18-000367 Lester L. Washington vs. Escambia County School District Status: Closed Recommended Order on Wednesday, October 3, 2018.

Summary: Petitioner failed to prove his claims of discrimination based on race, gender, age, or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LESTER L. WASHINGTON,

Petitioner,

vs. Case No. 18 - 0367

ESCAMBIA COUNTY SCHOOL DISTRICT,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was conduc ted in this case on May 10

and June 5, 2018, in Pensacola, Florida, before James H.

Peterson, III, Administrative Law Judge with the Division of

Administrative Hearings (DOAH) .

APPEARANCES

For Petitioner: Lester L. Washington, pro se

Apt 809

1878 East 9 Mile Road

Pensacola, F lorida 32514 - 3125

For Respondent: Joseph L. Hammons, Esquire

The Hammons Law Firm , P.A.

17 West Cervantes Street

Pensacola, Flor ida 32501

STATEMENT OF THE ISSUE

Whether the Escambia County School District (School

District or Respondent) discriminated against Lester Washington

(Petitioner) on the basis of his race, gender, or age, or in

retaliation against him for engaging in prot ected activities, in

violation of the Florida Civil Rights Act of 1992, 1/ by

terminating PetitionerÓs employment, or removing Petitioner from

the School DistrictÓs authorized list of substitute teachers.

PRELIMINARY STATEMENT

On April 11, 2017, Petitioner filed an Employment

Complaint of Discrimination (Complaint) with the Florida

Commission on Human Relations (the Commission or FCHR). The

Commission investigated the Complaint , which was assigned FCHR

No. 201700803. At the completion of its investigation , the

Commission issued a Determination dated December 15, 2017,

finding no reasonable cause. On the same date, the Commission

sent Petitioner a Notice of Determination (Notice) on the

Complaint stating that no reasonable cause exists to believe

that an u nlawful practice occurred.

The Notice advised Petitioner that the CommissionÓs

Determination would become final unless Petitioner filed a

Petition for Relief within 3 5 days. Petitioner timely filed a

Petition for Relief. The Commission referred the matte r to

DOAH, and the case was assigned to the undersigned to conduct an

administrative hearing pursuant to chapter 120, Florida

Statutes.

The first day of the administrative hearing in this case

was held May 10, 2018, and, after a day of hearing, another ful l

day was scheduled and then heard on June 5, 2018. At hearing,

Petitioner called 11 witnesses, testified on his own behalf, and

offered seven exhibits received into evidence as PetitionerÓs

E xhibits P 0 through P3 , P77 , P101, and P102 . The School

Distric t presented the testimony of two witnesses and offered

four exhibits received into evidence as RespondentÓs E xhibits R1

through R 4 ( three versions of R4 provided ) . The proceedings

were recorded , but no transcript was ordered. The parties were

given until September 1, 2018, to submit their proposed

r ecommended o rders.

The School District timely filed its Proposed Recommended

Order on August 31, 2018, and, after Petitioner filed two

motions for extensions of time, which were granted, Petitioner

filed his Proposed Recommended Order on September 7, 2018, with

various subsequent renditions, corrections, and motions with

regard thereto, on September 10, 11, 12, and 14, 2018.

PetitionerÓs post - hearing filings are voluminous and confusing,

but were nonetheless reviewed and considered, along with the

School DistrictÓs Proposed Recommended Order, in preparing this

Recommended Order.

FINDING S OF FACT

1. Petitioner was employed in the position of exceptional

student education (ESE) department chair at Warrington Mi ddle

School pursuant to an instructional appointment signed by

Petitioner on June 13, 2016. The instructional appointment

includes the following language:

I understand further that upon signing this

appointment form, I shall be bound to serve

as provided in s 1012.335, F.S. during the

duration of this contract, I may be

dismissed without cause or may resign from

this contractual position without breach of

contract.

2. Consistent with the terms of PetitionerÓs instructional

appointment, s ection 1012.335(1 )(c), Florida Statutes, provides

that School District instructional employees with probationary

contracts may be dismissed without cause or may resign without

breach of contract.

3. PetitionerÓs instru ctional appointment as the ESE

d epartment c hair for Wa rrington Middle School was recommen ded by

Dr. Regina Lipnick, the p rincipal of Warrington Middle School.

Although Petitioner was not certified by the Department of

Education as an ESE instructor , Petitioner was authorized to

occupy that position so long a s the certification could be

achieved within one year , as allowed by section 1012.42 .

