Castro v. School District of Manatee County
Filing
40
ORDER granting 23 Motion for summary judgment.The Clerk is directed to enter judgment in favor of Defendant School Board of Manatee County, Florida, and against Plaintiff Valentino Castro, and to close this case. Signed by Judge Susan C Bucklew on 10/19/2012. (LSC)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
TAMPA DIVISION
VALENTINO CASTRO,
Plaintiff,
v.
Case No. 8:11-cv-1908-T-24TGW
THE SCHOOL BOARD OF MANATEE
COUNTY, FLORIDA,
Defendant.
__________________________________/
ORDER
This cause comes before the Court on a motion for summary judgment filed by
Defendant The School Board of Manatee County, Florida (“School Board”), Plaintiff Valentino
Castro’s response in opposition to the motion, and the School Board’s reply. (Dkts. 23, 29, 38.)
Castro, a school psychologist formerly employed by the School Board, alleges that the School
Board terminated his employment because of his age, in violation of the Age Discrimination in
Employment Act of 1967, 29 U.S.C. § 621 et seq. (“ADEA”), and the Florida Civil Rights Act,
Fla. Stat. § 760.01, et seq. (“FCRA”). He also alleges that the School Board terminated his
employment in retaliation for filing complaints against the School Board, in violation of the
Florida Public Sector Whistleblower Act, Fla. Stat. § 112.3187 (“FWA”). As explained below,
the undisputed evidence shows that Castro cannot prevail on his claims as a matter of law, and
therefore, the School Board’s motion must be granted.
I.
Background and Facts
The following material facts are undisputed in the record: In January of 2003, Castro was
hired by the School Board as a school psychologist. Castro was interviewed by Patricia
Bernhart, Supervisor of Student Services, who hired him for the position. He was 52 years old at
the time he was hired. Castro was employed under an annual contract. His duties included
providing district-wide bilingual consultation and school-based psychological services to schools
within the district.
A.
Castro’s Work Performance
Throughout the course of Castro’s employment, Bernhart received complaints from
parents, principals, teachers, and district staff concerning Castro’s performance, communication
skills, and behavior in the work place. As a result, Bernhart counseled Castro, and issued him
warnings.
On March 4, 2003, Castro received an annual evaluation. In this evaluation, Bernhart
warned Castro about concerns regarding his clinical language and communication style.
On March 19, 2004, Principal Doug DeGrunchy at Palma Sola Elementary complained to
Bernhart about a comment that was made by Castro. Principal DeGrunchy addressed his
concerns directly with Castro.
On April 14, 2004, Bernhart discussed with Castro complaints that she had received from
several schools regarding his psychological evaluations and statements he made.
On November 9, 2004, a parent complained about a medical diagnosis that was rendered
by Castro. Bernhart addressed the complaint with Castro.
On March 23, 2005, Castro received an annual evaluation. In this evaluation, Bernhart
instructed Castro to work on making his written reports more “user friendly” for school staff and
parents by explaining clinical language, terms, and concepts.
On June 3, 2006, Bernhart had a conference with Castro to discuss various concerns
2
about his job performance. Before this meeting, Bernhart informed Darcy Hopko, Executive
Director for Human Resources, that she was considering not renewing his annual contract.
During her meeting, Bernhart addressed two specific incidents that occurred at Samoset
Elementary and Miller Elementary. She emphasized that, as a county-wide bilingual evaluator,
it was essential for Castro to be able to readily integrate himself into unfamiliar settings,
communicate effectively (both verbally and in writing), establish trust with school staff, and
maintain credibility with other psychologists.
On May 24, 2007, Castro received an annual evaluation. In this evaluation, Bernhart
mentioned that she had some concerns about Castro causing women to feel uncomfortable.
Specifically, Bernhart stated that a group of female staff members had made efforts to avoid
Castro due to “unwelcome attention.”
On March 14, 2008, Castro received an annual evaluation. During his evaluation,
Bernhart informed him that he needed to improve his verbal communication skills, and she
reminded him about gender sensitivity.
