STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNIE M. FRANCIS, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3185

) LEON COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice this cause came on for administrative hearing before P. Michael Ruff, duly designated Hearing Officer, on November 30, 1987, in Tallahassee, Florida. The appearances were as follows:

APPEARANCES

For Petitioner: Danni Vogt, Esquire

308 East Park Avenue, Room 209 Post Office Box 11301 Tallahassee, Florida 32302

For Respondent: C. Graham Carothers, Esquire

Post Office Box 391 Tallahassee, Florida 32302

This cause arose upon the filing of a Petition for Relief from an alleged unlawful employment practice. It is alleged, in essence, that the Petitioner has been discriminated against by Respondent because of her race (black), by Respondent's alleged refusal to compensate her for her prior nursing experience, while compensating similarly situated white employees based upon similar prior experience. See Section 760.10, Florida Statutes. The Petitioner maintains that she requested of Ms. Raker, the principal of Gretchen Everhart School, and her supervisor, that she be allowed salary credit for her nursing experience.

The Petitioner maintains she requested such enhanced salary credit when she was hired in 1975. If she had been given such credit, she would have been placed seven salary steps higher on the teachers' salary scale. The Petitioner is thus claiming that, because of discrimination on account of her race and the resulting alleged unlawful employment practice, she is entitled to a "backpay" award for the full statutory period allowed by Section 760.10(13), Florida Statutes, which is two years prior to the filing of the complaint with the commission or, in other words, from October 28, 1983, to the present. She also seeks other affirmative relief, including reasonable attorney fees.

The cause came on for hearing as noticed. The Petitioner presented three witnesses and twelve exhibits. The Petitioner's exhibits one through eight were admitted into evidence and exhibits 9, 11, 12 and 15 were excluded. The Respondent presented three witnesses and six exhibits, all of which were admitted into evidence.

At the conclusion of the proceedings, the parties elected to order a transcript and to avail themselves of the right to file proposed findings of fact and conclusions of law. Those pleadings were timely filed and were considered in the rendition of this recommended order. The proposed findings of fact contained therein are addressed once again in the appendix attached hereto and incorporated by reference herein.

The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of an unlawful employment practice on account of her race and, if so, what, if any, relief should be granted.

FINDINGS OF FACT

1. The Petitioner is a black female who has been continuously employed by the Respondent, at the Gretchen Everhart School since approximately February of 1975. Prior to that time she worked for approximately seven years as a licensed practical nurse. The Respondent is a public employer within the meaning of Section 760.02(6), Florida Statutes. The Petitioner initially interviewed for an employment position with the Respondent in February, 1975. She was hired as a "pupil personal services worker," a combination social worker and guidance counselor. She was paid out of the Respondent's "social worker budget" and was not hired specifically as a nurse.

   
   

2. The Petitioner maintains that upon her hiring she requested that her beginning salary be adjusted to reflect her prior work experience as a licensed practical nurse and that request was denied. However, the record reflects that she did not make any formal request for prior work experience pay credit at that time. Her formal complaint was not actually filed with the Florida Commission on Human Relations until October 28, 1985, well in excess of the 180 day requirement for filing such an action imposed under Section 760.10(10), Florida Statutes. Thus, even if she had made a formal request for such pay credit in 1975, its denial then would not now be actionable. Moreover, the Petitioner did not establish that any salary schedule, implementing regulation or collective bargaining agreement existed which provided for a salary adjustment of this type in 1975.

   
   

3. On October 9, 1984, the Petitioner filed a written supplemental salary request with Dr. Paul Onkle, then the director of employee relations for the Respondent. She requested that she be given experience pay credit for seven years of prior experience as a licensed practical nurse at Sunland Hospital in Tallahassee, Florida. That request was denied.

   
   

4. There is no evidence which would establish the date on which an initial, collective bargaining agreement between the Respondent and the Leon Classroom Teachers Association (LCTA), was first ratified. The Petitioner has been employed in a position included in that bargaining unit represented by the LCTA ever since the date of the first collective bargaining agreement, however. Accordingly, the terms and conditions of Petitioner's employment have been fixed by the terms of the collective bargaining agreement, ever since ratification of the initial agreement.

   
   

5. On April 8, 1985, the Petitioner again wrote to Dr. Paul Onkle requesting his review of certain experience pay credit granted to Carolyn Peterson and Joanne Cox Arnette, in conjunction with which she requested his reconsideration of her request for experience pay credit. Ms. Peterson and Ms. Arnette are white female employees of the Respondent. Dr. Onkle instructed her

   on the proper means of filing a grievance and thereafter she executed a "Level I grievance" document on April 23, 1985, and delivered it to her immediate supervisor, Mrs. Susan Raker, the principal of Gretchen Everhart School.

