10-001197 Gerry D. Mcquagge vs. Bay District Schools Status: Closed Recommended Order on Wednesday, June 30, 2010.

Summary: Petitioner did not prove that Respondent discriminated against him based on his gender or age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GERRY D. MCQUAGGE, )

)

Petitioner, )

)

vs. ) Case No. 10-1197

)

BAY DISTRICT SCHOOLS, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was conducted in this case on June 11,

2010, by video teleconference with locations in Tallahassee,

Florida, and Panama City, Florida, before Suzanne F. Hood,

Administrative Law Judge with the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jerry Long, Ed.D.

Qualified Representative

803 Skyland Avenue

Panama City, Florida 32401

For Respondent: Robert Christopher Jackson, Esquire

Harrison, Sale, McCloy, Duncan

& Jackson, Chtd.

304 Magnolia Avenue

Panama City, Florida 32402-1579

STATEMENT OF THE ISSUES

The issues are as follows: (a) whether Respondent committed an unlawful employment action by discriminating

against Petitioner based on his age and gender in violation of

Section 760.10, Florida Statutes; and (b) whether Respondent

retaliated against Petitioner for filing a grievance.

PRELIMINARY STATEMENT

On or about August 27, 2009, Petitioner Gerry D. McQuagge

(Petitioner), filed an Employment Complaint of Discrimination

against Respondent Bay District Schools (Respondent) with the

Florida Commission on Human Relations (FCHR). The complaint

alleged that Respondent discriminated against Petitioner when it

failed to transfer him to an elementary school teaching position

because he was a 51-year-old male. The complaint also alleged

that Respondent retaliated against Petitioner for filing a

grievance regarding his involuntary transfer.

On February 5, 2010, FCHR issued a Determination: No

Cause. Petitioner then filed a Petition for Relief with FCHR on

March 10, 2010. FCHR referred the petition to the Division of

Administrative Hearings on March 11, 2010.

A Notice of Hearing by Video Teleconference dated March 24,

2010, scheduled the hearing for June 4, 2010. By letter dated

April 11, 2010, Petitioner requested a continuance. After a

telephone conference on April 14, 2010, the undersigned issued

an Order Granting Continuance and Rescheduling Hearing by Video

Teleconference. The order scheduled the hearing for June 11,

2010.

On May 26, 2010, Respondent filed a Motion to Relinquish

Jurisdiction. The undersigned heard oral argument on the motion

before the hearing commenced. The motion was denied on the

record.

During the hearing, Petitioner testified on his own behalf

and presented the testimony of two witnesses. Petitioner

offered six exhibits that were accepted as evidence.

Respondent presented the testimony of three witnesses.

Respondent offered five exhibits that were accepted as evidence.

There was no court reporter at the hearing. Therefore,

there is no hearing transcript.

Respondent filed its Proposed Recommended Order on June 22,

2010. As of the date that this Recommended Order was issued,

Respondent had not filed proposed findings of fact and

conclusions of law.

Hereinafter, all references shall be to Florida Statutes

(2009), unless otherwise indicated.

FINDINGS OF FACT

1. Respondent is a public taxing district responsible for

educating Bay County's children from pre-kindergarten through

high school. Respondent employs roughly 6000 instructional,

support, and administrative personnel.

2. Respondent's instructional employees are covered by

Respondent's anti-discrimination policy and a collective

bargaining agreement (CBA) between Respondent and the local

bargaining unit, the Association of Bay County Educators (ABCE).

The CBA governs many aspects of the employment relationship

between the District and its teachers, including procedures for

involuntary transfers and lay offs due to funding issues.

3. Respondent's schools are divided as follows: (a) high

school includes ninth grade through twelfth grade; (b) middle

school includes sixth grade through eighth grade; and (c)

elementary school includes kindergarten ages through fifth

grade.

4. Petitioner is a 51-year-old male. He began working for

Respondent as a teacher in 1990.

5. For the 2008/2009 school year, Petitioner worked as a

teacher at Respondent's Haney Technical High School and Center

(Haney). At that time, Haney operated two concurrent programs:

a technical education program and a high school program.

Petitioner taught physical education and science in the high

school program.

6. During the 2008/2009 school year, Respondent decided to

eliminate the Haney high school program due to budget cuts and

lower student census. Respondent also made the decision to

combine the Haney technical education program with an adult

education program from another closed school.

7. The Haney high school program was not Respondent's only

major adjustment for economic reasons. Respondent also closed

five other schools and cut over 100 positions. This process

resulted in 154 displaced teachers.

8. All of Haney's high school teaching positions,

including Petitioner's, were to be eliminated. Sandra Davis,

principal at Haney, asked for voluntary transfers. No one in

the high school program volunteered to transfer.

9. Ms. Davis requested that certain high school teachers

remain at Haney to teach in the restructured program at Haney.

Ms. Davis made the decision to keep the teachers at Haney based

on consideration of the projected need in the restructured Haney

program for the upcoming year and after considering the

teachers' certifications and experience.

