12-001799 Emory Carl Sims vs. Valencia College Status: Closed Recommended Order on Friday, September 21, 2012.

Summary: Petitioner failed to show that Respondent engaged in a discriminatory employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMORY CARL SIMS , )

)

Petitioner , )

)

vs. ) Case No. 12 - 1799

)

VALENCIA COLLEGE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a fi nal hearing was held in this case

on July 17, 2012 , and August 20, 2012 , by video teleconference

at sites in Tallahassee and Orlando, Florida , before Thomas P.

Crapps, a designated Administrative Law Judge of the Division of

Administrative Hearings (DOAH).

APPEARANCES

For Petitioner: Emory Carl Sims, pro se

6904 Van Gundy Road

Jacksonville, Florida 32208

For Respondent: Jason E. Vail, Esquire

Allen, Norton and Blue, P.A.

Suite 100

906 North Monroe Street

Tallahassee, Florida 32303

Rosemary O'Shea , Esquire

Baker and Hostetler, LLP

Suntrust Center, Suite 2300

200 South Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

W hether Respondent committed an unlawful employment

practice against Petitioner in violation of c hapter 760, Florida

Statutes (2012), 1/ and Title VII of the Civil Rights Act.

PRELIMINARY STATEM ENT

On May 9, 2012, the Florida Commission on Human Relations

(Commission) issued a Determination finding n o c ause to believe

that Respondent, Valencia College, committed an unlawful

employment practice in violation of s ection 760.10, Florida

Statutes, ag ainst Petitioner, Emory Sims (Mr. Sims).

On May 14, 2012, Mr. Sims filed a Petition for Relief

alleging that Valencia College engaged in an unlawful employment

practice based on race.

On May 17, 2012, the Commission transmitted Mr. Sims'

Petition for Re lief to DOAH for a final hearing. The

undersigned was assigned , and set the case for hearing on June

29, 2012. Valencia College requested a continuance of the

hearing date , which was granted ; and the hearing was reset for

July 17, 2012.

The hearing bega n on July 17, 2012, but was not completed.

The undersigned scheduled an additional day for testimony . On

August 20, 2012, the hearing was reconvened and concluded.

Mr. Sims testified on his own behalf and introduced into

evidence Petitioner's Exhibits nu mbered 1 through 15, 20, 27

through 38, 48 through 50, 52, 53, and 55 through 59. Valencia

College presented the testimony of Elizabeth Washington

(Ms. Washington) and Melissa Perdone, Ed . D . (Dr. Perdone), and

introduced into evidence Respondent's Exhibi ts numbered 1

through 5, 7 through 9, and 16.

Valencia College provided a court reporter to transcribe

the proceedings, and the court reporter filed a t hree - volume

transcript with DOAH. The parties submitted P roposed

R ecommended O rders which the undersign ed considered in preparing

th is Recommended Order.

FINDINGS OF FACT

1. Mr. Sims is an African - American man who worked as an

adjunct professor for Valencia College from August 31, 2009 ,

until August 6, 2011. During his employment with Valencia

College , Mr. Sims taught pre - algebra and introduction to

algebra.

2. Valencia College is a two - year community college

located in Central Florida, and is comprised of several

different campuses. Mr. Sims was an adjunct professor of

mathematics for the Osceola campus.

3. M r. Sims' Charge of Discrimination, initially filed

with the Commission, alleged that he was terminated from his

employment as an adjunct professor based on his race. After the

Commission's determination that there was no cause to believe

th at a discriminatory practice had occurred, Mr. Sims filed his

Petition for Relief. In the Petition for Relief, Mr. Sims

alleged that Valencia College had discriminated against him

based on race by: 1) not renewing his employment as an adjunct

professor; 2) scheduling him fewer class assignments; and 3)

paying him less than other adjunct professors.

4. According to Ms. Washington, the m ath c oordinator for

Valencia College, an adjunct professor is one that enters into a

contract to teach a specific class f or a semester. Usually, an

adjunct professor teaches between one and two classes a

semester. Adjunct professors are paid by the hour for the

number of classes. All adjunct professors in the mathematics

department were paid pursuant to a scale based on t he

individual's educational background and number of hours taught.

