20-004489 Ronald D. Jones vs. The School Board Of Gadsden County Status: Closed Recommended Order on Tuesday, March 30, 2021.

Summary: Petitioner failed to prove his claim of employment discrimination and retaliation.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

R ONALD D. J ONES ,

Petitioner,

vs. Case No. 20 - 4489

T HE S CHOOL B OARD OF G ADSDEN

C OUNTY ,

Respondent .

/

R ECOMMENDED O RDER

An administrative hearing was conducted in this case on December 16,

2020, via Zoom, before James H. Peterson III, Administrative Law Judge

with the Division of Administ rative Hearings (DOAH).

A PPEARANCES

For Petitioner: Ronald D. Jones , pro se

1821 McKelvy Street

Quincy, Florida 32351

For Respondent: William Breen Armistead, Esquire

Coppins Monroe, P.A.

1319 Thomaswood Drive

Tallahassee , Florida 32308

S TATEMENT OF T HE I SSUE

Whether Respondent, The School Board of Gadsden County (School Board

or Respondent ) , violated the Florida Civil Rights Act of 1992 , 1 by

1 Unless otherwise indicated, all re ferences to the Florida Statutes, Florida Administrative Code, and

federal laws are to the current versions, which have not substantively changed since the time of the alleged

discrimination.

discriminating against the employment of Ronald D. Jones (Petitioner)

because of his race, gender, or age, or in retaliation for his engagement in

protected activities.

P RELIMINARY S TATEMENT

Petitioner filed an Employment Complaint of Discrimination

(Discrimination Complaint) with the Florida Commission on Human

Relations (the Com mission or FCHR) on March 6, 2020 , which was assigned

FCHR Case No . 202023534 (Complaint).

On September 15, 2020, the Commission filed a Notice of Rights which

advised Petitioner that the Commission Ñwas unable to conciliate or make a

reasonable cause de termination within 180 days of the filing of the complaint

in this matter.Ò The Notice of Rights further notified Petitioner of his right to

file a complaint in any court of competent jurisdiction within one year, or

Ñ[r]equest an administrative hearing wi th the Divis io n of Administrative

Hearings under sections 120.569 and 120.57, Florida Statutes , by filing a

Petition for Relief WITHIN 35 DAYS of the date of [the] notice.Ò On October 8 ,

2020, Petitioner timely filed a Petition for Relief, and on that same date the

Commission forwarded the petition to DOAH for assignment of an

administrative law judge to conduct a hearing.

T he undersigned was assigned the case and scheduled it for the

administrative hearing which was held December 16 , 2020 , via Zoom

confer ence . During the hearing, Petitioner testified on his own behalf , called

Gadsden High School P rincipal Pamela Jones, Gadsden County Schools

Superintendent Elijah Keys, and School Board Human Resources D irector

Sandra Robinson as witness es , and offered 14 e xhibits received into evidence

as Exhibits P - 1 through P - 14. The School Board presented its case through

expanded cross - examination of Petitioner and his witnesses and offered six

exhibits received into evidence as Exhibits R - 1 through R - 6.

The proceedin gs were recorded and a transcript was ordered. The parties

were given 30 days from the filing of the transcript to submit their proposed

recommended orders. The one - volume Transcript of the hearing was filed

February 17 , 2021 . Thereafter, the School Board timely filed its Proposed

Recommended Order , which has been considered in the preparation of this

Recommended Order. Petitioner did not file a p roposed r ecommended o rder.

F INDINGS OF F ACT

1. Petitioner is a 62 - year - old black male who, in the past, has been a

substitute teacher for the School Board.

2. Petitioner was eligible to receive a temporary teaching and professional

teaching certificate for social sciences , grades 6 through 12 , from October 12,

2017 , through October 12, 2020, but not for certificates in o ther educational

areas.

3. The School Board is the governing body responsible for the

adm inistration of public schools in Gadsden County, Florida.