   
   

6. On April 24, 1985, Mrs. Raker denied the Level I grievance request on the ground that the Petitioner's salary had been set in compliance with the terms of the collective bargaining agreement then in effect. Thereafter, pursuant to the terms of the collective bargaining agreement then in effect, the Petitioner filed a "Level II grievance" with Dr. Onkle, who was then the director of Employee Relations. Dr. Onkle denied that grievance on June 24, 1985. Under the terms of the collective bargaining agreement in effect at that time, the responsibility to pursue the grievance after this denial was upon the Petitioner and the LCTA. No further review of Petitioner's request was ever formally sought, however.

   
   

7. Under the terms of the collective bargaining agreement in effect when the requests for salary credit were filed in 1984 and 1985, no prior work experience credit was permitted for any non-teaching position, except for military service and certain work experience for vocational certification. The position in which the Petitioner was employed at that time did not involve any verified work experience which was required for vocational certification and there were no other provisions in the collective bargaining agreement in effect at that time by which the Petitioner would be entitled to receive a salary increase based upon her prior, non-teaching, licensed practical nurse employment.

   
   

8. The Petitioner has alleged that the Respondent discriminated against her on account of her race by refusing to compensate her for prior work experience, while allegedly compensating similarly situated white employees an additional amount based upon similar work experience, thus violating Section 760.10, Florida Statutes. In view of this allegation, the work experience credit granted to a number of white employees, and the circumstances under which it was granted, must be examined.

   
   

9. Carolyn Peterson was a white employee who began working with the Respondent in 1974 and became a full-time Occupational Specialist in 1976. In 1979, she was granted a salary increase based upon her prior work experience as an area sales manager and assistant buyer for Maas Brothers Department Store. Her position with the Respondent that year required her to be vocationally certified by the Florida Department of Education, and she was so certified. The collective bargaining agreement in existence at the time she was granted the salary increase for prior work experience specifically allowed such credit for each year of verified work experience above that required for certification of vocational teachers. The Petitioner, on the other hand, has not, in her employment position with the Respondent, ever been required to be vocationally certified by the Florida Department of Education. Thus, the Petitioner and Ms. Peterson are not "similarly situated" nor or they comparable employees with respect to their entitlement to any salary adjustment for prior work experience.

   
   

10. Joanne Cox Arnette is a white person employed by the Respondent who was initially employed as a teacher in 1977. On approximately April 21, 1977, she requested credit for certain prior work experience, including four years of teaching in a public school system in Florida, four years of employment with the Florida Department of Education, and one year of teaching experience at the Florida A & M University. Her position was among the positions included in the bargaining unit represented by the LCTA. The collective bargaining agreement in existence at the time Ms. Arnette requested that credit specifically included

    and allowed for such credit for prior employees of the Florida Department of Education, by virtue of Section 238.01, Florida Statutes (1977) having been incorporated by reference in the terms of that collective bargaining agreement. That particular provision providing salary adjustment for prior work experience as an employee of the Department of Education terminated with the collective bargaining agreement entered into between the Respondent and the LCTA in 1979. It has been the practice and policy of the Respondent, however, at least as early as 1977, to continue to maintain experience credit for prior employment to an individual employee who was initially qualified for such a salary increase based upon prior employment experience; even though subsequent collective bargaining agreements, entered into after that employee obtained that salary increase, no longer included provisions authorizing such increases. Further, it has been the policy and practice of the Respondent, at times pertinent hereto, to consider and determine any requests for salary increases, based upon prior work experience, in the context of the collective bargaining agreement or other appropriate provisions prevailing and applicable at the time the request is made. Thus, for the reasons stated above, the Petitioner and Ms. Arnette are also not "similarly situated" employees and their positions are not comparable, within the meaning of Section 760.10, Florida Statutes.

    
    

11. Gary Coates is a white person who was employed by the Respondent in March of 1976. In 1982, he requested and was granted a salary increase based upon credit for certain prior work experience. He was employed at that time in a position which was included in the bargaining unit represented by the LCTA. He was granted a salary increase for three years of teaching experience in a public hospital. An examination of the collective bargaining agreement in

    effect at the time Mr. Coates requested the salary increase reflects that credit was allowed for prior teaching experience in a public hospital or public institution. Mr. Coates met those requirements and was granted work experience credit for those three years. He also requested a salary increase for other work experience, and that request was denied by reason of the Respondent's determination that the experience involved did not qualify him under the terms of the collective bargaining agreement. Therefore, the Petitioner and Mr.

    Coates are not "similarly situated" employees and their prior work experience was not comparable within the meaning of Section 760.10, Florida Statutes.