For example, as shown by Respondent's Exhibit 5, all adjunct

professors, who had a bachelor's degree in mathematics, were

paid $525.00 for one contract hour course. An adjunct professor

d oes not receive any payment if he or she is not on the teaching

schedule. Further, as Dr. Perdone, the head of Valencia

College's math and science department at the Osceola campus

explained, Valencia College uses adjunct professors as a means

of controlli ng costs, and providing flexibility for meeting its

students' needs.

5. Mr. Sims did not bring forward any evidence showing

that Valencia College engaged in a discriminatory employment

practice.

6. Part of Ms. Washington's responsibilities is collecti ng

data concerning the adjunct professor's effectiveness at the end

of each semester. In evaluating an adjunct professor's

performance, Valencia College's math department examines the

"test - taker pass rate," "overall retention," and "overall pass

rate."

7 . Ms. Washington and Dr. Perdone explained the

definitions of each of these terms as follows:

a) "test - taker pass rate" means percentage

of students that passed the exam out of

those who took the final exam ;

b) "overall retention rate" means percentage

o f students that sat through the entire

course and attempted the final out of the

total number of students that began the

class ; and

c) "overall pass rate" is the successful

completion rate, the percentage of students

who actually passed the class at the e nd

from of the number of students that begin

the class.

8. Ms. Washington explained that the "overall retention

rate" is important because it indicates that student s remained

in the classroom for the entire semester, and that the students,

if they initia lly failed, are more likely to pass the class the

following semester.

9. Dr. Perdone explained that in reviewing an adjunct

professor , she was most interested in the "overall pass rate"

which showed the student's successful completion of the course.

In a developmental math class, such as pre - algebra or

introduction to algebra, the students must successfully complete

the class before being enrolled in a college credit math class.

10. The data compiled by Ms. Washington showed that

Mr. Sims' teaching perf ormance in his pre - algebra and

introduction to algebra classes for the spring and summer

semesters 2011 was substandard. Specifically, the evidence

showed that the "overall retention rate" for Mr. Sims'

developmental math classes for the Spring Semester 2 011 were at

50 percent and 35 percent . Further, the percentage of students

successfully completing the two classes taught by Mr. Sims had

an "overall pass rate" of 35 percent . These numbers represented

the lowest for all adjunct math professors on the Os ceola

campus. Further, Mr. Sims' teaching performance for the S ummer

2011 semester also showed a 41 percent "overall retention rate"

and a 36 percent Ðoverall pass rate. Ñ Again, Mr. Sims had the

lowest percentage of students successfully completing his c lass

out of all the adjunct professors for the math department.

11. The data compiled by Ms. Washington was provided to

Dr. Perdone, and Ms. Washington recommended that Valencia

College not continue hiring Mr. Sims as an adjunct professor.

12. Dr. Pe rdone credibly testified in relation to

reviewing the data concerning Mr. Sims' teaching that "when

we're not seeing enough students getting through the course,

sitting for the exam, and passing the exam was my primary

concern." Further, Dr. Perdone credi bly testified that she had

received student complaints about Mr. Sims Ó teaching not being a

"positive experience," and him being condescending to students.

13. In June 2011, Dr. Perdone provided Mr. Sims with an

evaluation for the Spring Semester 2011. T he evaluation states

that Mr. Sims was satisfactory in the areas of "Effectiveness of

Teaching/Learning Process," "Scope and Content" of material

presented, "Departmental Communication and Support , " and in

"Testing and Evaluation." However, Dr. Perdone ra ted Mr. Sims

as unsatisfactory in the area of "Review Prior Session Student

Assessment Data." Specifically, Dr. Perdone's comments on the

evaluation state:

Prof. Sims had a challenging year in the

math department. He had prior improvements

but his succes sful completion rates and

student feedback have taken a negative turn.

The rate of students making it successfully

through the entire course has dropped to

35 percent . Also, students have visited the

office to express their concerns that Prof.

Sims does not show a caring and supportive

demeanor with students in class. These

issues cannot continue if Prof. Sims would

like to continue to teach in the math

department.

