STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN M. O'NEILL, )

)

Petitioner, )

)

vs. ) CASE NO. 92-6333

) SARASOTA COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, the Division of Administrative Hearings by its duly assigned Hearing Officer, William R. Cave, held a formal hearing in the above- captioned matter on March 30, 1993 in Bradenton, Florida.

APPEARANCES

For Petitioner: Stanley E. Marable, Esquire

1800 Second Street, Suite 715

Bradenton, Florida 34236

For Respondent: Jeanne S. Medawar, Esquire

Matthews Hutton & Eastmore Post Office Box 49377 Sarasota, Florida 34230

STATEMENT OF THE ISSUE

Whether Petitioner, Susan M. O'Neill, was discriminated against by Respondent, Sarasota County School Board, in violation of the Human Rights Act of 1977, as amended, Section 760.10, Florida Statutes, on the basis of handicap, constituting an unlawful employment practice.

Whether Petitioner has established a basis for, or entitlement to, an award of damages if, in fact, the alleged unlawful employment practice occurred.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against the Respondent dated January 02, 1992 which was received by the Florida Commission On Human Relations (Commission) on January 06, 1992, alleging that Respondent had discriminated against her because of her perceived handicap, mental illness. On October 14, 1992, the Commission entered its Notice Of Determination: No Cause, as to Petitioner's previously filed Charge of Discrimination against Respondent.

Thereafter, on October 17, 1992, Petitioner filed a Petition For Relief with the Commission. On October 23, 1992, the matter was transmitted by the Commission to the Division of Administrative Hearings for the assignment of a Hearing Officer and the conduct of a hearing. The Respondent filed its Answer To Petition For Relief on December 23, 1992..

At the hearing, the Petitioner testified in her own behalf and presented the testimony of the Dr. Charles W. Fowler, Maureen Laubacker and Barry Dubin. Petitioner's exhibits 1 through 5 were received as evidence in this case. The deposition testimony of Dr. Walter H. Pierce, with exhibits attached to the deposition, was received in lieu of Dr. Pierce's live testimony at the hearing as Respondent's exhibit 1. Respondent did not present any other witness or exhibits.

A transcript of the proceeding was filed with the Division of Administrative Hearings on April 14, 1993. The parties timely filed their Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact submitted by the parties has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made:

1. At all times material to this proceeding, the Respondent, Sarasota County School Board, employed approximately 3,600 employees during the relevant school years and is an employer as that term is defined in Section 760.02(6), Florida Statutes.

   
   

2. The Petitioner has been a teacher for approximately 31 years, having taught in Ohio, California and Florida.

   
   

3. Petitioner was first employed by the Respondent as a classroom teacher for the 1974-75 school year.

   
   

4. Petitioner was assigned as a classroom teacher to Sarasota Middle School beginning the 1982-83 school year and served as a classroom teacher at Sarasota Middle School until late April or early May, 1989.

   
   

5. Performance evaluations for 1988 and 1989 show that the Petitioner capably performed her duties as a classroom teacher and received satisfactory evaluations.

   
   

6. In April, 1989, Sarasota Middle School Principal, Mary Lou Moore, brought to Assistant Superintendent, Dr. Walter Pierce's attention inappropriate behavior by Petitioner, such as her refusal to meet with parents and leaving the classroom and school building without permission during school hours.

   
   

7. In April, 1989, there was an incident with the Petitioner slapping a child on the buttocks and her refusal to meet with the child's parents.

   
   

8. Dr. Pierce spoke to Petitioner about the incident on a Saturday, and instructed Petitioner that a substitute would be appointed for her on the following Monday. Petitioner was also instructed by Dr. Pierce to meet with Dr. Pierce and Principal Moore the following Monday.

