STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CISLYN STEPHENSON, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2650

) FCHR NO. 92-4905 SCHOOL BOARD OF BREVARD COUNTY, )

FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Daniel M. Kilbride, on September 9, 1993, in Melbourne, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Emil Stephenson

Qualified Representative 2298 September Street

Melbourne, Florida 32935

For Respondent: Bill Walker, Esquire

School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940

STATEMENT OF THE ISSUES

Whether Petitioner, a member of a protected class, was denied promotion to the position of Secretary III with the Respondent in the Environmental Services Department on or about June 10, 1992, on the basis of her race (African- American), in violation of Section 760.10(1)(a), Florida Statutes (1991).

PRELIMINARY STATEMENT

The Petitioner filed a complaint with EEOC on or about July 13, 1992, charging the Respondent with employment discrimination under Title VII of the Civil Rights Act of 1964. The case was sent for initial processing to the Florida Commission on Human Relations. Subsequently, on or about May 3, 1993, a determination was issued by the FCHR. In a letter dated May 6, 1993, the Petitioner requested a hearing, and filed a Petition for Relief with the FCHR.

This matter was referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on May 12, 1993. Following discovery, a formal hearing was held.

At the hearing, Petitioner requested that her husband, Emil Stephenson, be certified as a Qualified Representative in her behalf. Following inquiry, the motion was GRANTED. Petitioner presented the testimony of ten witnesses, Ralph Williams, Val Croskey, Gloria Brown, Richard Smith, Ed Beauregard, Jean Bennett, Bucky West, John Allen, Jerry Copeland, Howard Hickman, and Petitioner testified in her own behalf. Five exhibits were received in evidence. The Respondent presented the testimony of two witnesses, Michael Rogers and Howard Hickman, and four exhibits were received in evidence. Several tendered exhibits were excluded from evidence on the grounds of hearsay. A transcript was not ordered. The parties were allowed ten days from the hearing in which to file proposed findings of fact and conclusions of law. Petitioner had not filed proposed findings of as of the date of this order. Respondent filed proposed findings on September 23, 1993. My specific ruling on the proposals is contained in the Appendix.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent is a constitutionally created school district charged with the duty to operate, control, and supervise all free public schools in Brevard County, Florida, and is an employer under the Florida Human Relations Act of 1977, as amended.

   
   

2. Petitioner was employed by the Brevard County School District as a Clerk-Typist in the Environmental Services Department during the relevant period of time including April 1992.

   
   

3. Petitioner is an African-American, and a member of a protected class. She is the only African-American who is assigned to work in the Environmental Services Department.

   
   

4. During April of 1992, Petitioner worked as a Clerk Typist in the Environmental Services Department, and the Secretary III position was held by Sylvana Wall.

   
   

5. Subsequent to April of 1992, Sylvana Wall resigned, creating a vacancy in the Secretary III position in the Department.

   
   

6. In the interim period from the time Sylvana Wall resigned, and the date the position was filled in July of 1992, Petitioner undertook to perform the duties of the Secretary III position, and in accordance with the applicable collective bargaining agreement, was paid for said period of time in the higher classification.

   
   

7. Following creation of the vacancy, a job vacancy announcement was posted and advertised. Applications were received and reviewed by a selection committee composed of Irma Reinpoldt, Department Director, and Michael Rogers, Environmental Engineer.

   
   

8. Petitioner submitted application for the vacant position.

   
   

9. Subsequently, applicants except Petitioner, were interviewed by the committee, and a decision was made to employ applicant Rhonda Steward, a white female, for the Secretary III position in the Environmental Services Department.

10. Petitioner was not personally interviewed for the Secretary III position by the committee. They based their decision on the fact that Petitioner had been working for the department as a clerk typist for a number of months, and she had also filled in as the Secretary III for several months when the vacancy was created until the position was filled. Both members of the committee knew the Petitioner, her capabilities and qualifications, and considered it "redundant" to interview her.

    
    

11. There was no School Board policy, custom, or practice that required the employer to personally interview all applicants for vacancies.

    
    

12. The candidate selected, Rhonda Stewart, was fully qualified to fill the Secretary III position.

    
    

13. The evidence showed that during the relevant period there were certain conflicts in the Department, not related to race. There was evidence of personality disputes, such as name calling, and unwillingness by Petitioner to do secretarial functions for certain members of the Environmental Services Department, particularly an Environmental Specialist who was dyslexic. In addition, certain co-employees did not get along with the Petitioner and vice versa.

