10-007209 Valmyr Vilbrun vs. County Of Osceola School Board Status: Closed Recommended Order on Wednesday, July 27, 2011.

Summary: Petitioner could not prove that non-renewal of his annual contract was based on racial discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALMYR VILBRUN , )

)

Petitioner , )

)

vs. ) Case No. 10 - 7209

)

COUNTY OF OSCEOLA SCHOOL BOARD , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to not ice to all parties, a final hearing was

conducted in this case on June 3, 2011, in Kissimmee, Florida,

before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Candance N. Vilbrun ,

Qualified Representative

Post Office Box 701975

St. Cloud, Florida 3477 0

For Respondent: Gary M. Glassman, Esquire

Brown, Garganese, Weiss

& D'Agresta, P.A.

111 North Orange Avenue, Suite 2000

Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issues in this case are:

1. Whether Respondent, County of Osceola School Board (the

"Board"), discriminated against Petitioner, Valmyr Vilbrun

("Vilbrun"), on the basis of his race (African - American) in

violation of the Florida Civil Rights Act; and

2. Whether the Board retaliated against Vilbrun when he

filed a discrimination claim.

PRELIMINARY STATEMENT

Vilbrun filed a Complaint of Discrimination with the

Florida Commission on Human Relations (the "Commission") on

Dece mber 7, 2009. A Determination: No Cause was entered by the

Commission on July 2, 2010. Vilbrun filed a Petition for Relief

with the Commission on or about August 3, 2010. A copy of the

Petition was forwarded to the Division of Administrative

Hearings (" DOAH") on August 6, 2010. The undersigned

Administrative Law Judge was assigned to the case , and the final

hearing was held on the date set forth above.

At the final hearing, Vilbrun testified on his own behalf

and called three other witnesses: Linda Moo re - Short; Mabel

Sweeney, and Debra Zeller; all former teachers at St. Cloud High

School (the "School"). Vilbrun's E xhibits 2, 4, 7, 8, 11

through 13, 16 through 19, 21, 36, 37, 41 , 42 , 44, 47 and 49,

were admitted into evidence. The Board called three wi tnesses:

Pamela Tapley, principal at the School; Jennifer Reyes, teacher;

and Patricia Minor, teacher and union representative at the

School. The Board's Exhibits 6, 7, 12, and 17 through 20 were

admitted into evidence.

The parties advised that a transcr ipt of the final hearing

would be ordered. By rule, parties are allowed ten days to

submit proposed recommended orders (PRO s ) following filing of

the transcript at DOAH. The T ranscript was filed on June 27,

2011. The parties filed two agreed motions to extend the time

for filing PROs , and each was granted. PROs were ultimately

deemed to be due on July 11, 2011. The Board filed its PRO on

July 11 , 2011, at 4:07 p.m.; Vilbrun attempted to file its PRO

via fax beginning at 3:59 p.m., but it did not fully arrive

until 5:41 p.m. However, there is no prejudice to the Board for

Vilbrun's tardiness relating to that PRO.

Vilbrun , thereafter , called the Administrative Law Judge's

office , asking permission to amend the PRO because the

Recommendation section had been erroneously omitted when it was

filed. Permission was granted to make the minor amendment.

However, when the amended PRO arrived on July 14, 2011, it had

been changed considerably from the original. The Board moved to

strike the amended PRO. Ther eafter, Vilbrun filed a motion

seeking leave to file the amended PRO (which had already been

filed). The Board objected to the amended PRO. An Order was

entered denying Vilbrun's motion to file an amended PRO.

Vilbrun's original PRO and the Recommendati on section of the

amended PRO, along with the Board's PRO, were duly considered in

the preparation of this Recommended Order.

FINDINGS OF FACT

1. Vilbrun is an African - American male who, at all times

relevant hereto, was teaching an e xceptional s tudent e ducation

(ESE) class at the School. Vilbrun is currently employed at

Alternatives Unlimited, a school in Polk County, Florida. He

also works as a dispatcher for the St . Cloud Police Department,

a position he has held for several years.