   
   

9. Petitioner disobeyed Dr. Pierce's directions and initiated a student study team meeting on the following Monday morning. Dr. Pierce called Dwight Logan, Executive Director of the Sarasota Classified/Teachers Union (SC/TU), to the school to assist in speaking with Petitioner. The Petitioner left the study team meeting and closeted herself in the media center. Logan went into

   the media center and counseled Petitioner. Petitioner then met with Dr. Pierce and agreed to obtain counseling. After which she left the school.

   
   

10. With Petitioner's agreement, she was reassigned to non-teaching duties at the Board's Media Center for the remainder of the 1988-89 school year. Petitioner retained her teacher's salary while on this assignment.

    
    

11. In May, 1989, pursuant to the terms of the collective bargaining agreement covering Board employees, Petitioner was referred for psychological evaluation and given a list of three doctors. Petitioner saw Dr. James Slocum on May 9, 1989.

    
    

12. Dr. Slocum noted some paranoid characteristic in Petitioner's personality and recommended out-patient psychotherapy but did not prescribe any anti-psychotic medication at this time. Dr. Slocum diagnostic impression was acute paranoid disorder.

    
    

13. Initially, Petitioner was assigned to Brookside Middle School for the 1989-90 school year as a classroom teacher. However, before the beginning of the 1989-90 school year, Dr. Pierce determined that it would be in the Petitioner's best interest to assign her to Gocio Elementary School for the 1989-90 school year. Therefore, Petitioner was to teach fifth grade at Gocio Elementary School for the 1989-90 school year.

    
    

14. In October, 1989, Petitioner began exhibiting difficulties in her assignment at Gocio. Petitioner failed to remain in her classroom for school open house, inappropriately disciplined students, failed to show up for a scheduled professional day and left children unsupervised after repeated reminders to maintain supervision.

    
    

15. Petitioner was granted sick leave after six weeks for medical reasons while Dr. Pierce and Barry Dubin, the new Executive Director of SC/TA, worked on resolving her work assignment.

    
    

16. On December 14, 1989, Dr. Pierce wrote to Dubin confirming three assignment options that had been discussed with Dubin and Petitioner regarding the Petitioner's continued employment following her anticipated return from sick leave.

    
    

17. Petitioner did not agree to any of the three assignment options.

    
    

18. By letter dated March 5, 1990, Superintendent Fowler directed the Petitioner to undergo another psychiatric evaluation for the stated purpose of enabling the Board to make an informed decision regarding Petitioner's ability to continue teaching and to help in determining Petitioner's eligibility for disability retirement.

    
    

19. The Petitioner voluntarily entered Palms Psychiatric Hospital in the spring of 1990. By letter dated June 1, 1990, Dr. Pierce informed the Petitioner that she would be accorded unpaid personal leave for the remainder of the 1989-90 school year. However, Petitioner was to contact Dr. Pierce before August 7, 1990 so that here would be sufficient time to evaluate the Petitioner's medical status and make a decision concerning her continued employment.

    
    

20. While at Palms Psychiatric Hospital, Richard A. Greer, M. D., diagnosed the Petitioner as suffering from a paranoid disorder which would

    require medication and follow-up. Dr. Greer prescribed neuroleptic medication Prolixin as well as the antidepressant Prozac and mood stabilizing lithium. Dr. Greer noted that these medications could cause sedation and that the Petitioner's condition had improved while on these medications.

    
    

21. During this period of time, Petitioner raised the issue of retirement and disability. Dr. Pierce responded to Petitioner's written request for retirement information.

    
    

22. At the beginning of the 1990-91 school year, the Petitioner was assigned to Bay Haven School as a teacher's aide rather than as a classroom teacher. The Petitioner was physically shaky much of the period at Bay Haven School because her medication needed to be adjusted after several weeks. Petitioner began exhibiting inappropriate behavior such as failure to attend to assigned duties, leaving the campus without permission during school hours and having difficulty with correcting students' homework. The Petitioner was removed from her duties as a teacher's aide, and granted leave for the remainder of the 1990-91 school year for medical reasons based upon the recommendation of Dr. Slocum who was again treating Petitioner.

