STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIAM E. GIBBS, )

)

Petitioner, )

)

vs. ) CASE NO. 89-2016

) SCHOOL BOARD OF HILLSBOROUGH ) COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on April 9, 1990 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For the Petitioner: Robert H. MacKenzie, Esquire

17 McKendree Drive

Wesley Chapel, Florida 33544

For the Respondent: Ronald W. Fraley, Esquire

Thompson, Sizemore & Gonzalez, P.A.

109 N. Brush Street, Suite 200

P.O. Box 639

Tampa, Florida 33601 STATEMENT OF THE ISSUES

Did Respondent's refusal to hire Petitioner as a school bus driver constitute unlawful discrimination against him because of his sex?

PRELIMINARY STATEMENT

In September, 1985, Petitioner filed an application for employment as a school bus driver with the School Board of Hillsborough County, (Board), but was denied employment. His several subsequent inquiries regarding employment were likewise met with rejection, and on April 17, 1988, he filed a Charge of Discrimination with the Florida Commission on Human Relations. After an investigation into Petitioner's allegations was conducted, on January 31, 1989, the Executive Director of the Commission entered a Determination of Cause in this case, and an official Notice to that effect was filed on February 1, 1989. Unsuccessful efforts to conciliate the complaint were made by the Commission which filed a Notice of Failure of Conciliation on March 13, 1989. Thereafter, Petitioner filed a formal Petition For Relief with the Commission on April 10, 1989, and on April 13, 1989, the matter was forwarded to the Division of Administrative Hearings for formal hearing under the provisions of Section

120.57(1), Florida Statutes. Respondent filed its Response to the Petition with the Commission on April 27, 1989 and with the Division of Administrative Hearings on May 1, 1989.

By Notice of Hearing dated April 25, 1989, the undersigned set the matter for hearing in Tampa on June 21, 1989, but consistent with Petitioner's Motion for Continuance, by Order dated June 20, 1989, rescheduled the hearing for August 3, 1989, in Tampa. Again, on July 28, 1989, pursuant to Respondent's Motion For Continuance, the hearing was rescheduled for September 27, 1989, but by Order Changing Date of Hearing, dated August 10, 1989, the hearing date was moved up to September 8, 1989. Before the hearing could be held, the parties indicated a settlement was imminent and requested the scheduled hearing be cancelled. When settlement efforts were determined to be unsuccessful, the parties agreed that the hearing should be rescheduled, and by Order dated February 8, 1990, hearing was set for March 23, 1990. Before that date, however, the parties stipulated to another continuance and by Order dated March 2, 1990, the hearing was reset for April 9, 1990, at which time it was held as scheduled.

At the hearing, Petitioner testified in his own behalf and presented the testimony of Deborah Seman Gibbs, his wife; John F. Werner, a personnel analyst with the Board; and Raymond E. LaPorte, an attorney. Mr. LaPorte's testimony was for the limited purpose of attorney's fees in the event that matter became pertinent. Petitioner also introduced Petitioner's Exhibits 1 - 4, 6 - 14, and 16d. Petitioner's Exhibit 5 was withdrawn and Petitioner's Exhibit 15 was not admitted.

Respondent presented the testimony of John A. Saffold, a driver trainer for the Board; Rosa Irene Barrow, the Board's route coordinator for the South Brandon area; and Karen R. Strickland, the Board's route coordinator for Plant City. Respondent also introduced Respondent's Exhibits A through H.

A transcript of the hearing was provided and subsequent thereto, both parties submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Respondent, School Board of Hillsborough County, operated a school bus system for students attending the public schools run by it within the county. The program was and is administered by several different route coordinators who are authorized to hire the drivers for the buses operated on their routes.

   
   

2. In September, 1985, Petitioner, William D. Gibbs, who had previously been working as a pipe fitter since 1972, applied for employment as a school bus driver in the Brandon area, for which Rosa Irene Barrow was the route coordinator. Mr. Gibbs could no longer perform the duties of a pipe fitter as a result of a work-related injury to his left knee incurred in 1984, but was fully capable of operating a bus. When he determined he could no longer work at his former trade, he began looking for other work, with a government agency, preferably, because of the benefits offered by most governmental employers. He applied for several county jobs and with the School Board with whose Job Line he kept in frequent contact.