4. In addition to Petitioner, Warrington Middle School had

other new instructional staff in need of ESE training for the

2016 - 2017 school year, in accordance with federa l requirements

under the Individuals with Disabilities Education Act (IDEA),

20 U .S.C. , § 1412. Recognizing this need for training, the

School DistrictÓs ESE Department authorized and provided

additional training for Petitioner and other new instructiona l

staff on ESE procedures.

5. Mary Cameron was employed as a teacherÓs a ssistant

during PetitionerÓs employment at Warrington Middle School .

In August, September, and October 2016, Lester Washington was

Ms. CameronÓs immediate supervisor, while Ms. Came ron worked as

a teacherÓs assistant in the ESE Department .

6. Ashleigh Frizen, a behavior coach at Warrington Middle,

told Ms. Cameron not to turn in the ESE paperwork completed by

Mr. Washington because it was incorrect, and that Ms. Frizen

would have to redo it before it could be submitted. Ms. Frizen

corrected a number of forms that had been completed incorrectly

by Mr. Washington.

7. In her testimony, Ms. Cameron was critical of the

Warrington Middle School Ós p rincipal, Dr. Lipnick. According to

M s. Cameron, Dr. Lipnick was too demanding and expected too much

of the staff. Ms. Cameron further testified, however, that

Dr. LipnickÓs harshness was without regard to any employeeÓs

race, age, or gender.

8. Ms. Cameron testified that, on one occasion, she

smelled alcohol on Ms. FrizenÓs breath. She reported this to

Mr. Washington, who reported it to Dr. Lipnick. Ms. Cameron

testified that Ms. Frizen did not exhibit any signs of

intoxication nor did she observe Ms. Frizen engaging in any

abusive or in appropriate behavior. According to Ms. Cameron,

the odor was as if the alcohol had been consumed over the

weekend.

9. In October of 2016, Elizabeth Oakes, the School

DistrictÓs human resources director, was directed to go to

Warrington Middle School to a dvise Mr. Washington of the

termination of his probationary first - year teacher contract.

Ms. Oakes explained to Mr. Washington that he was being

terminated from his probationary contract, with the option to

resign. Mr. Washington decided to resign and th ereafter was

placed on the School DistrictÓs approved substitute teacher

list.

10. Gary Marsh is employed by the School District as an

i nvestigator. His experience prior to employment with the

Escambia County School District was through the Naval Crimina l

Investigative Unit. Mr. Marsh testified that he attended the

meeting at Warrington Middle School with Ms. Oakes and

Mr. Washington, during which Ms. Oak e s advised Mr. Washington

that his employment was being termina ted. According to

Mr. Marsh , Petiti oner became very upset , and Mr. Marsh became

concerned that Petitioner might become aggressive. Petitioner,

however, did not become aggressive.

11. Keith Leonard, the School DistrictÓs d irector of human

r esources, described his acceptance of PetitionerÓs resignation

and how the resignation gave Mr. Washington an opportunity to

regain employment as opposed to being terminated. Mr. Leonard

reiterated that Florida first - year teachers were on a

probationary contract that can be terminated without cause and

w ithout any claim of wrongdoing.

12. Aggie Bauer, the p rincipal of Cord ova Park Elementary

School, described that on January 5, 2017, Mr. Washington had

served as a substitute teacher at that school. While

substituting that day, Mr. Washington left kinder garten students

unsupervised in the classroom while he took another group of

students to another location.

13. Ms. Bauer spoke with Mr. Washington about what

happened. Mr. Washington claimed a monitor was outside the

classroom door when he left the roo m. Ms. Bauer had no

knowledge of a monitor being outside the classroom.

14. Because Mr. Washington left kindergarten students

unsupervised in the classroom, Ms. Bauer requested that

Mr. Washington not be returned to substitute at Cordova Park

Elementary School .

15. Holly McGee, W eis Elementary School p rincipal,

testified that when Mr. Washington was at Weis Elementary School

as a substitute teacher , he placed his hands on the throat of a

middle school student in violation of the School District Ós

poli cies and procedures for managing students engaged in

misbehavior. Ms. McGee believed Mr. Washington was too physical

in addressing students and advised the School District that she

did not want Mr. Washington to return to her school as a

substitute teache r.

16. Petitioner called his brother, Oberly Washington, as

well as James Williams, Ellison Bennett, and Ashlei gh Frizen , as

witnesses. Oberly Washington, Mr. Williams, and Mr. Bennett

spoke favorably of Mr. Washington, but offered no testimony with

resp ect to his performance as a teacher at Warrington Middle

School or his performance as a substitute teacher thereafter.

They had no knowledge regarding the circumstances of

Mr. WashingtonÓs termination from his teacher contract or his

removal from the appr oved substitute teacher list.