    
    

23. Petitioner received disability benefits while on medical leave. Because Petitioner was an aide when she went on leave, she received disability payments based on the aide salary. Through Dr. Pierce efforts, Petitioner eventually received disability payments based on her teacher's salary. Also, due to Dr. Pierce's efforts, Petitioner received retroactive benefits in the amount of $22,800.00.

    
    

24. While the Petitioner was experiencing problems related to her mental condition during 1989 and 1990, the Board attempted to and did take appropriate action to accommodate the Petitioner's disability. For example, the Petitioner was informed by the Board's personnel office that her services as a teacher's aide would not jeopardize her seniority as a member of the instructional unit. Likewise, there was never any action initiated to terminate the Petitioner's employment for cause due to her inability to carry out her duties.

    
    

25. Dr. Pierce planned to allow the Petitioner to return as a teacher's aide for the 1991-92 school year provided that her condition stabilized and further indicated that the Petitioner would be permitted to return as a classroom teacher in the event she was able successfully to carry out her duties as an aide.

    
    

26. Petitioner submitted the following handwritten letter to Dr. Fowler, Superintendent, Sarasota County Schools:

    
    

    July 7, 1991

    
    

    Dear Dr. Fowler:

    
    

    It is necessary for me to take early retirement. I need the money - Bills are coming in with no income. My friend, Betty Crockett, just retired and can help with the procedure.

    
    

    Sincerely,

    
    

    /s/Susan M. O'Neill

27. The normal procedure for requesting retirement by an employee of the Board is for the employee to make a written request of the Board for retirement. There is no designated form required for this request.

    
    

28. The normal procedure for handling a retirement request by a Board Employee is, upon receipt of the retirement request, to place the request on the agenda for the next regularly scheduled Board meeting and have the Personnel Department process the request for Board action. Petitioner's retirement request was processed in this manner.

    
    

29. The Board took action on Petitioner's request at its next regularly scheduled meeting on July 16, 1991.

    
    

30. Earlier, in 1990, Dubin had convinced Petitioner not to retire. However, even though Dubin was aware of Petitioner's letter and the Board's intended action on the Petitioner's request for retirement prior to the Board meeting wherein the request was to be considered, Dubin did not make any attempt to contact Petitioner or the Superintendent's office or the Board concerning Petitioner's retirement request.

    
    

31. On July 17, 1991, the Board advised Petitioner of the Board's acceptance of her request for retirement.

    
    

32. On July 16, 1991, the Board sent Petitioner a notice concerning hospitalization benefits after retirement and on July 31, 1991, the Board forwarded Petitioner's personal check to Blue Cross for continued coverage.

    
    

33. Since Petitioner had previously discussed both regular and disability retirement with Dr. Pierce and Dubin, individually and jointly, there was no reason for the Superintendent's office or the Board not to treat the Petitioner's letter as a normal request for retirement, nowithstanding Petitioner's mental condition at the time.

    
    

34. There was insufficient evidence to establish facts to show that Petitioner was mentally incapable of making an informed decision about her retirement during the time she made her request and the Board considered her request.

    
    

35. There is competent substantial evidence in the record to establish facts to show that Petitioner's mental disorder constituted a handicap within the meaning of Section 760.10, Florida Statutes.

    
    

36. There is competent substantial evidence to establish facts to show that Petitioner was otherwise qualified to continue in her position as a classroom teacher but for periodic episodes where the mental illness or prescribed medication resulted in Petitioner being unable to function as a classroom teacher.

    
    

37. There is competent substantial evidence to establish fact to show that Respondent took appropriate action and made reasonable accommodation in respect to Petitioner's handicap.

    
    

38. There is insufficient evidence to show that Petitioner was treated in a disparate and adverse manner and that her handicap, or perceived handicap, was the motivating factor in the Board's decision to act on and accept Petitioner's request for retirement.