In May of 2008, Bernhart received a complaint from a local neuropsychologist that
Castro was “practicing neuropsychology.” Based on this complaint, Bernhart instructed Castro
to refrain from labeling any reports as neuropsychological evaluations.
On or about December 14, 2008, Bernhart received a complaint from Wendy Herrera,
Principal at Orange Ridge Bullock Elementary, where she “strongly” requested that Castro have
no further contact with anyone at Orange Ridge after he made inappropriate and unprofessional
comments to a teacher. On January 8, 2009, Bernhart issued Castro a written reprimand for his
actions. Specifically, Bernhart stated that Castro’s verbal interactions with a student’s teacher
3
resulted in a serious miscommunication. She wrote that, “[d]uring this interaction, Castro did
not use good professional judgment; [he] did not sufficiently clarify verbal information and
recommendations presented to the teacher; and [he] did not establish a level of rapport that
allowed the teacher to feel comfortable questioning [him] when she had concerns about her
interpretations of [his] recommendations. Bernhart reminded Castro that she had received
several complaints from parents, staff, and private practitioners regarding his oral
communication style and the manner and appropriateness of the information and
recommendations offered. Bernhart warned Castro that recurrence of such behavior would result
in further discipline.
On March 13, 2009, Castro received an annual evaluation. In this evaluation, he was
rated “Unsatisfactory” in the categories of “Interpersonal Communication, Collaboration and
Consultation” and “Home/School/Community Collaboration.”
In September of 2010, Castro received an annual evaluation. This evaluation was
satisfactory; however, it was noted that Castro tended to talk down to people.
B.
Elimination of Three Psychologist Positions for the 2011-2012 School Year
During the fall semester of the 2010-2011 school year, the school district faced a severe
budget crisis. As a result, the Superintendent recommended in his annual budget for the 20112012 school year that one school psychologist position be eliminated. In addition, the Student
Services Department lost its American Recovery and Reinvestment Act funding, which had been
used to fund 1.7 school psychologist positions. Based on the budget crisis and the loss of the
funding, Bernhart was required to eliminate 2.7 school psychologist positions for the upcoming
2011-2012 school year.
4
In determining which psychologists would not be recommended for reappointment,
Bernhart based her decision on overall effectiveness and job performance, particularly in the area
of Problem Solving/Response to Intervention (“PS/RtI”). She did not base her decision on
seniority. In December of 2010, Bernhart identified Castro, Jeffrey Mull, and LaQuisha Walden
as the three least effective psychologists within the Student Services Department.
Based on Castro’s work history, the numerous complaints Bernhardt received over the
years regarding Castro, the difficulty in identifying school assignments for Castro due to his
reputation, and his lack of social, interpersonal, and communication skills, she decided in
December of 2010, that she was not going to recommend Castro for reappointment for the 20112012 school year.
On March 28, 2011, Bernhart received notice that Walden was resigning from her
position as a school psychologist. In light of Walden’s resignation, Bernhart did not fill her
position, and she still needed to eliminate two other psychologist positions. In April of 2011,
Castro and Mull were notified of Bernhart’s decision that their contracts would not be renewed
due to the loss of funding and the fact that they were the least effective school psychologists in
the Student Services Department.
C.
Implementation of PS/RtI
The Department of Education (“DOE”) implemented a general education initiative
known as Problem Solving Response to Intervention (“PS/RtI”), which evolved from school
reform and legislation, including No Child Left Behind and the Individuals with Disabilities
Education Act. PS/RtI is defined as the change in behavior or performance as a function of an
intervention. The model is a multi-tiered approach to providing services and interventions to all
5
students at increasing levels of intensity based on progress monitoring and data analysis. Rate of
progress over time is used to make important educational decisions, including determination of
eligibility for exceptional student education services. The School Board staff received training
from the DOE on PS/RtI, and began implementing it during the 2009-2010 school year.
