Arrington, Esquire.
Ms. Smith filed a Charge of Discrimination with the Florida Commission on Human Relations on or about July 15, 1985. In the Charge Ms. Smith alleged that the Board had discriminated against her on the basis of retaliation in violation of the Human Rights Act of 1977. The Executive Director of the Florida Commission on Human Relations issued a "Determination: No Cause" on May 12, 1987. Ms. Smith then filed a Petition for Rehearing. On or about July 13, 1987, the Executive Director entered a "Redetermination: No Cause."
Ms. Smith filed a Petition for Relief following the issuance of the redetermination. The Florida Commission on Human Relations forwarded the Petition to the Division of Administrative Hearings by order dated August 18, 1987.
At the formal hearing, Ms. Smith presented the testimony of Robert Bryant, Agnes Turner, Queen Miller, Mary L. Martin, Ida Miller, Dorothy Smith, Cynthia Reynolds, Witt Campbell, Wallace Ellis, Nettie R. Donald, Rosa Barkley, Ella Ponder, Corine D. Palmer and Charlotte Price. Ms. Smith also testified on her own behalf. Petitioner's exhibits 1a through 54 were accepted into evidence.
The Board presented the testimony of Rosa Barkley, Christopher Carnes, Corbin Scott, Maratha Watkins Downs, Helen Claire Mahaffey, Polly Oliver and Ms. Smith. Respondent's exhibits 1 and 2 were accepted into evidence.
The parties have filed proposed recommended orders which contain proposed findings of fact. A ruling on each proposed finding of fact has been made either directly or indirectly in this Recommended Order or the proposed finding of fact has been accepted or rejected in the Appendix which is attached hereto.
Whether the Board refused to re-employ Ms. Smith as a teacher's aide for the 1985-1986 school year in retaliation for a Complaint that she filed with the Florida Commission on Human Relations in January, 1983?
Ms. Smith is a graduate of a high school in the Gadsden County School system.
Ms. Smith successfully completed a business education course at Gadsden Vo-Tech after receiving her high school diploma.
Ms. Smith was rated qualified to work as a teacher's aide in the Gadsden County School system by the Central Administration office in 1982 and in 1984.
Ms. Smith was employed as a teacher's aide at Gretna Elementary School (hereinafter referred to as "Gretna") during the 1982-1983 school year. She began her employment at Gretna in October, 1982.
Ms. Smith's immediate supervisor at Gretna during the first month of her employment was the Principal, Mr. Witt Campbell. Mr. Campbell left Gretna in November, 1982. For the remainder of the 1982-1983 school year, Ms. Smith's immediate supervisor was Rosa Barkley, who replaced Mr. Witt as Principal.
Ms. Smith was pregnant during the 1982-1983 school year. On January 24, 1983, Ms. Smith became ill because of her pregnancy and had to go to the hospital. Ms. Smith did not return to Gretna during the remainder of the school year.
On March 14, 1983, Ms. Barkley went to visit with Ms. Smith at her home. Ms. Smith told Ms. Barkley that she would return to work approximately two weeks after her baby was born. This meant that Ms. Smith would return after the start of the 1983-1984 school year. Ms. Barkley helped Ms. Smith request a leave of absence. This leave of absence was approved by the Board on March 29, 1983.
In March, 1983, Ms. Barkley gave Ms. Smith a satisfactory rating on a Gadsden County Non-instructional Personnel Assessment form which was filed with the Board. Ms. Barkley gave Ms. Smith the benefit of the doubt in completing this form because Ms. Smith had been under Ms. Barkley's supervision only from November, 1982 to January, 1983.
Ms. Barkley also recommended to the Superintendent that Ms. Smith be re-employed for the 1983-1984 school year.
By letter dated June 17, 1983, Ms. Barkley asked the Superintendent to terminate Ms. Smith. Ms. Barkley made this request because she wanted to have an aide that would start the school year in August, 1983 and not in November, 1983, when Ms. Smith planned to return. Ms. Barkley indicated in the letter that Ms. Smith had been absent because of her pregnancy. The Superintendent, Mr. Bishop, decided to grant Ms. Barkley's request.
