STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANN KNOWLES BATES, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3406

) SCHOOL BOARD OF ALACHUA COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on February 24, 1988, at Gainesville, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing by the following counsel:

For Petitioner: Alice M. Vickers, Esquire

Three Rivers Legal Services, Inc.

11 West University Avenue, Suite 1 Gainesville Florida 32601

For Respondent: Thomas L. Wittmer, Esquire

School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601

ISSUES AND INTRODUCTION

The basic issue in this case is whether the employer, School Board of Alachua County, committed an unlawful employment practice within the meaning of Section 760.10(1)(a), Florida Statutes, by discharging or otherwise discriminating against Ms. Bates on the basis of her handicap.

At the commencement of the hearing the Petitioner moved for a judgment on the pleadings or a determination that the facts were not in dispute on the basis of the respondent having failed to file an answer in accordance with Rule 22T- 9.008(5)(a), Florida Administrative Code. The Hearing Officer reserved ruling on the motion and provided the parties an opportunity to present their evidence. Both parties presented the testimony of witnesses and both parties offered exhibits. On March 17, 1988, a transcript of the hearing was filed and on March 28, 1988, both parties filed proposed recommended orders containing proposed findings of fact and conclusions of law. Careful consideration has been given to the parties' post-hearing submissions during the formulation of this Recommended Order. Specific rulings on all proposed findings of fact are contained in the Appendix which is attached to and incorporated into this Recommended Order.

FINDINGS OF FACT

Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact:

1. The Petitioner, Ann Bates, began employment with the Respondent, School Board of Alachua County, on August 15, 1983, as a classroom aide assigned to Stephen Foster Elementary School. In August of 1985, she was transferred to the

   A. Quinn Jones Center and assigned to the classroom of a teacher named Sue Clarey. The Principal at A. Quinn Jones Center had initially contacted the Petitioner and asked her to work at his school. The Petitioner continued to be employed by the Respondent until March 14, 1986. The Petitioner's last job title was Paraprofessional II.

   
   

2. On February 28, 1986, the Petitioner saw Dr. W. Alvin McElveen and was given a definite diagnosis of multiple sclerosis. This diagnosis was confirmed by Dr. Richard Cunningham in early March, 1986. Petitioner has been a patient of Dr. Richard Cunningham for approximately four and a half years. In March of 1986, Dr. Richard Cunningham did not place any restrictions on Petitioner's employment.

   
   

3. Petitioner's duties as a Paraprofessional II at A. Quinn Jones included feeding and tutoring students, as well as assisting the teacher in general clerical and administrative tasks. At all times the Petitioner was able to satisfactorily complete the job duties of a Paraprofessional II.

   
   

4. On March 3, 1986, the Petitioner notified Mr. Jeff Jones, the Principal at A. Quinn Jones Center, that she had been diagnosed as having multiple sclerosis.

   
   

5. In March of 1986, the Petitioner took six days off from work on sick leave (March 4, 5, 6, 7, 10 and 11) and returned to work on the morning of Wednesday, March 12, 1986. On March 12, 1986, the school secretary, Ms. Dorothy Emo, placed a handwritten note in the Petitioner's school mailbox, which stated, in substance, "Please see Mr. Jones at your convenience." It was the common practice of the Principal to speak informally with any employee who was returning from more than a day or two of sick leave to ascertain how the employee was doing and to make sure that the employee felt well enough to return to work. On the morning of Wednesday, March 12, 1986, the Petitioner left the classroom, informing the teacher that she was going to see Mr. Jones, and went to the front office. She met with Mr. Jones at about 10:00 a.m. In the Principal's office, the Petitioner expressed her frustration with her medical condition and stated that it was her desire to resign her employment.

   
   

6. In response to the Petitioner's expressed desire to resign, Mr. Jones asked the school secretary to bring in a "resignation form," which she did. It was a new form, with which the Principal was not familiar. The Petitioner and Mr. Jones then discussed her leaving employment and the effect it would have on her ability to collect unemployment compensation. Both the Petitioner and Mr. Jones believed that a voluntary resignation would preclude her from being able to receive unemployment compensation. This belief, as it turned out, was erroneous.

   
   

7. The Respondent School District had recently revised its separation form to include all three types of separations (voluntary resignation, involuntary termination, and retirement) on one form. Previously, resignation and

   terminations were processed on separate, different forms. The Principal, Mr. Jones, had never used this particular separation form. Further, the Principal had never used any separation form which indicated that an employee was being involuntarily terminated. He was also unsure what was meant by the term "involuntary termination."

   
   

8. The Petitioner and Mr. Jones believed, albeit erroneously, that for the purpose of permitting the Petitioner to separate from employment and also collect unemployment compensation, the "involuntary termination" selection was the appropriate choice. This was by their mutual agreement. Mr. Jones had the form prepared in that manner and then he and the Petitioner signed the form.

