10-008570 Ronald D. Jones vs. Gadsden County School Board Status: Closed Recommended Order on Wednesday, January 19, 2011.

Summary: Petitioner failed to prove that Respondent discriminated against him in employment based on gender.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD D. JONES , )

)

Petitioner, )

)

vs. ) Case No. 10 - 8570

)

GADSDEN COUNTY SCHOOL BOARD , )

)

Respondent. )

)

RECOMMENDED ORDER

A n administrative h earing was conducted in this case on

November 15, 2010 , in Quincy, Florida , before James H. Peterson,

III, Administrative Law Judge with the Division of

A dministrative Hearings.

APPEARANCES

For Petitioner: Ronald D. Jones, pro se

1821 McKelvy Street

Quincy , Florida 32 351

For Respondent: Deborah Stephens Minnis , Esquire

Opal McKinney - Williams , Esquire

Post Office Box 391

Tallahassee, Florida 32302

STATEMENT OF THE ISSUE

Whether Respondent Gadsden County School Board ( the School

Board or Res pondent ) discriminated against Petitioner Ronald D.

Jones by terminating him on the basis of his gender in violation

of the Florida Civil Rights Act of 1992 , s ections 760.01 Î 760.11

and 509.092, Florida Statutes

PRELIMINARY STATEMENT

On June 15 , 2009, Peti tioner filed a complaint

(Discrimination Complaint) with the Florida Commission on Hu m an

Relations (the Commission) alleging that the School Board had

discriminated against him in employment based upon his gender .

A fter investigating PetitionerÓs allegati ons, on J uly 27, 2010,

the Commission issued a Determination of No Cause finding that

no reasonable cause exists to believe that an unlawful

employment discrimination practice occurred . A n otice of the

CommissionÓs d etermination (Notice ) , sent to Petition er on the

same date, notified Petitioner of h is right to file a Petition

for Relief for a formal administrative proceeding within 35 days

of the Notice. On August 27 , 2010, Petitioner timely filed a

Petition for Relief with the Commission . T he Commission

forwarded the Petition for Relief to the Division of

Administrative Hearings on August 30, 2010 , for the assignment

of an administrative law judge to conduct a n administrative

hearing .

At the administrative hearing held o n November 15 , 2010 ,

Petitioner te stified on h is own behalf, and call ed t wo other

witnesses : Dr. Sonja Bridges and Ida Walker. Petitioner

offer ed two exhibits which were received into evidence as

Petitioner's Exhibit P - A, consisting of five pages, and

Petitioner's Exhibit P - B. The Schoo l Board also presented the

testimony of Dr. Sonja Bridges and Ida Walker and offered seven

exhibits which were received into evidence as RespondentÓs

E xhibits R - 1 through R - 7 .

The p roceedings were recorded and a T ranscript was ordered.

T he parties were gi ven 2 0 days from the filing o f the T ranscript

within which to submit their Proposed Recommended Orders. The

T ranscript , consisting of two volumes, was filed on December 1 ,

2010, and the parties timely filed their respective Proposed

Recommended Order s, wh ich have been considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. P etitioner is a ma le, who, in the past, has held a

professional teaching certificate from the Florida Department of

Education. Petitioner held a professional teach ing certificate

from July 1, 1994, until June 30, 1999, with a certification to

teach social science to students in grades five through nine.

Petitioner's professional teach ing certificate expired on

June 30, 1999, and, as a result, Petitioner was no long er deemed

eligible to teach by the Florida Depa rtment of Education.

Petitioner, however, was still eligible to be employed as a

substitute teacher.

2. The School Board is the governing body responsible for

the administration of public schools in Gadsden County, Florida.

3. The Discrimination Complaint filed by Petitioner

alleges:

I believe I was terminated because of my sex

(male). I was initially hired as a

substitute teacher in March 2007 and

received an appointment to an instructional

position on Feb ruary 26, 2008. I received a

letter from Superintendent Reginald James

dated July 29, 2008 informing me that I

would not be reappointed fo r the 2008 - 2009

school term. I was replaced by a female

employee.

4. Petitioner's Discrimination Complaint is base d upon the

fact that he was not reappointed at George Munroe Elementary

School (George Monroe) for the 2008 - 2009 school year.

5. Petitioner i nitially worked at George Monroe beginning

March 2007, as a subst itute teacher . For the 2007 - 2008 school

year , Pe titioner continued to work as a substitute for George

Monroe until he was hired on January 14, 2008, to an

instructional position , left vacant by the resignation of

another teacher . In this position, Petitioner taught fourth

grade from Fe bruary 28, 2008, until the end o f the school year.