4. PetitionerÔs Discrimination Complaint is based upon the fact that he

was not hired for a full - time position at G adsden County High School for

which he applied between August 2019 and January 2020. In his

Discrimination Complaint, Petitioner alleges:

I have been discriminated based on my sex (male)

and my race (black). I also believe I have been

experiencing retali ation since 2008 when I filed a

complaint with the Florida Commission on Human

Relations (FCHR) in 2008. I began working for the

School Board of Gadsden County (Gadsden County)

in January 2008 as a Substitute Teacher. I

substituted in an English position f or Gadsden

(County) High School on or around January

2019 Č June 2019. Between August 2019 Č J anuary

2020, I applied for several positions with Gadsden

County but was not hired for any position. Instead,

the jobs were filled with individuals outside of my

protective class. These positions were for the

Graduation Coa ch posi tion, Teacher on Special

Assignment position, and several positions in the

Social Studies department. For exam ple, when

Mr. Plewa quit during the first week of school in

2019, I substitute taught in the Social Studies

Position from August 2019 Ï Janua ry 2020, until

Gadsden County High School hired a teacher.

Mr. Knight, an individual with no experience

working within Gadsden County School System

and a recent college graduate, was hired for the

position. I am currently employed with Gadsden

County and h ave not seen any changes within my

workplace.

5. Petitioner has worked as a substitute teacher at different schools

within the Gadsden County School District for various periods of time since

at least March 2007. He has applied for numerous positions with th e School

Board over the years, from bus driver to deputy superintendent.

6. This case is the second case that Petitioner has filed against the School

Board alleging employment discrimination. His first case against the School

Board (First Case) alleged discri mination based on his gender which was

tried before the undersigned in 2010 and ultimately resulted in a Final Order

dismissing his claim. See Jones v. Gadsden Cty. Sch. Bd. , Case No. 10 - 8570

(DOAH Jan. 19, 2011; FCHR Apr . 13, 2011). Petitioner did not fil e any

exceptions to the R ecommended O rder in that case or appeal the F inal O rder.

He contends, however, that one of the reasons that the School Board did not

hire him is in retaliation against him for filing that case.

7. Prior to 2017, PetitionerÔs teaching certificate had been revoked due to

a criminal convicti on. In a subsequent application , Petitioner disclosed the

conviction. This prompted a review by the Office of Professional Practices

Services of the Florida Department of Education. On October 7, 2019, the

Department of Education issued a letter (Eligibility Letter) to Petitioner

regarding his application for his Florida Educator Certificate, stating:

Your Application for a Florida Educator Certificate

or Athletic Coaching Certificate was referred to th e

Office of Professional Practices Services by the

Bureau of Educator Certification. The Office of

Professional Practices Services is charged with

reviewing the background history and/or alleged

misconduct of persons seeking a Florida educator

certificate.

The Office of Professional P ractices Services has

conducted its review and determined that at this

time, further action by this office is not warranted.

For any questions specific to the review conducted

by the Office of Professional Practices, contact the

Office of Professional Practices Services at 850 - 245 -

0438.

For questions regarding the processing of your

application for certification, contact the Bureau of

Educator Certification at 1 - 800 - 445 - 6739.

8. As explained by School Board Human Resources D ire ctor Sandra

Robinson, the Eligibil i ty L etter indicates that the Department of Education

conducted a review and that Ñ no further action was required ,Ò meaning that

Petitioner was again eligible to apply for a teaching certificate. Ms. Robinson

further expla ined that a ctual teaching certificates, however, are not issued by

the Department of Education until an applicant has been hired for a teaching

position.

9. Further, according to Ms. Robinson, the Eligibility Letter means that

Petitioner is only eligible to apply for an A thletic C oaching C ertificate.

10. T he terms of the Eligibility Letter , however, do not limit PetitionerÔs

eligibility for just an A thletic C oaching C ertificate because it also references

a Florida Educator Certificate.

