08-002528 Dianna Decker vs. The Gadsden County School Board And Reginald James, Superintendent Of Gadsden County Schools Status: Closed Recommended Order on Wednesday, May 6, 2009.

Summary: Petitioner`s failure to apply for or even express an interest in the promotion at issue prevents her from proving that she did not receive the promotion due to her race. She also failed to prove constructive discharge by failing to offer any evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANNA DECKER, )

)

Petitioner, )

)

vs. ) Case No. 08-2528

)

THE GADSDEN COUNTY SCHOOL BOARD )

and REGINALD JAMES, )

SUPERINTENDENT OF GADSDEN )

COUNTY SCHOOLS, )

)

Respondents. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on February 24, 2009, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Bruce Alexander Minnick, Esquire

The Minnick Law Firm

Post Office Box 15588

Tallahassee, Florida 32317

For Respondent: Matthew Carson, Esquire

Linda G. Bond, Esquire Rumberger, Kirk & Caldwell, P.A.

215 South Monroe Street

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

The issue presented is whether Respondents are guilty of

committing a discriminatory practice against Petitioner, in

violation of the Florida Civil Rights Act of 1992, by denying

her a promotion and/or by constructively discharging her from

her employment.

PRELIMINARY STATEMENT

On December 14, 2007, Petitioner filed with the Florida

Commission on Human Relations an Employment Complaint of

Discrimination, alleging that Respondents had discriminated

against her based upon her race by denying her a promotion

and/or by constructively discharging her. After the Commission

determined that there was no reasonable cause to believe that an

unlawful employment practice had occurred, Petitioner filed a

petition requesting an administrative hearing, and this matter

was transferred to the Division of Administrative Hearings to

conduct the evidentiary proceeding.

Petitioner testified on her own behalf. Respondents

presented the testimony of Sonja D. Bridges and Reginald C.

James. Additionally, Petitioner's Exhibits numbered 1-3, 4A,

5A, 6-9, 14, and 15 and Respondents' Exhibits numbered 1-6 and

8-11 were admitted in evidence.

The two-volume Transcript of the final hearing was filed on

March 12, 2009. Respondents' Proposed Recommended Order was

filed on April 24, 2009, and Petitioner's Proposed Recommended

Order was filed on April 27, 2009. Those documents have been

considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Dianna Decker, a white female, began her

employment with Respondent Gadsden County School Board on

July 14, 1998. Her first job position was as the Training

Coordinator/Specialist. In July 2002, Petitioner absorbed the

additional duties of Staff Development Coordinator.

2. Respondent Reginald James, a black male, was elected

Superintendent of Gadsden County Schools in November 2004 and

has continuously served in that capacity due to his re-election

in 2008.

3. In July 2005, Superintendent James promoted Petitioner

to Director of Staff Development and Personnel. Petitioner

applied for this promotion on July 7, 2005, after James told her

he would like her to take the job. This promotion included a

$13,000 annual increase in her salary. On July 13, James

directed the School Board's finance department to begin paying

Petitioner at the increased pay rate retroactive to July 1. On

July 26, the School Board officially appointed Petitioner to the

position to which James had promoted her, with the retroactive

effective date of July 1.

4. For purposes of employment with the various school

boards in Florida, the superintendent "recommends" that a person

be hired for a particular position, and the school board

approves or disapproves the recommendation.

5. Respondent James also gave Petitioner an additional

$1,500 increase in salary during the 2005-06 school year.

6. Petitioner and James enjoyed a good working

relationship. As Director of Staff Development and Personnel,

Petitioner had at least daily contact with James.

7. Throughout her employment with the School Board,

Petitioner applied for a variety of employment positions outside

of the Gadsden County School System. Some of the positions she

applied for were education-related, and some were not. Some of

the positions she applied for were in Florida, and some were

outside of Florida. By her own testimony, Petitioner kept her

eyes open for opportunities for growth and upward movement.

8. Dr. James Brown was the Deputy Superintendent of the

Gadsden County School System from prior to the beginning of

Petitioner's employment until his retirement in July 2007.