14. On receiving this evaluation, Mr. Sims became upset

and spoke with Dr. Perdone. Mr. Sims was upset and questioned

why he was being held accountable for students withdrawing from

his class. Dr. Perdone explained that Valencia College kept

trac k of the data, and that she was concerned about the number

of students successfully completi ng the class. She found the

conversation with Mr. Sims argumentative about Valencia

College's keeping track of the data on student withdrawals. It

was Mr. Sims' contention that he should not be held responsible

for students withdrawing from his class. D r. Perdone credibly

testified that her discussion with Mr. Sims did not progress

past his displeasure with Valencia College keeping track of

student withdrawals. At the heat of the discussion, and during

the presentation of the evidence in this case, Mr. Sims claimed

he never understood how the "retention rate" and "overall pass

rate" were calculated. Further, Dr. Perdone credibly testified

that at no point in their discussion did Mr. Sims ask or seek

guidance on how to improve his teaching. Finally, Dr. Perdone

credibly testified that her conversation with Mr. Sims confirmed

the student complaints about his teaching being condescending.

For example, Dr. Perdone took exception to Mr. Sims Ó negative

characterization of the students in the "remedial" math

classes.Ñ

15. There is no direct evidence of discrimination.

16. Further, there is no evidence showing that similarly

situated adjunct professors, who were not African American, were

treated differently than Mr. Sims in scheduling classes, pay, or

renew ing the adjunct professor contract.

17. Mr. Sims' testimony was often confusing and did not

support his contention that he was the victim of racial

discrimination. For example, in one instance, in attempting to

prove that he was discriminated against i n class scheduling,

Mr. Sims testified that he believed in the S pring 2011 semester,

Ms. Washington and Dr. Perdone discriminated against him by not

scheduling him to teach. Then, according to Mr. Sims'

testimony, at the "eleventh hour" he was asked to t each a

developmental class when an adjunct professor was not available.

Mr. Sims contended that in scheduling him to teach this

particular class , Dr. Perdone knew before assigning him to the

class that students would either withdraw or not successfully

co mplete the class. Therefore, under Mr. Sims Ó theory, Valencia

College discriminated against him both by not scheduling him to

teach, and then by scheduling him to teach.

18. Contrary to Mr. Sims' assertions, Ms. Washington

credibly testified that Mr. Sim s, as well as other adjunct

professors, was sent an e - mail in the fall of 2010 asking if the

professors would be available to teach in the S pring. Further,

Ms. Washington and Dr. Perdone credibly testified that because

Mr. Sims did not respond to the e - ma il, he was not placed on the

schedule.

19. Mr. Sims did not bring forward any evidence showing

that Dr. Perdone's explanation that she decided not to contract

with him as an adjunct professor , based on his poor classroom

performance was pretextual.

CO NCLUSIONS OF LAW

20. DOAH has subject matter and personal jurisdiction over

the parties pursuant to sections 120.569 and 120.57, Florida

Statutes (201 2 ).

21. Mr. Sims alleges that Valencia College engaged in an

unlawful employment practice by terminatin g his employment based

on race, as well as discriminated against him in scheduling

classes, pay, and providing promotions; thus, violating the

Florida Civil Rights Act, as amended, chapter 760, Florida

Statutes.

22. Section 760.10(1)(a) provides it is a n unlawful

employment practice for an employer to discharge or otherwise

discriminate against an individual on the basis of national

origin, age, or handicap.

23. Mr. Sims has the burden of proving by a preponderance

of the evidence that Valencia College committed an unlawful

employment practice. See St. Louis v. Fla. Int'l Univ .,

60 So. 3d 455, 458 - 59 (Fla. 3d DCA 2011); Fla. Dep't of Transp.

v. J.W.C. Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981). Boland

v. Div. of Emerg. Mgmt./ Younger v. Div. Emer g. Mgmt. , Case

Nos. 11 - 5198, 11 - 5199 (Fla. DOAH Jan. 26, 2012; FCHR Jun. 27,

2012).

