14-002093 Ronnie Williams vs. Madison County School District Status: Closed Recommended Order on Tuesday, November 18, 2014.

Summary: Evidence failed to demostrate sex discrimination or retaliation for 2012 FCHR complaint due to failure to interview or alleged negative references.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONNIE WILLIAMS,

Petitioner,

vs. Case No. 14 - 2093

MADISON COUNTY SCHOOL DISTRICT,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a hearing was held before the Honorable

Diane Cleavinger, Administrative Law Judge, Division of

Administrative Hearings on August 25, 2014, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Ronnie Williams, pro se

137 Monroe Creek Drive

Midway, Florida 32343

For Respondent: S. Denay Brown, Esquire

Messer Caparello, P.A.

2618 Cent e nnial Place

Tallahassee, Florida 32308

STA TEMENT OF THE ISSUE

Whether the Respondent committed an unlawful employment

practice against Petitioner in violation of the Florida Civil

Rights Act.

PRELIMINARY STATEMENT

On October 9, 2013, Petitioner filed a Complaint of

Employment Discrimination again st Respondent, Madison County

School District (Respondent or School Board), with the Florida

Commission on Human Relations (FCHR). The Complaint alleged

that Resp ondent discriminated against Petitioner on the basis of

his sex and retaliated against him fo r filing a prior Complaint

of Employment Discrimination with FCHR in August 2012.

Specifically, Petitioner alleged that in July 2013, Respondent

discriminated and retaliated against him by not granting him an

interview for a position for which he had appl ied. Petitioner

further alleged that Respondent retaliated against him by

providing Ðfalse and defaming referencesÑ to prospective

employers.

FCHR investigated the Complaint. On April 8, 2014, it

issued a Notice of Determination finding no cause to belie ve

that an unlawful employment practice had occurred . The Notice

also advis ed Petitioner of his right to file a Petition for

Relief. On May 8, 2014, Petitioner filed a Petition for Relief

with FCHR. Thereafter, the Petition for Relief was forwarded to

t he Division of Administrative Hearings (DOAH) for formal

hearing.

At the hearing, Petitioner offered the testimony of two

witnesses but did not testify on his own behalf and did not

offer any exhibits that were admitted into evidence. Respondent

presented the testimony of the same two witnesses and offered

RespondentÓs Exhibits No. 1, 3 through 12, 14, 15, 17 and 18

which were admitted into evidence.

After the hearing, Respondent filed a Proposed Recommended

Order on October 10, 2014. Petitioner filed a P roposed

Recommended Order on October 20, 2014. PetitionerÓs Proposed

Recommended Order contained several documents and alleged facts

based on those documents that were not authenticated, introduced

or admitted at hearing. As such, none of the documents o r

alleged facts based thereon were evidence that could be

considered in this matter and were not utilized in the

preparation of this Recommended Order. 1/

FINDING S OF FACT

1 . Madison County School District is a school district

which consists of eight schoo ls, serving approximately 2600

students . It employs approximately 400 people . Since 2012,

Doug Brown has been the Superintendent of Schools for Madison

County.

2 . Willie Williams is Responde ntÓs Chief Operations

Officer. As part of his duties in that p osition, he serves a s

the head of the Human Resources Department, and is involved in

the screening of applicants for positions within the district.

He also serves as t he human resources equity officer with

responsibility for ensur ing that the districtÓs p rocedures are

followed in employment interviews and that all interview

questions are asked in the same order and manner for all

employment candidates.

3 . As an employer , Respondent established standard hiring

procedures which include d procedures for the advertising,

screening, and interviewing for all open positions within the

district. As part of such procedures, all applications for open

positions with Respondent are screened by a screening committee

prior to any interview by the Respondent . During sc reening , the

committee revie ws every appl ication for completeness and for

compliance with the requisite experience and certifications

required for that position. Only those applica nts who were

determined by the screening committee to possess the requisite

experience and certification and whose applications are

determined to be complete are granted an interview with

Respondent.

