STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY PARKER-ABERNATHY, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5057

) THE SCHOOL BOARD OF ESCAMBIA ) COUNTY/GEORGE STONE VOCATIONAL ) TECHNICAL CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Pensacola, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on January 6, 1992.

APPEARANCES

For Petitioner: Mary Parker-Abernathy, pro se

1116 North Alcaniz Street Pensacola, Florida 32503

For Respondent: Joseph L. Hammons, Esquire

Hammons & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.

PRELIMINARY STATEMENT

On October 10, 1989, the Petitioner filed a charge of discrimination claiming that she was discharged because of her race (Black). Sometime later, the Florida Commission on Human Relations issued a "Notice of Determination: No Cause" and a Notice of Redetermination No Cause". Both Notices held that there was no reasonable cause to believe that an unlawful employment practice had occurred in Petitioner's case. Petitioner disagreed with the Commission's determinations and requested a formal administrative hearing. Petitioner's request for hearing was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf, but did not present any exhibits. Respondent presented the testimony of one witness but did not offer any exhibits into evidence.

Neither Petitioner nor Respondent submitted a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner, Mary Parker-Abernathy, has been employed as a Guidance Counselor by the Escambia County School Board for approximately 20 years. In that capacity she is a certified guidance counselor. She also is certified in school psychology.

   
   

2. In October 1988, Robert Lindner became Director of the George Stone Vocational Technical Center in Escambia County. The Center serves both high school students and post-secondary (adult) students. George Stone Vocational Technical Center was the school at which Petitioner performed her guidance counselling duties.

   
   

3. Prior to August 14, 1989, Petitioner was assigned certain students to counsel. The students she was assigned consisted of a mixture of high school and adult education students. Additionally, prior to 1989, Petitioner was responsible for administering and scoring various educational tests in the assessment center when Charlene McArthur, 1/ the person ordinarily responsible for the assessment center testing was absent.

   
   

4. When Mr. Lindner began as the Director of the Vocational Center, he was unhappy with the assessment center's performance and wanted to improve and enhance the assessment center's professionaliam and testing. Mr. Lindner felt that the assessment center's testing was becoming more and more important in demonstrating various accountability and performance standards which were increasingly being required by both the state and federal government. Mr. Lindner also wanted to discover whether there were other testing instruments which might also be appropriate for use in the assessment center in determining the various students' needs. Mr. Lindner wanted to place one of his certified counselors in the assessment center in order to begin the process of enhancing the assessment center's performance.

   
   

5. Mr. Lindner felt that Petitioner was the best able candidate to play that role and desired for her to exercise some creativity in the assessment center, especially in discovering how the assessment center could be improved.

   
   

6. Petitioner was informed of Mr. Lindner's decision on August 14, 1989, when she returned from summer vacation. Petitioner absolutely did not want to move into the assessment center and felt very strongly that there was not a need for two people in the assessment center. Because of Petitioner's attitude towards her move to the assessment center instead of being a creative employee in her new role and utilizing her skill and expertise in that role, Petitioner became a minimal performance employee. Because Petitioner was not performing in her new position in the manner Mr. Lindner desired he sought out another counselor to take over that role. At the end of the school year, in May of 1990, Petitioner was again given her old duties of counseling students and was removed from the duties she had been performing in the assessment center. The transfer, either to the assessment center or back to counseling, did not involve any loss of pay, loss of status, or loss of benefits in Petitioner's employment.

   
   

   Currently, under Ms. Parker-Abernathy's replacment, the assessment center is housed in a separate "department" along with several other combined functions for meeting various student needs. The center has been recognized for its performance and is considered a model program for the State.

7. The evidence was abundantly clear that Ms. Parker-Abernathy suspected that her race (Black) was the basis of her changed counselor duties. She based her assumption on the fact that she had not been consulted by Mr. Lindner prior to her change in duties. There was no evidence submitted that demonstrated race as being the motivation for Petitioner's change of duties. Likewise, there was no evidence that the change in duties had any adverse impact on Petitioner's employment. What was abundantly clear from the evidence was that Petitioner was unhappy with her new assignment and that that was the sole basis for her view of the position she was in, the performance of her duties in that position, and her eventual filing of this petition for relief. Given the facts of this case, Petitioner has failed to establish a prima facie case of discrimination and the petition for relief should be dismissed.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

   
   

9. In McDonnell Douglas Corp. v. Green (McDonnell Douglas), 411 U.S. 792,

   5 FEP Cases 965 (1973) and Texas Department of Community Affairs v. Burdine (Burdine), 450 U.S. 258, 25 FEP Cases 113 (1981), the U. S. Supreme Court established the basic allocation of burdens and order of presentation of proof in discrimination cases. The burden of proof was described by the U.S. Supreme Court in the Burdine decision as follows:

   
   

   First the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant, to articulate some legitimate, nondiscriminatory reason for the employee's rejection. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons by the defendant were not its true reasons, but were a pretext for discrimination.

