11-001496 Hisham Aboudaya vs. Everest University Status: Closed Recommended Order on Monday, November 21, 2011.

Summary: Petitioner did not meet his burden of proof claiming discrimination on the basis of race, national origin, or religion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HISHAM ABUDAYA , )

)

Petitioner , )

)

vs. ) Case No. 11 - 1496

)

EVEREST UNIVERSITY , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice to a ll parties, a final hearing was

conducted in this case on August 26, 2011, in Viera, Florida,

before Administrative Law Judge R. Bruce McKibben of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Elaine W. Keyser, Esquire

Littl er Mendelson, P.C.

One Biscayne Tower, Suite 1500

2 South Biscayne Boulevard

Miami, Florida 33131

For Respondent: Hisham Aboudaya, pro se

2340 Early Dawn Circle

Melbourne, Florida 32935

STATEMENT OF THE ISSUE S

The issues in this case are:

1. Whether Respondent, Everest University (the "School"),

discriminated against Petitioner, Hashim Aboudaya, on the basis

of his place of natural origin (Middle Eastern), race

(Caucasian), and/or religion (Muslim) in violation of the

Fl orida Civil Rights Act by twice failing to promote Petitioner

to the position of associate dean or director of Student

Services; and

2. Whether the School retaliated against Petitioner based

on his place of natural origin, race, and/or religion by

refusin g to pay for his doctoral level college courses.

PRELIMINARY STATEMENT

Petitioner filed a Complaint of Discrimination with the

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

September 20, 2010. A Determination of No Cause was entered by

the C ommission on February 16, 2011. Petitioner filed a

Petition for Relief with the Commission on February 28, 2011. A

copy of the Petition was forwarded to the Division of

Administrative Hearings ("DOAH") on March 18, 2011. The

undersigned Administrative L aw Judge was assigned to the case

and the final hearing was held on the date set forth above.

At the final hearing, Petitioner testified on his own

behalf. Petitioner's Exhibits 1 through 4, 6 , and 7 were

admitted into evidence. The School called three w itnesses:

Jeanne Teeter, director of Organizational Development; Jeannie

Lesser, academic dean; and Mark Judge, president of the School.

The Board's Exhibits 1, 3, 7, 10, 11, 13, 16 through 18, and

20 through 23 were admitted into evidence.

The parties a dvised that a transcript of the final hearing

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

submit proposed recommended orders (PROs) following filing of

the transcript at DOAH. The parties requested and were allowed

up to 30 days after the transcript was filed. The Transcript

was filed on October 14, 2011. Respondent filed its PRO on

October 13, 2011, i.e., before the Transcript was officially

filed. Petitioner filed his PRO on November 14, 2011. Both

PROs were duly considered in the preparation of this Recommended

Order.

FINDINGS OF FACT

1. Petitioner is a Caucasian male, born in Lebanon and,

therefore, of Middle Eastern heritage. He is a practicing

Muslim. In July 2003, Petitioner began teaching as an adjunct

professor at the Sch ool, teaching computer information services

and teaching a few classes per year. In or around August 2007,

Petitioner was promoted to senior network administrator, a

non - teaching position, for the School. At all times relevant

hereto, Petitioner served i n that position. He currently

teaches classes on an as - needed basis also .

2. The School is a private college formerly known as

Florida Metropolitan University. There are ten related campuses

in the State of Florida, with one being in Melbourne, Brevard

County, Florida. The Melbourne campus has two locations, one on

Sarno Road and the "main" campus on U.S. Highway 1.

3. Petitioner holds two master's degrees, one in

management and one in computer resources and information

management, from Webster Univer sity in Saint Louis, Missouri.

He is pursuing a third master's degree, but it is "on hold"

pending his completion of studies in a doctoral program. The

doctoral program being sought by Petitioner is in the field of

business administration with a major fi eld of study in computer

security. The degree is being pursued on - line through Capella

University based in Minneapolis, Minnesota. Petitioner's resume

indicates that the Ph.D . will be "done in the end of 2007," but

it has obviously taken longer than plan ned.

4. Petitioner has applied for several vacancies listed at

the School, but for purposes of this proceeding, the following

are relevant: ( 1) The associate academic dean position

advertised in January 2010; ( 2) The associate academic dean

position adve rtised in April 2010; and ( 3) The director of

Student Services position advertised in August 2009.