   Mr. Jones gave a copy of the signed form to the Petitioner (which was contrary to the normal procedure) and then forwarded the original of the form to the district office for processing. Mr. Jones also called Will Griffin, the district supervisor of personnel, informed him of Ms. Bates' resignation, and told him that the form was en route.

   
   

9. The above-mentioned form was received by Mr. Griffin around noon on March 12, 1986. Upon reviewing the form, he realized that it had been filled out incorrectly and he immediately so advised Mr. Jones by telephone and told Mr. Jones that the Petitioner would have to complete the proper section of the form.

   
   

10. The Respondent's School District's procedures are that "involuntary termination" is used for only three types of separation: (a) dismissal of an employee, (b) job abandonment by an employee, or (c) deletion of a position. A school principal does not have the authority to involuntarily terminate an employee or to fill out a form to that effect. The "involuntary termination" form was, therefore, a nullity and of no effect. That form was not processed by the district office staff and was never acted on by the School Board.

    
    

11. Principal Jones told his school secretary of the error on the form and asked her to prepare a corrected form. The corrected form indicated that Petitioner was resigning and was not being involuntarily terminated. The corrected form was signed by the Petitioner and the Principal on March 14, 1986, and it was then processed by the district office. At its regularly scheduled meeting on April 15, 1986, the Respondent School Board acted on the Petitioner's resignation and accepted it in a routine manner.

    
    

12. At the time the Petitioner signed the second form on March 14, 1986, she did not indicate to the Principal in any way that she had changed her mind about wanting to resign. If the Petitioner had objected and had not signed the resignation form, she would have remained employed by the Respondent. At any time prior to the School Board's formal approval of a resignation, an employee may withdraw a resignation. At no time prior to the School Board's action on April 15, 1986, did the Petitioner withdraw her resignation or notify Mr. Jones or any other representative of the School Board of any change of mind regarding her resignation.

    
    

13. At the time of the Petitioner's resignation, no steps had been taken by Principal Jones, or by any other representative of the School District, to dismiss the Petitioner from her employment. At that time the possibility of dismissing the Petitioner had not even been discussed.

    
    

14. The Petitioner applied for and was awarded unemployment compensation on the basis that she had resigned her employment for health reasons.

15. It is the policy and practice of the Respondent to provide all employees with a written notice of deficiencies on a job performance warning record before any dismissal action is begun. It is also the Respondent's policy and practice that prior to initiation of dismissal proceedings, an employee's immediate supervisor takes steps to try to resolve any problem before referring the matter to the district supervisor. Employees are normally suspended with pay pending an investigation of the basis for proposed dismissal, and actual dismissal is only carried out by the School Board after the employee has been given an opportunity for a hearing. None of these things took place with regard to the Petitioner, because the School Board was not trying to and did not dismiss her.

    
    

16. The Respondent has a policy of providing for grievances by its employees who believe they have been treated unfairly. The Petitioner did not file a grievance with the School Board.

    
    

    CONCLUSIONS OF LAW

    
    

17. Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law:

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57, Florida Statutes.

    
    

19. Rule 22T-9.008(5)(a), Florida Administrative Code, states that "each respondent shall file an answer with the Commission within 20 days of service of the Petition." And Rule 22T-9.008(5)(d), Florida Administrative Code, states that "if a respondent fails to file a timely answer, such failure shall be deemed to constitute an admission of the material facts alleged in the petition. Any allegation within the petition which is not denied in the answer shall be deemed admitted." The language of the rule is clear, but application of the rule has also been held to be discretionary. See Arnold v. Burger Queen Systems, Inc., 8 FALR 3606 (April 28, 1986), in which the Commission on Human Relations agreed with a Hearing Officer's conclusion that the rule should not be applied to a Respondent who had failed to file an answer. In Burger Queen, supra, the Commission noted:

    
    

    Rule 22T-9.08(4) [since renumbered] is a procedural rule designed to afford a petitioner with notice of the factual issues to be tried. Absent prejudice to petitioner, this rule necessarily should be subservient to the opposing party's statutory right "to present evidence and argument on all issues involved, to conduct cross-examination and submit rebuttal evidence." Section 120.57(1)(b)4, Fla. Stat.

    
    

    Inasmuch as the rule imposes a severe sanction for a party's failure to file a timely answer, application of the rule should be applied cautiously after considering all relevant factors such as the prejudice suffered by Petitioner and the reasons

    articulated by Respondent for not complying with the rule. Wood v. Stout, FCHR Order No. 86-004 (February 24, 1986).

    
    

    In this case, we do not find that Petitioner suffered any prejudice as a result of the Hearing Officer declining to impose the prescribed sanction. Petitioner knew or should have known that the Hearing Officer was intending to take evidence on the discrimination issue in August 1984 when she received the notice of hearing.