The decision to terminate Ms. Smith was made by the Board and not by Ms. Barkley. Although the Superintendent generally relies heavily on the recommendation of a principal, the decision to terminate Ms. Smith was that of the Board. The Board, based upon the information it was provided, should have told Ms. Barkley, that a leave of absence, and not termination, was the proper remedy to Ms. Barkley's problem.
By letter dated July 27, 1983, Ms. Smith was terminated by the Board.
Ms. Smith filed a Complaint with the Florida Commission on Human Relations on January 19, 1984, alleging sex discrimination against Ms. Barkley.
Upon the filing of the Complaint the Board investigated and decided that Ms. Smith should be rehired. The Board realized that it had caused the problem and not Ms. Barkley. Ms. Smith was offered the first teacher's aide position available. The position was at Chattahoochee Elementary School (hereinafter referred to as "Chattahoochee").
Ms. Smith accepted the position and began work at Chattahoochee in March, 1984. Ms. Smith worked with fourth grade Chapter 1 children (children who have been disadvantaged with regard to their educational opportunities). Ms. Martha Downs was her teacher.
While at Chattahoochee, Ms. Smith had difficulty performing her duties as a teacher's aide. Her primary area of deficiency was in math. Mr. Corbin Scott, the Principal at Chattahoochee, attempted to help Ms. Smith by having Ms. Ella Ponder, a helping teacher, assist her. Although it was alleged that Ms. Smith was required to take a Criteria Reference Test normally taken by fourth graders, the evidence failed to support this allegation.
Based upon Ms. Smith's poor performance, Mr. Corbin did not recommend that Ms. Smith be returned to Chattahoochee for the next school year.
Although Ms. Smith admitted that she has some problems with math she failed to accept the fact that she was not adequately performing her duties as a teacher's aide. Instead, she believed that Mr. Corbin expected her to "teach" and that he was unfair when he did not recommend her continued employment at Chattahoochee for the next school year.
Ms. Smith believed that the Complaint that she filed in January, 1984, affected the way that she was treated at Chattahoochee. This unfounded belief affected Ms. Smith's attitude while at Chattahoochee and later.
The Board decided that the period of time that Ms. Smith was employed at Chattahoochee (March, 1984 to June, 1984) was too short. Therefore, in an effort to be fair with Ms. Smith and to settle the dispute with Ms. Smith, the Board decided to place Ms. Smith in another teacher's aide position for the 1984- 1985 school year.
During the Summer of 1984, Ms. Smith and the Board settled the Complaint which Ms. Smith had filed in January, 1984. Pursuant to this settlement, Ms. Smith dismissed her Complaint for back-pay and her re-employment at Gretna.
Ms. Smith was employed at Gretna during the 1984- 1985 school year as a teacher's aide pursuant to the settlement.
Ms. Barkley, Ms. Smith's immediate supervisor at Gretna, was not consulted before the Board decided to return Ms. Smith to Gretna. Principals of schools are not consulted by the Board before employees are assigned to their schools.
Although Ms. Smith agreed to return to Gretna as part of the settlement of her Complaint against the Board, she believed that Ms. Barkley would not treat her properly. This belief, which was unfounded, affected Ms. Smith's attitude toward Ms. Barkley and her job during the 1984-1985 school year.
Ms. Smith was assigned to assist two teachers for most of the 1984- 1985 school year at Gretna: Ms. Corine D. Palmer and Ms. Charlotte Price. Neither Ms. Palmer nor Ms. Price talked to Ms. Smith about problems which they perceived in Ms. Smith's performance. Ms. Price's attitude was that she was there to teach students and, therefore, she did not want to be bothered with Ms. Smith. Ms. Palmer's attitude was to work around Ms. Smith; she gave up trying to use Ms. Smith effectively because of Ms. Smith's lack of effort. Both ladies essentially stuck their heads in the sand and ignored the problem since neither of them were responsible for evaluating Ms. Smith.
Employees at Gretna were required to sign in and sign out on a sheet provided for them at the administrative office of the school.