39. There is competent substantial evidence in the record to establish facts to show that Petitioner was not discriminated against on the basis of her handicap, or perceived handicap, by the Respondent.

    
    

40. Petitioner did not present any evidence in support of the charges of sexual harassment, fraud and other inappropriate action raised in her Petition for Relief.

    
    

    CONCLUSIONS OF LAW

    
    

41. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding pursuant to Section 120.57(1), Florida Statutes.

    
    

42. Petitioner contends that she was unlawfully discharged by Respondent because of her handicap, mental illness.

    
    

43. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

44. Since Florida's employment discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 421 U.S.C., 2000e-2, resort to federal court interpretations of that act is appropriate. School Board of Leon County v. Hargis, 400 So. 2d 103, (1 DCA Fla. 1981).

    
    

45. In McDonald Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the U.S. Supreme Court established the basic allocation of burden of proof in discrimination cases. Petitioner retains the burden of proof throughout the proceeding, although once a prima facie case of discrimination is established, the Respondent must articulate some legitimate, nondiscriminatory reason for the challenged action. Then Petitioner must prove by a preponderance of the evidence that the reasons offered are not true, but rather a pretext for discrimination.

    
    

46. Petitioner has established that she was a member of the protected class, handicap, by reason of mental illness and that she was otherwise qualified to continue in her position as a classroom teacher but for periodic episodes where the mental illness or prescribed medication resulted in her being unable to function. However, Petitioner has failed to establish that she was treated in a disparate and adverse manner and that her handicap was a substantial motivating factor in Respondent's decision to accept Petitioner's request for early retirement. Petitioner has failed to establish that Respondent's action was discriminatory.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Respondent's action in accepting, and affirmatively acting on, Petitioner's request for early retirement was not due to her handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed.

RECOMMENDED this 24th day of September, 1993, at Tallahassee, Florida.

WILLIAM R. CAVE

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 24th day of September, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6333

The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case.

Petitioner's Proposed Findings of Fact.

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed findings(s) of fact: 1(1); 2(2-3); 3(4); 4(5); 5(6-10); 6(11,12); 7(13); 8(14,15); 9-17(16,18,19,20,22,24,25,23 & 33, respectively); 25(30,33); 26(27); 30(6-20,24); 32(28) and 34(10,13,15,22,24,25 & 35).

2. Proposed findings of fact 19, 20, 21, 23, 24 and 28 are neither material nor relevant.

3. Proposed findings of fact 18, 27, 29, 31 and 33 are not supported by competent substantial evidence in the record.

4. The first sentence of proposed finding of fact 22 is not supported by competent substantial evidence in the record, Petitioner had been advised earlier. The balance of proposed finding of fact 22 is neither material nor relevant.

5. The first sentence of proposed finding of fact 35 is neither material nor relevant. The balance of proposed finding of fact 35 is not supported by competent substantial evidence in the record.

Respondent's Proposed Findings of Fact.

1. The following proposed findings of fact are adopted in substance as modified in the Recommended Order. The number in parenthesis is the Finding(s) of Fact which so adopts the proposed finding(s) of fact: 1- 12(3,6,7,8,9,11,12,10,10,13,14 & 15, respectively); 14-20(16,17,18,19,21,19,& 22, respectively); 21(20,22); 22-25(22,22,23 & 26, respectively); 26(27,28); 27- 29(27,28 & 29, respectively); and 31-34(30, 30,32 & 31, respectively).

2. Proposed findings of fact 13, 30 and 35 are neither material nor relevant.

COPIES FURNISHED:

Stanley E. Marable, Esquire 1800 Second Street, Suite 715

Bradenton, Florida 34236

Jeanne S. Medawar, Esquire Matthews Hutton & Eastmore Post Office Box 49377 Sarasota, Florida 34230

Sharon Moultry, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahasse, Florida 32303-4149

Dana Baird, General Counsel Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to the Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should consult with the agency that will issue the final order in this case concerning their rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-006333

Orders for Case No: 92-006333