On or about January 28, 2011, Bernhart attended a case review conference for a student
at Manatee School for the Arts, a charter school. During the meeting, the school requested an
evaluation for the student. Bernhart assigned the case to Castro.
On or about February 16, 2011, a case review conference was held for the student. The
meeting was attended by Castro, Marie Volkhardt, School Psychologist, Pace Edwards, ESE
Specialist, Terrence Devine, Assistant Principal of the charter school, and Andrea Schannen,
ESE Coordinator for the charter school. During the meeting, Castro stated that Volkhardt was
giving incorrect information about PS/RtI regulations to Devine, which sparked a disagreement.
As a result, Volkhardt left the meeting.
Later that day, Bernhart met with Castro. During that meeting, Castro verbally claimed
that “RtI as understood by the school district, is a violation of civil rights” by “not providing
evaluations upon parental request.” He claims that Bernhart responded by saying “Shut up your
mouth.” At the end of the meeting, Bernhart offered to schedule a conference call with the DOE
to provide Castro with an opportunity to ask questions about the PS/RtI process. Castro was
“enthusiastic” about this idea.
After this meeting, Castro wrote an email to Mary Louise Dirrigl with the Office of
Special Education and Rehabilitative Services for the U.S. Department of Education. In this
email, Castro wrote:
6
I need to know and moreover, the district and the State need to know if eligibility for
special education can be delayed or denied based on RTI process and results. Again, the
State claims that this is the process to determine the need for services, but the need for
services can be determined by other means.
Castro asked Dirrigl to “please clarify to the State of Florida Department of Education if we
must wait for RTI to be completed, even if there is a reasonable certainty that the student is
disabled already?”
On February 22, 2011, Bernhart emailed all of the school psychologists, informing them
that she had arranged a conference call with two DOE consultants to discuss the questions posed
by Castro. Bernhart invited all of the psychologists to participate in the telephone conference.
The conference was held on February 24, 2011. During that conference, the school district was
informed that if a parent requests an evaluation of the student before the interventions have been
completed, the district must complete the general education interventions concurrently with the
evaluation but before the determination of the student’s eligibility. After this conference,
Bernhart believed that all of the school psychologists understood and agreed on the PS/RtI
process.
On February 27, 2011, Castro emailed Dr. Timothy McGonegal, Superintendent of
Manatee County School District regarding his concerns with the PS/RtI process. Specifically,
Castro wrote that the State requires the school district “to complete an RTI process and wait until
it is finished to determine eligibility.” Castro furthermore wrote that “it is not our school district
that is struggling with these situations, it is [his] understanding that there are many school
districts in Florida and even . . . 11 [other] states that design[ed] and/or implemented regulations
that may violate [Free Appropriate Public Education].” After receiving this email, the
Superintendent met with Castro to discuss his concerns.
7
On March 17, 2011, a survey was completed by Kathy Redmond, Principal at Palma Sola
Elementary. In the survey, Redmond wrote:
Working with Dr. Castro has been difficult this school year. At Palma Sola we so value
his expertise regarding student[s] and their learning needs. However, this year, he has
taken his own position on what the RtI process should look like. He is very
condescending of district policies and often becomes extremely confrontational with our
district RtI coach. I often feel that when Dr. Castro visits a meeting, our goals cannot be
accomplished because he has his own agenda.
On or about March 25, 2011, Bernhart received a complaint from Barry Dunn, Principal
at Jessie P. Miller Elementary School, regarding Castro. The complaint addressed his concern
over an interaction that took place between Castro and a second grade teacher. The teacher
reported that Castro followed her back to her classroom, rubbed up on her shoulder on several
occasions, and did not respect her personal space. Due to this complaint, Principal Dunn
requested that the school be assigned a different bilingual psychologist.
On April 21, 2011, Castro was notified that he was not recommended for reappointment
for the 2011-2012 school year. That recommendation was made due to the budget restraints and
loss of funding, and was based on Castro’s work history, the numerous complaints Bernhart
received over the years regarding Castro, the difficulty in identifying school assignments for
Castro due to his reputation, and his lack of social, interpersonal, and communication skills.