11. In the fall of 2019, Gadsd en County High School Principal Pamela

Jones, a black female, hired Petitioner to fill in as a part - time substitute

teacher for a social studies class. Prior to this hiring, Petitioner had

interviewed with Principal Jones at the schoolÔs job fair.

12. Between late 2019 and January 2020, Petitioner applied for several

full - time instructional positions at Gadsden County High School , including

graduation coach, special assignment teacher, and six social studies

positions . As part of th e application process, Petiti oner indicated on his

application that he had a prior criminal conviction. The application also asks

applicant s to provide details of any criminal history that is revealed , but on

his applications, Petitioner only indicated Ñwill explain.Ò As a result of

P etitionerÔs revelation of a criminal background in his applications,

PetitionerÔs status appear ed as ÑineligibleÒ in the School BoardÔs application

database.

13. During all pertinent time periods, Gadsden High School P rincipal

Pamela Jones was responsible for making the final hiring decisions at

Gadsden County High School , subject to approval of the School Board.

Although Petitioner provided Principal Jones with a copy of the October 7,

2019 , Eligibility Letter , which she understood made Petitioner eligible to

receive a teaching certificate, she did not hire Petitioner for any of the

positions because his name came up as ÑIneligible CRÒ (ÑCRÒ standing for

criminal record) in the Gadsden County School system.

14. School Board Human Resources D irector Sandra Robinson had a

similar explanation regarding the effect of the ÑIneligible CRÒ as did Principal

Jones. W hile Ms. Robinson acknowledged that Petitioner was eligible for a

teaching certificate, she testified that the Department of Education has no

bearing on the Sch ool BoardÔs application process. While acknowledging that

the School Board has hired teachers with criminal backgrounds, and advising

that Petitioner might be able to obtain a job by further explaining his

criminal record when referencing it in his School Board application s ,

Ms. Robinson was unable to explain a clear path as to how Petitioner might

be able to obtain a position with the School Board with a criminal record

referenced on his application s .

15. Considering the views of both Principal Jones and Human Resources

D irector Robinson, together with their understandings of the meaning of the

Eligibility Letter, it is found that it was a mistake not to consider Petitioner

eligible for an interview or hire for the vacant positions for which he applied

just bec ause PetitionerÔs applications revealed a criminal background .

16. Further, while i t is appa rent that the School Board should address its

ap plication process to clarify a path to employment for those who may have

criminal backgrounds, it is found that the fact that Petitioner was deemed

ineligible for employment was not unlawful discrimination or retaliation as

alleged in PetitionerÔs Discrimination Complaint. Rather, the evidence fell

short of demons trating unlawful discrimination and, instead, revealed a

mist ake in the School BoardÔs application process.

17. The chart below , provided in the School BoardÔs Proposed

Recommended Order and supported by the evidence , lists the names, age,

race , and gender of the teachers hired for the positions for which Petitioner

a pp lied :

Final candidate Position Age Race Sex

OÔHara Black Special Assignme n t 47 Black Male

Stephanie Dauphin Social Studies 23 Black Female

Devonte Knight Social Studies 27 Black Male

Tomeka Lightfoot Graduation Coach 44 Black Female

Albert Plewa Soci al Studies 29 White Male

Dominga Robinson Social Studies 31 Black Female

Erin Shields Social Studies 33 Black Female

Laquadra Simmons Social Studies 38 Black Female

Ciara Stephenson Social Studies 32 Black Female

18. Petitioner acknowledged that Princip al Jones hired males and

females, black teachers and white teachers, and does not dispute the fact that

the School Board has hired teachers over the age of 65 during the timeframe

of his discrimination claims.

19. Rather than providing evidence of discriminati on, Petitioner admitted

that he assumed discrimination anytime someone was hired for a position he

had applied for that was of a different race, sex, or age from Petitioner.