2. The Board is t he agency responsible for hiring and

supervising all teachers in Osceola County, including those

employed at the School. The Board is further responsible for

determining whether teachers working under annual contracts are

to be renewed at the end of their contract term.

3. Vilbrun was a teacher at the School during the

2008 - 2009 school year. He was working under an annual contract

for that school year only. Vilbrun had been hired by Tapley to

teach an ESE class at the School. At the end of the school

year , Tapley recommended non - renewal of Vilbrun's contract

based , in large part , upon her evaluation of Vilbrun's teaching

skills, her concerns about his tardiness, and his negative

interaction with a fellow teacher.

4. Vilbrun maintains that the reason for the

recommendation of non - renewal was racial discrimination. While

citing no direct evidence of discrimination by anyone at the

School or the Board, Vilbrun provided circumstantial evidence as

to three incidents that had occurred in furtherance of his

claim:

Ʊ Vilbrun had a confrontation with a Caucasian,

female teacher (Reyes) at the School;

Ʊ Vilbrun had a negative relationship with the dean

of students (Andrea Beckel); and

Ʊ There was an issuance of disciplinary letters to

four African - American tea chers on the same day.

Each of those incidents will be discussed more fully below.

Incident Involving Fellow Teacher

5. When Vilbrun began teaching at the School, he

approached Reyes, a fellow ESE teacher, to help him prepare

Individual Education Plans ( "IEPs") for his students. IEPs are

an integral part of the ESE program , and each teacher is

expected to develop IEPs for their students. After a period of

assistance from Reyes, Vilbrun began preparing the IEPs for his

students by himself. Reyes remembe rs telling Vilbrun that it

was time for him to do the IEPs on his own. Vilbrun remembers

deciding to do the IEPs independently after seeing that the

extra time spent with Reyes might be misconstrued by others as

improper. Reyes is a young, Caucasian woma n.

6. In December 2008, about halfway through the school

year, one of Reyes' students approached her and asked if she

wanted to buy some items that he was selling "for Mr. V's

class." Reyes was taken aback because her class was in the

midst of a fundrais er at that time , and the School only allows

limited fundraisers to be going on at any one time. Reyes

telephoned Vilbrun to inquire about his fundraiser, but he did

not answer the call. Reyes then emailed the person responsible

for coordinating fundraise rs at the School to make sure that she

(Reyes) was not violating the policy by carrying out her class's

fundraiser at that time. She was advised that her fundraiser

was authorized. The fundraising coordinator apparently then

went to Vilbrun to inquire ab out his fundraising project.

7. A day or two later, Vilbrun approached Reyes in another

teacher's classroom and said, "I can't believe it's in your

character to do that." Vilbrun was upset that Reyes had

contacted the School office about his alleged fund raiser. He

told Reyes that it was not a fundraiser per se and that "the

money was going to someone else." The conversation escalated

into an argument, and Reyes, a small woman, became uncomfortable

and intimidated by Vilbrun's behavior. Reyes was also c oncerned

that because her child and Vilbrun's child both attended the

same day care, she would potentially have to confront Vilbrun

away from the School grounds.

8. Reyes was upset enough by the incident to contact the

principal to discuss her version of what had transpired. The

principal spoke with Reyes and asked for a written statement,

which Reyes submitted. Coincidentally, Reyes had submitted a

typed letter to the office that very morning complaining about

another issue she had with Vilbrun, namely, that he was often

late to class and that she would have to monitor his students

until he arrived. Her hand - written statement about the

fundraiser incident was submitted in the afternoon of the day

she sent in the tardiness letter.

9. Tapley then issued a letter to Vilbrun advising him

that a complaint had been filed against him by another teacher.

The letter did not make a determination of whether the complaint

was founded, and Vilbrun was given the opportunity to submit a

written response prior to meet ing with the principal. There is

no evidence that a written response was prepared by Vilbrun.