10. Teachers with continuing contracts or professional

service contracts, who were not to remain at Haney, were placed

in the displaced teachers' pool. The pool included Petitioner

and all teachers who worked in schools or programs that

Respondent intended to eliminate.

11. There was a meeting on April 20, 2009, between

Superintendent William Husfelt, the District's Personnel

Department, and the displaced teachers in the District. At the

meeting Respondent explained the procedures for

transferring/reassigning displaced teachers.

12. The displaced teachers were provided with a list of

all of Respondent's vacant positions. Respondent then asked

each displaced teacher to list their top three positions. Every

teacher was granted an interview for their top three positions.

13. Petitioner selected positions at Hiland Park

Elementary School, Lynn Haven Elementary School, and Mowat

Middle School. According to Petitioner, he listed the middle

school because it was close to his home. He was granted and

attended interviews for all three positions.

14. Petitioner recently obtained his certification in

elementary education. However, he had no recent substantive

experience teaching elementary students.

15. The principals who interviewed the displaced teachers

selected the people to fill vacant positions at their respective

schools on a competitive basis. During one such interview, it

became apparent that Petitioner was not as familiar with the

method of teaching reading as more experienced teachers and/or

even other recently certified elementary education

professionals.

16. The vast majority of Petitioner's experience was

teaching high school students. He was used to working with

students more similar in age and behavior to middle school

students.

17. The principals who interviewed Petitioner did not

select him to fill any of his top three positions. At the end

of this interview/selection process, there were 34 teachers who

were not selected for any position, including Petitioner.

18. During the hearing, Petitioner confirmed that he did

not believe any discrimination or retaliation took place prior

to and through the time of the interviews. Petitioner

understood it was a competitive selection process with over 100

applicants.

19. On or about April 28, 2009, Respondent conducted a

second meeting with the remaining displaced teachers. At the

meeting, displaced teachers were again asked to list their top

three choices for placement from the remaining vacant positions.

Petitioner listed Hiland Park Elementary, Tommy Smith

Elementary, and Lucille Moore Elementary.

20. Superintendent considered the displaced teachers'

lists, their certifications and experience, the vacant

positions, and other factors. At no time did Respondent promise

to place a displaced teacher in a position of the teachers'

choice.

21. Superintendent Husfelt placed Petitioner at Everitt

Middle School, teaching science. Petitioner was qualified to

fill the position, but it was not one of his choices on his

second top-three list. Female applicants were appointed to fill

all of the positions at the elementary schools.

22. On or about May 11, 2009, Petitioner and Ms. Davis met

to discuss Petitioner's informal grievance relative to his

involuntary transfer. Ms. Davis denied the informal grievance.

23. On May 26, 2009, Petitioner filed a formal Grievance

with Ms. Davis regarding his involuntary transfer/reassignment.

She denied the grievance.

24. On June 10, 2009, Petitioner and Superintendent

Husfelt's designee, Pat Martin, had a Step II grievance meeting.

Respondent subsequently denied Petitioner's grievance.

25. Sometime in June 2009, Petitioner applied for five

vacant positions at Hiland Elementary School. There were fifth

grade vacancies, two fourth-grade vacancies, and one third-grade

vacancies. Petitioner received an interview for these

positions. However, all five positions were filled with female

teachers.

26. The involuntary transfer did not cause Petitioner to

suffer any loss of pay, benefits, or seniority. The new

position was approximately five miles away from his former

position.

27. During the hearing, Petitioner testified that he

researched the Internet to determine the percentage of male

teachers in Respondent's elementary schools, kindergarten

through grade five. According to Petitioner, four percent of

the teachers are male. Respondent presented evidence that

approximately 11.58 percent of its elementary school teachers,

kindergarten through sixth grade, are male. These raw

statistics, standing alone, are not competent evidence that

Respondent is intentionally excluding male teachers in its

elementary schools.

28. Petitioner admitted during the hearing that he had no

evidence regarding the age of Respondent's elementary school

teachers, male or female. Therefore, there is no evidence of

age discrimination.

29. Petitioner stated at hearing that the transfer to the

middle school caused him to suffer an adverse action because

industrial air pollution in the area caused him to take more

sick leave than when he taught at Haney, about five miles away.

This argument has not been considered here because Petitioner

raised it for the first time during the hearing and because

Petitioner had no competent medical evidence to support his

claim.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding pursuant to Sections 120.569, 120.57(1), and 760.11,

Florida Statutes.

31. It is unlawful for an employer to discriminate against

an individual based on the individual’s age or gender. See

§ 760.10(1)(a), Fla. Stat.

32. The Florida Civil Rights Act (FCRA), Sections 760.01 -

760.11, Florida Statutes, as amended, was patterned after Title

VII of the Civil Rights Act of 1964, 42 U.S.C Section 2000e et

seq. Federal case law interpreting Title VII is applicable to

cases arising under the FCRA. See Brand v. Florida Power Corp. ,

633 So. 2d 504,509 (Fla. 1st DCA 1994); and Valenzuela v.

Globeground North America, LLC , 18 So. 3d 17, 21 (Fla. 3d DCA

2009).