20. For instance, Petitioner claims that he was not hired because of his

race, sex, an d age, but acknowledged that for each position for which he was

not hired, he simply alleges discrimination based on whatever protected

characteristic(s) he did not share with the final candidate, i.e., he chose the

one that appl ied . For example, if a blac k female was hired, Petitioner alleges

he was not hired because of his sex. If a white male was hired, then

Petitioner contends he was not hired because of his race.

21. In sum, Petitioner failed to present sufficient evidence to show that

the School Board tre ated similarly situated applicants or employees outside

PetitionerÔs protected class of race, sex , or age more favorably. Rather, t he

only evidence Petitioner presented to support the allegation that Principal

JonesÔ s or the School BoardÔs hiring decisions were discriminatory was Ñthe

fact they never hired me.Ò

22. Petitioner also claims that he was not hired out of retaliation for filing

his First Case against the School Board over 12 years ago . Petitioner

produced no evidence supporting this claim, and admit ted that he had no

evidence that Principal Jones even knew that he had filed the charge prior to

her decision not to hire him.

23. The School Board proffered two reasons that it did not hire Petitioner:

(1) his application status in its database indicated tha t he was ÑineligibleÒ

because of his criminal history, and (2) Principal Jones did not believe he

could effectively manage a classroom full - time, as evidenced by his

performance as a substitute.

24. The first proffered reason Ï that PetitionerÔs affirmative resp onse to a

question regarding his criminal history rendered him ineligible Ï was a

mistake. While it was a mistake not to consider Petitioner for an interview or

potential hire in disregard of his Eligibility L etter, that mistake does not

show that the School Board discriminated against Petitioner as alleged, nor

does it make that purported reason for not considering PetitionerÔs

application mere pretext . It was merely a mistake in the application process.

F uture use of that process after this case to exclude applicants with criminal

backgrounds who have otherwise been clear ed by the Department of

Education may very well constitute pretext in view of the fact that the School

Board should now be aware of the shortcomings of its process . Pretext,

however, is not found in this case because the evidence does not suggest that

Principal Jones or the School Board w ere aware that, under the

circumstances, it was a mistake to exclude PetitionerÔ s applications.

25. T he second reason Ï that Petitioner was not considered or hired because

of concerns regarding his ability to manage a classroom Ï is supported by the

evidence.

26. Du ring the 2019 - 2020 school year, current Gadsden County Schools

Superintendent Elijah Key served as a Vice Principal at Gadsden County

High School . While there, Mr. Key observed a number of classroom

man agement issues with Petitioner, including the fact that a large number of

student disciplinary referrals were coming from PetitionerÔs classroom and

Petitioner was inconsistent with meting out discipline to studen ts. The

specific examples from Mr. KeyÔs testimony based on his observations

provided credible evidence t hat Petitioner lacked control over his classroom.

27. At the time s they were made, Mr. Key reported his observations to

Principal Jones, and suggested tha t they needed to find another substitute or

hire a new teacher to take over PetitionerÔs class because of the lack of

classroom control.

28. At the final hearing, Principal Jones testified that, even if Petitioner

was not excluded from hire because of his crim inal background, she probably

would not have hired Petitioner based on her own observations and her

administratorÔs observations of PetitionerÔs inability to manage his classroom.

In the words of Principal Jones, Ñ - - if you canÔt manage the classroom, you

canÔt teach the students.Ò

29. Petitioner failed to provide evidence refuting the testimony of

Principal Jones 's assessment that, even if Petitioner was eligible to obtain a

teaching certificate, she probably would not have hired him because of his

in ability to manage a classroom.

C ONCLUSIONS OF L AW

30. 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.

31. The Florida Civil Rights Act of 1992, as amended (the Act), is codified

in sections 760.01 through 760.11, Florida Statutes.