   
   

3. Mr. Gibbs submitted his written application for employment as a school bus driver in September, 1985, at which time he spoke with Ms. Barrow, discussing with her all aspects of his qualifications for employment as a school

   bus driver. One of the matters they discussed was the need for the applicant to have an appropriate place to park the bus when it was not in use. Petitioner assured her he had plenty of room to park it on the 9/10 acre grounds of the day care center his wife operated. Though Ms. Barrow claims she told Petitioner she didn't think a day care center was an appropriate place to park a school bus, it is found she made no comment to him regarding the suitability of the site he mentioned, nor did she give him any idea of whether or when he might be hired.

   Instead, she set up the required tests he had to take.

   
   

4. Petitioner took and passed the required tests and was certified as qualified to drive a school bus. Several days later he spoke with Ms. Barrow who told him that they were not hiring drivers at that time, but to call back later on.

   
   

5. Just about this same time, Mr. Gibbs also put in an application with the County's public bus system, (Heartline), and went to work there in January, 1986. He successfully completed his training program in February, 1986, and was assigned to work driving a bus, but quit before his probationary period was up because of abuse he received from his passengers and the danger of bodily harm. He was also accused of a fare impropriety but was later exonerated when the accusation against him was found to be based on a case of mistaken identity.

   
   

6. When Mr. Gibbs left Heartline, he went to work for his wife at the child care center she operates, and still works there performing maintenance, running errands, working at the reception desk, and, periodically, driving the center's van.

   
   

7. In May, 1986, he had another conversation with Ms. Barrow about his application for employment as a driver. Again he was advised that the county was not taking on any new school bus drivers. During the course of their conversation, Ms. Barrow asked Petitioner why he wanted to drive a school bus. Reportedly, she stated it was her experience that most men were not temperamentally suited to drive a school bus because they were over-aggressive in discipline. Ms. Barrow denies she said this, claiming that since he owned and operated a day care center, she felt he would be more likely to know what the problems were in dealing with children. If she did make that or a similar comment, however, she claims it was because the job is not for a lot of people and she tries to tell all her applicants that. In light of this and her testimony at hearing that she discusses with potential drivers the kind of behavior they can expect from the children, and the other less desirable working conditions which can be encountered, it is found that a comment such as is alleged by Petitioner could well have been made. In that regard, however, Petitioner admitted at hearing that the remark, instead of referring to "most" men, might have been "some" men. On this occasion, however, no judgement or other comment was made regarding Petitioner's proposed bus parking spot.

   
   

8. After this second conversation with Ms. Barrow, Mr. Gibbs became suspicious of possible discrimination because of her comment about male temperament, but he had no real proof of that and did nothing. She again told him to call back in September, 1986, and when he did, he was met with the same response: they were not hiring but to call back in six months. When he did, he was again put off and told to call back at the end of the school year.

   
   

9. This routine continued until he called in January, 1988, and spoke with Ms. Strickland, the route coordinator for another area, thinking chances of his success might be greater with another supervisor. When he identified himself and told her why he was calling, she told him that his September, 1985

   application was no longer any good: employment applications were kept open only for 30 to 60 days, after which they are retired. Petitioner's application was kept on file, however, and was presented at the hearing in April, 1990. When, during discovery prior to hearing, Petitioner's counsel requested copies of all applications for driver positions from 1985 to the present, he was furnished with only those from 1989 to the present with the comment that all others were not available. Inquiry of administrative officials at the Board offices revealed such records were kept only one year before being retired and, apparently, no one could indicate where or under what conditions older documents were maintained.

   
   

10. When Mr. Gibbs was told about his application by Ms. Strickland, feeling certain he was being discriminated against, he immediately filed his complaint of discrimination. Petitioner met, in his opinion, all the requirements to be a school bus driver. He lived in the area in which he proposed to drive; he was certified as a school bus driver; he passed all the tests given him; and, as he saw it, he had an appropriate place to park the bus. It is on this issue of an "appropriate" place to park that this matter turns.

