13-001234 Puspa Rath vs. School Board Of Leon County Status: Closed Recommended Order on Tuesday, October 29, 2013.

Summary: Petitioner did not satisfy burden of proof to establish discrimination on the basis of race, age, gender, or national origin.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PUSPA RATH , )

)

Petitioner, )

)

vs. ) Case No. 1 3 - 1234

)

SCHOOL BOARD OF LEON COUNTY , )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held pursua nt to notice, on August 26 , 20 1 3 ,

in Tallahassee , Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Puspa Rath , pro se

2468 Rain Lily Way

Tallahassee , F lorida 3 2 3 11

For Respondent: Deborah Stephens Minnis , Esquire

Ausley & McMullen

12 3 South Calhoun Street

Tallahassee , Florida 3 2 301

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment C omplaint of Discrimination

filed by Petitioner on August 27 , 20 12 .

PRELIMINARY STATEMENT

On or about August 2 7 , 20 12 , Petitioner , Puspa Rath , filed

a n Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR) , which alleged that the

Leon County School Board violated s ection 760.10, Florida

Statutes, by not hiring her on the basis of race, age, gen der,

and national origin .

The allegations were investigated and on March 5 , 20 1 3 ,

FCHR issued its D etermination : N o C ause. A Petition f or Relief

was filed by Petitioner with FCHR on April 8 , 20 1 3 .

FCHR transmitted the case to the Division of Administ rative

Hearings on or about April 9 , 20 1 3 . A Notice of Hearing was

issued setting the case for formal hearing on Ju ne 24 , 20 1 3 .

Two requests for continuance were granted and the hearing was

rescheduled for August 26, 2013 . The hearing proceeded as

sched uled.

At hearing, Petitioner testified on h er own behalf and

presented the testimony of Sudhanshu Shekhar Rath and Akshaya

Kumar Rath . Petitioner offered E xhibit s number ed 1 through 11 .

PetitionerÓ s E x h ibits 1 , 6, and 7 were admitted in part .

Exhibits 2 , 4, 5, 8, 9 , and 10 w ere admitted into evidence .

Exhibits 3 and 11 were rejected . Respondent presented the

testimony of Charles Finley, Demetria Clemons, Clebern Russell

Edwards, Daniel Dielbeck , and Vitalis Dennis . Respondent Ós

Exhibit s number ed 1 thr ough 8 w ere admitted into evidence.

A one - volume Transcript was filed on Septe mber 23, 201 3 .

Petitioner filed a post - hearing written submission and

Respondent filed a Proposed Recommended Order , which have been

considered in the preparation of this Re commended Order. 1/

FINDINGS OF FACT

1. Petitioner is a fe male who has identified her race as

Asian and her national origin as Indian. PetitionerÓs age was

not established in evidence . However, based upon the

attachments to PetitionerÓs Petition for Reli ef , Petitioner was

identified as 43 years old, presumably at the time she filed the

Complaint of Employment Discrimination . There is nothing in the

record to indicate otherwise and, based upon observations of her

while testifying at hearing, 43 is a reaso nable approximation of

her age.

2. Respondent, Leon County School Board (LCSB) , is an

employer within the meaning of the Florida Civil Rights Act.

3. Petitioner has applied for numerous job openings with

the School Board over a number of years . Howe ver, based upon

the applicable statute of limitations as explained more fully in

the Conclusions of Law, there are five LCSB job postings that

are at issue in this proceeding, one of which was never filled.

The job positions applied for are as follows:

-- Job posting 1071 - 2012, Custodian position at Nims Middle

School.

-- Job Posting 0170 - 2012, Instructional paraprofessional

position at Sealy Elementary School.

-- Job Posting 011 - 2012, custodian position at Rickards High

School.

-- Job posting 0201 - 2012, Assis tant M anager for Extended Day

Program at J. Michael Conley Elementary School.

-- Job posting 0215 - 2012, Receptionist at Leon County High

School . This position was not filled.

4. Petitioner is the mother of two children who are or

have been students in the Leon County schools . Petitioner has

extensive volunteering experience in LCSB schools . In 2008, she

received the Volunteer of the Year award for her volunteer work

at Sealy Elementary School . She was invited to and attended the

Volunteers of the Year L uncheon in 2008.

5. Petitioner also volunteered at Conley Elementary School

in 2011 . While Petitioner has considerable volunteer experience

in Leon County Schools, she has no job /employment experience

since coming to the United States in 1998 .