    
    

14. However, there was no indication from the sworn testimony that race played a part in the decision made by the Respondent to hire someone else for the position. It was the practice of Respondent that the immediate supervisor and department head determine who was the best qualified for a job vacancy, subject to any review by the Personnel Division.

    
    

15. The Petitioner presented no testimony including her own, that she did not get promoted to the Secretary III position because of her race, or that there was disparate treatment of African-Americans by the Respondent in the hiring or promotion of minorities.

    
    

    CONCLUSIONS OF LAW

    
    

16. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsection 120.57(1), Florida Statutes and Rule 22T-8.016(1), Florida Administrative Code.

    
    

17. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended 42 USC Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race. (Sec. 760.10(1)(a), F.S.)

    
    

18. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981) and again in the very recent case of St. Mary's Honor Center v. Hicks,

    U.S. ,113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model.

    Kilpatrick v. Howard Johnson Co., 7 FALR 5468,5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie case of racial discrimination.

    
    

19. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:

    
    

    1. The Petitioner is black;

    2. The employee is qualified for the position; and

    3. The employee was subject to an adverse employment decision (Petitioner did not receive a promotion to a position for which she was qualified);

    4. The position was filled by a white person:

    5. There must be shown by the evidence that there is a causal connection between a and c. Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith v. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee v. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

       
       

20. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See, Teamsters v. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).

    
    

21. Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision.

    The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs v. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman v. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

    
    

22. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than the Petitioner. Texas Department of Community Affairs v. Burdine, at 257-8.

    
    

23. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner remains at all times with the Petitioner. Texas

    Department of Community Affairs v. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center v. Hicks, U.S. ,113 S.Ct. 2742 (1993).

    
    

24. In the case sub judice, the Petitioner has established that she is an African-American (a member of a protected class) and was qualified for the position. The Petitioner has also established that she was subjected to an adverse employment decision when she failed to receive a promotion for which she was qualified and that the position was filled by a white person. Therefore, the Plaintiff came forward with sufficient evidence to meet her initial burden of proof on the issue of racial discrimination.

    
    

25. The sequence of presentation of evidence then required the Respondent to come forward and "articulate" valid, nondiscriminatory reasons for the resulting promotion decision. The School Board has done so. It established by a preponderance of the testimony and business records that the Petitioner's uncooperative, impatient, and outspoken personality created conflicts within the department and was disruptive to it's function. Respondent could properly consider this when making employment decisions. See: Hale v. Cuyahoga County Welfare Dept., F.2d , 51 FEP 1264 (6th Cir. 1989).

    
    

26. Petitioner has failed to produce any evidence to demonstrate that the Respondent's articulated reasons for its actions in June and July, 1992, were "pretextual".

From the testimony and the exhibits, the Petitioner has failed to carry the burden required by law to establish discriminatory conduct. There was no testimony by any of the witnesses presented by the Petitioner that she did not receive the promotion because of her race, black. The witnesses presented by the Petitioner indicated that they had no knowledge of the process or the procedures by which the Petitioner was or was not promoted to the Secretary III position. They neither worked in the Environmental Department, nor had any other supervisory control under the selection process. They did not have knowledge of internal workings of the Environmental Department, had nothing to do with whether Petitioner did or did not get promoted to said position, and presented no testimony to show that Respondent engaged in disparate treatment in its promotion policies or decisions.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order which DENIES the Petition for Relief.

DONE AND ENTERED this 20th day of October, 1993, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

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 20th day of October, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2650

The following constitute my specific rulings, in accordance with section 120.59, Florida Statutes, on findings of fact submitted by the parties.

Petitioner did not submit proposed findings of fact. Proposed findings of fact submitted by Respondent:

Accepted in substance: paragraphs 1, 2, 3, 4, 5, 6, 7, 8(in part), 9,

10(in part), 11

Rejected as irrelevant, immaterial or as comment on the evidence: paragraphs 8(in part), 10(in part)

COPIES FURNISHED:

Cislyn Stephenson Emil Stephenson

Qualified Representative 2298 September Street

Melbourne, Florida 32935

Bill Walker, Esquire

School Board of Brevard County 2700 St. Johns Street Melbourne, Florida 32940

Dana Baird General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Honorable Betty Castor Commissioner of Education Department of Education The Capitol

Tallahassee, Florida 32399-0400

Sydney H. McKenzie General Counsel Department of Education The Capitol, PL-08

Tallahassee, Florida 32399-0400

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: 93-002650

Orders for Case No: 93-002650