17. M s . Frizen was a behavior coach at Warrington Middle

School while Petitioner was employed there. She has since

transferred to another school where she is an intervention

coordinator. According to Ms. Frizen , Mr. Washing tonÓs duties

while at Warrington Middle were to assure that the ESE

DepartmentÓs Individual Education Plans (IEPs) were in place and

that appropriate services were being provided to ESE students.

Mr. Washington was to properly complete student information and

IEP forms. Ms. Frizen described working with Mr. Washington and

her attempts to assist and train him in the performance of his

duties.

18. Teri Szafran , the director of the School DistrictÓs

ESE Department, described the requirements of IDEA and the

School DistrictÓs ESE DepartmentÓs responsibility of

implementing those requirements. She described the requirements

for completion of IEPÓs for qualified students and the

significant consequences of failure to comply. While Petitioner

was employed at W arrington Middle School , Ms. Szafran was

informed by an ESE worker at Warrington Middle School, that

Mr. Washington was not able to perform the duties of his

position involving ESE procedures, forms, and services.

19. Recognizing there were several new ESE teachers and

employees at Warrington Middle School for the 2016 - 2017 school

year, Ms. Szafran met with Dr. Lipnick to insure there would be

some additional ESE training for the Warrington Middle School

ESE staff. Ms. Szafran attended part of that tra ining, which

was provided, for the most part, by her assistant, Sondra Hill.

20. Ms. Hill provided individualized assistance to

Petitioner for over three months before concluding, in October

2016, that he was not making sufficient progress required to

sat isfactorily perform his duties related to ESE students. As

part of her responsibilities to the School District and ESE

students, Ms. Hill reported to Dr. Lipnick and expressed her

concern that the ESE services at Warrington Middle School could

not be suff iciently provided by Mr. Washington based on his

inability to grasp and learn the necessary procedures and

responsibilities.

21. While Ms. Hill was aware of Mr. WashingtonÓs report of

Ms. Frizen having alcohol on her breath, that knowledge was not

a facto r in fulfilling her responsibility to report PetitionerÓs

failure to learn the necessary skills and procedures to properly

perform his ESE duties.

22. Petitioner testified on his own behalf. According to

Petitioner, his report to the p rincipal that Ms. F rizen had

alcohol on her breath was a protected activity under Federal

or s tate law and that he believed that his communication in

that regard caused Dr. Lipnick to retaliate against him.

Mr. Washington also expressed the belief that he had been denied

due process because he was not afforded a hearing with respect

to the termination of his probationary contract. Mr. Washington

also believes that his race, age, or gender played a role in the

termination of his instructional contract by Dr. Lipnick.

23 . PetitionerÓs beliefs that his termination and removal

from the substitute teacher list were based on discrimination or

retaliation are not supported by the facts. Dr. Lipnick was the

one who had initially recommended Petitioner for his employment

at Wa rrington Middle School.

24. Rather than prove discrimination or retaliation, the

evidence demonstrated that Petitioner did not have the necessary

knowledge of ESE procedures and responsibilities and was unable

to acquire the necessary knowledge and skills . Notwithstanding

PetitionerÓs effort to do so, his inability to perform the

duties and responsibilities of his position , and Ms. HillsÓ

report to Dr. Lipnick of that in ability, constituted valid,

non discriminatory reasons for the decision to end Petition erÓs

employment under his probationary contract. There is no

evidence reasonably supporting a conclusion that the decision to

terminate PetitionerÓs employment was because of race, age, or

gender, or that it was in retaliation for PetitionerÓs report

that a fellow employee had alcohol on her breath.

25. In consideration of all of the testimony and other

evidence in this case, Petitioner failed to demonstrate that the

decision to terminate his first - year teacher probationary

contract was based on unlawful consideration of race, gender,

age, or in retaliation for engaging in a protected activity.

Neither is there evidence that, after Mr. Washington was

authorized to serve as a substitute teacher, his removal from

the authorized substitute teacher list was p redicated on race,

gender, age, or retaliation for his engagement in a protected

activity.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. See §§ 120.569, 120.57(1), and 760.11(4)(b), Fla.

Stat.; see also Fla. Admin. Code R. 60Y - 4.016.

27. The Florida Civil Rights Act of 1992, as amended (the

Act) , is codified in sections 760.01 through 760.11, Florida

Statutes.

28. Section 760.10 provides, in pertinent part:

1. It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, segregate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

o pportunities, or adversely affect any

individualÓs status as an employee, because

of such individualÓs race, color, religion,

sex, national origin, age, handicap, or

marital status.

29. The Escambia County School District is an ÐemployerÑ

within the mean ing of the Act. See § 760.02(7), Fla. Stat.