4 . Respondent also had a po licy which prohibited

retaliation and discrimination on the basis of gender . The

policy provided a pro cedure for a complaint to be made by any

person who believed they were a victim of retaliation or

discrimination.

5 . Petitioner, who is male, is a former employee of

Respondent.

6. During his prior employment with Respondent, Petitioner

was employed in a variety of positions until June 2012, when his

annual contract expired and was not renewed. Followi ng his non -

renewal , Petitioner filed a Complaint of Employment

Discrimination with FCHR, wherein he claimed race discrimination

and retaliation. FCHR inv estigated PetitionerÓs complaint and,

on February 15, 2013, issued a Notice of Determination finding

no cause to believe that an unlawful employment practice had

occurred. Petitioner took no further action with regard to this

complaint and FCHRÓs determin ation became final .

7. In July of 2013, Respondent had a vacancy for a Dean of

Students/Lead Teacher ESE position. Pursuant to its collective

bargaining agreement, Respondent first advertised the position

internally for three days to current district emp loyees for whom

the open position would be a lateral transfer. Respondent did

not receive any internal applications. Accordingly, Respondent

subsequently advertised the Dean of Students/Lead Teacher ESE

position to the public. The required qualification s for the

Dean of Students/Lead Teacher ESE position were:

1. Bachelors Degree or higher from an

accredited educational institution.

2. Certified in an education field.

3. Minimum of three (3) years teaching

experience .

4. Applicant must be certified i n ESE.

8. Respondent required that applicants for the Dean of

Students/Lead Teacher ESE position hold the general exceptional

student education (ESE) certification that is currently offered

by the Florida Department of Education. Respondent did not

accep t any grandfathered special education certifications other

than the full ESE certification for this position. There was no

evidence that this requirement was discriminatory or retaliatory

toward Petitioner . 2/

9. Around this same time, Respondent also had openings for

other Dean of Students positions. Unlike the other Dean of

Students positions available at the time, the Dean of

Students/Lead Teacher ESE position was a hybrid position which

would fulfill both the role of Dean of Students , as well as that

of ESE teacher. As a result, the Dean of Students/Lead Teacher

ESE position for which Petitioner applied required ESE

certification while other Dean of Students positions did not.

10. Petitioner, along with 22 other individuals, applied

for the Dean of S tudents/Lead Teacher ESE position. The

applicants for the Dean of Students/Lead Teacher ESE position

were approximately half male and half female.

11. On his application, Petitioner reflected that he held

a varying exceptionalities certification in speci al education.

He also held certification in the areas of driverÓs education,

law enforcement, mental retardation, and secondary school

principal.

12. The applications for the Dean of Students/Lead Teacher

ESE position were screened in compliance with Re spondentÓs

established procedures.

13. During the screening committeeÓs review, t he screening

committee verified PetitionerÓs certification coverage with the

Florida Department of Education . The Department of Education

confirmed that Petitioner poss ess ed certification in the area s

of mental retardation and varying exceptionalities , but did not

have the general ESE certification that Respondent required.

Based upon PetitionerÓs application and the certification report

obtained from the Florida Departmen t of Education, the screening

committee members agreed that Petitioner did not meet the

required qualifications for the Dean of Students/Lead Teacher

ESE position and screened him out of the interview process for

such position. In fact, s everal applicants , both male and

female, were screened out of the interview process for the Dean

of Students/Lead Teacher ESE position due to not being

qualified.

14. The only applicants who passed the screening process

and were granted interviews for the Dean of Students /Lead

Teacher ESE position were those appli cants who possessed the

full ESE certification. There was no evidence that RespondentÓs

or the screening committeeÓs actions in processing these

applications were discriminatory or retaliatory against

Petitioner.

