STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOROTHY QUIBELL, )

)

Petitioner, )

)

vs. ) CASE NO. 89-5252

) THE SCHOOL BOARD OF MARION ) COUNTY, FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William R. Cave, held a formal hearing in the above- styled case on January 24, 1990, in Ocala, Florida.

APPEARANCES

For Petitioner: Dorothy Quibell, Pro Se

5914 Northwest 56th Place Ocala, Florida 32675

For Respondent: Janet W. Behnk, Esquire

121 Northwest Third Street Ocala, Florida 32670

STATEMENT OF THE ISSUES

Whether the Respondents The School Board Of Marion County, Florida (Board) discriminated against Petitioner, Dorothy Quibell because of her race while employed with the Board.

PRELIMINARY STATEMENT

On October 24, 1988 the Florida Commission on Human Relations (Commission) received Petitioner's initial complaint charging the Board with discrimination based solely on race. On May 15, 1989 the Commission issued a Notice of Determination of No Cause. Petitioner sought reconsideration and on August 2, 1989 the initial no cause finding was upheld.

On August 7, 1989 Petitioner requested a formal hearing on her complaint, whereupon the Commission found that her Petition (Complaint) failed to state with specificity a claim for which relief could be granted. However, on August 29, 1989 the Commission granted Petitioner leave to file an amended petition within thirty days from August 29, 1989 the date the Commission's order was filed with the Clerk. Petitioner timely filed her Amended Petition with the Clerk on September 13, 1989 and, this proceeding ensued.

At the hearing, Petitioner testified in her own behalf and presented the testimony of Ralph S. Archibald, III, Virginia Smith, Jack D. Copeland, Treomedia Jones, Gaye Crawford, Juanita P. Cunningham, Charles McAulay, Jr. and Mary Pickrell. Petitioner's exhibits 1 through 4 were received into evidence. Respondent presented the testimony of James Scaggs. Respondent's exhibits 1 through 4 were received into evidence.

A transcript of this proceeding was filed with the Division of Administrative Hearings on March 1, 1990. The Petitioner, by letter to the Hearing Officer dated March 2, 1990, expressed concern that portions of the transcript might be in error. By order dated March 15, 1990 the Petitioner was given until March 30, 1990 to review the transcript and advise the Hearing Officer of those portions believed to be in error, with the time for filing Proposed Findings of Fact and Conclusions of Law extended until appropriate action was taken on Petitioner's objections to the transcript. On March 23, 1990 Petitioner filed a "motion" to alter or disregard the transcript, which was opposed by the Board. The transcript of the hearing as filed with the Division of Administrative Hearings on March 1, 1990 was held by order dated April 20, 1999 to be the official transcript of the hearing with the filing of the parties' Proposed Findings of Fact and Conclusions of Law extended until May 9, 1990. Having agreed to extend the time for filing the Proposed Findings of Fact and Conclusions of Law in accordance with Rile 221-6.031(2), Florida Administrative Code, the provision of Rule 28-5.402, Florida Administrative Code, requiring the filing of the Recommended Order within 30 days from receipt of the transcript has been waived by the parties. The parties timely submitted their respective Proposed Findings of Fact and Conclusions of Law within the extended deadline. A ruling on each proposed finding of fact has been made as reflected in an Appendix to the Recommended Order.

FINDINGS OF FACT

Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:

1. The Petitioner is a white female who was employed by Respondent as a substitute custodian on January 27, 1987.

   
   

2. Petitioner was hired as a four-hour custodian at Howard Academy Community Center (Howard) on February 10, 1987.

   
   

3. During Petitioner's employment the Board offered her, on more than one occasion, an eight-hour night-time custodial position but Petitioner declined any night-time position because she needed to be at home at night.

   
   

4. During Petitioner's employment with the Board she continued to request assignment to an eight-hour day-time custodial position.

   
   

5. At no time during Petitioner's employment with the Board did any supervisor complain of the quality of her work.

   
   

6. On May 9, 1988, Juanita P. Cunningham, Program Manager for Howard Academy Community Center, who is black, wrote a letter to Petitioner criticizing her punctuality and reliability. There was insufficient evidence to show that Ms. Cunningham's criticism of Petitioner was unjustified.

7. On May 13, 1988, Glen Cook, Area Coordinator of Custodial Services, issued a written reprimand to Petitioner with regard to her absence from work and failure to contact Ms. Cunningham of Petitioner's absence. There was insufficient evidence to show that the reprimand was unjustified.

   
   

8. During the same time period that Petitioner was employed and received her reprimands, disciplinary actions were taken against eleven custodial employees within the school system, two of whom are white and nine of whom are black.

   
   

9. Jack D. Copeland, Jr., Supervisor of Custodial Services, who is white, offered, and Petitioner agreed to, a re-location to Shady Hill Elementary School (Shady Hill) on a trial basis as an eight-hour day custodian with the understanding that the job included learning to drive a tractor and mowing twenty acres.

   
   

10. Petitioner was re-located to Shady Hill on or about June 27, 1988.

    
    

11. It is customary practice in the school system for eight-hour day custodians to be located in schools on a trial basis subject to final approval by the principal. This trial period does not mean that an employee who has reached permanent status is placed back on probationary status but, only that the assignment is on a trial basis so that a principal can determine if the custodian is compatible with the administrative staff, teachers and students of that school.