Castro was 61-years-old.
On August 31, 2011, Castro filed a three-count complaint against the School Board
alleging that he was discriminated against on the basis of his age after Bernhart did not
recommend him for reappointment. Castro also claims that the School Board retaliated against
him for filing complaints concerning the PS/RtI process.
II.
Standard of Review
8
Summary judgment is appropriate “if the pleadings, the discovery and disclosure
materials on file, and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The Court
must draw all inferences from the evidence in the light most favorable to the non-movant and
resolve all reasonable doubts in that party’s favor. Porter v. Ray, 461 F.3d 1315, 1320 (11th Cir.
2006). The moving party bears the initial burden of showing the Court, by reference to materials
on file, that there are no genuine issues of material fact that should be decided at trial. Id.
When a moving party has discharged its burden, the non-moving party must then go
beyond the pleadings, and by its own affidavits, or by depositions, answers to interrogatories,
and admissions on file, designate specific facts showing there is a genuine issue for trial. Id. In
determining whether there is a “genuine” issue, the inquiry is “whether the evidence presents a
sufficient disagreement to require submission to a jury or whether it is so one-sided that one
party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52,
106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986).
III.
Discussion
A.
The School Board Is Entitled to Summary Judgment on Castro’s ADEA and
FCRA Claims.
Castro alleges that the School Board discriminated against him by terminating his
employment because of his age in violation of the ADEA and FCRA. The ADEA prohibits an
employer from “discharg[ing] any individual or otherwise discriminat[ing] against any
individual with respect to his compensation, terms, conditions, or privileges of employment,
because of such individual’s age.” 29 U.S.C. § 623(a)(1). The Supreme Court has interpreted
the ADEA’s requirement that an employer took adverse action “because of” age as meaning that
9
age must be “the ‘reason’ that the employer decided to act.” Gross v. FBL Fin. Servs., Inc., 129
S. Ct. 2343, 2350, 174 L. Ed. 2d 119 (2009). In other words, “[t]o establish a disparatetreatment claim under the plain language of the ADEA . . . , a plaintiff must prove that age was
the ‘but-for’ cause of the employer’s adverse decision.” Id. Thus, the burden of persuasion
remains on the plaintiff to prove his ADEA disparate-treatment claim, and he may do so either
by direct or circumstantial evidence. Id. at 2351.
1.
Castro Has No Direct Evidence of Discrimination.
“Direct evidence of discrimination is evidence which, if believed, would prove the
existence of a fact in issue without inference or presumption. Only the most blatant remarks,
whose intent could be nothing other than to discriminate on the basis of [a protected
characteristic] constitute direct evidence of discrimination.” Bass v. Bd. of County Comm’rs.,
256 F.3d 1095, 1105 (11th Cir. 2001) (quotations, alterations, and citations omitted).
Furthermore, “remarks by non-decisionmakers or remarks unrelated to the decisionmaking
process itself are not direct evidence of discrimination.” Standard v. A.B.E.L. Servs., Inc., 161
F.3d 1318, 1330 (11th Cir. 1998). When refuting direct evidence of discrimination, the
defendant’s burden “is one of persuasion and not merely production.” Bass, 256 F.3d at 1104.
Castro presented an affidavit from Jeffrey Mull in which he avers that Bernhart advised
Mull “that there were younger psychologists graduating from college who had superior skills
than [him]; although she failed to provide any specifics.”1 Contrary to Castro’s position, this
1
Bernhart denies making any ageist remarks. She avers that she told Mull that
psychologists, who have recently graduated from college, have shown superior skills in the
PS/RtI process. She avers that this comment was based on the fact that recent graduates are
becoming more versed on the PS/RtI process through their academic studies and training, and
had nothing do to with age. At the summary judgment stage, the Court must view the evidence
10
comment does not constitute direct evidence of age discrimination, as “only the most blatant
remarks, whose intent could be nothing other than to discriminate on the basis of age, . . .
constitute direct evidence of discrimination. Carter v. City of Miami, 870 F.2d 578, 582 (11th
Cir. 1989). To constitute direct evidence, a statement must “(1) be made by a decisionmaker; (2)
specifically relate to the challenged employment decision; and (3) reveal blatant discriminatory
animus.” Chambers v. Walt Disney World Co., 132 F. Supp. 2d 1356, 1364 (M.D. Fla. 2001).