15. The applicant who was ultimately selected for the Dean

of Students/Lead Teacher ESE position was a female who was a

current school board employee at the time of her application and

who possessed the full ESE certification that Respondent

required for the position.

1 6 . After learning that he had been screened out of the

interview process for the Dean of Students/Lead Teacher ESE

position, Petitioner met with Superintendent Brown and inquired

as to why he was screened out of the interview process for such

position. The Superintendent indicated to Petitioner that if he

was qualified for the position he should have been interviewed

and advised Petitioner he would look into the matter. Following

such meeting, Superintendent Brown conferred with Willie

W illiams regarding the screening and interview process for the

position at issue. The chief operating officer informed

Superintendent Brown that Petitioner did not possess the

required full ESE certification and that he was therefore not

qualified for the position. After receiving this information,

Superintendent Brown concurred that Petitioner was not qualified

for the Dean of Stud ents/Lead Teacher ESE position and took no

further action in relation to the issue.

1 7 . I n July 2013, Petitioner applied for a Dean of

Students position with Respondent. This position did not

require ESE certification. Eighteen individuals applied for the

position. The applications for this Dean of Students position

were also screened in compliance with RespondentÓs establish ed

procedures. Petitioner was determined to be qualified for this

position by the screening committee and received an interview.

Petitioner, however, was no t recommended for the position and

the position was ultimately filled by an African American male.

18. Subsequently, Petitioner applied for an open driver Ó s

education position with Respondent for the summer of 2014. This

position did not require ESE certification. Likewise, t he

applications for th e driver Ó s education position were screened

in compli ance with RespondentÓs established procedures.

Petitioner was deemed qualified for this position by the

screening committee and received an interview. The interview

committee recommended Petitioner to Superintendent Brown for

this position and Superinten dent Brown subsequently presented

that recommendation to the School Board. The School Board

approved the SuperintendentÓs recommendation and Petitioner was

hired for the position.

19. Petitioner also applied for an Assistant Principal

position with Resp o ndent in July 2014. This position did not

require ESE certification. The applications for th e Assistant

Principal position were screened in compliance with RespondentÓs

established procedures. Petitioner was determined to be

qualified for this position by the screening committee and was

offered an interview. Petitioner, however, did not respond to

RespondentÓs attempts to schedule that interview and thus was

not interviewed for the position.

20. Ultimately, Petitioner failed to present any evidence

to show that he was, in fact, qualified for the Dean of

Students/Lead Teacher ESE position or that he was screened out

of the interviews for such position for any reason other than

his failure to meet the required qualifications. Based on this

lack of evide nce, the Petition for Relief should be dismissed.

2 1 . Finally, i n his Employment Complaint of Discrimination

and Petitio n for Relief, Petitioner alleged that Respondent

provided Ðfalse and defaming references as further acts of

retaliationÑ and Ða negativ e derogatory reference letter.Ñ

However, Petitioner presented no evidence in support of these

allegations. To the contrary, the evidence showed that at some

point in time, Petitioner requested that Superintendent Brown

write a reference letter for Petiti oner. Following that

request, Superintendent Brown wrote a letter for Petitioner to

provide to potential employers which recommended Petitioner for

employment and stated that Petitioner had not had any

disciplinary issues with Res pondent. Given Petitione rÓs failure

to present any evidence to support his allegations of

retaliation, the Petition f or Relief should be dismissed

CONCLUSIONS OF LAW

22 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

p roceeding. §§ 120.569 & 120.57(1) , Fla. Stat. (2014).

2 3 . Section 760.10, Florida Statutes, states in pertinent

part as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, o r otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

* * *

(7) It is a n unlawful employment practice

for an employer . . . to discriminate

against any person because that person has

opposed any practice which is an unlawful

employment practice under this section, or

because that person has made a charge,

testified, assisted, or participated in any

manner in an investigation, proceeding, or

hearing under this section.

