STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADA J. SIMS, )

)

Petitioner, )

)

vs. ) Case No. 98-2354

)

SCHOOL BOARD OF ORANGE )

COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, Mary Clark, held a formal hearing in the above-styled case on September 10, 1998, in Orlando, Florida.

APPEARANCES

For Petitioner: Ada Sims

1601 Crooms Avenue

Orlando, Florida 32805

For Respondent: Frank C. Kruppenbacker, Esquire

Post Office Box 3471 Orlando, Florida 32801-3471

STATEMENT OF THE ISSUES

Petitioner's charge of discrimination alleges that the Orange County School Board discriminated against her on account of her age and race when the school board dismissed her in July 1994. Although the school board told her that she was dismissed because she did not have a college degree, allegedly another

(white) employee without a degree was not dismissed. Petitioner alleges that, in violation of policy, the school board

did not assist her to find another position and that since her dismissal younger employees were hired in positions in which she could have worked.

The issue in this case is whether Petitioner was discriminated against, as alleged, and if so, what relief is appropriate.

PRELIMINARY STATEMENT

The Florida Commission on Human Relations forwarded Ms. Sims' Charge and Petition for Relief to the Division of Administrative Hearings and the formal hearing was set as described above.

At the hearing Ms. Sims testified on her own behalf, and had received into evidence 19 documents, marked Petitioner's Exhibits No. 1 through 19.

Respondent, the Orange County School Board, presented the testimony of Mary Bailey and Katherine Thompson. Respondent's Exhibits No. 1 and 2 were received into evidence, including a deposition of Ms. Sims taken during discovery for this proceeding.

After the hearing, Ms. Sims submitted a summary of her arguments and case. Neither the transcript nor other post- hearing pleadings were filed.

FINDINGS OF FACT

1. Petitioner Ada J. Sims is an African-American female born October 28, 1934. She resides in Orlando, Orange County, Florida.

2. During the 1993/94 school year, Ms. Sims was employed as an occupational specialist by the Orange County School Board (OCSB). She was assigned to Cypress Creek High School. Ms. Sims worked for the OCSB for 26 years; the first 4 or 5 were in clerical positions, and the last 22 years were as an occupational specialist at various schools. Ms. Sims does not have a college degree.

3. Sometime during the 1993/94 school year, Ms. Sims was offered and accepted an early retirement opportunity. She expressed her intent to retire effective December 1994.

4. The last day of school was the end of May 1994. At that time Ms. Sims understood that she still had a job at Cypress Creek High School for the beginning of the 1994/95 school year.

5. Sometime during the early summer in 1994, the superintendent of schools and the OCSB realized the need to reduce instructional positions in order to keep expenditures within an available budget. The certification area, "occupational specialist," was identified for the reduction in force.

6. On or about July 19, 1994, Cypress Creek assistant principal Cathy Thompson spoke to Ms. Sims by telephone to inform

   her that she was no longer employed and that she should call the personnel department for further information.

7. Ms. Sims was upset and called the personnel office. She also visited the office, wrote letters to the school board chairperson and superintendent, and contacted the Classroom Teacher Association. Ms. Sims felt that people were evasive and non-responsive. No one helped her find other employment.

8. Sometime between August and December 1994, Ms. Sims began receiving her retirement benefits. Since then, she has been employed only part-time: briefly for a newspaper and now with Haitian Social Services. In her complaint of discrimination, Ms. Sims is claiming $15,000 in lost wages and

   $5,000 for "pain and suffering."

   
   

9. Mary Bailey is employed by the OCSB Division of Human Resources. A former classroom teacher and principal, she has worked for the OCSB for 33 years. Ms. Bailey was the supervisor for the reduction in force which eliminated Ms. Sims' position.

10. There were approximately 12-15 occupational specialist positions in the OCSB in May 1994. All but 2 or 3 were eliminated. In determining which positions were eliminated the incumbent's job history was reviewed to determine seniority. White and African-American employees were laid off. The only employees retained were those with college degrees who could obtain a teaching certificate and be placed in a regular instructional position. Ms. Sims, without a college degree, did

    not qualify for this placement. There was no consideration of age or race; the regular OCSB policy and collective bargaining agreement procedures were applied.

11. No one offered Ms. Sims a clerical position or other non-instructional position; she was told she could apply for another position on her own. Elaine Manfriede, the white

    
    

    employee who Ms. Sims claims was retained, found a clerical position on her own. Ms. Manfriede's occupational specialist position was eliminated.

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction in this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes.

13. Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual with respect to terms or conditions of employment because of the individual's race, age, and other characteristics.

14. Ms. Sims has the burden of proving the discrimination which she has alleged. Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991).

15. Ms. Sims sincerely believes that she was wronged by the OCSB when it terminated her position and failed to provide other employment for the few months she had left before her planned

    December retirement. OCSB staff concede that they did not assist Ms. Sims in finding other employment, but there is no evidence whatsoever that she was treated any differently than other employees, white or younger, in the reduction in force procedures. Ms. Sims' termination was the result of that reduction in force and not the result of discrimination. There is no evidence, other than conjecture by Ms. Sims, that the procedures were not followed properly or that they were applied to discriminate on account of race or age.

16. There is no jurisdiction to grant relief for pain and suffering in an administrative proceeding under Section 760.11(6), Florida Statutes.

RECOMMENDATION

Based on the foregoing, it is recommended that the Florida Commission on Human Relations enter its final order dismissing Ada J. Sims' charge of discrimination and Petition for Relief.

DONE AND ENTERED this 12th day of October, 1998, in Tallahassee, Leon County, Florida.

MARY CLARK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1998.

COPIES FURNISHED:

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road Tallahassee, Florida 32303

Ronald Blocker

Orange County School Board Post Office Box 271 Orlando, Florida 32802

Ada Sims

1601 Crooms Avenue

Orlando, Florida 32805

Frank C. Kruppenbacker, Esquire Post Office Box 3471

Orlando, Florida 32801-3471

Dr. Donald Shaw, Orange County Superintendent of Schools

Post Office Box 271

445 West Amelia Street Orlando, Florida 33802-0271

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 98-002354

Orders for Case No: 98-002354