6. At the time he was hired to the instructional position ,

Petitioner did not hold either a temporary certificate or a

professional certificate to teach in Florida. Rather,

Petitioner had applied to obtain another certif icate to teach

social science for grades 5 through 9 and held an Official

Statement of Status of Eligibility (Official Statement) from the

Florida Department of Education dated August 1, 2007.

7. According to the Official Statement, in order to obtain

a t hree - year nonrenewable Temporary Certificate covering Social

Science (grades 5 - 9), Respondent needed to submit:

a ) verification of employment and request for issuance of

certificate on the appropriate fo rm from a Florida public,

state - supported, or nonpub lic school with an approved

Professional Education Competence Program; and b ) the results of

his fingerprint processing from the Florida Department of Law

Enforcement and FBI.

8 . In addition to the submissions required for a temporary

certificate , the O fficial Statement advised that in order for

Petitioner to receive a Professional Educator Certificate valid

for five years co vering Social Science (Grades 5 - 9), Petitioner

must also submit: a) a completed CG - 10 Application Form; b) a

$56 fee; c) a passing score on the Professional Education Test;

d) a passing score on the social science (grades 5 - 9) subject

area examination; e) evidence of completion of an approved

competence program; and f) evidence of additional semester hours

or teaching experience in s pecified areas.

9. At the time that Petitioner was hired to the

instructional position in January 2008, because George Monroe

was experiencing a shortage of teachers, it was possible for

individuals with an application pending with the Florida

Department of Education to be placed in an instructional

position where there was an immediate need, pending completion

of all requirements . Therefore, e ven tho ugh Petitioner did not

have either a temporary certificate or professional certificate ,

Petitioner was hir ed to the instructional position because there

was an immediate need and he had a pending application. His

hiring , however, was also considered an "out - of - field" placement

because he did not hold either a current or a pending

certificate to teach the four th grade.

10. Near the end of th e 2007 - 2008 school year, George

Monroe began preliminary classroom and grade assignments in

preparation for the 2008 - 2009 school year. Petitioner was

pr eliminarily assigned to a fifth - grade position pending

appointment by the Superintendent. This preliminary assignment

was reflected in the agenda and supporting materials for a

faculty meeting held May 28, 2008, at George Monroe to discuss

the upcoming year.

11. The grade and room assignments showed Petitioner as

tentative ly transferring from teaching fourth grade in B3 room 6

to teaching fifth grade in room P 99 - 08.

12. In addition to Petitioner's tentative assignments,

there were a number of other preliminary grade and tentative

room assignments reflected in the agenda a nd supporting

materials for the May 28, 2008, faculty meeting. In addition to

Petitioner being preliminar il y assigned to fifth grade, Ms.

Avila and Mr. Clum were tentatively transferred to fourth grade,

and Ms. Sylvester was moved from fourth grade to fif th grade.

The agenda and supporting materials also reflect new room

assignments for those teachers.

13. Being given a preliminary grade or tentative room

assignment as reflected on the agenda and supporting materials

was not a guarantee of continued empl oyment.

14. Because of budget constraints for the upcoming 2008 -

2009 school year, George Monroe 's school district (School

District) instructed its school principals to reduce staff.

S taff reduction s trategies from the School District includ ed the

suggest ion that principals recommend to the Superintendent for

termination those t eachers who were not certified or were

teaching out - of - field .

15. Teaching "out - of - field" occurs when a teacher,

although holding a temporary or professional teaching

certificate, is not certified to teach the particular subject

area or grade level to which they have been assigned. In

Florida, teachers are not considered highly qualified if they

are teaching out of field.

16. The strategy of recommending for termination those

teac hers who are uncertified or teaching out - of - field was

designed to meet budget constraints by first reducing teachers

who were not highly qualified.

17. Ida Walker, who at the time was the principal of

George Monroe, met with Petitioner at the end of the 2 007 - 2008

school year , but prior to June 30, 2008, 1 / to discuss the status

of his teaching certificate. During that meeting, Petitioner

acknowledged that he was having problems obtaining his temporary

certificate, and Ms. Walker reminded him that in order to teach,

he had to have the paperwork to show that he was qu alified to

teach.