During the school year Ms. Smith was late arriving at school a total of fifteen times. Most of those times she was late more than a few minutes. She was late seven times during 1984 and eight times in 1985. At least three other teachers' aides (Inez Morris, Ida Miller and Mary Wright) were late to school more often than Ms. Smith. While Ms. Smith received an unsatisfactory rating for punctuality for the school year, the other three aides received a satisfactory rating. Many of the times that the other three aides were late,
they were late only a few minutes. When they were late more than a few minutes, they notified Ms. Barkley or someone else at Gretna that they would be late, and indicated why. Ms. Smith, on the other hand, did not always notify Ms. Barkley or anyone else that she would be late, or indicate why she was late until she was asked.
During the first week of the 1984-1985 school year (August 20-24, 1984), Ms. Smith was late three times. Ms. Smith rode to school with another employee who was late getting to school. On August 27, 1984, Ms. Barkley discussed Ms. Smith's lateness with her and gave her a letter indicating that she was expected to be at school at 8:05 a.m. Ms. Smith was late once during each of the next three weeks. She corrected the problem, however, by arranging to ride with someone else. After the week of September 10-14, 1984, Ms. Smith was late only one other time during 1984.
During 1985, Ms. Smith was late at least once a week during seven of the eleven weeks ending March 15, 1985.
In addition to being late reporting to school, Ms. Smith was late going to her assigned classroom after arriving at school and after lunch. Ms. Smith was required to be in her morning class no later than 8:15 a.m. Her lateness was reported by Ms. Palmer and Ms. Price and was also noted by Ms. Barkley. Ms. Smith was in the employee lounge on many occasions when she should have been in a class.
On October 15, 1984, Ms. Barkley spoke with all of the aides about being in the lounge in the morning when they should be in their classes.
Despite Ms. Barkley's comments, that afternoon Ms. Smith was in the lounge when she should not have been, and she continued to be late to her assigned classroom in the mornings.
Ms. Palmer and Ms. Price told Ms. Barkley that Ms. Smith was late to class. Both of them tended to do without her and to avoid any effort to try to correct the problem.
On February 15, 1985, Ms. Barkley gave Ms. Smith a letter that indicated that Ms. Smith was in the lounge when she was not supposed to be. A similar letter was given to Ida Miller and Dorothy Smith. Ms. Miller and Ms. Dorothy Smith corrected the problem. Ms. Smith did not.
Ms. Barkley rated Ms. Smith's attendance as "unsatisfactory". This rating was not based upon the number of days that she was absent. It was based upon the number of times that Ms. Smith was not in her assigned classroom.
Ms. Barkley kept a notebook in which she noted the dates of some events involving employees' actions. She has kept these notes since she became a principal. Most of the notes concerning Ms. Smith did not give the reason for absences or lateness. Ms. Smith did not, however, always report the reason for her lateness. Most of the observations involved lateness and absences. The notes concerning Ms. Smith were provided to the Board because she was requested to provide any documentation concerning Ms. Smith. She did not know where her other notes were.
Ms. Barkley noted the conference she had with Ms. Smith on August 27, 1984. In this note, she referred to Ms. Smith as "Ms. Attitude." This notation and a later notation that Ms. Smith was in the lounge one day "chomping" show a lack of judgment by Ms. Barkley in the manner that Ms. Barkley referred to Ms. Smith. This lack of judgment is not sufficient, however, to prove that Ms. Barkley terminated Ms. Smith at the end of the 1984-1985 school year in retaliation for the Complaint filed by Ms. Smith in 1983. Ms. Barkley's explanation for these notations is rejected.
Ms. Barkley talked to teachers and other aides about Ms. Smith. Ms. Barkley did not, however, limit her inquiries to Ms. Smith. Ms. Barkley was responsible for the supervision of all of the employees at Gretna. She was very active in managing her school. She observed her employees in the halls of the school, in the lounge and in the classroom. She did not single out Ms. Smith. Ms. Barkley asked teachers and other aides about all employees and she checked up on all her employees.
Ms. Smith was observed in class by Ms. Barkley. Ms. Smith was seen giving wrong answers and performing sloppy work.