Associate Academic Dean Positions

5. The following qualifications were specified in the

School's j ob d escription for the associate academic dean

positions. The applicant must:

Ʊ Possess the necessary academic credentials and work

related experience mandated by the Company, State

accreditation agencies and any other regulatory

agency that monitors compliance.

Ʊ Have a minimum of 2 years practical work experience

in business or e ducation.

Ʊ Have a minimum of 1 year teaching experience, but

Ʊ The years of experience may be waived at the sole

discretion of the college president so long as the

incumbent meets the accreditations, State and

Federal requirements necessary to hold the position.

6. There was also a job posting (as opposed to a job

description) for the associate dean position on a website

associated with Corinthian Colleges, Inc. ("CCI"), the School's

parent company. That job posting indicated that a master's

degree wa s required for the job and included other requirements

not set out in the School's official job descri ption. The

college president, Mark Judge, could not verify the accuracy of

the job posting. There is no persuasive, credible evidence that

the job posti ng was produced by the School or intended to be

used as the basis for filling the associate dean position.

7. The first associate dean position was for the Sarno

Road site which housed the School's allied health programs,

e.g., medical assistant training, pharmacy technician associate

degrees, medical insurance billing and coding, and healthcare

administration. Besides the requirements set forth in the job

description, the School was looking for someone with health -

related experience as well.

8. Terri Ba ker, a registered nurse, was ultimately hired

to fill the associate dean position. Baker had approximately

20 years of experience with the School. During that time, Baker

had taught classes in the allied health program, had served as a

program director, and was an associate dean at other campuses

within the CCI system.

9. Baker does not hold a master's degree, but the job

description issued by the School does not require that level of

education. The job posting, which appeared in a publication

issued by the School, does say that a master's degree is

required, but there is no competent and substantial evidence to

suggest the job posting supersedes the job description.

Notwithstanding her level of schooling, it is clear Baker was a

perfect fit for the j ob. The decision to appoint her, rather

than Petitioner, to the position wa s based on factors other than

race, national origin or religion.

10. The second associate dean position was advertised in

the Spring of 2010. The job description for that job is t he

same as the previous associate dean position. However, there

are many different duties and expectations associated with the

second position. For example, while the first position was

related directly to the allied health programs at the School,

the se cond position had a different focus. The person filling

this position would be working on the main Melbourne campus,

rather than the satellite campus. His or her duties would be

directed toward tasks such as transfer of credit analysis,

scheduling, and r egistering new students. The dean would also

be responsible for monitoring the School's compliance with

accreditation standards and internal audit standards.

11. Betty Williams was hired to fill the second associate

dean position. Williams had significan t management experience

in academic settings. She had served as an academic dean for

one of the School's competitors and had extensive knowledge and

experience with compliance accreditation standards. As compared

to Petitioner, Williams was a much better fit for the position.

Her experience would allow her to step into the position and

begin working on problems immediately without the necessity of a

period of training and acclimation.

Director of Student Services Position

12. The director of Student Ser vices was expected to help

students who were experiencing hardships in their academic

progress. The director would help students who were forced to

withdraw from school for financial or other personal reasons.

He/she would provide support for students ta king online classes

and assist students trying to re - enroll into school following

dismissal or withdrawal. A close working relationship with

students was an important factor in this position.

13. The School's job description listed the following

requireme nt for the director of Student Services position:

Ʊ Bachelor's degree required

Ʊ Minimum of 3 years practical work experience or

equivalent training

Ʊ Excellent communication and customer service skills

Ʊ Excellent computer skills

14. The person who ultimately was hired for this position,

Stacey Jacqu ot, was an outstanding employee at the School and

had been selected as its Employee of the Year in two different

positions. Jacquot is a Caucasian female; neither her religion,

nor her place of natural origin was alluded to at final hearing.

15. The hirin g of Jacquot, as opposed to Petitioner, for

this position was based on Jacquot's experience and background.

She had worked in the student services department for the school

as both an online coordinator and as a re - entry coordinator.

Thus, her experience was directly related to the requirements of

the position.

16. Petitioner provided unsubstantiated testimony that by

virtue of his teaching a number of classes over the past few

years, he has some experience in counseling students concerning

their issues. However, even if true, his experience did not

match that of Jacquot.