33. Petitioner has the burden of proving by a

preponderance of the evidence that Respondent discriminated

and/or retaliated against him. See Valenzuela , 18 So. 3d at 22.

34. Petitioner can establish a case of discrimination

alleging disparate treatment through direct, statistical, or

circumstantial evidence. See Valenzuela , 18 So. 3d at 22.

35. Petitioner presented no evidence of any kind relative

to age discrimination. Apparently, Petitioner has abandoned his

argument that Respondent discriminated against him based on his

age.

36. As to Petitioner's claim of gender discrimination, he

did not present any direct evidence showing discrimination.

However, the record does include two statistics regarding the

gender of elementary school teachers. Petitioner asserts that

approximately four percent of elementary school teachers are

male in grades kindergarten through fifth grade. Respondent

states that approximately 11 percent of elementary school

teachers are male in grades kindergarten through sixth grade.

37. Respondent admits that over 90 percent of all

elementary school teachers are female. There is no evidence as

to the number of men who have applied for and been denied a job

teaching kindergarten through fifth grade. The raw statistical

facts established here, without more, do not show that

Respondent is deliberately excluding males, including

Petitioner, from teaching elementary school, kindergarten

through fifth grade.

38. In the absence of direct or statistical evidence of

intentional discrimination, an employee in a discrimination case

has the initial burden of proving a prima facie case of

discrimination. See McDonnell Douglas Corp. v. Green, 411 U.S.

792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). If the employee

proves a prima facie case, the burden shifts to the employer to

proffer a legitimate non-discriminatory reason for the action it

took. See Texas Department of Community Affairs v. Burdine, 450

U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The

employer’s burden is one of production, not persuasion, as it

always remains the employee’s burden to persuade the fact-finder

that the proffered reason is a pretext and that the employer is

guilty of intentional discrimination. See Burdine , 450 U.S. at

252-256.

39. In order to prove a prima facie case of gender

discrimination, Petitioner must show the following: (a) he is a

member of a protected group; (b) he was qualified for the

position he sought; (c) he was subjected to an adverse

employment action; and (d) Respondent treated similarly situated

employees of a different gender more favorably. See Turlington

v. Atlanta Gas Light Company , 135 F.3d 1428, 1432 (11th Cir.

1998); Lee v. Russell County Board of Education , 684 F.2d 769

(11th Cir. 1984); and Canino v. EEOC , 707 F.2d 468 (11th Cir.

1983).

40. Similarly, in order to prove a prima facie case of

retaliation, Petitioner must establish that: (a) he engaged in

a statutorily protected activity; (b) he suffered an adverse

employment action; and (c) the adverse action was causally

related to the protected expression. See Byrne v. Alabama

Alcoholic Beverage Control Bd. , 635 F. Supp. 2d 1281, 1297 (M.D.

Ala. 2009).

41. Thus, an adverse employment action is a necessary

element of proof for Petitioner to maintain his discrimination

and retaliation claims. Petitioner has not met his burden on

either claim.

42. In Davis v. Town of Lake Park , 245 F.3d 1232 (11th

Cir. 2002), the Court set forth the adverse employment standard

as follows:

Whatever the benchmark, it is clear that to

support a claim under Title VII's anti-

discrimination clause the employer's action

must impact the "terms, conditions, or

privileges" of the plaintiff's job in a real

and demonstrable way. Although the statute

does not require proof of direct economic

consequences in all cases, the asserted

impact cannot be speculative and must at

least have a tangible adverse effect on the

plaintiff's employment. We therefore hold

that, to prove adverse employment action in

a case under Title VII's anti-discrimination

clause, an employee must show a serious and

material change in the terms, conditions, or

privileges of employment. Moreover, the

employee's subjective view of the

significance and adversity of the employer's

action is not controlling; the employment

action must be materially adverse as viewed

by a reasonable person in the circumstances.

[Emphasis included; Citation omitted].

43. Not every decision of an employer is considered an

adverse employment action. In this case, Petitioner has not

shown that there has been a serious and material change in the

terms, conditions, or privileges of his employment. The only

change here was a five-mile change in location and a shift from

teaching high school students to middle school students.

44. To the extent that Petitioner proved a prima facie

case of gender discrimination and/or retaliation, Respondent had

the following legitimate non-discriminatory reasons for placing

Petitioner in a middle school position: (a) Petitioner's lack

of elementary school experience; and (b) Petitioner's experience

was more closely suited to teaching middle school students.

Petitioner provided no evidence to suggest that these reasons

were pretextual.

RECOMMENDATION

Based on the foregoing 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 30th day of June, 2010, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

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 30th day of June, 2010.

COPIES FURNISHED :

Robert Christopher Jackson, Esquire

Harrison, Sale, McCloy, Duncan & Jackson, Chtd.

304 Magnolia Avenue

Panama City, Florida 32401

Gerry D. McQuagge

1608 Georgia Avenue

Lynn Haven, Florida 32444

Jerry Long, Ed. D.

803 Skyland Avenue

Panama City, Florida 32401

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

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.