Tapley then conducted an investigation to determine whether

there were grounds for discipline against either of the teachers

involved.

10. As a result of Tapley 's investigation into the matter,

Tapley verbally advised Vilbrun to keep his distance from Reyes.

Tapley then issued a letter of guidance to Vilbrun directing him

to follow procedures for all fundraising activities. The letter

also addressed Vilbrun's f ailure to report to work on time. The

letter did not provide any sanction or direction concerning

interaction with Reyes or other colleagues. As far as Vilbrun

knew, no action was taken against Reyes.

Relationship With Dean of Students

11. For unknown or unstated reasons, Vilbrun did not have

a good working relationship with Beckel, the d ean of students at

the School. Vilbrun believed Beckel was not adequately

performing her role, that she was not able to handle unruly or

disruptive students, and that she failed to provide Vilbrun with

sufficient support.

12. In April 2009, Vilbrun submitted a memorandum to

Tapley addressing his concerns about the relationship between

him and Beckel. The memorandum discussed Vilbrun's perception

of his interactions wit h Beckel, but without benefit of Beckel's

version of the facts, it is impossible to make a finding as to

the exact nature of the relationship between the two

individuals. However, the gist of Vilbrun's complaint against

Beckel is professional in nature an d relates to differences

between the two concerning the handling of student discipline.

There is one peripheral comment about an "outright

discriminative" email received from Beckel in the memorandum.

However, the emails presented into evidence by Vilbrun do not

substantiate that claim.

13. As a matter of fact, Vilbrun, when asked whether race

was a motivating factor for the way Beckel interacted with him,

stated, "I can't speculate on that" and "As far as what was

causing that, I can't really say." [Tra nscript, pp. 296 - 297.]

Vilbrun had a general perception that Caucasian teachers did not

seem to have the same difficulties with Beckel that he was

experiencing.

Adverse Action Towards Four African - American Teachers

14. On the day before he received the let ter from Tapley

concerning the Reyes matter, Vilbrun was the recipient of a

letter from Tapley concerning his attendance and punctuality.

In fact, all four ESE teachers , all of whom are

African - American , received letters on that same day, March 10,

2009. Vilbrun views that fact as evidence of discrimination

against him and the other African - American teachers.

15. Tapley generated each of the letters, but states they

were based on alleged violations by each teacher and were not

based on reference to the re cipient's race. Tapley's testimony

in this regard is credible.

16. The letters are known as "9.02 letters , " based on the

section of the Union Agreement in which such letters are

described. The 9.02 letters advise teachers of perceived or

alleged violat ions that have been reported and give the teacher

an opportunity to respond before further action is taken by

administration. The letters are not final and do not establish

fault. Rather, they are merely a preliminary step that may

either result in a san ction or may be dismissed entirely.

17. One of the recipients of one of the four 9.02 letters,

Sweeney, adamantly defended Tapley as non - racist. In fact,

Tapley assisted Sweeney and helped her find a new position when

Sweeney's class at the School had to be eliminated due to loss

of students.

18. Other than the fact that each of the four recipients

of a 9.02 letter from Tapley on that date was African - American,

there is no evidence that race had anything to do with the

letters. A former ESE teacher at the School testified that ESE

teachers were sometimes discriminated against as a group, i.e.,

as ESE teachers, but there was no racial discrimination at the

School to her knowledge.

Other Factors for Consideration

19. At the end of the 2008 - 2009 school year, Tapley made a

recommendation to the Board for non - renewal of the annual

contracts for 17 teachers from the School. Of that group,

11 were Caucasian, three were African - American, and three were

Hispanic.

20. Tapley was described by almost every teacher, e xcept

Vilbrun, as acting responsibly and without regard to race when

dealing with issues at the School. There is no evidence that

Tapley engaged in any racist behavior. To the contrary, her

demeanor and fairly universal support from staff indicates just

the opposite.