18. Ms. Walker, together with School District staff,

recommended to School Board Superintendent Reginald James

(Superintendent) that he not reappoint six teachers at George

Mon roe , including Petitioner, who had not provided evidence of a

valid teaching certificate or who otherwise did not meet the

requirements for certification set forth in their individual

statements of eligibility received from the Department of

Education. Co nsistent with that recommendation, i n a letter

dated July 10, 2008, the Superintendent informed Petitioner that

Petitioner would not be re - appointed for an instructional

position for the 2008 - 2009 school year. 2 /

19. Unknown to Ms. Walker or the Superinte ndent, on

July 7, 2008, prior to the date of the July 10, 2008, letter

from the Superintendent, the Florida Department of Education

(Department) issued Petitioner a temporary certificate

certifying Petitioner to teach social science for grades five

through nine . There is no evidence, however, that Ms. Walker,

the School District , the School Board , or the Superintendent

received noti ce that the temporary certificate had been issued.

The Department , as a matter of course , does not provide such

notification. Rather, it is the responsibility of the

applicant, in this case, Petitioner, to provide such

notification.

20. In a letter to the School Board dated July 29, 2008,

the Superintendent listed the names of various teachers and

other personnel employed by t he School Board that he recommended

for termination. Petitioner' s name, as well as the names of

five other teachers at George Monroe that had been earlier

identified by Ms. Walker and District staff for non -

reappointment, was included on the Superintenden t's l ist of

recommended terminations. The other five teachers from George

Monroe on the Superintendent's termination list were all female.

21. At the School Board meeting held July 29, 2008, the

School Board approved the Superintendent's recommended

term inations. Of the six teachers from George Monroe who were

not initially reappointed, two, not including Petitioner, were

subsequently rehired by the School Board after they provided

proof of proper certification, reapplied to a particular school,

and were accepted by a receiving principal.

22. Prior to the final hearing in this matter, Petitioner

never provided a copy of his temporary certificate that was

issued by the Department on July 7, 2008, to anyone in an effort

to be reappointed to teach at George Monroe. In fact,

November 15, 2010, the date of the final hearing in this case ,

was the first time that either Ms. Walker or the School Board

was made aware of the fact that Petitioner had been issued a

temporary certificate on July 7, 2008. 3 /

23. Even if Petitioner had provided George Monroe or the

School Board with a copy of his temporary certificate, he still

would not have been reappointed to George Monroe for the 2008 -

2009 school year. That is , because Petitioner's certification

is in socia l scienc e , not elementary education, and his

continued teaching at George Monroe would have been considered

out - of - field.

24. In addition, t he evidence does not support

Petitioner's allegation that he was replaced by a female

employee. Although Petitioner was te aching fourth grade at the

end of the 2007 - 2008 school year and was preliminarily assigned

to the fifth grade, Petitioner was not guaranteed a position

teaching fourth or fifth grade at George Monroe for the next

school year. T he evidence shows that there were two teachers,

one male and one female, moved from the third grade to teach

fourth grade, and one new female teacher from another school

hired to teach fifth grade at George Monroe. All three teachers

had valid professional teaching certificates in e lementary

education and were qualified to teach in the grades they were

assigned at George Monroe. In contrast, Petitioner failed to

demonstrate that he was qualified to teach element ary school at

George Mo nroe for the 2008 - 2009 school year prior to his

t ermination.

25. There was otherwise no evidence submitted by

Petitioner indicating that his termination was based on anything

other than his failure to submit proof of his qualifications.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to s ection s 120.569 and 120.57(1), Florida

Statutes (2009), 4 / and Florida Administrative Code Rule

60Y - 4.016(1) .

27. The State of Florida, under the legislative scheme

co ntained in s ections 760.01 Î 760.11 and 509.092, Florida

Statutes, known as the Florida Civil Rights Act of 1992 (the

Act), incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq .

28. The Florida law prohibiting unlawful em ployment

practices is found in s ection 760.10 . This section prohibits

discrimination Ð against any individual with respe ct to

compensation, terms, conditions, or privileges of employment ,

because of such individual's race, color, religion, sex,

national origin, age, handicap, or marital status.Ñ

§ 760.10(1)(a), Fla. Stat.

29. Florida courts have held that decisions constr uing

Title VII of the Civil Rights Act of 1964 , as amended, should be

used as guidance when construing provisions of the Act. See

e.g. , Florida DepÓt of Cm ty . Affairs v. Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991) .

30. Generally, for discrimination in em ployment claims,

the federal courts have utilized a three - part Ðburden of proofÑ

pattern developed in McDonnell Douglas Corp. v. Green , 411 U.S.

792, 93 S. Ct. 1817 (1973) . Under that pattern:

First, [Petitioner] has the burden of

proving a prima facie ca se of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate some legitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Responden t] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

McDonnell Douglas , 411 U.S. at 802, 804, 93 S. Ct. at 1824,

1825).