9. Petitioner, Superintendent James, Dr. Sonja Bridges,

and other personnel attended weekly management-team meetings at

which they discussed, among other things, the attempts being

made to find a replacement for Dr. Brown.

10. Prior to Dr. Brown's retirement date, the Deputy

Superintendent position that Dr. Brown was vacating was

advertised. Although Superintendent James interviewed several

candidates for the position, he was unable to find an acceptable

candidate to hire. During the months of searching for a deputy

superintendent to replace Brown, Dr. Sonja Bridges told James

that she would take the job if he could not find anyone else.

11. In a letter dated July 10, 2007, Petitioner wrote to

the Jefferson County Schools in Louisville, Kentucky, asking to

be considered for the position of Director of District

Personnel/Human Resources which was being advertised.

12. The morning of July 11, 2007, Superintendent James

asked Petitioner to post a job opening for an Assistant

Superintendent for Academic Services position. Later that same

day James announced that he had chosen Dr. Sonja Bridges to fill

that position. Petitioner told James that Bridges was not

qualified to fill the position as it was described in the job

posting. James told Petitioner that they would modify the

position so that Bridges would be qualified and instructed

Petitioner to take down the job description that she had posted.

13. Petitioner also did not meet the qualifications for

Assistant Superintendent for Academic Services as the position

was posted, and she did not apply for that position during the

short time between its posting and its removal.

14. At its July 24, 2007, meeting, in accordance with its

standard practice, Respondent Gadsden County School Board

proposed a rule change that would modify the job description for

an Assistant Superintendent for Academic Services position.

This proposed modification was required to be advertised to the

public for 30 days to receive comments and could not be

finalized until at a Board meeting following the conclusion of

that notice period.

15. On August 6, 2007, Petitioner re-posted the Assistant

Superintendent for Academic Services position. The proper

procedure would have been to wait until after the School Board

had approved the rule change at a subsequent meeting, and then

post the position. Neither James nor anyone else requested or

authorized Petitioner to re-post the position prior to the

position being approved by the School Board, and Petitioner re-

posted it against established School Board procedure.

16. Also on August 6 Petitioner completed her application

for the position and handed it to Regina Gore, a secretary who

reported to Petitioner. Petitioner gave Gore no instructions as

to what to do with Petitioner's employment application.

17. Petitioner's job responsibilities included compiling

and submitting job applications and presenting them to

Superintendent James for his consideration. However, Petitioner

did not tell anyone other than Gore that she had completed an

application for the Assistant Superintendent for Academic

Services position, and she never compiled and submitted to James

for his consideration her application and the other application

that was received in response to her unauthorized August 6 job

posting.

18. At its August 2007 meeting, Respondent Gadsden County

School Board adopted the rule change for the modified job

description after receiving no comments from the public during

the 30-day comment period. Respondent Gadsden County School

Board then officially appointed Dr. Bridges to the position of

Assistant Superintendent for Academic Services to which

Superintendent James had promoted her, with a retroactive

effective date of July 2, 2007.

19. Dr. Bridges meets the qualifications for the modified

Assistant Superintendent for Academic Services position, as does

Petitioner.

20. In her new position, Dr. Bridges became Petitioner's

immediate supervisor. Prior to Bridges' promotion, she and

Petitioner had a professional and friendly working relationship;

however, after her promotion, Petitioner became uncomfortable

working under Dr. Bridges and had difficulty taking directives

from her new supervisor.

21. During the time that Respondent James has been the

Superintendent of Gadsden County School System, he has

recommended, and Respondent Gadsden County School Board has

approved, two Assistant Superintendents: Dr. Bridges and

Ms. Bonnie Wood. There have been no other Assistant

Superintendents under Superintendent James. Dr. Bridges is a

black woman, and Ms. Wood is a white woman. Ms. Wood is the

Assistant Superintendent for Business and Finance and, like

Dr. Bridges, reports directly to Superintendent James. There

were three applicants for Ms. Wood's position: Ms. Wood and two

black males, and Superintendent James hired her. There have not

been any Deputy Superintendents since Dr. Brown retired.