This comment was made to Mull–not Castro–and, there is no evidence that it related to
Bernhart’s decision not to reappoint Castro. The comment does not reveal blatant discriminatory
animus without inference or presumption, and therefore, it does not constitute direct evidence of
discrimination. See Standard, 161 F.3d at 1330.
2.
Castro Cannot Prove a Circumstantial Case of Discrimination
To evaluate an age discrimination claim supported by circumstantial evidence, the Court
uses the traditional McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed.
2d 668 (1973), burden-shifting analysis.2 Chapman v. AI Transport, 229 F.3d 1012, 1024 (11th
Cir. 2000) (en banc) (applying the McDonnell Douglas framework to circumstantial evidence in
an ADEA case). Under this framework, the plaintiff must raise an inference of discrimination by
establishing a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802,
in the light most favorable to Castro, and resolve all reasonable doubts in his favor.
2
The Court acknowledges that the Supreme Court, in Gross, stated that it “has not
definitively decided whether” the McDonnell-Douglas evidentiary framework is appropriate in
the ADEA context. Gross, 120 S. Ct. at 2349 n.2. However, even after Gross, the Eleventh
Circuit and district courts have continued to analyze ADEA claims under this framework.
Therefore, the Court will continue to employ the McDonnell-Douglas framework, but will do so
with the understanding that Castro must establish that age was the but-for cause of his
termination–not simply a motiving factor.
11
93 S. Ct. at 1824. The burden then shifts to the defendant to “articulate some legitimate
nondiscriminatory reason” for the alleged discrimination. Id. Once the defendant produces such
a reason, the plaintiff must then prove that the legitimate reason was a mere pretext for
discrimination. Id. at 804, 93 S. Ct. at 1826. To avoid summary judgment, the plaintiff must
produce sufficient evidence to show “that the employer intentionally discriminated against him
because of his [age].” Holifield v. Reno, 115 F.3d 1555, 1565 (11th Cir. 1997).
a.
Castro cannot establish a prima facie case of age
discrimination.
To establish a prima facie case of age discrimination under the ADEA when there is a
reduction in force, Castro must demonstrate: (1) that he is a member of the protected age group
and was adversely affected by an employment decision; (2) that he was qualified for his position;
and (3) “evidence by which a fact finder reasonably could conclude that the employer intended
to discriminate on the basis of age in reaching that decision.” Vaughn v. Morgan Stanley DW,
Inc., 158 Fed. Appx. 205, 207 (11th Cir. 2005) (citing Watkins v. Sverdrup Tech., Inc., 153 F.3d
1308, 1314 (11th Cir. 1998)).
Castro presented little to no evidence of an intent to discriminate. To establish intent, the
plaintiff must offer evidence that could lead a fact-finder to conclude either “(1) that [the]
defendant consciously refused to consider retaining a plaintiff because of his age, or (2) [the]
defendant regarded age as a negative factor in such consideration.” Allison v. Western Union.
Tel. Co., 680 F.2d 1318, 1321 (11th Cir. 1982).
The undisputed record establishes that Bernhart decided not to reappoint Castro based on
his work history, the numerous complaints that Bernhart received over the years regarding
Castro, the difficulty in identifying school assignments due to his reputation, and his lack of
12
social, interpersonal, and communication skills. The only evidence presented by Castro that
even remotely relates to age is the affidavit of Mull, who avers that Bernhart told him that “there
were younger psychologists graduating from college who had superior skills than [Mull];
although she failed to provide any specifics.” This evidence is insufficient to demonstrate
Bernhart consciously refused to consider retaining Castro because of his age, or regarded his age
as a negative factor in that decision. It does not relate to Bernhart’s decision as to Castro’s
employment.