2 4 . The Florida Civil Rights Act was patterned after Title

VII of the Civi l Rights Act of 1964, 42 U.S.C. § 2000, et seq.

As such, FCHR and Florida courts hav e determined federal case

law interpreting Title VII is applicable to cases arising under

FCRA. See Valenzuela v. GlobeGround N . Am . , LLC , 18 So. 3d 17

(Fla. 3d DCA 2009); Green v. Burger King Corp. , 728 So. 2d 369,

370 - 371 (Fla. 3d DCA 1999); Fla. State Univ. v. Sondel , 685

So. 2d 923 (Fla. 1st DCA 1996); Brand v. Fla. Power Corp. , 633

So. 2d 504, 509 (Fla. 1st DCA 1994). Fla. Dept. of Cmty.

Affairs v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

Additionally , because the retaliation provision in FCRA i s

almost identical to its federal counterpart, 42 U.S.C. § 2000e -

3(a), Florida courts follow federal case law when examining FCRA

retaliation claims. Carter v. Health Mgmt. Assocs. , 989 So. 2d

1258, 1262 (Fla. 2d DCA 2008).

2 5 . In this action, Petitioner alleged that he was

discriminated against on the basis of his sex and that he was

retaliated against by Respondent in violation of the Florida

Civil Rights Act, chapter 760.01, et. seq. (FCRA). In

particular, Petitioner claims that he was discriminated a nd

retaliated against when Respondent failed to hire him for the

Dean of Students/Lead Teacher ESE position in July 2013, and

that he was further retaliated against when Respondent sent an

allegedly Ðnegative derogatory reference letterÑ to a

prospective e mployer of Petitioner.

26. Under FC RA, Petitioner has the burden to establish by

a preponderance of the evidence that he was the subject of

retaliation or discrimination by Respondent. In order to carry

his burden of proof, Petitioner can establish a cas e of

discrimination or retaliation through direct or circumstantial

evidence. See Holifield v. Reno , 115 F.3d 1555, 1561 - 1562 (11th

Cir. 1997) ; Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th

Cir. 1999). Direct evidence of discrimination is evidence tha t,

if believed, establishes the existence of discriminatory intent

behind an employment decision without inference or presumption.

Maynard v. Bd . of Regents , 342 F.3d 1281, 1289 (11th Cir. 2003).

Direct evidence is composed of Ðonly the most blatant rema rks,

whose intent could be nothing other than to discriminateÑ on the

basis of some impermissible factor. Evidence that only suggests

discrimination, or that is subject to more than one

interpretation, is not direct evidence. See Schoenfield , supra

and C arter v. Three Springs Residential Treatment , 132 F.3d 635,

462 (11th Cir. 1998). Direct evidence is evidence that, if

believed, would prove the existence of discriminatory intent

without resort to inference or presumption and must in some way

relate to t he adverse actions of the employer. Denney v. City

of Albany , 247 F.3d 1172, 1182 (11th Cir. 2001); see Jones v.

BE&K EngÓg, Inc. , 146 Fed. Appx. 356, 358 - 359 (11th Cir. 2005)

(ÐIn order to constitute direct evidence, the evidence must

directly relate in time and subject to the adverse employment

action at issue.Ñ); see also Standard v. A.B.E.L. Servs., Inc. ,

161 F.3d 1318 (11th Cir. 2002) (concluding that the statement

ÐweÓll burn his black a**Ñ was not direct evidence where it was

made two - and - a - half yea rs prior to the employeeÓs termination).

27. Herein , Petitioner presented no direct evidence of

discriminatory or retaliatory intent on the part of the

Respondent . Therefore, Petitioner must establish his case

through inferential and circumstantial proof . Shealy v. City of

Albany, Ga. , 89 F.3d 804, 806 (11th Cir. 1996); Kline v. Tenn.

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

Prudential Prop. & Cas. Ins. Co. , 286 F.3d 1270, 1274 (11th Cir.

2002).