When Ms. Barkley talked to Ms. Smith about some of her problems, Ms. Smith's attitude was defensive. She did not believe that she had any problems and believed that Ms. Barkley was being unfair to her. She therefore did not indicate that she agreed with Ms. Barkley or that she would make any efforts to correct her problems when Ms. Barkley spoke to her about her problems. Ms. Price indicated that Ms. Smith had evidenced a poor attitude about her performance with her also.
On March 15, 1985, Ms. Barkley met with Ms. Smith and informed her that she would not be recommended for employment during the 1985-1986 school year. Ms. Barkley sent a letter to the Board dated March 15, 1985, recommending that Ms. Smith not be re-employed during the 1985-1986 school year.
Ms. Barkley also rated Ms. Smith "unsatisfactory" on five characteristics listed on a Gadsden County Non-instructional Personnel Assessment form dated March 8, 1985. This form was signed by Ms. Smith on March 15, 1985. Ms. Smith was given an unsatisfactory rating for utilization of time, compliance with school and district policies, attendance, punctuality and leadership. This evaluation was similar to the evaluation given Ms. Smith by Mr. Corbin.
Ms. Barkley, Ms. Price and Ms. Palmer were given a Personal Reference Form for Teacher Aide Applicants by Ms. Smith. Ms. Smith told Ms. Price and Ms. Palmer that the forms were going to be used by her to apply for a job outside of its school system. Although both teachers had misgivings about Ms. Smith's ability and did not want her back as a teacher's aide, they both liked her personally and wanted to help her find a job. They also wanted to avoid any conflict with Ms. Smith. Therefore, even though they should have known better, they completed the forms giving Ms. Smith affair rating and indicating that they would employ her as a teacher's aide.
Ms. Barkley completed the form given to her by Ms. Smith on April 30, 1985. She gave her a poor rating and indicated that she would not employ her as a teacher's aide.
Ms. Barkley had completed a Gadsden County Non-instructional Personnel Assessment form when Ms. Smith left Gretna in 1983. Ms. Barkley gave Ms. Smith a favorable evaluation. She did so, however, because Ms. Smith had only worked at Gretna during the 1982-1983 school year for approximately four months and Ms. Barkley had only been there during three of those months. Therefore, Ms. Barkley did not believe it would be fair to give Ms. Smith an unfavorable evaluation.
The Board did not refuse to re-employ Ms. Smith for the 1985-1986 school year in retaliation for any dispute between Ms. Smith and Ms. Barkley or any other person. Ms. Smith was not re-employed because she lacked the necessary job skills to work as a teacher's aide and had failed to perform adequately.
On or about July 15, 1985, Ms. Smith filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that the Board had discriminated against her on the basis of retaliation.
The Executive Director of the Florida Commission on Human Relations issued a "Determination: No Cause" on May 12, 1987. Ms. Smith filed a Petition for Rehearing. On or about July 13, 1987, the Executive Director entered a "Redetermination: No Cause."
Ms. Smith filed a Petition for Relief. The Florida Commission on Human Relations forwarded the Petition the Division of Administrative Hearings by order dated August 18, 1987.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1987).
Ms. Smith has alleged that she was not re-employed as a teacher's aide after the 1984-1985 school year in retaliation for a Complaint that she filed in January, 1983, with the Florida Commission on Human Relations against her immediate supervisor, Ms. Barkley. The weight of the evidence simply failed to prove this allegation.
The evidence proved that Ms. Barkley was perceived by some employees at the school as a tough person and that Ms. Barkley had not used the best judgment in the manner in which she referred to Ms. Smith in notes that Ms. Barkley kept. The evidence also proved that Ms. Price and Ms. Palmer did not take sufficient steps to correct the problems they saw with Ms. Smith's work and that they used poor judgment in not accurately completing the evaluation forms Ms. Smith gave them. These facts and the other facts proven in this case are not, however, sufficient to conclude that Ms. Smith was not re-employed for the 1985-1986 school year because Ms. Barkley or any other person was out to get even with Ms. Smith.
Even if Ms. Smith had succeeded in proving a prima facie case of retaliation, the Board proved that Ms. Smith was terminated from her position at Gretna for legitimate reasons.
