vs. ) Case No. 99-2213
Respondent. )
A formal hearing was held before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on January 6, 2000, in Sanford, Florida. The following appearances were entered:
For Respondent: Ned N. Julian, Jr., Esquire
Whether the non-renewal of Petitioner's annual employment contract as a school bus driver at the end of the 1993-94 school year was due to discrimination against her, on the basis of her race (African American) or disability
(depression), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) on May 30, 1995, charging Respondent with employment discrimination. On or about February 11, 1999, a No Cause determination was issued by the FCHR. Petitioner filed a Petition for Relief with the FCHR on March 15, 1999. On May 13, 1999, the FCHR notified Respondent that the Petition had been filed. This matter was referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on the same date. Respondent filed a Motion to Dismiss which was denied by Order dated June 8, 1999. Following discovery and a continuance granted at the request of Petitioner, a formal hearing was held on January 6, 2000.
The parties were allowed ten days from the date of hearing in which to file proposed findings of fact and conclusions of law. Petitioner timely filed proposed findings of fact by
letter. Respondent filed a Proposed Recommended Order on February 21, 2000. Both proposals have been given careful consideration in the preparation of this Recommended Order.
Based upon all of the evidence, the following findings of fact are determined.
Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992.
Petitioner was employed by Respondent as a school bus driver from October 17, 1983, until June 8, 1994, when her annual employment contract was not renewed.
Throughout her employment, Petitioner exhibited problems with tardiness and excessive absenteeism. Her performance appraisals noted that her attendance with either unsatisfactory or needed improvement.
In 1990, Petitioner had 13 occurrences of absenteeism or tardiness. In 1991, Petitioner had 11 occurrences of absenteeism or tardiness. In 1992, she was given an evaluation of "Unsatisfactory" and placed on notice for possible non-reappointment.
As of April 1993, Petitioner had 17 occurrences of absenteeism and tardiness and was advised by the Director of Transportation that continued excessive absenteeism might
affect her chances of continued employment.
On May 13, 1993, Joseph Wise (Wise), Director of Transportation, advised Petitioner that he recommended to Paul
J. Hagerty, Superintendent (Superintendent), that Petitioner be
suspended without pay for being tardy on August 24, 1992, September 3, 1992, September 11, 1992, and May 13, 1993.
After a fourth offense, as provided in Article VIII, Section 15, "Tardiness" in the official Agreement between the School Board and the Seminole County School Board Bus Driver's Association, suspension is the authorized disciplinary punishment.
On May 17, 1993, the Superintendent informed Petitioner that he would act upon the Acting Director's recommendation and recommend to the School Board that Petitioner be suspended for one day, effective September 1, 1993. The Superintendent also advised Petitioner of her right to an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, if she disputed the claim that she violated the tardy policy.
The School Board approved Petitioner's suspension on June 15, 1993.
On September 23, 1993, a conference was held with
Petitioner and the Director of Transportation Services regarding Petitioner's absences on August 26, 1993, September 3, 1993, and September 15, 1993. Also discussed were
Petitioner's tardiness on July 22, 1993, August 23, 1993, and
August 24, 1993.
Subsequent to the conference, the Director of Transportation Services wrote a letter of directive of Petitioner stating that he expected her regular attendance at work and that, for the remainder of the 1993-94 school year, Petitioner was directed to submit a doctor's statement and/or written explanation of the nature of any absence.
Petitioner was also advised that failure to follow the directive or failure to achieve regular attendance at work could lead to further disciplinary action, including termination of employment.
Petitioner was absent on October 28, 1993, November 9, 1993, November 16, 1993, and December 17, 1993.
Petitioner was absent from work on January 3, 1994, to see her dentist. The dentist gave her a few days' worth of medication for dental pain.
Petitioner's boyfriend was killed on or about January 7 or 8, 1994. She took a leave of absence from January 10, 1994, until January 30, 1994.
On February 15, 1994, Julie Green, Area Supervisor,
recommended to the Superintendent that Petitioner be suspended without pay for one day for having been absent without leave on February 15, 1994.
Petitioner was tardy on February 24, 1994.