    
    

11. Ms. Barrow felt at the time of Petitioner's application, and believes to this day, that a child care center, with the frequency of ingress and egress traffic, and the presence of many young children, is not an appropriate place to manipulate and park a large bus. Even though she was initially mistaken as to the actual site in question, she had the correct site checked out by Mr. Saffold, her driver trainer and accident investigator, and checked it herself several times. Mr. Saffold, after numerous visits to the site, found it to be not appropriate for parking a bus due to the number of trees on the site and the other cars routinely parked there. In addition, there is a circular drive which gives little room for maneuvering. Ms. Strickland also went out to see Petitioner's site, and she, too, found it unacceptable for much the same reason cited by Mr. Saffold; the trees, the lack of maneuvering room, and the on- property traffic due to pick ups and drop offs. Ms. Barrow concluded that a day care center, with its heavy traffic of people coming and going, was not an appropriate place to park a 35 foot bus. She told Petitioner that he should find an "appropriate" parking place within a reasonable distance of his residence, such as at a church or other off-street facility. There is no central bus parking compound at Ms. Barrow's facility.

    
    

12. There is, as Petitioner contends, ample space at the side of his facility to physically locate the bus when parked. That is not the basis for disapproval. The appropriateness of the site is, however, and the question of appropriateness is a subjective one with the decision on what qualifies and what does not left up to the route coordinator. Ms. Barrow, the coordinator for the area in which Petitioner applied, concluded the site proposed by Petitioner to park the bus was not appropriate. In this conclusion she was joined by another coordinator, Ms. Strickland, and a driver trainer and accident investigator, Mr. Saffold. In light of the evidence presented and the considerations pertaining, it cannot be said her conclusion was wrong.

    
    

13. Within the Board's school bus operation, there are 12 route coordinators, none of whom are male, who supervise a total of in excess of 700 drivers. Within Ms. Barrow's area, she supervises 67 drivers, each of whom has between 2 and 4 daily runs. Each run is made up of 1, 2, or 3 schools. Drivers are hired, initially, as substitute drivers who fill in on an "as needed" basis for regular drivers. The substitute driver position is a part-time job which lasts for 10 instead of 12 months of the year. No set amount of working hours can be guaranteed. The average substitute driver works from 6.5 to 7.5 hours

    per day. Whereas regular drivers are guaranteed 6 hours work per day, substitute drivers get no guaranteed minimum and are paid only for the hours they actually drive. Substitute drivers may remain in that category for between

    6 and 18 months. Regular drivers are hired from the ranks of substitute drivers. Driver criteria include a good driving record; completion of the 10th grade; and an "appropriate" place to park the bus. Board personnel consider the most critical of these to be the place to park the bus. It must be a safe, off- street location, and the problem of finding a suitable parking space is becoming more and more difficult.

    
    

14. Of the 67 drivers under Ms. Barrow's supervision, 3 are male. During the 9 years she has served as a route coordinator, she has hired 3 or 4 male drivers. However, she gets very few male applicants and this is the basis for the low number of drivers. Ms. Strickland has 6 or 7 male drivers out of 68 full time and 11 substitute drivers. Of the applicants for drivers in her area, 3% to 4% are male. Mr. Saffold, who has worked for Ms. Barrow since March, 1981, has never found her to in any way discriminate against men. As a part of his job, he periodically goes out with the route coordinator to check on proposed parking sites for buses. On the 3 or 4 times he has done this, he has found the site to be inappropriate twice.

    
    

15. Petitioner claims that the inappropriateness of his proposed parking site was not made an issue until after his complaint was filed. According to Mr. Saffold, it has been the continuing policy in Ms. Barrow's area to check the proposed parking site before giving the required tests to driver applicants. In the instant case, this was not done.

    
    

16. Petitioner claims reimbursement for back pay. He filed his charge of discrimination on April 4, 1988. Any back pay due would then begin to accrue no earlier than April 3, 1986, two years prior to the filing of the charge. After being told there was no employment available for him at Respondent's Brandon bus barn, Petitioner took a job with the city bus line, Heartline, in January, 1986 and resigned in June, 1986. He earned $5.25 per hour during the entire time he was so employed. After leaving the city, he went to work at his wife's day care center where he earned $7.00 per hour and is still employed at $7.20 per hour. The job at Heartline, driving a city bus is clearly equivalent to that of driving a school bus. His duties at the day care center include periodic bus driving but is primarily of an administrative or maintenance nature and cannot reasonably be considered "substantially equivalent" to those of a school bus driver. Petitioner admits that after leaving Heartline, he did not inquire about or apply for other driving positions.