6. Petitioner holds a college degree from Utkal University

in India . The unofficial transcript states that it is a

ÐHonours Diploma for Bachelor of Arts (Three Year Degree

Course ). Ñ

7. Respondent uses the PATS (Paperless Applicant Tracking

System) system to accept applications for all job openings

within the Leon County School District . Based on information

input ted into PATS by applicants, a list of qualified

individuals is generated for each position .

8. The PATS system does not ask for or i dentify an

applicantÓs age, race, national origin, or sex.

9. Vitalis Dennis is the Director of Human Resources for

the LCSB . She has general supervision over the PATS system.

10. According to Ms. Dennis, LCSB does not count volunteer

work in evaluat ing work experience . This is a generally applied

policy, applied to all applicants, including Petitioner.

11. Hiring decisions are made by each schoolÓs principal .

The school principals send recommendations for hiring to the

District Human Resources off ice.

Job Posting 1071 - 2012

12 . Petitioner ap plied for job posting 1071 - 2012, a

custodial position at Nims Middle School.

1 3 . At that time, Charles Finley was a ssistant p rincipal

at Nims . He was in charge of interviewing and hiring vacant

custodial positions . The executive secretary at Nims print ed a

list of applicants from PATS . He then accessed PATS to check

applicantsÓ educational and work history to identify applicants

with previous custodial work experience . Generally, he would

interview eig ht to 12 applicants.

14 . The successful candidate for this position was Eloise

Hatten. Ms. Hatten was 52 years of age, is African - American ,

and is female. 2 /

15 . Ms. HattenÓs application reflects approximately nine

yearsÓ of cleaning commercial/instituti onal experience .

Mr. Finnley interviewed Ms. Hatten and testified that the

interview went well. He describes Ms. Hatten, who is still

employed at Nims, as tied for the best hire he ever made.

Job Posting 0170 - 2012

16. Petitioner applied for Job Postin g 0170 - 2012,

Instructional Paraprofessional at Sealy Elementary.

17 . Demetria Clemons is the p rincipal of Sealy Elementary

School . Ms. Clemons receives and reviews the PATS list of

applicants. She then makes a list of applicants for her

secretary to ca ll to set up interviews . When reviewing the

list, she looks to see if any applicant is a veteran . Then she

looks to see if anyone on the list had previous work experience

with her or was recommended by a colleague.

18. The successful applicant was Alish a Saint Cloud .

Ms. Saint Cloud was 24 years of age, is African - American , and is

female. Ms. Clemons interviewed Ms. Saint Cloud and offered her

the job. Ms. Saint Cloud was selected for this position

primarily because she held the position as an annual contract

employee the previous school year. Annual contract employees

often are given notice letters at the end of a school year, as

principals do not know at that time whether they will be able to

rehire them for the following school year . If staffing

a llocations allow, the job is then posted . Ms. Saint Cloud was

in that situation when Ms. Clemons hired her for this permanent

position.

19. Ms. Clemons knew of PetitionerÓs volunteer work at

Sealy, but the volunteer work was d one in individual classroom s,

no t directly for Ms. Clemons.

Job Posting 011 - 2012

20. Petitioner applied for Job Posting 011 - 2012, custodian

position at Rickards High School.

21. Clebern Russell Edwards is the assistant p rincipal at

Rickards High School . He m ade the hiring deci sion for this

custodial position for which Petitioner applied.

22. A list of applicants generated from PATS was printed

by the principalÓs secretary . He looked to see if any

applicants were veterans, then whether any were recommended by

colleagues.

23. The successful applicant for that position was

Jaterrius Robinson . Mr. Robinson was 23 years of age, and is a n

African - American male . Mr. Robinson had institutional/

C ommercial - cleaning experience and was a graduate of Rickards

High School . Mr. Edward s believes that it is important to have

someone with experience cleaning in an environment similar to a

school in such a position .

24. Mr. Ed wards took into consideration Mr . RobinsonÓs

work experience, being an alumnus of Rickards, and his

outstanding i nterview when making the decision to hire

Mr. Robinson for the job .

Job Posting 0201 - 2012

25. Petitio ner applied for job posting 0201 - 2012,

assistant manager for the Extended Day Program at J. Michael

Conley Elementary School.

26. Danielle Dielbeck is t he Extended Day Manager at

Conley Elementary School . She is responsible for hiring the

Extended Day personnel and supervising those employees.