On February 28, 1994, the Superintendent informed Petitioner that he intended to act upon Green's prior recommendation and recommended to the School Board that Petitioner be suspended without pay, effective April 6, 1994. The Superintendent also advised Petitioner of her right to an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes, if she disputed that she was absent without approved leave.
The School Board approved Petitioner's suspension on March 2, 1994.
Petitioner had a doctor's excuse for being absent on March 17, 1994. The doctor's note states that she is able to return to work.
Petitioner had an absence excuse from her dentist for April 8, 1994. She had to take medication for dental pain for a few days.
On April 6, 1994, the five area supervisors met with Wise to discuss reappointments and non-reappointments of school bus drivers. Julie Green was one of the area supervisors at the meeting.
The management team discussed a group of school bus drivers who were borderline in terms of performance. The group was comprised of persons from different ethnic and racial groups.
The management team also discussed a group of school bus drivers who had problems with extreme absenteeism.
The group of school bus drivers who had problems with extreme absenteeism was comprised of both African American and white individuals.
Petitioner was among this group. Carla Green, a white non-handicapped female was also among this group.
The absenteeism of school bus drivers creates a safety problem. The buses do not run on time. Inexperienced office staff have to drive the buses, so children may be left standing on the side of the road for a long time waiting for a bus to pick them up.
School bus drivers who have a doctor's excuse for their absence still can be found to have excessive absenteeism.
Some of the individuals with absenteeism problems were reappointed.
Carla Green was among those who were reappointed.
Carla Green's attendance problems were determined to
be less severe than Petitioner's, and unlike Petitioner, Carla Green's attendance improved during the course of the 1993-94 school year.
The group of school bus drivers, whose contracts were not renewed because of absenteeism, was comprised of black and white, male and female individuals.
In total, 12 school bus drivers were not reappointed. Of this group, eight were white and four were African American. None was disabled.
Two of the white women who were not re-appointed had been employed as school bus drivers as long as or longer than Petitioner.
In the past, Julie Green had directly supervised Petitioner but had never supervised Carla Green.
Petitioner was absent again on April 13, 1994, because she took her daughter to the doctor.
By letter dated April 25, 1994, Wise notified Petitioner of his recommendation that her contract not be renewed at the end of the school year.
Petitioner had a doctor's excuse for being absent on May 2 and 3, 1994. The doctor's note states that Petitioner can return to work with no limitations.
Petitioner was absent from work on May 9, 1994, until May 12, 1994. The doctor's note states she can return
to work on May 12, 1994, with no limitations.
Petitioner had a doctor's note dated May 11, 1994, which states that Petitioner has been depressed since her boyfriend was killed. Petitioner had some trouble adjusting to medication which she was given for this condition.
Petitioner requested and was seen by a counselor with The Allen Group, the Employee Assistance Program for the School Board, on four occasions in early 1994.
On January 26, 1994, Petitioner reported feeling angry and depressed because her boyfriend had been shot and killed. She had learned at his funeral that her boyfriend had several other girlfriends during this time, one of whom was pregnant.
Petitioner consulted with a counselor on March 7 and March 10, 1994.
On March 21, 1994, Petitioner reported to her counselor that she was feeling better.
Petitioner's last visit with her counselor was on May 11, 1994, when she reported that her job was in jeopardy because of too many absences.
By letter dated May 15, 1994, the Superintendent advised Petitioner that he would be recommending to the School Board that her employment as a school bus driver be
terminated. He also advised her of her right to a hearing prior to her termination pursuant to Section 120.57, Florida Statutes.
Petitioner did not request a hearing. Petitioner did not request a review or discussion concerning any alleged disability.
By letter dated June 16, 1994, Petitioner was informed that the School Board terminated her employment, effective June 8, 1994.
Petitioner pursued the grievance procedure through Step II, available to her under the terms of the contract between the school bus drivers and the School Board.
Petitioner argued that her termination was not justified because she does not believe that excessive absenteeism constitutes just cause, and that Respondent's actions were motivated by unlawful discriminatory conduct based on her race and disability (depression).
Petitioner failed to prove her allegations of discrimination by a preponderance of evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to Subsections 120.569,
120.57(1), and 760.11(7), Florida Statutes.
