#214-R3-687
DOCKET NO. 214-R3-687
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YSRAEL VALENCIA
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V.
MONAHANS-WICKETT-PYOTTE INDEPENDENT SCHOOL DISTRICT
BEFORE THE STATE
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COMMISSIONER OF EDUCATION
THE STATE OF TEXAS
DECISION OF THE COMMISSIONER
Statement of the Case
Petitioner Valencia, an assistant junior high school
football coach, appeals from the decision not to offer him
the position of head coach of seventh grade football,
alleging racial discrimination and violation of local
policy.
Petitioner is represented by Mr. Sam Baldwin, Jr.,
Attorney at Law, of Houston. Respondent
Monahans-Wickett-Pyotte ISD is represented by Mr. Ted Kerr,
Attorney at Law, of Midland.
The matter came on for hearing before Hearing Officer
Terry J. Johnson on February 5, 1988. On November 3, 1988,
a Proposal for Decision was issued containing the
recommendation that the Commissioner enter an order denying
the subject appeal. No exceptions were filed.
Findings of Fact
After due consideration of the evidence and matters
officially noticed, in my capacity as State Commissioner of
Education, I make the following Findings of Fact:
1. Petitioner, an Hispanic male, has been employed as
a teacher/coach for some twelve years under a series of
one-year term contracts . (Tr. 62, 99; Resp. Exs. 5, 6).
2. Petitioner teaches eighth grade mathematics and is
assigned as one of six junior high football coaches. (Tr.
62, 64-65, 87-90).
3. The head coach of eighth grade football is the
nominal leader of the overall junior high football program;
of the remaining five junior high coaches, one is assigned
as head coach of seventh grade football. (Tr. 64-66, 90).
4. The district athletic director is in charge of
assigning all coaching duties. (Tr. 69, 94-95).
5. Except for the head coach of eighth grade football,
all junior high coaches, including the head coach of seventh
grade football, are paid an identical coaching stipend of
$2500. (Tr. 146).
6. At all times relevant to the events in controversy,
Petitioner served as an assistant seventh grade football
coach. (Tr. 64-65, 87-89).
7. During Fall of the 1986-87 school year, Petitioner
learned that the head coach of seventh grade football would
resign in January 1987. (Tr. 66-67).
8. In March 1987, Petitioner asked the athletic
director for assignment to the position of head seventh
grade football coach. (Tr. 68, 149).
9. Petitioner was advised by the athletic director
that the position of head seventh grade football coach had
already been assigned. (Tr. 69, 91-92).
10. The person assigned as head seventh grade football
coach was a white male. (Tr. 70).
11. Petitioner filed a grievance over the athletic
director's decision. (Tr. 72, 76, 99).
12. Respondent board upheld the athletic director's
decision. (Tr. 76, 99).
13. Local policy requires that professional and
paraprofessional vacancies are to be posted publicly and
that current district employees are to be permitted to apply
for any vacancy. (Tr. 117; Ex. J-3).
14. The January 1987 resignation of the head coach of
seventh grade football created a vacancy of teacher/coach.
(Tr. 185).
15. The teacher/coach vacancy was posted and filled in
accordance with local policy. (Tr. 185).
16. Each term contract under which Petitioner has been
employed specifically provides for the reassignment of
duties. (Tr. 78-79, 93; Resp. Exs. 5, 6).
17. Written policy of the athletic department
specifically provides for the reassignment of coaching
duties. (Tr. 80, 87, 93-94; Ex. J-1; Resp. Ex. 7).
18. Throughout the duration of Petitioner's employment
as a teacher/coach, coaching duties were assigned each year
without posting. (Tr. 89-90, 145).
19. Petitioner never complained or sought explanation
about posting of coaching assignments until the time of the
events in controversy. (Tr. 91).
20. Petitioner had some twelve years of in-district
experience as an assistant coach of junior high football.
(Tr. 87-89).
21. The white assigned by the athletic director as head
coach of seventh grade football had some ten years of
in-district experience as an assistant coach of junior high
football. (Tr. 70).
22. Seniority is not a factor in the assignment of head
coaching duties. (Tr. 86, 96, 146).
23. Factors which governed the decision of the athletic
director in the assignment of head coaching duties for
seventh grade football were (1) knowledge of the sport, (2)
rapport with players, and (3) ability to follow the
requirements of the overall district football program. (Tr.
150-152, 162-165, 168-169).
24. Respondent district has a student population
composed of approximately 43% minorities.
25. Respondent district employs some twenty-one
athletic coaches, three of whom are members of a racial
minority. One of these minority coaches is head coach of
freshman football as well as head coach of high school
baseball. (Tr. 106, 162).
Discussion
Petitioner Valencia, an Hispanic, appeals from the
decision to appoint a white as head coach of seventh grade
football, alleging, inter alia, that the decision was
racially discriminatory.
In order to prevail on this allegation, Petitioner must
first produce evidence to show that he was denied the
position under circumstances which give rise to an inference
of intentional discrimination. This prima facie showing
must be achieved before Respondent is required to produce
any evidence in rebuttal. If the prima facie showing is
made, the legal presumption of discrimination arises and the
burden to produce evidence of a legitimate
non-discriminatory reason will shift to Respondent. Once
Respondent meets this burden, the presumption is overcome
and Petitioner must then produce evidence to show either (1)
that the offered reasons are not worthy of belief or (2)
that the decision was more likely than not motivated by a
discriminatory reason. McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817 (1973); Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089 (1981);
Jett v. Dallas ISD, 798 F.2d 748 (5th Cir. 1986); Gottlieb
v. Tulane, 809 F.2d 278 (5th Cir. 1987); Kendall v. Block,
821 F.2d 1142 (5th Cir. 1987); Ratliff v. Governor's Highway
Safety Program, 791 F.2d 394 (5th Cir. 1986). The ultimate
burden of persuasion, however, remains at all times with
Petitioner. Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
The record in the case demonstrates that both
Petitioner and the white coach had served as assistants
under the head coach of seventh grade football. Although
Petitioner knew, in the Fall of 1986, that the head seventh
grade coach would resign in January 1987, Petitioner took no
action until March 1987. At that time, he was told by the
athletic director, a white, that the position had been
filled.