21. Andrea Beckel, with whom Vilbrun alleges a strained

relationship and who Vi l brun suggests made statements with

racist undertones, did not testify. It is impossible to make a

finding of fact concerning her behavior or demeanor.

22. The un ion representative at the School, Patty Minor,

described Tapley as decidedly non - racist. Vilbrun never went to

Minor with a complaint about Tapley acting in a discriminatory

fashion based on race or anything else.

23. One of Tapley's "hot buttons" for her teachers was

timely arrival at school. Vilbrun had some issues with

timeliness during his tenure at the School. Reyes testified

that she had to cover Vilbrun's students on many occasions.

Minor, as the union representative, counseled Vilbrun about the

necessity for timely arrival. No documentary evidence was

presented, however, to substantiate that Vilbrun was habitually

tardy.

24. During the 2008 - 2009 school year, Vilbrun received two

"annual" reviews, performed by assistant principal Neves. The

revi ews indicate satisfactory performance of most of his

required tasks and that improvements were being made. However,

Vilbrun was viewed by his principal and other administrators as

deficient in the classroom. His students were observed to be

unfocused and lacking in clear direction as to their studies.

Vilbrun rejects those allegations on the basis that Tapley was

not his direct supervisor and did not perform regular reviews of

his classroom. Tapley, however, viewed Vilbrun on numerous

occasions and reli ed upon reports from other teachers and

administrators as the basis for her actions.

25. Of the six teachers hired for the ESE department at

the School for the 2009 - 2010 school year, five had less

experience than Vilbrun. However, Tapley testified that sh e

considers qualifications , rather than experience , as the

deciding factor for hiring teachers.

26. Vilbrun claims retaliation by the School and/or the

Board because of his complaint to the Commission. One of the

purported retaliatory actions was a phone reference check form

evidencing that Tapley told Ana Smith, a Board employee, she

would not rehire Vilbrun or recommend him for employment.

Vilbrun also applied for numerous jobs, and he believes that

someone at the School or Board was sabotaging his appl ications

or blackballing him in some fashion because he could not get any

interviews. However, the phone call and Vilbrun's applications

occurred in May 2009; his complaint to the Commission was filed

in December of that year.

CONCLUSIONS OF LAW

27. The D ivision of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 120.569 and 120.57(1), Florida

Statutes (2010). Unless specifically indicated otherwise

herein, all references to Florid a Statutes will be to the 2010

codification.

28. The Florida Civil Rights Act (the "Act") is codified

in se ctions 760.01 through 760.11 and 509.092, Florida Statutes.

The Act makes it unlawful to discriminate against any individual

with respect to the com pensation, terms, conditions or

privileges of employment on the basis of race. Vilbrun is

claiming violation of the Act by the Board, particularly with

respect to actions taken by the principal at the School.

29. The U . S . Supreme Court has established an analytical

framework within which courts should examine claims of

discrimination, including racial discrimination. In cases

alleging discriminatory treatment, a petitioner has the initial

burden of establishing, by a preponderance of the evidence, a

prima facie case of discrimination. St. Mary's Honor Ctr. v.

Hicks , 509 U.S. 502 (1993); Combs v. Plantation Patterns ,

106 F.3d 1519 (11th Cir. 1997).

30. Vilbrun can establish a prima facie case of

discrimination in one of three ways: (1) by producing direct

evidence of discriminatory intent; (2) by circumstantial

evidence under the framework in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973); or (3) by establishing statistical

proof of a pattern of discriminatory conduct. Carter v. City of

Miami , 870 F.2d 578 (11th Cir. 1989). Failure to establish a

prima facie case will require entry of a decision in favor of

the employer. Earley v. Champion Int'l Corp. , 907 F.2d 1077

(11th Cir. 1990).