    
    

12. Mr. Tom Heiman, a white person, was hired in September, 1985. He was hired as a social worker, which is a non-teaching position, also included within the bargaining unit represented by the LCTA. Social workers have been included within that unit since the unit was first certified by the Public Employees Relations Commission. In administering the collective bargaining agreement with respect to social workers, the Respondent has followed a policy and practice of interpreting that collective bargaining agreement to allow credit for prior social work experience as if such experience was in fact prior "teaching" experience. Mr. Heiman was granted work experience credit for six years of prior social work, although he was denied work experience credit for other prior work experience. Under the terms of the collective bargaining agreement in effect in 1985, he was entitled to be credited with each year of teaching or social work experience in a public hospital or a public institution which required teacher certification in an area "in field" with a corresponding teaching position assignment. He was properly certified in that field and was otherwise entitled to receive work experience credit for his six years prior social work experience. Thus, Mr. Heiman and the Petitioner are not "similarly situated" employees either, and their work experience is not comparable.

    
    

13. Mr. Gerald Torano, a white person, was first hired in October, 1985, as a social worker. His position with the Respondent was also included within

    the LCTA bargaining unit. He was granted a salary increase in 1985 based upon five years experience as a social worker in a public institution, as well as with the Florida Department of Health and Rehabilitative Services. He was granted a salary increase pursuant to the same collective bargaining agreement by which Mr. Tom Heiman became eligible for such an increase. Just like Mr.

    Heiman, Mr. Torano requested additional work experience credit for other past experience which the Respondent denied, based upon the fact that such additional work experience did not qualify him for increased salary credit under the terms of the collective bargaining agreement prevailing at the time he made the request. Thus, the Petitioner and Mr. Torano are also not "similarly situated" employees, nor was their prior work experience comparable.

    
    

14. Ms. Jean Schneggenberger is a white person first hired by the Respondent in February, 1985. She was a registered nurse and was hired in that capacity as a Registered School Nurse. Her position is not included within the bargaining unit represented by the LCTA, rather, she is known as a "classified employee," which is a term used by the Respondent to describe those employees whose positions are not included within any accepted bargaining unit, for which there is a collective bargaining agreement in force.

    
    

15. Although the Petitioner never asserted in these proceedings that Ms. Schneggenberger was an example of another white employee who had been treated differently and more favorably then Petitioner, the Petitioner offered substantial testimony in an attempt to demonstrate that she had in fact engaged in comparable "nursing duties" or in "nursing related duties" while engaged as a counselor and social worker at the Gretchen Everhart School. Thus, an examination of the manner in which Ms. Schneggenberger's salary as a nurse was computed is relevant to this proceeding. The record establishes that for the year 1984-85, the Respondent adopted a separate salary schedule and implementing regulations related to all "classified" employees. Those implementing regulations applicable to Ms. Schneggenberger are found in the Respondent's Exhibit 4, beginning at paragraph 2A. Ms. Schneggenberger is the only person employed by the Respondent in the position of "Registered School Nurse." Accordingly, neither the Petitioner nor any other employee of the Respondent is "similarly situated" or comparable in his position to Ms. Schneggenberger and her position.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

17. Section 760.10, Florida Statutes, makes it an unlawful employment practice for an employer to limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

18. Employment based upon factors of competency and ability, as opposed to proscribed factors of race, color, and sex, does not constitute actionable discrimination under Section 760, Florida Statutes. Housing Authority of City of Sanford v. Robert Billingslea, 464 So.2d 1221 (Fla. 5th DCA 1985).

    
    

19. Discrimination denotes disparate treatment. That is, that an employer treated employees of one sex or race differently than it treated employees of

    the other sex or race. The Petitioner has the initial burden of proof in a discrimination case to establish a prima facie case of discrimination. If the Petitioner succeeds in establishing a prima facie discrimination case, the burden of going forward with countervailing evidence shifts to the Respondent, to articulate some legitimate reason for the proven disparate treatment. Should the Respondent carry this burden, the Petitioner then must establish, by a preponderance of the evidence, that legitimate reasons offered by the Respondent for the disparate treatment were not the true reasons, but rather were pretextual and thus, that the disparate treatment in reality resulted for discriminatory reasons. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981).

    
    

20. In presenting his prima facie case, the Petitioner must establish facts which "raise an inference of discrimination only because we presume those acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 154. The prima facie case, once it is established, eliminates the most common nondiscriminatory reasons for disparate treatment in a case such as this. See, Teamsters v. United States, 431 U.S. 324, 358, and n. 44, 97 S.Ct. 1843, 1866, 52 L.Ed.2d 396 (1977).