Furthermore, the School Board has presented undisputed evidence that another school
psychologist, Beth Stone, who was sixty-four years old and three years older than Castro, was
reappointed for the 2011-2012 school year. If age had been the “but-for” factor behind
Bernhart’s decision not to reappoint Castro, then Stone also would not have been reappointed for
the 2011-2012 school year.3 Consequently, Castro has failed to produce sufficient evidence that
Bernhart intended to discriminate on the basis of age.
b.
Castro cannot establish that the School Board’s legitimate,
nondiscriminatory reasons for not reappointing him were
pretextual.
Even assuming that Castro established a prima facie case of age discrimination, he has
failed to present sufficient evidence that the School Board’s legitimate, nondiscriminatory
reasons for not reappointing him were pretextual. At the beginning of the 2010-2011 school
3
Evidence that Bernhart hired two school psychologists in 2010 does not create an
inference of discrimination concerning the manner in which she selected three school
psychologists for nonrenewal for the upcoming 2011-2012 school year.
13
year, Bernhart was aware that she needed to eliminate 2.7 school psychologist positions due to
budget cuts and loss of funding. In December of 2010, she identified three psychologists
(Castro, Mull, and Walden) as being the least effective in her department. It was at that time that
Bernhart decided that she was not going to reappoint Castro for the reasons described above. On
April 21, 2011, Castro was notified that he was not being reappointed.
In determining whether the plaintiff has established pretext, “[a] plaintiff is not allowed
to recast an employer’s proffered nondiscriminatory reasons or substitute his business judgment
for that of the employer.” Chapman, 229 F.3d at 1030. “Provided that the proffered reason[s]
[are] one[s] that might motivate a reasonable employer, an employee must meet th[ose] reason[s]
head on and rebut [them], and the employee cannot succeed by simply quarreling with the
wisdom of th[ose] reason[s].” Id. To rule in favor of the School Board, the Court “need not
determine that the [School Board] was correct in its assessment of the employee’s performance;
it need only determine that the [School Board] in good faith believed plaintiff’s performance to
be unsatisfactory.” Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991.)
Castro has presented little to no evidence that the School Board’s proffered reasons for
not reappointing him were pretext for age discrimination. The record is undisputed that Bernhart
believed that Castro had exhibited certain performance problems, and that such problems
warranted his non-renewal. The only minimal evidence that Castro provided to contradict or
rebut this belief is the affidavit from Mull in which he avers that Bernhart stated that “there were
younger psychologists graduating from college who had superior skills than [Mull]; although she
failed to provide any specifics.” Although the Court views this evidence in the light most
favorable to Castro, it is insufficient to establish that the School Board’s stated reasons for not
14
renewing Castro were a pretext to mask unlawful discrimination. This statement has very little
probative value because it was not made in the context of the decision not to renew Castro, and it
lacks supporting details. “[C]onclusory allegations [in an affidavit] without specific supporting
facts have no probative value.” Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985).
This fact is simply insufficient to show that age was the “but-for” reason for Castro’s
nonrenewal. Gross, 129 S. Ct. at 2350.
In summary, the Court finds that Castro has not established a prima facie case of age
discrimination, or that the School Board’s legitimate, nondiscriminatory reasons for not
reappointing him were pretext. The undisputed record shows that Bernhart believed that Castro
had exhibited certain performance problems and selected him as one of the school psychologists
who would not be reappointed for the 2011-2012 school year because of those problems. Castro
has not provided sufficient evidence that he was the victim of intentional age discrimination.
Accordingly, the School Board is entitled to summary judgment on this claim.
B.
The School Board Is Entitled to Summary Judgment on Castro’s FWA
Claim.