31. To establish a prima facie case of discrimination,

Vilbrun m ust show: that he is a member of a protected class;

that he suffered an adverse employment action; that he received

disparate treatment from other similarly - situated individuals in

a non - protected class; and that there is sufficient evidence of

disparate treatment. Andrade v. Morse Operations, Inc. , 946

F. Supp. 979 (M.D. Fla. 1996).

32. Vilbrun addressed his prima facie case by showing that

due to his race (African - American) , he is a member of a

protected class and that he suffered an adverse employment

action, i.e., his contract for employment was non - renewed.

Vilbrun says that his treatment in the Reyes affair was

disparate from how the other Caucasian party was treated.

However, there is insufficient evidence of disparate treatment

or that any differ ence in how Vilbrun and Reyes were treated was

based on race. There is no discriminatory basis for the

strained relationship between Vilbrun and Beckel. The letters

issued to four African - American teachers on the same day is not

de facto evidence of raci al discrimination.

33. Other than his testimony regarding his belief that he

had been discriminated against based on his race, Vilbrun

offered no persuasive evidence - - direct, circumstantial, or

statistical - - of the alleged discrimination. His prima facie

c ase of discrimination is not supported by the evidence.

34. If Vilbrun had satisfied his burden of establishing a

prima facie case of discrimination, an inference would have

arisen that the adverse employment action was motivated by a

discriminatory intent . Texas Dep't of Cmty. Aff . v. Burdine ,

450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green , supra .

The burden would have then shifted to the Board to articulate a

legitimate, non - discriminatory reason for its action.

35. In the present case, the Board articulated sufficient

non - discriminatory reasons for non - renewal of Vilbrun's

contract, including his tardiness, his interactions with fellow

employees, and his lack of proficient teaching skills.

36. Once the Board articulated the aforementioned reaso ns

for its action, the burden would then shift back to Vilbrun to

show that the proffered reasons were a mere pretext for unlawful

discrimination. To do so, Vilbrun must provide sufficient

evidence to allow a reasonable fact - finder to conclude that the

pr offered reasons were not the actual motivation for the adverse

employment action. Standard v. A.B.E.L. Serv., Inc. , 161 F.3d

1318 (11th Cir. 1998).

37. Vilbru n would need to show that the Board's

articulated reason is a pretext by showing that the non -

dis criminatory reasons should not be believed; or by showing

that in light of all the evidence, discriminatory reasons more

likely motivated the decision than the proffered reason. Id.

Vilbrun did cast some doubt on some of the Board's reasons by

questionin g whether there was sufficient written documentation

to substantiate the claims of tardiness or poor classroom

management. However, the testimony of Tapley and others was

credible and sufficiently proved the existence of non -

discriminatory reasons for the Board's action. And it is

abundantly clear from the evidence that race was not the basis

for the Board's actions (especially as those actions were

carried out by the School's principal).

38. In addition, other than his speculation and belief,

Vilbrun p rovided no evidence to support his contention that the

Board acted on the basis of racial discrimination. Mere

speculation or self - serving belief on the part of a complainant

concerning motives of a respondent is insufficient, standing

alone, to establish a prima facie case of intentional

discrimination. See Lizardo v. Denny's, Inc. , 270 F.3d 94, 104

(2d. Cir. 2001) ("Plaintiffs have done little more than cite to

their mistreatment and ask the court to conclude that it must

have been related to their race . This is not sufficient.") .

39. As to Vilbrun's claim of retaliation, there was no

evidence presented, persuasive or otherwise, that the Board took

any action whatsoever that would support the claim. None of the

evidence presented could reasonably be in ferred to substantiate

a claim of retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations dismissing the Petition for Relief

filed by Petitioner, Valmyr Vilbrun, in its entirety.

DONE AND ENT ERED this 27th day of July , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

T he DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of July , 2011 .

COPIES FURNISHED :

D enise 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 3 2301

Gary M. Glassman, Esquire

Brown, Garganese, Weiss

& D'Agresta, P.A.

111 North Orange Avenue, Suite 2000

Orlando, Florida 32801

Candance N. Vilbrun

Post Office Box 701975

St. Cloud, Florida 34770

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parti es 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.