27. Jeremy Rollins was the successful applicant for this

position . Mr. Rollins was 23 years of age, and is an African -

American male . Ms. Dielbeck reviewed the PATS list of

applicants to determine who would be a good fit for the job .

She also takes into consideration any recommendations that may

come from other schools.

28. Mr. Robinson has work experience as an after - school

teacher . Ms. Dielback selected Mr. Robinson because of his

experience as an after - school teacher in a nother program with a

large number of students, and because he also had experience as

a cashier for a grocery company. Ms. Dielbeck believe d his

cashier experience demonstrated that he had experience handling

money. She determined that this was a benefit because the

Extended Day Program is responsible for its own budget.

PetitionerÓs assertions

29. Petitioner strongly believes that LCSB has

systematically discriminated against her by not hiring her . Sh e

believes that LCSB is harassing her personally, including an

unnamed person parking her car outside the RathÓs home and

taking photographs. 3/ However, there is no competent evidence to

supp ort her subjective belief that the person in the car has

anything to do with LCSB.

30. There is no competent evidence in the record that

supports any coordinated efforts or conspiracy by LCSB personnel

to deny her employment . Each person with the respons ibility to

make hiring decisions did so independently.

CONCLUSIONS OF LAW

31 . The Division of Administrative Hearings has

jurisdiction over the parties and s ubject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (20 1 3 ).

32 . Section 760.10( 1), Florida Statutes, s tates that it is

an unlawful employment practice for an employer to fail or

refuse to hire or otherwise discriminate against an individual

on the basis of age, gender, race , or national origin .

33 . FCHR and Florida courts have deter mined that federal

discrimination law should be used as guidance when construing

provisions of s ection 760.10 . See Valenzuela v. GlobeGround

North America, LLC , 18 So. 3d 17 (Fla. 3d DC A 2009); Brand v.

Florida Power Corp . , 633 So. 2d 504, 509 (Fla. 1st D CA 1994).

34 . In the instant case, Petitioner alleged in h er

Employment Complaint of Discrimination which s he filed with FCHR

that s he was not hired by Respondent because of h er age, sex,

race, and national origin .

35. As a threshold matter, the issue o f the applicable

statute of limitations must be addressed. Section 760.11

requires that any person aggrieved by a violation of the Florida

Civil Rights Act may file a complaint with FCHR within 365 days

of the alleged violation. The courts have interpret ed that

language to mean that any claim filed after the 365 days is

time - barred. See EEOC v. JoeÓs Stone Crab , 296 F.3d 1265 (11th

Cir. 2002).

36. The charge of discrimination was filed on August 27,

2012 . Therefore, the applicable time period is from A ugust 27,

2011 through August 2 6 , 2012 . Accordingly, this or der only

addresses those applications within this time frame.

37 . Discriminatory intent can be established through

direct or circumstantial evidence. Schoenfeld v. Babbitt ,

168 F.3d 1257, 1266 (11 th Cir. 1999) . Direct evidence of

discrimination is evidence that, if believed , establishes the

existence of discriminatory intent behind an employment decision

w ithout inference or presumption. Maynard v. B d . of Regent s ,

34 2 F.3d 1 281 , 1 289 (11 th Cir . 2003 ).

38 . "Direct evidence is composed of 'only the most blatant

remarks, whose intent could be nothing other than to

discriminate' on the basis of some impermissible factor."

Schoenfeld v. Babbitt , supra . Petitioner presented no direct

evidence of age, gender, racial, or national origin .

39 . "[D]irect evidence of intent is often unavailable. Ñ

Shealy v. City of Albany, G a. , 89 F.3d 804, 806 (11th Cir.

1996). For this reason, those who claim to be victims of

intentional discrimination "are permitt ed to establish their

cases through inferential and circumstantial proof." Kline v.

Tenn. Valley Auth . , 128 F.3d 337, 348 (6th Cir. 1997).