22. On September 28, 2007, Petitioner was offered the

position of Director of Human Resources, Certified Division,

with Jefferson County Schools in Louisville, Kentucky. By

letter that same day to Superintendent James, not to her

supervisor Dr. Bridges, Petitioner voluntarily resigned from her

position with Respondent Gadsden County School Board, effective

November 15, 2007.

23. After her departure, Petitioner's position was filled

on an interim basis by a white male.

24. At the time she voluntarily resigned from her

employment with Respondent Gadsden County School Board,

Petitioner earned $66,363 annually. Petitioner's salary at her

job in Kentucky with the Jefferson County Schools as of the date

of the final hearing in this cause was $119,000 annually.

25. Superintendent James never saw Petitioner's

application for the position filled by Dr. Bridges until

Respondents' counsel showed him a copy in February 2009 in

preparation for the final hearing in this cause. Furthermore,

James never heard of Petitioner having any interest in that

position until after Dr. Bridges' appointment was made official

by Respondent Gadsden County School Board. Even then, he did

not hear of Petitioner's interest in the position from her;

rather, he learned of her disappointment in not having been

given the job from comments made to him by others.

26. On December 10, 2007, Petitioner filed a Complaint of

Discrimination with the Florida Commission on Human Relations

alleging that she had been discriminated against by Respondent

James and Respondent Gadsden County School Board.

CONCLUSIONS OF LAW

27. The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

28. Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice for an employer to

discharge or fail or refuse to hire or otherwise to discriminate

against any individual with respect to terms, conditions, or

privileges of employment because of that individual's race.

Although the Petitioner has attacked various decisions of

Respondents, which she alleges are improper hiring practices,

the only issue over which the Florida Commission on Human

Relations has jurisdiction is her assertion that Respondents

failed to promote her based solely on her race and that

Respondents constructively discharged her from her employment.

29. It is well settled that federal discrimination law

should be used as guidance when construing provisions of Section

760.10, Florida Statutes. Brand v. Florida Power Corp. , 633

So. 2d 504, 509 (Fla. 1st DCA 1994).

30. Petitioner's claim that she was not promoted because

of her race may be characterized as a disparate treatment case

and, thus, subject to the burden of proof as explained by the

Supreme Court in McDonnell Douglas v. Green , 411 U.S. 792

(1973); Texas Dept. of Community Affairs v. Burdine , 450 U.S.

246 (1981); and subsequent cases.

31. Pursuant to this analysis, Petitioner has the burden

of establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If she does so, Respondents

must articulate some legitimate, non-discriminatory reason for

the action taken against Petitioner. Once a non-discriminatory

reason is offered by Respondents, the burden then shifts back to

Petitioner to demonstrate that the offered reason is merely a

pretext for discrimination.

32. As applied to a claim alleging discrimination

resulting from an employer's decision not to promote, the prima

facie case an employee is required to establish is: (1) that

she belongs to a protected class; (2) that she was qualified for

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

and denied the promotion; and (4) that another person of similar

qualifications who was not a member of Petitioner's protected

class was promoted at the time the Petitioner's request for

promotion was denied.

33. Respondents do not dispute that Petitioner's race

(white) makes her a member of a protected class. Further,

Respondents do not dispute that Petitioner was qualified for the

promotion after the modifications to the position of Assistant

Superintendent for Academic Services. Lastly, Respondents do

not dispute that another employee of similar qualifications who

was not a member of Petitioner's protected class was promoted.

34. Petitioner did not, however, establish that she

applied for the promotion at issue during the time period that

Respondent James was considering applicants for the position.

Further, Petitioner did not establish that Respondent James even

knew of her interest in the position. While Petitioner did

establish that she completed an application and gave it to a

secretary, she did not establish that this secretary had any

authority or direction to advise James of Petitioner's

application.