24. Because the Florida Civil Rights Act of 1992, sections

760.01 through 760.11, is patterned after Title VII of the Civil

Rights Act of 1964, as amended, 42 U.S.C. se ction 2000e - et seq. ,

the Florida courts look to federal case law in interpreting and

applying the Florida law. Valenzuela v. GlobeGround N. Am.,

LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009)(omitting string

citations). Evidence of an unlawful employment pract ice may be

established by either direct evidence of discrimination or

through circumstantial evidence, which is evaluated within the

framework of the burden - shifting analysis set forth in McDonnell

Douglas Corp. v. Green , 411 U.S. 792, 802 - 804, 93 S. Ct. 1 817,

36 L. Ed. 2d 668 (1973), and its progeny.

25. "Direct evidence of discrimination is evidence which,

if believed, would prove the existence of a fact in issue

without inference or presumption. Only the most blatant

remarks, whose intent could be n othing other than to

discriminate on the basis of the protected characteristic

constitute direct evidence of discrimination." Bass v. Bd. of

Cnty Comm'rs, Orange Cnty., Fla. , 256 F.3d 1095, 1105 (11th Cir.

2001).

26. Because direct evidence of discrimi natory intent is

often unavailable, persons who claim that they are victims of

intentional discrimination "are permitted to establish their

cases through inferential and circumstantial proof." Kline v.

Tennessee Valley Auth. , 128 F.3d 337, 348 (6th Cir. 1 997);

Shealy v. City of Albany , 89 F.3d 804, 806 (11th Cir. 1996). As

stated earlier, the analytical framework for establishing

intentional discrimination through inferential and

circumstantial evidence is the shifting - burden analysis

established by the U nited States Supreme Court in McDonnell

Douglas .

27. Under the McDonnell Douglas framework, a claimant

bears the initial burden of establishing a prima facie case of

discrimination. If the claimant establishes a prima facie case,

the claimant raises a presumption of discrimination against the

employer. Holifield v. Reno , 115 F.3d 1555, 1562 (11th Cir.

1997)("Demonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimina tion."). See also Texas Dep't

of Cmty. Affairs v. Burdine , 450 U.S. 248, 253 - 54, 101 S. Ct.

1089, 1093 - 94, 67 L. Ed. 2d 207 (1981)("The burden of

establishing a prima facie case of disparate treatment is not

onerous. The plaintiff must prove by a prepond erance of the

evidence that she applied for an available position for which

she was qualified, but was rejected under circumstances which

give rise to an inference of unlawful discrimination.").

28. In order to establish a prima facie case under the

McD onnell Douglas framework, a claimant must show that: (1) he

or she is a member of a protected class; (2) he or she was

qualified for the position; (3) he or she was subjected to an

adverse employment action; and (4) similarly situated employees

outside the employee's protected class were treated more

favorably than the claimant. See McDonnell Douglas , supra ;

Burke - Fowler v. Orange Cnty ., 447 F.3d 1319, 1323 (11th Cir.

2006); Maynard v. Bd. of Regents of the Div. of Univs. of the

Fla. Dep't of Educ. , 342 F. 3d 1281 (11th Cir. 2003).

29. If the claimant establishes a prima facie case, the

burden shifts to the employer to articulate a legitimate, non -

discriminatory explanation for the adverse employment action.

McDonnell Douglas , supra ; Dep't of Corr. v. Ch andler , 582 So. 2d

1183, 1186 (Fla. 1st DCA 1991).

30. If the employer produces evidence showing a

legitimate, non - discriminatory reason for the employment

decision, then the burden shifts to the claimant to establish

that the employer's proffered reaso n is merely a pretext for

discrimination. McDonnell Douglas , supra ; St. Mary's Honor

Ctr., et al. v. Hicks , 509 U.S. 502 at 516 - 518, 113 S. Ct. 2742,

125 L. Ed. 2d 407 (1993). In order to satisfy this final step

of the process, claimants must "show direc tly that a

discriminatory reason more likely than not motivated the

decision, or indirectly by showing that the proffered reason for

the employment decision is not worthy of belief." Chandler , 582

So. 2d at 1186, citing Burdine , 450 U.S. at 252 - 256. See also

Holifield, 115 F.3d at 1565. A claimant may establish that an

employer's offered explanation is pretext for discrimination by

offering sufficient evidence showing inconsistencies,

implausibilities, or contradictions in the employer's offered

explanat ion. See Fuentes v. Perskie , 32 F.3d 759, 765 (3d Cir.