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. Section 760.10(1)(a), Florida Statutes. The FCHR and the Florida courts interpreting the provisions of the Florida Civil Rights Act of 1992 have determined that federal discrimination law should be used as guidance when construing provisions of the Act. See Brand vs. Florida Power Corp. 633 So. 2d 504,509 (Fla. 1st DCA 1994); Florida Department of Community Affairs vs. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper
vs. Lakeland Regional Medical Center, 16 FALR 567, 574 (FCHR 1993).
The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell
Douglas Corp. vs. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs vs. Burdine, 450 U.S. 248 (1981), and again in the recent case of St. Mary's Honor Center vs. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993). The
FCHR has adopted this evidentiary model. Kilpatrick vs. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). McDonnell Douglas places upon Petitioner the initial burden of proving a prima facie case of racial discrimination. See also Laroche vs. Department of Labor and Employment Security, 13 FALR 4121 (FCHR 1991); Davis vs. Humana of Florida, Inc., 15 FALR 231 (FCHR 1992).
Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:
The employee is a member of a protected group;
The employee is qualified for the position; and
The employee was subject to an adverse employment decision [employee was terminated];
The position was filled by a person of another race or that she was treated less favorably than similarly-situated persons outside the protected class:
There must be shown by the evidence that there is a causal connection between a and c. Canino vs. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith vs. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee vs. 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).
Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for Petitioner's disparate treatment. See Teamsters vs. 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 based 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. vs. Waters, 438 U.S. 567, 576 (1978).
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 vs. 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 vs. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).
Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to Petitioner, who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. In order for a reason to be proven to be a pretext, it must be shown both the reason articulated was false, and that discrimination was the real reason. St Mary's Honor Center v. Hicks, supra. At 515-517. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than Petitioner. Texas Department of Community Affairs vs. Burdine, at 257-8.
In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier-of-fact that Respondent intentionally discriminated against Petitioner remains at all times with Petitioner. Texas Department of Community Affairs vs. Burdine at 253. The Court confirmed this principle again in St. Mary's Honor Center vs. Hicks, 509 U.S 502, 113 S.Ct. 2742 (1993).
From the testimony and the exhibits, Petitioner has failed to carry the burden required by law to establish discriminatory conduct. There was no credible testimony by any of the witnesses that the reason for Petitioner's termination was because of her race. Petitioner may not rely on a mere refutal of the employer's stated reason to establish pretense. Petitioner must establish that (1) that reason was false; and (2) discrimination was the motivating factor for the employment action taken. St Mary's Honor Center vs. Hicks, supra,
Petitioner's mere belief, speculation, or conclusory accusation that her termination was racially motivated is not evidence and will not create an inference of discrimination. Coutu vs. Martin County Board of County Commissioners, 47 F.3d 1068, 1073 (11th Cir. 1995)
To be deemed "similarly situated," the employees with whom Petitioner seeks to compare herself must have dealt with the same supervisor, must have been subject to the same standards, and must have engaged in the same conduct. Jones vs. Bessemer Carraway Medical Center, 137 F.3d 1306, 1312 n. 7 (11th Cir. 1998); Gray vs. Russell Corp., 681 So. 2d 310, 312 (Fla. 1st DCA 1996).
In the disciplinary context, it is required that the quantity and quality of the misconduct be nearly identical to
prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges. Manniccia vs. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).
Petitioner did not meet her burden of proof showing that Carla Green, or any other non-African American employee, was similarly situated.
Petitioner did not show that Carla Green, or any other non-African American school bus driver, had the same supervisor and the same quantity and quality of absences and tardiness.
Petitioner failed to establish a prima facie case of racial discrimination because she has not shown that Carla Green, or any other non-African American employee, was similarly situated but received more favorable treatment from Respondent than she did.
Even if Petitioner had established a prima facie case, she has not met her burden of showing that Respondent's articulated reason that her annual contract was not renewed because of her excessive absenteeism was a pretext for discrimination.
Petitioner did not meet her burden of proving that Respondent's articulated reasons that she was non-renewed
because of her excessive absenteeism was a false reason and the real reason her annual employment contract was not renewed was because of racial discrimination.
Petitioner's claim of racial discrimination under the Florida Civil Rights Act of 1992 must fail.