The FWA prohibits an employer from taking a retaliatory action against an employee
“who reports to an appropriate agency violations of law on the part of a public employer . . . that
create a substantial and specific danger to the public’s health, safety, or welfare.” Fla. Stat. §
112.3187(2). In analyzing a retaliation claim under the FWA, courts use the Title VII burdenshifting method of proof. Siemriminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir.
2000). To establish a violation of the FWA, an employee must show that: (1) he engaged in a
statutorily protected activity; (2) he suffered an adverse employment action; and (3) there existed
a causal connection between the two events. See Fla. Dept. of Children and Families v. Shapiro,
15
68 So. 3d 298 (Fla. 4th DCA 2011).
If the employee satisfies these three elements of a prima facie case under the FWA, the
employer may rebut that case by proffering a legitimate, non-retaliatory reason for its actions.
Rice-Lamar v. City of Fort Lauderdale, 853 So. 2d 1125, 1133 (Fla. 4th DCA 2002); Fla. Stat. §
112.3187(10) (stating that it is a defense to “any action brought pursuant to this section that the
adverse action was predicated upon grounds other than, and would have been taken absent, the
employee’s or person’s exercise of rights protected by statute.”).
Once the employer satisfies its burden of articulating a legitimate, non-retaliatory reason
for its action, the presumption of retaliation is eliminated. The burden then shifts back to the
employee to prove by a preponderance of the evidence that the employee’s proferred reason is
merely pretext for prohibited, retaliatory conduct. Sierminski, 216 F.3d at 950.
1.
Castro cannot establish a prima facie case of retaliation.
Castro’s complaints concerning the PS/RtI process do not qualify as protected activity. A
complaint is protected if the complainant demonstrates a “good faith, reasonable belief that the
employer engaged in unlawful employment practices. It is critical to emphasize that a plaintiff’s
burden has both a subjective and objective component.” Little v. United Technologies, Carrier
Transicold Div., 103 F.3d 956, 960 (11th Cir. 1997). Furthermore, the FWA expressly provides
that the information disclosed must include “[a]ny violation or suspected violation of any federal
state, or local law, rule, or regulation committed by an employee or agent of agency . . . which
creates and presents a substantial and specific danger to the public’s health, safety, or welfare.”
Fla. Stat. § 112.3187(5)(a). The information must be disclosed “in a written and signed
complaint” to the “chief executive officer” of the agency, or “other appropriate local official.”
16
Fla. Stat. § 112.3187(6).
Castro specifically identifies two complaints which he asserts qualify as statutorilyprotected expressions. First, he identifies his February 16, 2011 email to Dirrgl of the U.S.
Department of Education in which he asked for guidance concerning the implementation of the
PS/RtI process. This email does not meet the notice requirements of Florida Statute Section
112.3187(6) because it was addressed to an official with the U.S. Department of Education, and
not a local School Board official. Furthermore, although there is evidence that Bernhart became
aware of this email at some point, such evidence is not sufficient to establish that the email was
disclosed to her such that it satisfied the notice requirements of the statute.
Furthermore, contrary to Castro’s allegation, this email does not constitute a complaint
about violations the School Board was allegedly committing in not providing evaluations to
students. No where in the email does Castro allege or suggest that the School Board failed to
provide evaluations to those students whose parents requested them. Rather, Castro sought
guidance from, and posed questions to, the U.S. Department of Education concerning the
implementation of PS/RtI.
Castro next points to a written complaint he submitted on June 4, 2011 to School Board
Director of Human Resources, Rebecca Wells, in which he complained that he had been forced
to retire as a result of his refusal to follow illegal orders from his supervisors.4 This complaint
does not constitute a statutorily-protected complaint by Castro that the School Board was
violating laws that would “present[] a substantial and specific danger to the public’s health,
4
Castro asserts that he also submitted a written complaint to the “Office of Civil Rights,”
complaining of the same retaliation; however, such complaint has not been filed as a part of the
record in this case.