35. Rather than letting Respondent know she was interested

in the position, the evidence in this proceeding implies that

Petitioner deliberately prevented Respondents from finding out

that she was interested in the promotion: (1) without

authorization, she posted a job opening for the modified

position before it had been approved by Respondent School Board;

(2) she filled out an application and gave it to someone with no

authority to process it; (3) she told no one, including

Respondent James with whom she had at least daily contact, that

she had done these things; and (4) she failed to complete her

job duties of compiling her application and the other

application received by her as a result of her unauthorized job

posting and presenting them to Respondent James for his

consideration. The strong implication is that Petitioner used

her knowledge and experience as a personnel professional not to

obtain the promotion at issue but rather to be in a position to

file her complaint of discrimination against Respondents.

36. Accordingly, Petitioner has failed to establish a

prima facie case because she failed to prove either by direct or

circumstantial evidence that she actually applied for the

promotion at issue or was ever considered for the promotion.

She further failed to establish that either Respondent had any

knowledge, or could have had any knowledge, that she was

interested in the position until well after the promotion had

been given to someone else. She also failed to establish that

Respondents' failure to promote her was due to her race.

37. Even assuming, arguendo , that Petitioner had met her

burden to establish a prima facie case, which she has not,

Respondents have proven a legitimate, non-discriminatory reason

for appointing Dr. Bridges to the position rather than

Petitioner. Respondent James chose Dr. Bridges because he

needed someone to fill the position, she had expressed an

interest in the position to him, and he believed that she could

successfully perform the duties of the position. Accordingly,

Respondents had a legitimate, non-discriminatory reason for

promoting Dr. Bridges instead of Petitioner.

38. To establish that a reason is a pretext for

discrimination, the stated reason must be false and the

Petitioner must establish that discrimination was the real

reason. Brooks v. County Comm'n of Jefferson County , 446 F.3d

1160 (11th Cir. 2006). Petitioner did not establish that

Respondent James appointed Dr. Bridges for reasons other than

she was qualified and expressed an interest in the position.

Therefore, Petitioner has failed to establish that the

Respondents' reason for appointing Dr. Bridges was a pretext for

discrimination.

39. Further, Petitioner did not offer any direct or

circumstantial evidence that Respondents promoted Dr. Bridges

instead of Petitioner because of Petitioner's race. In fact,

Petitioner did not show that her race was even a consideration.

40. Respondents have had the opportunity to hire two

Assistant Superintendents since Respondent James was elected

Superintendent in 2004. Respondents have hired Ms. Wood (white)

as Assistant Superintendent for Business and Finance and

Dr. Bridges (black) as Assistant Superintendent for Academic

Services.

41. Additionally, Respondents had previously promoted

Petitioner and had given her a substantial salary increase.

Where, as here, the same individual who previously promoted

Petitioner is the one who subsequently failed to promote her

again, a "same actor" inference that the decision was not

motivated by discriminatory animus is permissible. Williams v.

Vitro Services Corp. , 144 F.3d 1438 (11th Cir. 1998).

42. Petitioner also claims that she was constructively

discharged from her employment by Respondents. This claim fails

because Petitioner presented no evidence to support such a

claim. The evidence only shows that Petitioner did not like the

fact that Dr. Bridges became her supervisor and became distant

in her dealings with Dr. Bridges. Further, the evidence is

clear that Petitioner was actively looking for a different job

for substantially the entire time she was employed by

Respondents and successfully obtained such employment at a

substantially-higher salary as a result of an application she

submitted to that employer prior to the decision being made by

Respondents of which she complains in this case.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding that

Petitioner has failed to prove that Respondents committed an act

of discrimination against her and dismissing Petitioner's

petition for relief filed in this cause.

DONE AND ENTERED this 6th day of May, 2009, in Tallahassee,

Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of May, 2009.

COPIES FURNISHED :

Bruce Alexander Minnick, Esquire

The Minnick Law Firm

Post Office Box 15588

Tallahassee, Florida 32317

Matthew Carson, Esquire

Linda G. Bond, Esquire

Rumberger, Kirk & Caldwell, P.A.

215 South Monroe Street

Tallahassee, Florida 32301

Larry Kranert, 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

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.