28. Where a complainant attempts to prov e intentional

discrimination using circumstantial evidence, the shifting

burden analysis established by the United States Supreme Court

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

Department of Community Affairs v. Burdine , 450 U.S. 248 ( 1981),

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

complainant 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 with the evidence shifts to the employer to

articulate a legitimate, non - discriminatory explanation for the

employment action. See Dep Ó t of Corr. v. Chandler , 582 So. 2d

1183 (Fla. 1st DCA 1991) . Importantly, t he employer has the

burden of pr oduction, not persuasion, and need only present the

finder of fact with evidence that the decision was non -

discriminatory. Id. See also Alexander v. Fulton Cnty . , G a. ,

207 F.3d 1303 (11th Cir. 2000). The employee must then come

forward with specific evi dence demonstrating that the reasons

given by the employer are pretexts for discrimination.

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

this burden by showing that a discriminatory reason more likely

than not motivated the decision, o r indirectly by showing that

the proffered reason for the employment decision is not worthy

of belief. Dep Ó t of Corr. v. Chandler , supra at 1186; Alexander

v. Fulton Cnty . , Ga. , supra .

2 9 . Notably, "although the intermediate burdens of

production shift b ack and forth, the ultimate 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. , 296 F.3d

1265, 1273 (11th Cir. 2002); s ee also Byrd v. RT Foods, Inc. ,

948 So. 2d 921, 927 (Fla. 4th DCA 2007) ("The ultimate burden of

proving intentional discrimination against the plaintiff remains

with the plaintiff at all times."). Reeves v. Sanderson

Plumbing Products, Inc. , 530 U.S. 133 , 148 (2000).

30. On the other hand , this proceeding was not halted

based on a summary judgment, but was fully tried before the

Division of Administrative Hearings. Where the administrative

law judge does not halt the proceedings for "lack of a prima

fac ie case and the action has been fully tried, it is no longer

relevant whether the [Petitioner] actually established a prima

facie case. At that point, the only relevant inquiry is the

ultimate, factual issue of intentional discrimination . . . .

[W]hethe r or not [the Petitioner] actually established a prima

facie case is relevant only in the sense that a prima facie case

constitutes some circumstantial evidence of intentional

discrimination." Green v. Sch. Bd. of Hillsborough Cnty. , 25

F.3d 974, 978 (11t h Cir. 1994); Beaver v. Rayonier, Inc. , 200

F. 3d 723, 727 (11th Cir. 1999). See also U. S. Postal Serv. Bd.

of Governors v. Aikens , 460 U.S. 711, 713 - 715 ("Because this

case was fully tried on the merits, it is surprising to find the

parties and the Court of Appeals still addressing the question

of whether Aikens made out a prima facie case. We think that by

framing the issue in these terms, they have unnecessarily evaded

the ultimate question of discrimination vel non . . . . [W]hen

the defendant fails t o persuade the district court to dismiss

the action for lack of a prima facie case, and responds to the

plaintiff's proof by offering evidence of the reason for the

plaintiff's rejection, the fact - finder must then decide whether

the rejection was discrimin atory within the meaning of Title

VII. At this stage, the McDonnell - Burdine presumption 'drops

from the case,' and 'the factual inquiry proceeds to a new level

of specificity.'").

31 . In order to establish a prima facie case of

discrimination in the cont ext of a failure to hire claim,

Petitioner must demonstrate that (1) he belongs to a protected

class; (2) he was qualified for and applied for a position that

the employer was seeking to fill; (3) despite his

qualifications, he was rejected; and (4) the po sition was filled

with an individual outside the protected class. See McDonnell,

supra ; Gillis v. Ga. Dep Ó t of Corr. , 400 F.3d 883 (11th Cir.

2005); Rice - Lamar v. City of Ft. Lauderdale , 232 F.3d 842 - 843

(11th Cir. 2000). Beal v. CSX Corp. , 308 Fed. Appx . 324, 326

(11th Cir. 2009).