As to the claim of disability discrimination, Petitioner first has the burden to establish that she is handicapped within the meaning of the Florida Civil Rights Act of 1992.
Section 760.10 of the Act does not define "handicapped," but Section 760.22(7)(a), Florida Statutes, part of the fair housing act, defines a handicapped person as one who "has a physical impairment which substantially limits one or more major life activities . . . or is regarded as having such a physical or mental impairment."
Further, Florida case law shows that the Florida Civil Rights Act is construed in conformity with the Rehabilitation Act, 29 U.S.C. Section 701, et seq., the Americans with Disabilities Act, 42 U.S.C. Section 12101, et seq., and related regulations which also define "disability" as a physical or mental impairment which substantially limits one or more major life activities. Green vs. Seminole Electric Cooperative, Inc., 701 So. 2d 646, 647 (Fla. 5th DCA 1997).
Major life activities include caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working. 29 C.F.R. Section 1614.203(a)(3).
In order for a condition to substantially limit the ability to work, the condition must significantly restrict the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills, and abilities. 29 C.F.R. Section 1630(j)(3)(I). Whether an impairment substantially limits and individuals' major life activity, consideration must be given to the impairment's nature and severity, its duration or expected duration, and its actual or expected permanent or long-term impact. Gordon vs. E.L. Hamm and Associates, 100 F.3d 907 (11th Cir. 1996).
Depression, by itself, does not constitute a disability. Pritchard vs. Southern Company Services, 92 F.3d 1130, 1133 (11th Cir. 1996).
To establish a prima facie case, Petitioner must show that (1) she has a disability; (2) she is otherwise qualified; and (3) she was discriminated against because of the disability. Pritchard, supra at 1132 (11th Cir. 1996).
Petitioner did not produce medical testimony or any other competent evidence that she was disabled at the time of
her termination.
Petitioner did not meet her burden of proof that she was a disabled person under the Florida Civil Rights Act of 1992 when her annual employment contract as a school bus driver was not renewed.
Additionally, an otherwise qualified person is one who is able to meet all of a job's requirements in spite of her handicap, or would be able to do so with reasonable accommodations. Harris vs. Thigpen, 941 F.2d 1495, 1525 (11th Cir. 1991).
Where regular attendance is a job requirement, an individual who has frequent and sporadic absences from work is not qualified for the position. Formosa vs. Miami Dade Community College, 990 F.Supp. 1433 (S.D. Fla. 1997).
Petitioner has not met her burden of proof that she was otherwise qualified to do her job.
A qualified individual with a disability may establish unlawful discrimination by showing that she was not provided reasonable accommodation. Jackson vs. Veterans Administration, 22 F.3d 277 (11th Cir. 1994).
Petitioner produced no evidence showing that she ever asked for an accommodation or that she was denied an accommodation.
The initial burden of requesting an accommodation is
on the employee. Only after the employee has satisfied this burden and the employer fails to provide that accommodation can the employee prevail on a claim that her employer has discriminated against her. Gatson vs. Bellingrath Gardens and Home, Inc., 167 F.3d 1361, 1634 (11th Cir. 1999).
Because Petitioner did not meet her burden of proof that she was disabled under the Florida Civil Rights Act of 1992, or that she was otherwise qualified, or that she requested and was denied a reasonable accommodation, Petitioner has failed to establish a prima facie case of discrimination by reason of disability.
Even if she had established a prima facie case, Petitioner did not meet her burden of proof that Respondent's articulated reason that her annual employment contract as a school bus driver was not renewed because of her excessive absenteeism was false and a pretext for discrimination by reason of disability.
Therefore, Petitioner's claim of discrimination under the Florida Civil Rights Act of 1992 by reason of disability discrimination must be denied.
Relations enter a final order which denies the Petition for Relief.
DONE AND ENTERED this 29th day of February, 2000, in Tallahassee, Leon County, Florida.
_____________________________________ DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 29th day of February, 2000.
Ned N. Julian, Jr., Esquire School Board of Seminole County
Mae Vanessa Hampton Laurel Oaks Apartments 8775 Orange Oaks Circle Tampa, Florida 33687
15 days 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.