N.J. 1994)("the non - moving plaintiff must demonstrate such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons

for its action that a reasonable fact finder could rationally

find them Òunworthy of credence,Ó (citing Ezold v. Wolk, Block,

Schorr, and Solis - Cohen , 983 F. 2d 509, 531 (3d Cir. 1992)), and

hence infer "that the employer did not act for [the asserted]

non - discriminator y reasons." (footnote omitted)).

31. Finally, it bears repeating that the law is not

concerned with whether an employment decision is fair or

reasonable, but only with whether it was motivated by unlawful

discriminatory intent. An "employer may fire an employee for a

good reason, a bad reason, a reason based on erroneous facts, or

for no reason at all, as long as its action is not for a

discriminatory reason." Nix v. WLCY Radio/Rahall Commc'ns , 738

F. 2d 1181, 1187 (11th Cir. 1984). In a proceeding und er the

Civil Rights Act, the courts "are not in the business of

adjudging whether employment decisions are prudent or fair.

Instead, our sole concern is whether unlawful discriminatory

animus motivates a challenged employment decision." Damon v.

Fleming S upermarkets of Fla., Inc. , 196 F.3d 1354, 1361 (11th

Cir. Ct. 1999).

32. Applying the rules of law to the facts here, Mr. Sims

failed to establish a prima facie case of discrimination.

Although Mr. Sims is a member of a protected class , 2/ was

qualified f or the job , 3/ and had suffered an adverse employment

action with the non - renewal of his employment contract, 4/ he did

not bring forward any evidence showing that similarly situated

adjunct professors, who were not members of his protected class,

were treat ed more favorably than him in scheduling of classes,

pay, or retention. For example, on the issue of adjunct

professor pay, Mr. Sins did not bring forward any evidence

showing that other similarly situated adjunct professors, who

were not members of his p rotected class, received a higher pay

for teaching developmental math courses. In fact, the evidence

showed that Valencia College had a uniform pay scale for adjunct

professors that was non - discriminatory.

33. Even if one determined that Mr. Sims had met the prima

facie showing, the record clearly shows that Valencia College

brought forward a legitimate, non - discriminatory reason for its

decision not to renew Mr. Sims's contract as an adjunct

professor, as well as scheduling and pay. Mr. Sims did not

bri ng forward any evidence that showed Valencia CollegeÓs

offered explanation s for not renewing his contract; Valencia

CollegeÓs scheduling of classes or it s pay scale were pretext

for discrimination.

RECOMMENDATION

Based on the foregoing Findings of Facts a nd Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order finding that Petitioner failed to

show that Respondent engaged in an unlawful practice in

violation of the Florida Civil Rights Act, and dismissing the

Petition for Relief.

DONE AND ENT ERED this 21st day of September , 2012 , in

Tallahassee, Leon County, Florida.

S

THOMAS P. CRAPPS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Ap alachee 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 September , 2012 .

ENDNOTES

1/ Unless otherwise indicated, al l references to the Florida

Statutes are to the 2012 version.

2/ Johnson v. Apalachee Mental Health , Case No. 11 - 6467 (Fla.

DOAH Apr 10, 2012; FCHR June 27, 2012).

3/ See Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d

1354, 1360 (11th Cir. 1999) ("plaintiffs, who have been

discharged from a previously held position, do not need to

satisfy the McDonnell Douglas prong requiring proof of

qualification . . . [I]n cases where a plaintiff has held a

position for a significant period of time, qualificat ion for

that position sufficient to satisfy the test of a prima facie

case can be inferred.")(citations and internal quotation marks

omitted).

4/ Gillman v. St . Leo Univ. , Case No. 06 - 1242 (Fla. DOAH Dec.

29, 2006), 2006 Fla. Div. Admin. Hear. LEXIS 603, ("The refusal

to renew Petitioner's teaching contract was an adverse

employment action."); FCHR Order No. 07 - 025 (Mar. 29, 2007).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Talla hassee, Florida 32301

Emory Carl Sims

6904 Van Gundy Road

Jacksonville, Florida 32208

Jason Eric Vail, Esquire

Allen, Norton and Blue, P.A.

Suite 100

906 North Monroe Street

Tallahassee, Florida 32303

Rosemary OÓShea, Esquire

Baker and Hostetler, LLP

Suntrust Center, Suite 2300

200 South Orange Avenue

Orlando, Florida 32801

Lawrence F. Kranert, Jr., General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTION S

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.