3 2 . In this case, Petitioner is a member of a protected

class . However , he failed to present any evidence to

demonstrate that he was qualified for the Dean of Students/Lead

Teacher ESE position for which he applied. Rather, all evidence

introduced established that Petitioner was not, in fact,

qualified for the Dean of Students/Lead Teacher ESE position

since he did not possess the ESE certification required by

Respondent. Thus, Petitioner was not qualified for the position

a t issue and the second prong of his prima facie case of

discrimination fails. Further, the evidence was clear that

males have been hired for other Dean of Students positions and

that Petitioner, himself, has been provided at least one

opportunity to inter view for such a position. Both of these

facts demonstrate that Petitioner was not discriminated against

based on his sex and the Petition for Relief should be

dismissed.

3 3 . Further , i n order to establish a prima facie case of

retaliation, Petitioner mu st show: (1) he engaged in

statutorily - protected activity, (2) he suffered an adverse

employment action, and (3) the adverse employment action was

caused by his statutorily - protected activity. St. Louis v. Fla .

IntÓl Univ. , 60 So. 3d 455 (Fla. 3d DCA 201 1); Beal , 308 Fed.

Appx. at 326.

3 4 . In this case, assuming that the 2012 FCHR Complaint

referenced in the Petition for Relief was the Ðstatutorily -

protected activityÑ on which Petitioner intended t o rely, there

was no evidence to establish that Petitione r suffered an adverse

employment action based on his not being selected to interview

for the Dean of Students/ Lead T eacher ESE position or that such

non - selection was caused by his 2012 FCHR Complaint.

35. As to PetitionerÓs remaining retaliation claim ba sed

on negative references , Petitioner failed to present any

evidence establishing that a Ðnegative derogatory reference

letterÑ ever existed or that it was transmitted to a prospective

employer of Petitioner. In fact, the evidence demonstrated that

Respo ndent provided a positive letter of reference to Petitioner

to provide to prospective employers. Based on the evidence ,

Petitioner failed to establish his claim of retaliation and the

Petition for Relief should be dismissed.

RECOMMENDATION

Based on the fo regoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Rights enter a Final Order finding that Respondent did not

discriminate or retaliate against Petitioner and dismissing the

Petition for Relief.

DONE AND ENTERED this 18th day of November, 2014 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Flori da 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 18th day of November, 2014 .

ENDNOTES

1 / Petitioner was afforded ample time to prepare for the hearing

in this matter and failed to conduct timely discovery during the

course of this proceeding. On the other hand , during

RespondentÓs discovery, Petitioner was generally evasive during

his deposition , leaving the impression that he had documents in

the form of ÐnotesÑ which memorialized the facts of his case .

Even though properly requested, such ÐnotesÑ were not timely

produced during discovery and remain a mystery . Further,

Petitioner failed to comply with requests for production and

interrogatories properly made by Respondent to Petitioner.

2/ Petitioner alleged that the requirement for a full ESE

certification was not authorized by or somehow against the

Department of Education (DOE) rules. However, there was no

evidence that such a requirement violates DOE rules. Further,

there was no evidence that Respondent or any other school

district could not formulate employment requirements more

stringent than DOEÓs recognized certifications. Finally,

assuming arguendo that the full ESE requirement was a

misint erpretation of DOE rules, there was no evidence that such

a misinterpretation was discriminatory or retaliatory towards

Petitioner .

COPIES FURNISHED :

Ronnie Norris Williams

137 Monroe Creek Drive

Midway, Florida 32343

(eServed)

Summer Denay Brown, Esq uire

Messer Caparello, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Bob L. Harris, Esquire

Messer Caparello, P.A.

Post Office Box 15579

Tallahassee, Florida 32317

(eServed)

Cheyanne Michelle Costilla, General Counsel

Florida Commissi on on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

(eServed)

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 exce ptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.