(ÐÒEmployerÓ means any person employing 15 or more employees for

each working day in each of 20 or more calendar weeks in the

current or preceding calendar year, and any agent of such a

person.Ñ); see also § 760 .02(7), Fla. Stat. (ÐÒPersonÓ includes

. . . any governmental entity or agency.Ñ).

30. As developed in federal cases, a prima facie case of

discrimination under Title VII may be established by direct

evidence, which, if believed, would prove the existence of

discrimination without inference or presumption. Direct

evidence, consisting of blatant remarks whose intent could be

nothing other than discriminatory, does not exist in this case.

See Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354,

1358 - 1359 (11 th Cir 1999) . Where direct evidence is lacking,

one seeking to prove discrimination must rely on circumstantial

evidence of discriminatory intent, using the three - part shifting

Ðburden of proofÑ pattern established in McDonnell Douglas Corp.

v. G reen , 411 U.S. 792 (1973). See Holifield v. Reno , 115 F.3d

1555, 1562 (11th Cir. 1997).

31. Under McDonnell Douglas , first, Petitioner has the

burden of proving a prima facie case of discrimination by a

preponderance of the evidence. Second, if Petition er

sufficiently establishes a prima facie case, the burden shifts

to Respondent to Ðarticulate some legitimate, nondiscriminatory

reasonÑ for its action. Third, if Respondent satisfies this

burden, Petitioner has the opportunity to prove by a

preponderanc e of the evidence that the legitimate reasons

asserted by Respondent are in fact mere pretext. McDonnell

Douglas Corp. , 411 U.S. at 802 - 04. In order to establish a

prima facie case under McDonnell Douglas , a plaintiff or

petitioner alleging unlawful disc rimination under Title VII must

show (1) he belongs to a protected group; (2) that he was

subjected to an adverse employment action ; (3) his employer

treated similarly situated employees outside his classification

more favorably ; and (4) he was qualified t o do the job.

Holifield v. Reno , 115 F.3d , at 1562; McDonnell Douglas Corp. ,

411 U.S . , at 802.

32. Petitioner has not presented sufficient evidence to

show a prima facie case of unlawful discrimination on the basis

of race, gender, or age. While the evi dence demonstrates that

Petitioner falls within a protected group and that Petitioner

suffered an adverse employment action, there is no evidence of

record that the School District treated similarly situated

employees outside the protected group s more favo rably. Nor is

there evidence that Petitioner was Ðqualified to do the job.Ñ

33. While there is evidence that Petitioner was hired with

the expectation that he would become qualified to do the job,

there is no evidence that he was successful in that pursu it,

through experience or training. As part of a prima facie case ,

it was incumbent upon Mr. Washington to demonstrate that

qualification.

34. Even if Petitioner was deemed to have submitted

sufficient evidence to show a prima facie case of unlawful

dis crimination on the basis of race, gender, or age, unrefuted

evidence in this case demonstrates that the actions taken by the

School District to terminate PetitionerÓs probationary contract

was because of actual or perceived ineffectiveness and inability

of Petitioner to fully perform the duties and responsibilities

required of his position with respect to the IDEA and ESE

procedures and requirements.

35. The School District presented credible evidence of

legitimate, nondiscriminatory reasons for its action s in

terminating PetitionerÓs instructional probationary contract and

for his removal from the approved substitute teacher list.

Petitioner did not demonstrate with credible evidence that the

reasons asserted by the School District were mere pretext for

u nlawful discrimination or retaliation. Id . at 802.

36. Petitioner also failed to demonstrate a prima facie

case of unlawful retaliation in violation of the Act or

Title VII. Title VII makes it unlawful for employers to

retaliate against employees for o pposing unlawful employment

practices. See 42 U.S.C. § 2000e - 3(a); see also § 760.10(7),

Fla. Stat. ( I t is an unlawful employment practice for an

employer to discriminate against a person because that person

has, Ðopposed any practice which is an unlawful employment

practiceÑ or because that person Ðhas made a charge . . . under

this subsection.).Ñ

37. Just as in discrimination claims based on status, a

plaintiff or petitioner may establish a claim of illegal

retaliation using either direct or circumstant ial evidence.

Direct evidence of retaliation does not exist in this case. In

relying on circumstantial evidence, tribunals use the McDonnell

Douglas analytical framework. See Bryant v. Jones , 575 F.3d

1281, 1307 - 08 (11th Cir. 2009). ÐUnder [that] fram ework, a

plaintiff alleging retaliation must first establish a prima

facie case by showing that: (1) he engaged in a statutorily

protected activity; (2) he suffered an adverse employment

action; and (3) he established a causal link between the

protected a ctivity and the adverse action.Ñ Id .