    
    

17. Petitioner has requested attorney's fees and costs in the amounts of

    $22,500.00 and $1,471.85, respectively. Attorney LaPorte, testifying on behalf of Petitioner, indicated the Respondent's hourly fee of $150.00, when considered in light of his extensive experience and the considerable amount of research and preparation required herein, was not unreasonable. There was no evidence on the part of the Respondent to dispute Petitioner's claim and it is accepted as proven. The costs detailed in the exhibit attached to Respondent's post-hearing memorandum is also considered reasonable and is accepted.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

19. The Florida Commission on Human Relations is vested with jurisdiction to enforce the law prohibiting employment practices which involve unlawful discrimination. Section 760/6(5), Florida Statutes. Respondent is an employer within the meaning of the statute and is subject to the jurisdiction of the Commission.

    
    

20. Respondent has claimed that because Petitioner did not file his Charge of discrimination until April 4, 1988, two years after the claimed discrimination took place, his claim is barred as being non-timely.

    
    

21. The evidence indicates Petitioner submitted his application for employment with the Board in September, 1985. He was not hired at that point and was denied employment repeatedly at each inquiry made of Ms. Barrow thereafter. He did not speak with anyone except Ms. Barrow until January or February, 1988 when he spoke with Ms. Strickland. It was at that time, when she discussed the situation regarding his application status, that the pattern indicating to him that discrimination had taken place became evident. It was at that time he correlated the previously considered innocuous Barrow comment of May, 1986, regarding the "temperamental unsuitability" of "some/most" men with the repeated "put-offs" he experienced, and came to the conclusion, "discrimination". While he was perhaps slow in coming to the realization that he would not be hired, he cannot be held to an earlier date of discrimination if he did not, in good faith, recognize he was being discriminated against.

    
    

    Section 760.10(10), Florida Statutes, provides that:

    
    

    Any person aggrieved by a violation of this section may file a complaint with the commission within 180 days of the alleged discrimination. ...

    
    

22. Here it is clear that if there was discrimination at all, it was a continuing discrimination re-occurring each time the Petitioner called to inquire about a job and was put off. When he finally came to the realization he was being ill-treated, he filed his charge of discrimination and this appears to have been within 180 days of the last actual denial. However, to conclude the claim is not untimely does not necessarily establish that discrimination actually took place.

    
    

23. Petitioner has the burden to establish, prima facie, that the Respondent has discriminated against him in denying him employment as a school bus driver because of his sex. Section 760.10(1)(a), Florida Statutes, prohibits discrimination in employment based upon race, marital status, handicap, or sex. Petitioner has the initial burden of establishing a case of discrimination, McDonnell Douglas Corp. v. Greene, 411 U.S. 792, (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). If Mr. Gibbs can sustain his initial burden, the Respondent then must articulate a legitimate, nondiscriminatory reason for its action in order to rebut the inference of unlawful discrimination, though Petitioner bears the "burden of persuasion on the ultimate fact of discrimination" Walker v. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982).

    
    

24. To support his claim of discrimination, Petitioner relies upon the purported statement by Ms. Barrow that "most" men, or "some" men do not have the emotions to be a bus driver. Assuming, arquendo, that such comment was made, and assuming, also arguendo, that the comment is indicative of a discriminatory mind, the ultimate decision not to hire Mr. Gibbs was founded upon Ms. Barrow's

    determination that he did not have an appropriate place to park the school bus he would drive. That is a legitimate, non-discriminatory basis for failing to hire him. Therefore, there is evidence of both a legitimate basis and an illegitimate basis in the instant employment decision. When there is some evidence of discrimination, the employer then bears the burden of showing that the same decision would have been made even if there were no discrimination involved, Bell v. Birmingham Linen Service, 715 F.2d 1552, 1557- 1558 (11th Cir.

    1983); Price Waterhouse v. Hopkins, 109 S.Ct. 1775 (1989).

    
    

25. Here, Petitioner has presented scant evidence of discrimination. His testimony related primarily to his work history and his earnings since first being denied employment by Respondent. There is also Petitioner evidence to the effect that there is ample space to park the school bus at his wife's day care center, and, to be sure, there is. However, there is little substantive evidence that Petitioner was denied employment by Ms. Barrow because he is a male. To the contrary, Mr. Saffold, who has worked under Ms. Barrow's supervision for several years, testified he has never experienced or observed sexual discrimination in Ms. Barrow's relationship with her male employees.

    That there are few male bus drivers was logically explained by both Ms. Barrow and Ms. Strickland. The entry pathway is through the substitute route for which there is no guarantee of a minimum number of paid hours. As a result, there are few male applicants for those jobs and the reason is obvious.