32. S ection 760.10(1) provides, in pertinent part:

(1) It is an unlawful employment practice for an

employer:

(a) To discharge or to fail o r 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 individualÔs race, color, religion, sex, national

origin, age, handicap, or m arital 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 opportunities, or adversely affect any

individualÔs status as an employee, because of such

individualÔs race, color, religion, sex, national

origin, age, handicap, or marital status.

33. The School Board is an ÑemployerÒ within the meaning of the Act. See

§ 760.02(7), Fla. Stat. (ÑÓEmployerÔ 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.Ò); see also

£ 760.02(7), Fla. Stat. (ÑÓPersonÔ includes . . . any governmental entity or

agency.Ò).

34. As developed in federal cas es, 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

co uld be nothing other than discriminatory, does not exist in this case. See

Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d 1354, 1358 - 59 (11th

Cir 1999). Where direct evidence is lacking, one seeking to prove

discrimination must rely on circumstantia l evidence of discriminatory intent,

using the three - part shifting Ñburden of proofÒ pattern established in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973). See Holifield v. Reno ,

115 F.3d 1555, 1562 (11th Cir. 1997).

35. Under McDonnell Douglas , first, Petitioner has the burden of proving

a prima facie case of discrimination by a preponderance of the evidence.

Second, if Petitioner sufficiently establishes a prima facie case, the burden

shifts to Respondent to Ñarticulate some legitimate, nondiscriminato ry

reasonÒ for its action. Third, if Respondent satisfies this burden, Petitioner

has the opportunity to prove by a preponderance of the evidence that the

legitimate reasons asserted by Respondent are , in fact , mere pretext.

McDonnell Douglas Corp ., 411 U. S. at 802 - 04.

36. I n order to establish a prima facie case under McDonnell Douglas , a

plaintiff or petitioner alleging unlawful discrimination under Title VII must

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

adverse employment a ction; (3) his employer treated similarly situated

employees outside his classification more favorably; and (4) he was qualified

to do the job. Holifield , 115 F.3d, at 1562; McDonnell Douglas Corp .,

411 U.S., at 802.

37. 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

evidence demonstrates that Petitioner falls within the alleged protected

group s and that Petitioner suffered an adverse employment action, there is

no evidence of record that Principal Jones or the School District treated

similarly situated employees outside the protected groups more favorably.

38. O ther than his own speculative belief, Petitioner submitted no

evidence to support his contention that he was discriminated against because

of his race, sex , or age. Mere speculation or self - serving belief on the part of a

complainant concerning motives of a r espondent is insufficient, standing

alone, to establish a prima facie case of intentional discrimin ation. See

Lizardo v. DennyÔs, Inc. , 270 F.3d 94 , 104 (2d Cir. 2001)(ÑPlaintiff s have done

little more than cite to their mistreatment and ask the court to conclude that

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

39. In addition, in vi ew of unrefuted evidence indicating PetitionerÔs lack

of classroom control, it is also questionable whether Petitioner presented

sufficient evidence demonstrating that he was qualified for the jobs for which

he applied .

40. In sum, Petitioner failed to presen t a prima facie case. ÑFailure to

establish a prima facie case of . . . discrimination ends the inquiry.Ò Ratliff v.

State , 666 So. 2d, 1008, 1013 n.6 (Fla. 1st DCA 1996)(citations omitted).

41. Even if Petitioner was deemed to have submitted sufficient eviden ce to

show a prima facie case of unlawful discrimination on the basis of race,

gender, or age, unrefuted evidence in this case demonstrates that the School

Board had nondiscriminatory reasons supporting its decision not to interview

or hire Petitioner.

42. Whi le the failure to interview or hire Petitioner because of a

misperception that PetitionerÔs criminal background made him ineligible for

hire, the evidence was insufficient to show that that reason was a mere

pretext for discrimination. In addition, the evi dence demonstrated that

Petitioner was not considered a viable candidate because it was perceived

that Petitioner did not have the ability to manage a classroom.