40 . Where a complainant attempts to prove intentional

discrimination using circumstantial evidence, the shifting

burden analysis established by the United States Supreme Court

in McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), and

Tx. DepÓt of Cmty. Aff. v. Burdine , 450 U.S. 248 (1981) , is

applied . Under this well - established model of proof, the

complaina nt bears the initial burden of establishing a prima

facie case of discrimination. When the charging party, i.e. ,

Petitioner, is able to make out a prima facie case, the burden

to go forward shifts to the employer to articulate a legitimate,

non - discrimina tory explanation for the employment action. See

Dep' t of Corr . v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)

(court discusses shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion, and need only persuade the finder of fact that the

decision was non - discriminatory. Id. ; Alexander v. Fulton

C nty . , G a. , 207 F.3d 1303 (11th Cir. 2000). The employee must

then come forward with specific evidence demonstrating that the

reasons given by the employer are a pretext for discrimination.

Schoenfeld v. Babbitt , supra at 1267. The employee must satisfy

this burden by showing directly that a discriminatory reason

more likely than not motivated the decision, or indirectly by

showing that the proffered reason fo r the employment de cision is

not worthy of belief. Dep ' t of Corr. v. Chandler , supra at

1186; Alexander v. Fulton Cnty . , G a. , supra . Petitioner has not

met this burden.

41 . "Although the intermediate burdens of production shift

back and forth, the ultim ate burden of persuading the trier of

fact that the employer intentionally discriminated against the

[Petitioner] remains at all times with the [Petitioner]." EEOC

v. Joe's Stone Crabs, Inc. , supra ; see also Byrd v. RT Foods,

Inc. , 948 So . 2d 921, 927 (Fl a. 4th DCA 2007) ("T he ultimate

burden of proving intentional discrimination against the

plaintiff remains with the plaintiff at all times." ) .

42 . The legal analysis for claims of discrimination under

the various categories cited by Petitioner are all ver y similar .

In order to make out a prima facie case of race , gender, or

national origin discrimination for failure to hire , Petitioner

must show that s he was a member of a protected class ; that s he

applied and was qualified for the job s he was seeking ; tha t

despite her qualifications ; she was not hired, and that the

position was filled by another person outside of her protected

class . EEOC v. JoeÓs Stone Crab, Inc. , supra .

43. Petitioner has met the prima facie requirements for

the categories of race a nd national origin discrimination, in

that she was on the list of individuals meeting the minimum

qualifications for the positions, she was not hired, and all

successful candidates were of a different race (although members

of a minority) and different nat ional origin . As for gender

discrimination, Petitioner has met the prima facie requirements

for two of the four positions.

4 4 . To establish a prima facie case of age discrimination

under the federal Age Discrimination in Employment Act (ADEA),

the compla inant must show that s he is a member of a protected

age group ( i.e . , over 40 ); s h e was qualified for the job ; that

she was rejected, and that she lost the position to a younger

person . Benson v. Tocco, Inc. , 113 F.3d 1203, 1207 (11th Cir.

1997), citing Mc D onnell , supra (the 11th Circuit has adopted a

variation of the McDonnell test in ADEA violation claims. )

Petit i oner must also prove that Ðbut forÑ her age, she would

have been hired . Gross v. FBC Fin . , 129 S. Ct. 2343 (2009).

45 . However, in cases al leging age discrimination under

s ection 760.10(1)(a), FCHR has concluded that unlike cases

brought under ADEA, the age of 40 has no significance in the

interpretation of the Florida Civil Rights Act of 1992. FCHR

has determined that to demonstrate the las t element of a prima

facie case of age discrimination under Florida Law, it is

sufficient for Petitioner to show that s he was treated less

favorably than similarly - situated individuals of a "different"

age as opposed to a "younger" age. See Marchinko v. T he

Wittemann Co . , DOAH Case No. 05 - 2062 (Fla. DOAH Nov. 1, 2005),

reject ed in part , Case No. 2005 - 00251 (FCHR Jan . 6, 2006) , and

numerous cases cited therein .

46 . Arguably, Petitioner met the prima facie requirements

for age discrimination for three posi tions: 011 - 2012, 0170 - 2012,

and 0201 - 2012. The successful applicants for these positions

were significantly younger than Petitioner . Petitioner does not

meet the prima facie requirements for position 0171 - 2012.

Ms. Hatten was 52 at the time she was hire d, which, while older,

is not substantially different from PetitionerÓs age . Moreover,

the evidence does not entirely support the requirement that the

other applicants were similarly situated because of their work

experience as compared to PetitionerÓs.

47 . For those categories and positions that Petitioner has

met the prima facie requirements of discrimination, Respondent

articulated a legitimate, non - discriminatory explanation of the

adverse employment action . In each case, the person responsible

for the hiring set forth legitimate, non - discriminatory reasons

(in particular, work experience), for the decisions to hire

applicants other than Petitioner.