    
    

26. On the other hand, even though Petitioner met most requirements for the job, in the judgement of Ms. Barrow, he did not have an appropriate place to park the bus. This judgement cannot reasonably be faulted and constitutes a legitimate, nondiscriminatory basis for her failure to hire him.

    
    

27. As a part of his claim, Petitioner seeks back pay and attorney's fees as a result of Respondent's alleged unlawful discrimination. Assuming, arquendo, that unlawful discrimination supporting these awards has been established, such award for back pay is limited to a period no more than two years prior to the date the Charge of Discrimination was filed with the Commission, and any award must be mitigated by sums earned in comparable, substantially equivalent employment. Here, however, it has been found that unlawful discrimination has not been established. As a result, an award of back pay is not appropriate.

    
    

28. Section 760.10(13), Florida Statutes, provides that in the event of a finding of an unlawful employment practice, an Order shall be entered providing affirmative relief from the practice, including reasonable attorney's fees. Here, Petitioner seeks attorney's fees in the amount of $22,500.00 and costs in the amount of $1,471.85. Attorney's fees are billable at counsel's regular fee of $150.00 per hour. Counsel claims, therefore, to have expended one hundred fifty hours in the prosecution of Petitioner's claim. Petitioner has presented evidence to demonstrate the reasonableness of this claim which has, as to amount of time and money, not been controverted by Respondent.

    
    

29. However, it has been concluded herein that there has been no finding that an unlawful employment practice has occurred. To the contrary, it has been found that no unlawful discrimination, based on Petitioner's sex, took place. Therefore, the award of attorney's fees and costs is not appropriate.

RECOMMENDATION

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

RECOMMENDED that Petitioner's Petition For Relief, alleging unlawful discrimination on the basis of sex, be dismissed.

RECOMMENDED this 1st day of June, 1990, in Tallahassee, Florida.

ARNOLD H. POLLOCK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990.

APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 89-2016

The following constitutes my specific rulings pursuant to S 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.

FOR THE PETITIONER:

Petitioner submitted two Proposed Recommended Orders - a long form and a short form. Both contain proposed findings of fact which are identical.

The difference in Proposed Orders relates to the legal discussion which pertains to the proposed Findings of Fact. Proposed Findings 1 - 12 related primarily to procedural matters leading up to the final hearing.

Finding of Fact 13 consists of several paragraphs which, for the purposes of this discussion, shall be re-numbered 13(a) through 13(m).

13(a). Rejected as not a proper Finding of Fact. The "concession" regarding liability appears to have been a part of proposed settlement negotiations and cannot be considered binding as to Findings of Fact after hearing which are based on evidence presented at the hearing. Attorney's fees are considered reasonable.

13(b). Accepted and incorporated herein. 13(c). Accepted and incorporated herein. 13(d). Accepted.

13(e). Accepted and incorporated herein. 13(f). Accepted and incorporated herein.

13 (g). Accepted and incorporated herein except for last sentence which is a restatement of evidence and not a Finding.

13 (h). Statistical information contained is accepted and incorporated herein. The balance, relating to the establishment of a prima facie case of discrimination is not a Finding of Fact, and is not supported by the evidence. 13(i) Rejected.

13(j). Accepted as to the facts but rejected as to Petitioner's conclusions as to the foundation for an adverse inference.

13(k). Accepted. 13(l). Accepted. 13(m). Accepted.

FOR THE RESPONDENT:

1. & 2. Accepted and incorporated herein.

3. & 4. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. - 8. Accepted and incorporated herein.

1. Accepted.

2. & 11. Accepted and incorporated herein.

1. Accepted and incorporated herein.

2. Accepted.

3. & 15. Accepted and incorporated herein to establish that Ms. Barrow made some comment about "some" or "most" men not being emotionally suited for drive a school bus.

1. Accepted and incorporated herein.

2. Accepted and incorporated herein.

3. Accepted and incorporated herein.

4. Accepted and incorporated herein.

5. Accepted.

COPIES FURNISHED:

Robert H. Mackenzie, Esquire

17 McKendree Dr.

Wesley Chapel, Florida 33544

Ronald W. Fraley

Thompson, Sizemore & Gonzalez, P.A.

109 North Brush Street, Suite 200

P.O. Box 639

Tampa, Florida 33601

Donald A. Griffin Executive Director

Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Docket for Case No: 89-002016

Orders for Case No: 89-002016