Request for Reimbursement for Doctoral Coursework

17. Petitioner alleges retaliation by the School. The

specific retaliatory action was the denial of his request to be

reimbursed for coursework as he pursued a doctorate degree. In

February 2010, Petitioner submitted a request to the School,

asking that tuition expenses for his coursework be paid under

the School's tuition reimbursement program. The program is set

forth in policies ma intained by the School and is available to

"eligible employees for eligible classes." A benchmark for

reimbursable tuition is that the courses being taken enable the

employee to be more efficient in a current role or prepare them

for a role at the next le vel of their employment.

18. There are a number of written policies addressing the

tuition reimbursement program. Those policies are fluid and

have changed from time to time over the past few years. The

policies are implemented and overseen by the direct or of

Organizational Development for CCI, Jeanne Teeter. Teeter

resides and works in California, corporate home of CCI. It is

Teeter's duty to ultimately approve or deny all requests for

tuition reimbursement by employees of all of CCI's colleges

around the country.

19. Teeter reviewed Petitioner's request for tuition

reimbursement pursuant to a preliminary approval by the School's

pr esident , M ark Judge. It was Judge's initial decision to

approve Petitioner's request, but Judge sent it to Teeter for a

fi nal decision. Teeter had never met Petitioner and did not

know anything about him, except as found in his personnel file

and his application for tuition reimbursement. Teeter, as was

her normal procedure, considered the relevance of the degree

being soug ht, not only to Petitioner's current role, but as to

potential future roles as well. Because the course work for

which reimbursement was being sought related to an advanced

degree, a doctorate, Teeter was less inclined to approve it.

Approval would neces sitate a clear line of sight between the

employee's current role to a role that would require a Ph . D.

Inasmuch as Petitioner's role as senior network administrator

did not require a doctorate and there was no clear line of sight

between his present positi on and that of a professor or

management employee requiring one, Teeter declined the request.

20. At the time she made her decision, Teeter was not

aware that Petitioner had made a discrimination claim against

the School. Her decision, therefore, could no t be retaliatory

in nature. Rather, she acted in concert with the policies that

address tuition reimbursement and made a decision based solely

upon those policies.

21. Petitioner appears to be an energetic and hard - working

member of the School's staff. His testimony was credible, but

was sometimes off the point. Although he is a well - educated

person with three college degrees and is pursuing others, it is

clear that English is his second language. 1/ Petitioner seemed

to be sincere in his belief that he was discriminated against,

but did not provide persuasive evidence to support that claim.

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to sections 12 0.569 and 120.57(1), Florida

Statutes (2011). Unless specifically indicated otherwise

herein, all references to Florida Statutes will be to the 2011

codification.

23. Florida's Civil Rights Act (the "Act") is codified in

sections 760.01 through 760.11, an d 509.092, Florida Statutes.

The Act is patterned after Title VII of the Civil Rights Act of

1964 and 1991, 42 U.S.C. § 2000, et seq. Discrimination claims

arising under the Act are analyzed in the same manner as Title

VII claims, and precedent from Titl e VII claims is applicable to

cases filed under the Act. Fla. State Univ. v. Sondel , 685

So. 2d 923, 925 (Fla. 1st DCA 1996); Maniccia v. Brown , 171 F.3d

1364, 1368 n.2 (11th Cir. 1999). The Act makes it unlawful to

discriminate against any individual wi th respect to the

compensation, terms, conditions or privileges of employment on

the basis of, inter alia , race, national origin, or religion.

Petitioner is claiming violation of the Act by the School

because it discriminated, i.e., denied his application s for

promotion and retaliated, i.e., refused to pay his tuition for

doctorate level coursework.

24. A person filing a discrimination claim under the Act

must do so within 365 days of the conduct forming the basis of

the complaint. § 760.11(1). Petitione r filed his initial claim

against the School on September 20, 2010. Thus, no actions

occurring prior to September 20, 2009, are relevant to this

proceeding. 2/

25. The United States Supreme Court has established an

analytical framework within which courts should examine claims

of 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).

26. A petitioner may establish a prima facie case of

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

evidence of discriminatory intent; (2) by circumstantial

evidence u nder 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).