   
   

   25 FEP Cases at 115 (citations omitted). These federal standards have been adopted by the Florida Commission on Human Relations and the Florida courts and are applicable to cases arising under Chapter 760, Florida Statutes. School Board of Leon County v. Hargis, 400 So.2d 103, 108 (Fla. 1st DCA 1981); Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5477 (1985); Jo Nees v. Delchamps, Inc., 8 FALR 4389 (1986).

   
   

10. In essence, McDonnell Douglas provides for three (3) steps which create a series of shifting burdens of proof that are "intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Burdine, 450 U.S. at 255 n. 8. However, the burden of proof, in race discrimination cases, at all times, remains with the Petitioner and the employer's burden is only that of producing evidence to rebut any prima facie showing of discrimination made by a Petitioner. McWilliams v. Escambia County School Board, 658 F.2d 326, 331 5th Cir. 1981).

11. In the first step under McDonnell Douglas, the Petitioner must prove the existence of facts that establish a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802. To establish such a prima facie case in an employment transfer situation, the Petitioner must show:

    
    

    1. He/she is a member of a protected class;

    2. He/she was qualified and able to perform his/her duties and did perform such duties satisfactorily; and

    3. He/she was treated differently than other similarly situated individuals not within his/her protected group.

       
       

12. The Petitioner's burden is discharged only if he or she establishes such facts by a preponderance of the evidence. Burdine, 450 U.S. at 252-53. The type of factual showing that will suffice to carry this burden will vary with the circumstances of each individual claim, McDonnell Douglas, 411 U.S. at 802 n. 13; however, more is required than a mere showing that the Petitioner is a member of a protected group and was adversely treated. Locke v. Commercial Union Insurance Co., 676 F.2d 205, 206 (6th Cir. 1982). The Petitioner must prove facts from which a nexus can be inferred between the alleged adverse

    action and the Petitioner's protected group status. See Stock v. Horsman Dolls, Inc., 27 FEP Cases 1423, 1425 (D.S.C. 1981); Ortiz v. Ciba-Geigy Corp., 87

    F.R.D. 723, 234-35 (N.D. Ill. 1980). Failure of the Petitioner to produce evidence from which this causal connection can be inferred precludes the Petitioner from making out a prima facie case. Bobbitt v. PBA, Inc., 31 FEP Cases 366, 367 (D. Minn. 1983).

    
    

13. If a Petitioner establishes a prima facie case, then the burden of coming forward with sufficient evidence to rebut a prima facie case shifts to the defendant. To meet this burden, the defendant needs only to articulate a legitimate, nondiscriminatory reason for its action through the introduction of admissible evidence. "[T]he employer's burden is satisfied if he simply explains what he has done' or 'produce(es) evidence of legitimate, nondiscriminatory reasons.'" Board of Trustees of Keene State College v. Sweeney, 439 U.S. 24, 25 n. 2 (19978) (quoting language of dissent with approval).

    
    

14. However, the ultimate burden of proof does not shift to the defendant. As the U.S. Supreme Court has explained:

    
    

    The defendant need not persuade the court

    that it was actually motivated by the proffered reasons . . . . It is sufficient if the defen- dant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. . . .

    * * *

    The plaintiff retains the burden of persuasion.

    
    

    Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 254-56 (citations omitted).

    
    

15. In this case, Petitioner has failed to establish a prima facie case. There was no evidence of a nexus between the Respondent's termination of Petitioner and Petitioner's race. Additionally, Petitioner did not establish that she adequately performed her employment duties in the assessment center or that any adverse employment action had occurred. Since Petitioner did not

establish a prima facie case, Petitioner's charge of discrimination should be dismissed.

RECOMMENDATION

It is accordingly, recommended, based on the foregoing Findings of Fact and Conclusions of Law, that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner's complaint.

RECOMMENDED in Tallahassee, Leon County, Florida, this 10th day of February, 1992.

DIANE CLEAVINGER

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 10th day of February 1992.

COPIES FURNISHED:

Mary Parker-Abernathy, pro se 1116 North Alcaniz Street Pensacola, Florida 32503

Joseph L. Hammons, Esquire Hammons & Whittaker, P.A.

17 West Cervantes Street Pensacola, Florida 32501

Dana Baird, General Counsel Margaret A. Jones, Clerk Commission on Human Relations

325 John Knox Road, Building F (Suite 240) Tallahassee, Florida 32399-1570

Ronald M. McElrath Executive Director

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final

order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-005057

Orders for Case No: 91-005057