. Pappas

6208 North Lagoon Drive

Panama City Beach, Florida 32408

Robert C. Jackson, Esquire

Harrison, Sale, McCloy, Duncan

& Jackson, Chtd.

304 Magnolia Avenue

Post Office Drawer 1579

Panama City, Florida 33402-1579

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.