27. To establish a prima facie case of discrimination,

Petitioner must show: that he is a member of a protected class;

that he suff ered 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).

28. Petitioner's effort to establish a prima facie case

first included his assertion as to his place of national origin,

Lebanon. He also established that he was a Muslim, but he did

not establish that the other candidates were non - Muslim . As to

race, Terrie Baker is Caucasian; Betty Williams is African -

American; Stacy Jacquot's race was not mentioned. There is

insufficient evidence of disparate treatment or that any

difference in how Petitioner and the other job candidates were

treated was based on race, religion or place of origin.

29. Other than his testimony regarding his belief that he

had been discriminated against based on his race, Petitioner

offered no persuasive evidence -- direct, circumstantial, or

statistical -- of the alleged di scrimination. His prima facie

case of discrimination is not supported by the evidence.

30. If Petitioner had satisfied his burden of establishing

a prima facie case of discrimination, an inference would have

arisen that the adverse employment action was m otivated 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 School to articulate a

legitimate, non - discriminatory reason for its action .

31. In the present case, the School articulated sufficient

non - discriminatory reasons for each of its actions, i.e., the

hiring of Baker, Williams , and Jacquot because of their

abilities and experience and the denial of Petitioner's request

for tuition r eimbursement.

32. Once the School articulated the aforementioned reasons

for its actions, the burden shifted back to Petitioner to show

that the proffered reasons were a mere pretext for unlawful

discrimination. To do so, Petitioner would have to provid e

sufficient evidence to allow a reasonable fact - finder to

conclude that the proffered 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).

33. Petitioner's burden is t o show that the School's

articulated reasons for its actions are pretext by showing that

the non - discriminatory 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. Petitioner did not meet this burden. See also

Brooks v. Cnty. Comm'n of Jefferson Cnty. , 446 F.3d 1160 , 1163

(11th Cir. 2006) ( " [A] plaintiff must show that the disparities

between the successful applicant's and her own qualifi cations

were 'of such weight and significance that no reasonable person,

in the exercise of impartial judgment, could have chosen the

candidate selected over the plaintiff.'" ), citing Cooper v.

S. Co . , 390 F.3d 695, 732 (11th C ir. 2004), cert. den. , 126 S.

Ct. 478, 163 L. Ed. 2d 363 (2005).

34. Petitioner alleges discrimination based on race,

national origin, and religion. However, he did not prove that

any of those factors were considered by the School in making

their determination to hire other persons t o the positions for

which Petitioner also applied. Mere speculation or self - serving

belief on the part of a complainant concerning motives of a

respondent is insufficient, standing alone, to establish

discrimination. See Lizardo v. Denny's, Inc. , 270 F . 3 d 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.")

35. Petitioner did not prove that the denial of his

tuition r eimbursement was done, because he had raised a claim of

discrimination. The evidence is clear that the person making

the decision to deny Petitioner's request had no knowledge

whatsoever about Petitioner's claim of discrimination.

36. Petitioner is a frie ndly and outgoing person of

Lebanese descent. He practices the religion of Islam. He is a

Caucasian. But there is insufficient evidence that any of those

factors formed the basis of the School's decisions, vis - à - vis,

its actions concerning Petitioner's applications for employment

or tuition reimbursement.

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 Hisham Aboudaya in its entirety.

DONE AND ENT ERED this 21st day of November , 2011 , in

Tallahassee, Leon County, Florida.

S

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearin gs

The 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 21st day of November , 2011 .

ENDNOTES

1/ P etitioner's PRO, for example, while cogent and

understandable, was replete with grammatical errors. The gist

of the PRO was clear, but the presentation was lacking. This is

not to question Petitioner's intelligence or education, only to

suggest that he i s not quite prepared for the positions he was

seeking.

2/ Petitioner atte mpted to address several issues outside the

requisite time parameters at final hearing. To his credit, he

did not raise those issues in his PRO or attempt to make them a

part of the ultimate decision in this matter.

COPIES FURNISHED :

Denise Crawford, A gency 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

Hisham Ab o u daya

2340 Early Dawn Circle

Melbourne, Florida 32935 - 3485

Elaine W. Keyser, Esquire

Littler Mendelson, P.C.

One Biscayne Tower, Suite 1500

2 South Biscayne Boulevard

Miami, Florida 33131 - 1806

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.