38. ÐOnce a plaintiff establishes a prima facie case of

retaliation, the burden of production shifts to the defendant to

rebut the presumption by articulating a legitimate non -

discriminatory reason for the adverse emp loyment action.Ñ

Bryant , 575 F.3d at 1308 ; see also Tipton v. Canadian Imperial

Bank of Commerce , 872 F.2d 1491, 1495 (11th Cir. 1989)(noting

that an ÐemployerÓs burden of rebuttal is Òextremely lightÓÑ).

If the employer carries its burden by articulatin g a legitimate

non - discriminatory reason, Ð[t]he burden then shifts to the

plaintiff to prove by a preponderance of the evidence that the

ÒlegitimateÓ reason is merely pretext for prohibited,

retaliatory conduct.Ñ Sierminski vansouth Fin. Corp. , 216

F .3d 945, 950 (11th Cir. 2000) .

39. To establish pretext, a plaintiff must Ðpresent

concrete evidence in the form of specific factsÑ showing that

the defendantÓs proffered reason was pretextual. Bryant , 575

F.3d at 1308; see also Vessels v. Atlanta Inde p. Sch. Sys. ,

408 F.3d 763, 771 (11th Cir. 2005) ( quoting Cooper v. S . Co. , 390

F.3d 695, 725 (11th Cir. 2004) ) (A plaintiffÓs evidence of

pretext Ðmust reveal Òsuch weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

empl oyerÓs proffered legitimate reasons for its actions that a

reasonable factfinder could find them unworthy of credence.ÓÑ).

ÐIf the proffered reason is one that might motivate a reasonable

employer, a plaintiff cannot recast the reason but must meet it

hea d on and rebut it. [citation omitted] Space Quarreling with

that reason is not sufficient.Ñ Wilson v . B/E Aerospace, Inc. ,

376 F.3d 1079, 1088 (11th Cir. 2004). Conclusory allegations

and assertions are insufficient. See Bryant , 575 F.3d at 1308.

40. In addition, a claim under Title VII or the Act

requires proof that the employerÓs desire to retaliate was the

Ðbut - forÑ cause of the challenged employment action. Univ . of

Texas S w. Med . Ctr . v. Nassar , 570 U.S. 338, 360 (2013).

41. In this case, the u ndisputed evidence does not

establish a prima facie case of retaliation. PetitionerÓs

report to the Warrington Middle School Ós p rincipal that the

behavior coach, Ms. Frizen, had been reported to him by

Ms. Cameron as smelling of alcohol, is not a report of an

unlawful employment practice. Even if it were, the School

District , as PetitionerÓs employer, presented credible evidence

that its reason for terminating PetitionerÓs employment under

his probationary contract was his inability to train and learn

to do the job for which he was hired. Petitioner failed to

demonstrate that the School District Ós reason for terminating

him was pretextual.

42. Further, under the Ðbut - forÑ causation standard,

ÐTitle VII retaliation claims must be proved according to

tr aditional principles of but - for causation . . . . This

requires proof that the unlawful retaliation would not have

occurred in the absence of the alleged wrongful action or

actions of the employer. Ñ Nassar , 570 U.S. at 360. In failing

to do so, and in o therwise failing to demonstrate that the

School District Ós adverse actions against his employment were

pretextual, Petitioner failed to demonstrate, by a preponderance

of the evidence, that the School District engaged in unlawful

retaliation when it termin ated his employment. The same is true

with respect to PetitionerÓs removal from the approved

substitute teacher list. Instead of showing Ðbut - forÑ or

pretext, the credible evidence demonstrated that two school

principals , from separate schools , reported inappropriate

conduct by Petitioner while he was a substitute teacher,

a dvising the School District that the y did not want Petitioner

to return to their schools.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMEND ED that the Florida Commission on Human

Relations enter a final order dismissing Petitioner's Complaint

of Discrimination and Petition for Relief consistent with the

terms of this Recommended Order.

DONE AND ENTERED this 3rd day of October , 2018 , in

Tallah assee, Leon County, Florida.

S

JAMES H. PETERSON, III

Administrative Law Judge

Division of Administrative Hearings

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 3rd day of October , 2018 .

ENDNOTE

1/ Unless otherwise indicated, all references to the Florida

Statutes, Florida Administrative Code, and federal law s are to

the current versions , which have not substantively changed since

the time of the alleged discrimination.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 323 99 - 7020

(eServed)

Lester L. Washington

Apartment 809

1878 East 9 Mile Road

Pensacola, Florida 32514

(eServed)

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

(eServed)

Cheyanne Costilla, Ge neral Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Rec ommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.