48 . Applying the McDonnell analysis outlined above, the

burden then shifts to Petitioner to show that a discriminatory

reason more likely than not motivated the decision or that the

proffered reason for the employment decision is not worthy of

belief. Dep't of Corr. v. Chandler , supra ; Alexander v. Fulton

C nty . , GA, supra . "Would the proffered evid ence allow a

reasonable factfinder to concl ude that the articulated reason

for the decision was not the real one." Walker v. Prudential ,

286 F. 3d 1270 (11th Cir. 2002). Pe titioner has not met this

burden .

49. Petitioner did not present evidence that the reasons

given by Resp ondent were a pretext for discrimination. Other

than Petitioner's concluso ry assertion s that the motivation for

not hiring her was based on discriminatory intent , Petitioner

offered no competent evidence of unlawful discrimination.

50 . As concluded above, Respondent presented a legitimate

non - discriminatory reason for its action s in its decisions to

hire applicants other than Petitioner. There is no persuasive

evidence to support P etitioner's assertions that RespondentÓs

actions i n not hiring her were a pretext for unlawful

discrimination. See Issenbergh v. Knight - Ridder Newspaper

Sales, Inc. , 97 F. 3d 436, 444 (11th Cir. 1996) ("Conclusory

allegations of discrimination, without more, are not sufficient

to raise an inference of pre text or intentional discrimination

where [a d e fenda nt] has offered extensive evidence of

legitimate, non - discriminatory reasons for its

actions.") (quoting Young v. General Food Corp. , 840 F.2d 825,

830 (11th Cir. 1988) ) ("Once a legitimate, non - discriminat ory

reason for dismissal is put forth by the employer, the burden

returns to the plaintiff to prove by significant probative

evidence that the proffered reason is pretext for

discrimination. ") . Petitioner presented no persuasive evidence

establishing that Respondent's reasons were pretextual.

Petitioner's speculation and personal belief concerning the

motives of Respondent are not sufficient to establish

intentional discrimination. See Lizardo v. Denny's, Inc. , 270

F.3d 94, 104 (2d Cir. 2001) ("plaintiff s have done little more

than to cite to their mistreatment and ask the court to conclude

it must have been related to their race. This is not

sufficient.") . While Petitioner believes that Respondent's

actions were intentionally discriminatory, the eviden ce does not

support this conclusion. See Byers v. Dallas Morning News,

Inc. , 209 F.3d 419, 427 (5th Cir. 2000) ("Byers has failed to

produce any direct evidence of discriminatory intent by Brown or

TDMN or sufficient evidence indirectly demonstrating

disc riminatory intent. Instead, Byers urges this Court to rely

on his subjective belief that Brown discriminated against him

because he was white. This Court will not do so."). The

evidence contains no persuasive proof to support a finding that

Respondent's actions were motivated by Petitioner's age, gender,

race, or national origin .

51. Similarly , Petitioner has not met her burden of

proving that Ðbut forÑ her age, she would have been hired for

any of the positions . See Gross v. FBC Fin . , supra .

52 . I n summary, Petitioner has failed to carry h er burden

of proof that Respondent's actions were based on intentional

discrimination on the basis of age, gender, race, or national

origin.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusio ns

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order finding that the Leon County School Board is not

guilty of the unlawful employment practice alleged by Petitioner

and dismissing P etiti on er's C omplaint of Employment

Discrimination .

DONE AND ENTERED this 29 th day of October , 20 1 3 , in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

Th e 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 29 th day of October , 20 1 3 .

ENDNOTE S

1/ All future references to Florida Statutes will be to 20 12

unless otherwise indicated .

2/ The only evidence in the record as to the applicantsÓ race,

gender, age and national origin appears in PetitionerÓs Exhibit

4 which consists of charts created in part by Respondent and in

part by Petitioner . There is no other independent evidence as

to these characteristics of the applicants, as the applications

themselves do not contain this information.

3/ These photographs comprise PetitionerÓs Exhibit 10.

COPIES FURNISHED :

Puspa Rath

2468 Rain Lily Way

Tallahassee , Florida 32 311

Deborah Stephens Minnis , Esquire

Ausley & McMullen

12 3 South Calhoun Street

Tallahassee , F lorida 3 2 301

Cheyanne Costilla , General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

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.