One witness, an Hispanic, testified to his opinion that
Hispanics are discriminated against by the district. This
witness stated that he had been denied administrative
positions that went to whites and felt compelled to resign
his position in order to move to another school district
where the chances of gaining an administrative position were
better. The record shows that in some cases those chosen
for the administrative positions had less experience than
the witness, and that in some cases those chosen had more
experience than the witness.
Another witness, an Hispanic, testified to his opinion
that there was a broad perception among Hispanics that the
district discriminated against Hispanics. This witness also
testified that the district, in concert with the Hispanic
community, has adopted policies which are designed to
increase the role of Hispanic and other minority
participation in the district. Finally, the witness
testified that an Hispanic is a member of the district board
of trustees.
The record developed at hearing showed that the
district student population was approximately 43% minority
and that three of twenty-one district coaches were minority,
one of whom, an Hispanic, was head coach of both the high
school baseball team and the freshman football team.
The evidence relied upon by Petitioner to establish his
prima facie case of intentional discrimination is equivocal
at best. While circumstantial evidence may tend to show the
existence of a conflict between the district and the
Hispanic community, this evidence also tends to show that
the district and the Hispanic community had resolved that
conflict. The offered opinion testimony is inconclusive and
therefore insufficient to establish Petitioner's prima facie
case by direct evidence. Jatoi v. Hurst-Euless-Bedford
Hospital Authority, 807 F.2d 1214 (5th Cir. 1987). Such a
showing falls short of Petitioner's burden to establish this
element of his case by a preponderance of the evidence.
Burdine, supra. It will be held that no prima facie showing
has been made.
Assuming, without so holding, that Petitioner's
evidence is found sufficient to give rise to the presumption
of intentional discrimination on the part of Respondent, the
record in the case contains satisfactory evidence of a
legitimate non-discriminatory basis for making the disputed
coaching assignment.
Although Petitioner and the white coach had served
together as assistant coaches of seventh grade football for
twelve years and ten years respectively, the district
athletic director testified that seniority is not a factor
in the assignment of head coaching duties. The athletic
director further testified that his decision on the head
coaching assignment was based on observation of the coaches
and his perception of their knowledge of the sport, rapport
with players, and ability to follow the overall football
program of the district. While the opinions of the athletic
director regarding the individual merit of his assistant
coaches are necessarily subjective, they may not be
disregarded absent evidence that they are a facade for
discrimination. Gottlieb, supra, citing Lieberman v. Gant,
630 F.2d 60 (2d Cir. 1980). Petitioner's evidence does not
show that the offered reasons were not worthy of credence or
that the disputed coaching assignment was more likely than
not motivated by racial discrimination. Accordingly,
Petitioner's allegation of racial discrimination is found to
be without merit. This point of error is overruled.
Petitioner alternatively alleges that because local
board policy required the public posting of all professional
and paraprofessional vacancies, the specific position of
seventh grade head football coach should have been posted.
He argues that the failure to do so was a violation of local
policy which denied him the right to apply for the vacancy
created by the resignation of the former head coach.
The vacancy created by the resignation of the former
coach was that of teacher/coach. It is undisputed that the
local policy was followed and that a teacher/coach was hired
to fill the vacancy.
Petitioner knew in advance of the pending resignation
of the former head coach. He knew that no such vacancy had
ever been posted. He also knew, or after twelve years as a
coach should have known, that the authority for coaching
assignments lay exclusively with the district athletic
director. Yet Petitioner waited until March following the
January resignation before contacting the athletic director
to make his desire for the position known. Under these
facts, the athletic director would have been justified in
assuming that Petitioner had no interest in the position.
The written policies of the athletic department neither
extended to Petitioner any priority for the assignment nor
obligated the athletic director to seek Petitioner out for
the purpose of offering him the position.
Finally, nothing in the local policy suggests that
individual coaching assignments must be posted. The
persuasive evidence of record clearly demonstrates that such
determinations are within the domain of the athletic
director. While Petitioner may have had a contract right to
coaching duties generally, he had no such right to any
specific coaching assignment. Accordingly, Petitioner's
second allegation is held to be without merit. This point
of error is overruled.
The action below will stand.
Conclusions of Law
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact, in
my capacity as State Commissioner of Education, I make the
following Conclusions of Law:
1. Respondent's decision with regard to the assignment
of a seventh grade head football coach was not the product
of racial discrimination toward Petitioner.
2. Respondent's decision with regard to the assignment
of a seventh grade head football coach did not violate local
policy.
3. Petitioner's appeal should be denied.
O R D E R
After due consideration of the record, matters
officially noticed, and the foregoing Findings of Fact and
Conclusions of Law, in my capacity as State Commissioner of
Education, it is hereby
ORDERED that Petitioner's appeal be, and is hereby,
DENIED.
SIGNED AND ENTERED this _____ day of ________________,
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W. N. KIRBY
COMMISSIONER OF EDUCATION