STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JEAN E. DUNHAM, )

)

Petitioner, )

)

vs. ) CASE NO. 76-1070

) BREVARD COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was brought up for hearing at 9:00 a.m., July 29, 1976, in Titusville, Florida.

APPEARANCES

For Petitioner: Jim Theriac, Esquire

Post Office Box 1271

Merritt Island, Florida 32952

For Respondent: Bill Walker, Esquire

Post Office Box 1084 Titusville, Florida 32780

The Petitioner, Jean E. Dunham, is an employee of the Brevard County School Board and has alleged that she was sexual discriminated against when she was promoted to the position of Accounting Contract Specialist. The facts in this matter are as follows:

FINDINGS OF FACT

1. Mrs. Dunham began her employment with the Respondent School Board in 1959. When she began her first position was Accounting Clerk, Pay Grade 12. Presently, she holds the position of Accountant, Pay Grade 23. In August of 1972 the Petitioner was promoted to the position of Accounting Contract Specialist. The individual who had held this position, Mr. Ray Groseclose resigned and Petitioner was promoted to that position. While Mr. Groseclose was in that position it was classified as Pay Grade 26 with a salary of $3.90 per hour. When the Petitioner was promoted to that position she had been classified as Pay Grade 15. Shortly after the Petitioner's promotion to the Accounting Contract Specialist the position was downgraded from a Grade 26 to a Pay Grade

1. Actually, the Petitioner was never paid at the Grade 26 level and her first increased pay check reflected the Grade 21 classification. The Petitioner contends that the failure to promote her into this position at the same pay grade that was enjoyed by her male predecessor indicates sexual discrimination against her for which she should be granted relief in the form of back pay due.

   
   

   1. The Accounting Contract Specialist position required one holding that position to monitor contracts entered into by the school board and determine

      that payments were made when required and that a bookkeeping system was maintained to keep track of the status of school board contracts. Ray Groseclose, who held the position prior to the Petitioner's appointment, had no formal education in the field of accounting or bookkeeping, however, he did receive some training in that area while with the Armed Forces. Likewise, the Petitioner had no accounting background, but her experience and initiative were enough for her to perform very satisfactorily in this position.

      
      

   2. All witnesses who testified regarding the Petitioner's ability stated that she did equally well, if not better, than Mr. Groseclose and assumed more duties than he had in that position. The Petitioner testified that she did not learn until September of 1973, a year after her promotion, that the position was previously classified as a Grade 26. However, when receiving her appointment papers in September of 1972, the Petitioner did sign a notice of reclassification for which indicated that the job was being downgraded.

      
      

   3. On behalf of the Respondent, testimony was received from Dr. D.J. Harrison, who was now the superintendent of the Savannah-Chatham School Board, Savannah, Georgia. Previously, between 1971 and 1973, he was employed by the Brevard County School Board and among his duties he was supervisor over the Accounting Contract Specialist. Dr. Harrison testified that while Ray Groseclose held that position he had intended to downgrade it, but had not done so before Ray Groseclose resigned. He stated that the position as originally assigned, included the administration of contracts. After Groseclose resigned it was decided to limit the job to accounting and that a Mr. Campbell would handle the administration of contracts. Other testimony, however, indicated that Ray Groseclose never handled the administration of contracts and that the Petitioner actually performed more responsibilities than were assigned to Ray Groseclose. In any case, it appears that the school board came to a realization that the Accounting Contract Specialist position could be filled by a competent individual at a Pay Grade 21 rather than Pay Grade 26 and that when Ray Groseclose resigned it appeared to be a convenient opportunity to downgrade the position.

      
      

   4. The evidence presented at this hearing does not affirmatively establish discrimination against the petitioner. It is possible the position in question was downgraded because of the petitioner's sex, but a finding of fact cannot be based on a mere possibility. All the evidence presented at this proceeding is consistent with valid administrative practiced on the part of the school board.

      
      

   5. No evidence was presented on behalf of the petitioner to indicate other examples of possible sexual discrimination on the part of the School Board which could establish a coarse of conduct. In fact, evidence was presented that the

      U.S. Department of Labor investigated the respondent school board and concluded, with the possible exception of the petitioner, there were no examples of sex discrimination evident. If there was any sexual discrimination practiced against the Petitioner, none was proven. All that is indicated by the evidence taken in this case is that the Petitioner was promoted from a position with the Brevard County Board from a Grade 15 to a Grade 21. The position to which she was promoted was downgraded at approximately the time of her promotion but it does not appear that the Petitioner's sex had anything to do with the downgrading of this position.

      
      

      CONCLUSIONS OF LAW

      
      

   6. This matter has bean properly presented to this division under Section

120.57. F.S., as it appears that the Respondent is an agency as defined in

Chapter 120, F.S., and the Petitioner's substantial interests are to be determined by the eventual decision in this case. It is unnecessary to decide whether the Fair Labor standards Act applies in this case, 29 U.S.C. 206, at seq. since assuming it does apply the Petitioner has not proven discriminatory practices existed at the school board. Although what has been shown is that Petitioner, a female, was promoted to a position previously held by a male, but was paid less due to a downgrading of that position, no evidence was submitted as to whether such was a common practice with the school board or whether more affirmative evidence was available to show a discriminatory intention on the part of the school board. As a matter of law, therefor, the Petitioner has not shown the existence of a discriminatory act on the part of the Respondent. It is therefore RECOMMENDED that the Petition be denied.

DONE and ORDERED this 20th day of August, 1976, in Tallahassee, Florida

KENNETH G. OERTEL, DIRECTOR

Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of August, 1976.

Docket for Case No: 76-001070

Orders for Case No: 76-001070