17
safety, or welfare.” Fla. Stat. § 112.3187(5)(a). Rather, Castro submitted this complaint after
the School Board notified him that he would not be reappointed for the 2011-2012 school year.
In it, he asserts that he was not reappointed because he “refused to follow inappropriate and
illegal orders from [his] supervisor,” which is essentially the basis of the present lawsuit.
Castro does not assert that his February 27, 2011 email to Superintendent McGonegal
constitutes a statutorily-protected complaint regarding the School Board’s implementation of
PS/RtI. Nevertheless, the Court finds that it, too, is insufficient. In his email, Castro stated that
“[t]his situation comes from the State mandating us to . . . [p]erform RTI and after RTI is
finished then start an evaluation.” (emphasis added). Castro reported that “[d]uring a telephone
conference with the State DOE they specifically stated that we have to wait to determine
eligibility for ESE until RTI is completed.” (emphasis added). He concluded his email by stating
that “it is not our school district that is struggling with these situations, it is [his] understanding
that there are many school districts in Florida and even . . . 11 [other] states that design[ed]
and/or implemented regulations that may violate [Free Appropriate Public Education].”
This email is insufficient to constitute a statutorily-protected complaint against the
School Board because in it Castro complains about the DOE’s interpretation and implementation
of the PS/RtI process. He does not complain about specific actions of the School Board.
Although Castro alleges that he complained about the PS/RtI process, the FWA requires that the
complaint or objection be to an action, policy, or practice of the employer in violation of the law.
The FWA does not protect an employee who is complaining about the actions of another agency
or third party. See Juarez v. New Branch Corp., 67 So. 3d 1159, 1162 (Fla. 3d DCA 2011).
All of these complaints are insufficient for the additional reason that they occurred after
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Bernhart decided that she was not going to reappoint Castro for the upcoming 2011-2012 school
year. One of the requirements for a whistle-blower complaint is that the complaint “was not
made . . . after an agency’s personnel action against the employee.” King v. State of Fla., 650 F.
Supp. 2d 1157, 1163-64 (N.D. Fla. 2009). Here, the record is undisputed that Bernhart made her
decision not to reappoint Castro for the upcoming school year, in December of 2010. Because
Bernhart’s decision occurred before Castro ever filed any complaint with the Superintendent or
the U.S. Department of Education, his claim must fail.
2.
Castro cannot establish that the School Board’s legitimate,
nondiscriminatory reasons for not reappointing him were pretextual.
Even assuming that Castro established a prima facie case of retaliation, he has failed to
present sufficient evidence that the School Board’s legitimate, nondiscriminatory reasons for not
reappointing him were pretextual. The School Board presented undisputed evidence that
Bernhart knew she needed to eliminate 2.7 school psychologist positions for the upcoming 20112012 school year because of budget cuts and loss of funding. It is also undisputed that in
December of 2010, Bernhart identified three psychologists (Castro, Mull, and Walden) as the
three least effective staff members, and decided that she would not reappoint them. That
decision was made before Castro submitted his written complaints to the U.S. Department of
Education or the Superintendent concerning the PS/RtI process. Furthermore, Castro’s written
complaints concerned the Department of Education’s interpretation and implementation of
PS/RtI–not actions taken by the School Board.
IV.
Conclusion
In conclusion, viewing the entirety of the record in the light most favorable to Castro,
there are no genuine issues of material fact as to his claims of age discrimination or retaliation.
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Accordingly, the School Board’s Motion for Summary Judgment (Dkt. 23) is GRANTED. The
Clerk is directed to enter judgment in favor of Defendant School Board of Manatee County,
Florida, and against Plaintiff Valentino Castro, to close this case, and to terminate any pending
motions. The pretrial conference previously scheduled in this case for November 13, 2012 is
hereby cancelled, and this case is removed from the Court’s December 2012 trial calendar.
DONE AND ORDERED at Tampa, Florida, this 19th day of October, 2012.
Copies to:
Counsel of Record
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