    
    

12. The eight-hour day custodian who was located at Shady Hill on a trial basis prior to Petitioner was black and was transferred out for disciplinary reasons.

    
    

13. Petitioner was returned to Howard from Shady Hill on or about August 28, 1988 at the request of Charles McAulay, principal of Shady Hill, who is white, after an unsuccessful trial period due to her constant questioning of whether the requested task was within her description and general attitude about performing her job.

    
    

14. After Petitioner was returned to Howard from Shady Hill, she was given the opportunity to interview for a custodial position at Fort McCoy School, but was not selected for that position. The custodian selected for the position at Fort McCoy School was white.

    
    

15. Petitioner was neither requested nor required to perform duties at Howard or Shady Hill other than those duties included in the job description for a custodial position.

    
    

16. While it is clear from the record that Petitioner continually questioned her immediate supervisors in regards to whether a particular duty assignment was within her job description, sometimes even going to a higher level of supervisor, it is also clear from the record that the responses given by the supervisor did not always clarify the situation for the Petitioner. Therefore, because of this continuous questioning by Petitioner the supervisors concluded that she did not have a "good attitude" about her work.

    
    

17. Regardless of the supervisor's opinion concerning Petitioner's attitude toward her work, Petitioner continued to perform her duties as a custodian up to and sometimes exceeding standards and, was treated no differently than other custodial employees of Board.

    CONCLUSIONS OF LAW

    
    

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

    
    

19. Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person with respect to terms or conditions of employment because of the individual's race.

    
    

20. The Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to Respondent to articulate some legitimate reason or the complained of. Should Respondent carry this burden, Petitioner must then have an opportunity to prove, by preponderance of the evidence, that the legitimate reasons offered by Respondent ware not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdline, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093 (1981).

    
    

21. To present a prima facie case, the Petitioner must present 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. 450 U.S. 254. The prima facie case serves to eliminate the most common nondiscriminatory reasons for the Petitioner's disparate treatment. See, Teamsters v. United States, 431 U.S. 324, 358 and n. 44, 97 S.Ct 1843, 1866 (1977).

    
    

22. In order to establish a prima facie case, Petitioner must show: (1) that she is in a classification covered by Section 760.10, Florida Statutes; and

    (2) that she was treated in a manner if not otherwise explained more likely than not based on her race. Cf. McDonnell Douglas Corp. v. Greene, 441 U.S. 792, 93 S.Ct. 1817 (1973).

    
    

23. While Petitioner has shown that she is in a classification covered by Section 760.10, Florida Statutes, she has not demonstrated that Respondent's reprimands to her or Respondent's moving her work location from Howard to Shady Hill and back to Howard or any other treatment were applied toward her in a fashion different from that applied to all custodial employees, regardless of race.

RECOMMENDATION

Based on the foregoing Findings of Fact, the Conclusions of Law, the evidence off record, the candor and demeanor of the witnesses, it is, therefore,

RECOMMENDED that Florida Commission On Human Relations enter a final order denying relief to the Petitioner, Dorothy Quibell, and dismissing her Amended Petition.

DONE AND ENTERED this 20th of July, 1990, in Tallahassee, Leon County, Florida.

WILLIAM R. CAVE

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 20th day of July, 1990.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-5252

The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the Proposed Findings of Fact submitted by the parties in this case.

Specific Rulings on Proposed Findings of Fact Submitted by the Petitioner

Petitioner has presented her Proposed Findings of Fact by categories and they will be addressed in the same fashion.

Category 1: Exhibits 3, 4 Cunningham & Cook's Reprimands.

1, 2, and 3 (numbered 2). Rejected as not being supported by substantial competent evidence in the record.

Category 2: Tape Recording FCHR.

a. - d. Rejected as not being part of the record.

Category 3: Notarized Statement.

1, 2(a-b), 3(d-e)(there was no a-b), 4, and 5. This mostly a restatement of testimony or questions asked in the transcript but if considered as findings of fact where possible they would not be material or relevant or would be unnecessary. But see Findings of Fact 14, 15 and 16.

Category 4: Important Facts Concerning the Transfers.

1.-14. Same as for Category 3 above. But see Findings of Fact 11.-16. Category 5: Job Schedule.

1.-5. Same as for category 3 above. But see Findings of Fact 15 and 16.

Category 6: Job Description.

1.-4. Not supported by any substantial competent evidence in the record. Category 7: Contradictions in Testimony.

1.-11. Same as for Category 3 above but additionally they are not supported by substantial competent evidence in the record.

Specific Rulings on Proposed Findings of Fact Submitted by the Respondent

1.-15. Adopted in Findings of Fact 1, 2, 6, 7, 8, 4, 9, 10, 11, 13, 12, 13, 14,

15 and 17, respectively.

COPIES FURNISHED:

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird, Esquire, General Counsel Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Margaret Jones, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dorothy Quibell, Pro Se 5914 Northwest 56th Place Ocala, Florida 32675

Janet W. Behnke, Esquire

121 Northwest Third Street Ocala, Florida 32670

Docket for Case No: 89-005252

Orders for Case No: 89-005252