    
    

20. For the reasons discussed in Burger Queen, supra, the requested sanction should be denied. Accordingly, the Petitioner's motion for judgment on the pleadings or for determination that the facts are not in dispute is hereby denied. To do otherwise would be to place form over substance and to work an injustice against the Respondent.

    
    

21. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice to discharge or otherwise discriminate against an individual because of such individual's handicap. Multiple sclerosis is a handicap within the meaning of Section 760.10, Florida Statutes.

    
    

22. The Petitioner in a discrimination case bears the burden of establishing a prima facie case of discrimination by a preponderance of the evidence. Once the Petitioner has done so, the burden shifts to the Respondent to articulate a legitimate, nondiscriminatory reason for its action. Should the employer establish such a valid reason, the employee must then prove by a preponderance of the evidence that the legitimate reasons offered by the employer are not its true reasons, but rather are a pretext for actual discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).

24. The Petitioner in this case has failed to establish a prima facie case of discrimination. The Petitioner has not alleged any discrimination prior to March 12, 1986, nor has any been shown. The Petitioner was separated from her employment with the Respondent as a result of her own voluntary resignation.

The School Board action on April 15, 1986, was the acceptance of Petitioner's voluntary resignation. That action had nothing to do with the Petitioner's handicap. Even if it were to be concluded that the existence of the original separation form marked "involuntary termination" was sufficient to make out a prima facie case of discrimination, the Respondent has shown by a clear preponderance of the evidence that the real reason for the "involuntary termination" form was bungled paperwork, not discrimination.

For all of the foregoing reasons, it is

RECOMMENDED that the Commission on Human Relations enter a final order in this case dismissing the Petitioner's Petition for Relief and denying the relief requested by the Petitioner.

DONE AND ENTERED this 4th day of April, 1988, in Tallahassee, Leon County, Florida.

MICHAEL M. PARRISH

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 4th day of April, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3406

The following are my specific rulings on all of the proposed findings of fact submitted by the parties.

Findings Proposed by the Petitioner:

Paragraphs 1, 2, 3, and 4: Rejected as constituting procedural or legal matters, rather than findings of fact. (These matters are addressed in other portions of the Recommended Order.)

Paragraphs 5, 6, 7, 8, 9, 10, and 11: Accepted.

Paragraph 12: Rejected as Irrelevant in view of evidence regarding reason for separation.

Paragraphs 13 and 14: Accepted.

Paragraph 15: Rejected in part as unnecessary details and In part as contrary to the greater weight of the evidence.

Paragraph 16: Accepted.

Paragraph 17: First sentence rejected as irrelevant. Second sentence rejected as subordinate and unnecessary details.

Paragraph 18: Rejected as contrary to the greater weight of the evidence, because the Petitioner did resign.

Paragraph 19: Rejected as contrary to the greater weight of the evidence, because the Petitioner was not dismissed by the Respondent.

Paragraph 20: rejected as not supported by competent substantial evidence. Paragraphs 21, 22, and 23: Accepted in substance.

Paragraph 24: Rejected as contrary to the greater weight of the evidence. Paragraph 25: Accepted in substance.

Paragraphs 26 and 27: Rejected as irrelevant or as subordinate and unnecessary details.

Paragraph 28: Accepted.

Paragraph 29: Rejected as irrelevant.

Paragraphs 30, 31, 32, and 33: Accepted in substance.

Paragraphs 34 and 35: Rejected as not supported by persuasive competent substantial evidence and as contrary to the greater weight of the evidence.

Paragraphs 36 and 37: Accepted.

Paragraphs 38, 39, 40, 41, and 42: Rejected as subordinate and unnecessary details.

Paragraph 43: Rejected as irrelevant.

Paragraph 44: Rejected as subordinate and unnecessary details.

Paragraph 45: Rejected as irrelevant and as constituting a legal conclusion rather than a finding of fact.

Paragraphs 46, 47, 48, 49, 50, and 51: Rejected as subordinate and unnecessary details in view of the Petitioner's voluntary resignation.

Findings Proposed by the Respondent:

All of the findings of fact proposed by the Respondent have been accepted in whole or in substantial part, except as specifically noted below.

Paragraphs 9 and 10: References to school secretary are rejected as irrelevant or subordinate and unnecessary details.

Paragraph 11: Last sentence is rejected as subordinate and unnecessary details.

Paragraph 15: Rejected as irrelevant.

Paragraph 23: Rejected as subordinate and unnecessary details.

COPIES FURNISHED:

Alice M. Vickers, Esquire

Three Rivers Legal Services, Inc.

11 West University Avenue Suite 1

Gainesville, Florida 32601

Thomas L. Wittmer, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601

Dana Baird, Esquire General Counsel Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1925

Donald A. Griffin Executive Director Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32399-1925

Docket for Case No: 87-003406

Orders for Case No: 87-003406