31. Therefore, in o rder to prevail in his claim against

Responden t, Petitioner must first establish a prima facie case

by a preponderance 5 / of the evidence. McDonnell Douglas , 411

U.S. at 802; § 120.57(1)(j), Fla. Stat.

32. To establish a prima facie case, Petitioner mus t prove

that (1) he is a member of a protected class ( e.g. , male );

(2) he was subject to an adverse employment action; (3) his

employer treated similarly - situated employees, who are not

members of the protected class, more favorably; and (4) he was

qualifi ed for the job or benefit at issue. See McDonnell

Douglas , supra .

33. Although the first tw o elements were met because

(1) Petitioner is a male and therefore , a member of a protected

class, and (2) the evidence showed that Petitioner was subject

to an ad verse employment action, Petitioner failed to show by a

preponderance of the evidence the other elements required to

present a prima facie case.

34. Specifically, t he evidence failed to show that

Petitioner was terminated from employment because he was a male .

Further, consideri ng evidence that Petitioner did not initially

hold a valid teaching certificate and once he acquired one ,

never shared that fact with the School Board prior to its

decision to terminate Petitioner, Petitioner also failed to show

th at he was qualified for the job at the time the decision to

terminate him was made.

35. In addition, other than h is own speculative belief ,

Petitioner submitted no evidence to support his contention that

he was discriminated against because of his sex . M ere

speculation or self - serving belief on the part of a compl ainant

concerning motives of a R espondent is insufficient, standing

alone, to establish a prima facie case of intentional

discrimination. See Lizardo v. DennyÓs, Inc. , 270 F.3d 94, 104

(2d Cir. 2001)(ÐPlaintiffÓs 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.Ñ).

36 . In sum, Petitioner failed to present a prima facie

case. Ð Failure to est ablish a prima facie case of race

discrimination ends the inquiry. Ñ Ratliff v. State , 666 So. 2d,

1008, 1013 n.6 (Fla. 1 st DCA 1996) (citations omitted).

37. While perhaps appropriate to apply in some contexts,

in this case, as Petitioner has failed to ma ke out a even a

prima facie case, the shifting of burden pattern has not been

further applied or elaborated in this Recommended Order .

38. Petitioner failed to prove h is Discrimination

Complaint and it is otherwise concluded , based upon the

evidence, that the School Board did not violate the Florida

Civil Rights Act of 1992 , s ections 760.01 Î 760.11 and 509.092,

and is not liable to Petitioner, Ronald D. Jones , for

discrimination in employment .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florid a Commission on Human Relations

enter a Final Order dismissing PetitionerÓs Discrimination

Complaint and Petition for Relief consistent with the terms of

this Recommended Order.

DONE AND ENTERED th is 19th day of January , 201 1 , in

Tallahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32 399 - 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 19th day of J anuary , 201 1 .

ENDNOTES

1 / On June 30, 2008, Ms. Walker was tra nsferred from George

Monroe to another school. As a result, she was not involved in

the ultimate assignment of teachers at George Monroe for the

2008 - 2009 school year.

2 / The letter, which usually would have been sent out after the

School Board approv ed the non - reappointments, was sent out prior

to the School Board meeting , which was postponed until July 29,

2008, because o f delayed FCAT test results.

3 / The only person Petitioner showed his temporary certificate

to was the principal of Shanks Middle School, when Petition er

sought employment there after his termination from George

Monroe . Any events involving Shanks Middle School are beyond

the scope of the Discrimination Complaint and evidence of such

events was not considered in this proceeding. C f. Chambers v.

American Trans Air, Inc. , 17 F.3d 998, 1003 (7th Cir. 1994)

(Ð[T]o prevent circumvention of the [Commission on Human

Relation's] investigatory and conciliatory role, only those

claims that are fairly encompassed within a [timely - filed

compla int] can be the subject of [an administrative hearing

conducted pursuant to s ections 120.569 and 120.57, Florida

Statutes]."

4 / Unless otherwise indicated, all references to the Florida

Statutes are to the 200 8 version. All references to Florida

Adminis trative Code or federal statutes and rules are to their

current, effective versions.

5 / A preponderance of the evidence is Ðthe greater weight of the

evidence,Ñ or evidence that Ðmore likely than notÑ tends to

prove her case. See Gross v. Lyons , 763 So. 2d 276, 280 n.1

(Fla. 2000).

COPIES FURNISHED :

Ronald D. Jones

1821 McKelvy Street

Quincy, Florida 32351

Deborah Stephens Minnis, Esquire

Opal McKinney - Williams, Esquire

Post Office Box 391

Tallahassee, Florida 32302

Denise Crawford, Agency Clerk

Fl orida Commission on Human Relations

20 09 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMI T 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.