    
    

21. In the context of the case at hand, in order for the Petitioner to establish a prima facie case, she was required to show that (1) she belonged to a racial or sexual minority; (2) that she applied for and was qualified for a salary increase arising from her prior work experience; (3) that despite her eligibility for such a salary increase, her request was rejected; and (4) that after her rejection, the employer granted such salary increases to similarly situated white employees with comparable prior work experience. McDonnell- Douglas Corp. v. Green, 411 U.S. 792, 36 L.Ed.2d 668, 93 S.Ct. 1817.

    
    

22. In light of the elements of a prima facie case established by the McDonnell-Douglas opinion, the Petitioner, herein has failed to establish that she was eligible for the salary increase which she requested under the terms of the collective bargaining agreement which was in effect at the time she made her request in 1984 and in 1985. Thus, although she established that she clearly is a member of a protected racial or sexual minority, she has not established the other basic threshold requirement for proving a prima facie case, in that she has not shown that she was otherwise eligible for the salary increase, based upon prior work experience. Additionally, and independent of this conclusion, the Petitioner did not establish that race in any way motivated the Respondent's decision to deny her request and to grant the salary adjustments it granted to the other employees for their previous work experience under the terms of the collective bargaining agreements or other applicable policies or regulations, in effect when those employees made their requests, since she did not prove that they were "similarly situated" employees. Accordingly, the Petitioner failed to establish a prima facie instance of employment discrimination. That being the case, the necessity for the Respondent to articulate and establish, by appropriate evidence, a legitimate, reasonable basis for disparate treatment, does not arise.

    
    

23. However, even had the Petitioner succeeded in establishing a prima facie case of employment discrimination, the Respondent herein has articulated and substantiated legitimate, nondiscriminatory reasons for every salary increase granted to white employees concerning which there is any evidentiary record in this case. In each such instance, those employees were shown entitled to certain salary adjustments on account of their prior work experience, as

    defined under the terms of the collective bargaining agreements or other salary schedules, policies or regulations in effect when those employees made their requests for such salary credit.

    
    

24. The Petitioner has adduced no probative testimony or evidence which can establish that any of the salary increases granted to the white employees, concerning which testimony or evidence was offered, were based upon reasons other than their eligibility for those increases based upon the appropriate collective bargaining agreements or other salary schedules or implementing regulations in effect at the time they made their salary increase requests. Therefore, none of the reasons established by the Respondent for the granting of those salary increases to the white employees involved have been shown to be pretextual, even had a prima facie case of discrimination been made out by the Petitioner, which was not done. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1982).

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore

RECOMMENDED that the Petition for Relief from an alleged unlawful employment practice filed by the Petitioner, Annie M. Francis, be dismissed in its entirety.

DONE and ENTERED this 18th day of March, 1988, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of March, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3185

Petitioner's Proposed Findings of Fact:

1. Accepted.

2-3. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter.

1. Rejected as subordinate to the Hearing Officer's findings.

2. Accepted, but not for its material import.

6-7. Accepted generally, but subordinate to the Hearing Officer's findings on this subject matter.

8. Rejected, as contrary to the preponderant weight of the evidence. 9-13. Accepted generally, but subordinate to the Hearing Officer's

findings on this subject matter.

14-16. Accepted.

17. Rejected as to its material import.

18-20. Rejected as subordinate to the Hearing Officer's findings. 21-22. Accepted.

23. Accepted, but subordinate to the Hearing Officer's findings on this subject matter.

24-25. Rejected as immaterial.

26-27. Rejected as subordinate to the Hearing Officer's findings.

28. Rejected as subordinate to the Hearing Officer's findings and as contrary to the preponderant weight of the evidence.

29-30. Rejected as subordinate to the Hearing Officer's findings.

31-33. Accepted, but subordinate to the Hearing Officer's findings on this subject matter.

34. Rejected, as contrary to the preponderant weight of the evidence.

Respondent's Proposed Findings of Fact: 1-2. Accepted.

3. Rejected as subordinate to the Hearing Officer's findings on this

subject matter.

4-8. Accepted.

9. Accepted, but subordinate to the Hearing Officer's findings on this subject matter.

10-17. Accepted.

COPIES FURNISHED:

Danni Vogt, Esquire

308 East Park Avenue, Room 209 Post Office Box 11301 Tallahassee, Florida 32302

C. Graham Carothers, Esquire Post Office Box 391 Tallahassee, Florida 32302

Margaret Agerton, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Dana Baird General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Charles Couch, Superintendent Leon County School Board

2727 West Pensacola Street Tallahassee, Florida 32301

Docket for Case No: 87-003185

Orders for Case No: 87-003185