43. T he first reason for not hiring Petitioner Č because of his criminal

background Č was a mistake un der the circumstances . However, credibl e

testimony articulated by Principal Jones and the School Board Ôs Human

Resources D irector demonstrated that they truly believed that Petitioner was

not eligible for hire under the School Board 's application process , which

provided a legitimate ly nondiscriminatory reason for not interviewing or

hiring Petitioner.

44. Petitioner cannot prove pretext by showing that one or more of the

reasons that he was not hired was a mistake . Rather, in order to prevail on

his claims, Pet itioner Ñmust show not merely that [RespondentÔs] employment

decision [was] mistaken but that [it was] in fact motivated by race [gender, or

age] . . . a plaintiff may not establish that an employerÔs proffered reason is

pretext merely by questioning the w isdom of the employerÔs reasons, at least

not where . . . the reason is one that might motivate a reasonable employer.Ò

Thomas v. Hall , 2011 WL 4021333, at *4 (N.D. Fla. 201 1 ) ( quoting Porter v.

Am. Cast Iron Pipe Co. , 927 Fed. Appx. 734, 736 (11th Cir. 201 1) ) ; s ee also

Chapman v. AI Transport , 229 F.3d 1012, 1030 (11th Cir. 2000), where the

Eleven Circuit explained:

A plaintiff is not allowed to recast an employer's

proffered nondiscriminatory reasons or substitute

his business judgment for that of the empl oyer.

Provided that the proffered reason is one that

might motivate a reasonable employer, an

employee must meet that reason head on and rebut

it, and the employee cannot succeed by simply

quarreling with the wisdom of that

reason. See Alexander v. Fulton County, Ga., 207

F.3d 1303, 1341 (11th Cir.2000) (Title VII case)

(Ñ[I]t is not the court's role to second - guess the

wisdom of an employer's decisions as long as the

decisions are not racially motivated.Ò); Combs, 106

F.3d at 1541 Ï 43. We have recognized pr eviously

and we reiterate today that:

[f]ederal courts Ñdo not sit as a super - personnel

department that reexamines an entity's business

decisions. No matter how medieval a firm's

practices, no matter how high - handed its decisional

process, no matter how mi staken the firm's

managers, the ADEA does not interfere. Rather our

inquiry is limited to whether the employer gave an

honest explanation of its behavior.Ò

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470

(11 th Cir.1991) (quoting Mechnig v. Sears, Roebuck

& Co., 864 F.2d 1359, 1365 (7th Cir.1988) (citations

omitted)); see also Nix v. WLCY Radio/Rahall

Communications, 738 F.2d 1181, 1187 (11th

Cir.1984) (An Ñemployer 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.Ò); Abel

v. Dubberly, 210 F.3d 1334, 1339 n. 5 (11th

Cir.2000) . We Ñdo not ... second - guess the business

judgment of employers.Ò Combs, 106 F.3d at

1543; accord Alexander, 207 F.3d at 1339,

1341; Damon v. Fleming Supermarkets of Florida,

Inc., 196 F.3d 1354, 1361 (11th Cir.1999) (ÑWe have

repeatedly and emphatically held that a defendant

may terminate an e mployee for a good or bad

reason without violating federal law. We are not in

the business of adjudging whether employment

decisions are prudent or fair.Ò (inter nal citation

omitted)).

45. Petitioner also failed to refute the other legitimate, nondiscriminato ry

reason that the School Board provided for not considering Petitioner for hireČ

the perception that Petitioner lacks the ability to manage a classroom.

46. In sum, Petitioner did not demonstrate with credible evidence that the

reasons asserted by the School District were mere pretext for unlawful

discrimination.

47. 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 opp osing unlawful employment

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

unlawful employment practice for an employer to discriminate against a

person because that person has, Ñopposed any practice which is an unlawful

em ployment practiceÒ or because that person Ñhas made a charge . . . under

this subsection.).Ò

48. Just as in discrimination claims based on status, a plaintiff or

petitioner may establish a claim of illegal retaliation using either direct or

circumstantial evid ence. 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, 1308

(11th Cir. 2009). ÑUnder [that] framework, a plainti ff 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 activity and the

a dverse action.Ò Id . , at 1307 - 08 .

49. In this case, the undisputed evidence does not establish a prima facie

case of retaliation. At the hearing, Petitioner admitted that he has no

evidence that Principal Jones was even aware that he had filed the First

Case ov er 12 years ago. When ask ed during his cross - examination whether he

thought Principal Jones retaliated against him, Petitioner testified:

Well, I donÔt think so. I think she was doing

everything she was doing because she couldnÔt see

my application on the file when she wanted to hire

me. ThatÔs what I believe about her.

50. Further, under the Ñbut - forÒ causation standard, ÑTitle VII retaliation

claims must be proved according to traditional principles of but - for causation

[which] requires proof that the unla wful retaliation would not have occurred

in the absence of the alleged wrongful action or actions of the employe r.Ò

Univ. of Tex. Sw. Med. Ctr. v. Nassar , 570 U.S. 338, 360 (2013).

51. The over 10 - year lapse between PetitionerÔs First Case and the alleged

disc rimination in this case does not support causation. As explained in

Thomas v. Cooper Lighting, Inc. , 506 F.3d 1361, 1364 (11th Cir. 2001):

The burden of causation can be met by showing

close temporal proximity between the statutorily

protected activity a nd the adverse employment

action. See Brungart v. BellSouth Telecomms., Inc. ,

231 F.3d 791, 798 - 99 (11th Cir. 2000). But mere

temporal proximity, without more, must be "very

close." Clark County Sch. Dist. v. Breeden , 532 U.S.

268, 273, 121 S. Ct. 1508, 15 11, 149 L. Ed. 2d 509

(2001) (internal citations omitted). A three to four

month disparity between the statutorily protected

expression and the adverse employment action is

not enough. See I d . (citing Richmond v. ONEOK ,

120 F.3d 205, 209 (10th Cir. 1997) ( 3 month period

insufficient) and Hughes v. Derwinski , 967 F.2d

1168, 1174 - 75 (7th Cir. 1992) (4 month period

insufficient)). Thus, in the absence of other

evidence tending to show causation, if there is a

substantial delay between the protected expression

and the adverse action, the complaint of retaliation

fails as a matter of law. See Higdon v. Jackson , 393

F.3d 1211, 1220 (11th Cir. 2004) (citing Wascura v.

City of South Miami , 257 F.3d 1238, 1248 (11th

Cir. 2001)).

52. In sum, because of lack of evidence, f ailing to demonstrate causation ,

and in otherwise failing to demonstrate that the School BoardÔs articulated

reasons for not interviewing or hiring Petitioner were pretextual, Petitioner

failed to demonstrate, by a preponderance of the evidence, that the School

Board engaged in unlawful retaliation or discrimination when it failed to hire

or consider Petitioner as a viable candidate for the positions for which he

applied.

R ECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations enter a

final order dismissing Petitioner's Complaint and Petition for Relief

consistent with the terms of this Recommended Order.

D ONE A ND E NTERED this 30th day of March , 2021 , in Tallahassee, L eon

County, Florida.

S

J AMES H. P ETERSON , III

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 30th day of March , 2021 .

C OPIES F URNISHED :

William Breen Armistead, Esquire Tammy S. Barton, Agency Clerk

Coppins Monroe, P.A. Florida Commission on Human Relatio ns

1319 Thomaswood Drive 4075 Esplanade Way , Room 110

Tallahassee, Florida 32308 Tallahassee, Florida 32399 - 7020

Ronald D. Jones Cheyanne Costilla, Gen eral Counsel

1821 McKelvy Street Florida Commission on Human Relations

Quincy, Florida 32351 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 - 7020

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

All parties ha ve 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.