STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHAEL D. SAPP, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5386

)

ESCAMBIA COUNTY SCHOOL )

BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Pensacola, Florida, before Robert T. Benton, II, Hearing Officer of the Division of Administrative Hearings, on March 18, 1992. Respondent's proposed findings of fact have been adopted, in substance, insofar as material, except to the extent they differ from the following findings of fact.

APPEARANCES

Michael Sapp

Pro se: 5342 Deerwood Road Pensacola, Florida 32526

Joseph L. Hammons, Esquire For Respondent: Hammons & Whittaker, P.A.

17 W. Cervantes Street Pensacola, Florida 32501

STATEMENT OF THE ISSUES

Whether respondent discriminated against petitioner on account of his gender in failing to hire or rehire him as a school bus driver?

PRELIMINARY STATEMENT

After petitioner filed a complaint with the Florida Commission on Human Relations (FCHR) dated March 14, 1990, alleging that he had been discriminated against on account of his gender, an investigation ensued which eventuated in the FCHR's "DETERMINATION: NO CAUSE" on August 2, 1991.

Petitioner thereafter filed with the FCHR a petition for relief from unlawful employment practice, in accordance with Rule 22T-9.008(1), Florida Administrative Code, Publix Supermarkets, Inc. v. Florida Commission on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which FCHR transmitted to the Division of Administrative Hearings for hearing de novo, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991) and Rule 22T-8.016(1), Florida Administrative Code.

FINDINGS OF FACT

1. Respondent Escambia County School Board transports some 32,000 students, three years old and up, to and from school every day. Three male route supervisors answer to respondent's male director of transportation, each overseeing approximately a third of the school bus routes and regular drivers,

   90 percent or more of whom are women. In the event a regular driver is unavailable, a route supervisor arranges for a substitute driver, most of whom are also women, from the approved list.

   
   

2. Service as a substitute school bus driver is a prerequisite to employment as a regular school bus driver. When petitioner was hired, he was told he would not be considered for a regular position until he had driven two years as a substitute. At the time of the hearing, respondent's policy precluded employment as a regular school bus driver before three years' work as a substitute. Substitute drivers' seniority and the quality of their service dictate who gets the regular positions.

   
   

3. Petitioner Michael Dwayne Sapp drove a school bus in Atlanta before he started as a substitute driver for respondent in 1984. In Atlanta, he had received both a certificate for training as a school bus driver and, in 1981, a certificate in recognition of his service as a school bus driver. He still had to attend classes for two days and accompany a regular Escambia County school bus driver for a third, before being deemed eligible to work as a substitute bus driver for respondent.

   
   

4. When he substituted several days in succession, petitioner was allowed to drive a school bus home, but he was informed of respondent's policy against any other personal use of the bus. He nevertheless "took it up to Cottage Hill." Hohaus Deposition, p. 13.

   
   

5. One of the witnesses petitioner called at hearing testified that she had seen him pushing a grocery cart full of groceries across a parking lot in front of the Delchamps store on Mobile Highway toward a parked school bus. Whether petitioner's superiors learned of this at the time was not shown.

   
   

6. After petitioner drove the school bus to the northern part of the County to spend the night because the power at his house was off, Mr. Hohaus, a route supervisor, told petitioner he would not be using his services any more. But petitioner complained, ultimately to Superintendent Holloway, who decided he should be given another chance.

   
   

7. A route supervisor received "numerous complaints" of petitioner's speeding and "running red lights or stop signs." Id. at 14. Petitioner denied the accuracy of these complaints both at the time and at hearing. He has never received a traffic ticket while driving a school bus.

   
   

8. On October 10, 1988, Mr. Sapp telephoned Mr. Hohaus at about half past six, after the time he should have begun picking children up to take to school. He said he had been trying to start the bus without success. Mr. Hohaus arranged for another substitute driver to take the route and dispatched Gary Locke, a mechanic, to petitioner's house.

   
   

9. But, when the mechanic arrived at the Sapp residence, the school bus was not there, and the second substitute found no children at the first stop to which Mr. Hohaus had sent her. Mr. Hohaus then raised petitioner on a two-way

   radio and learned he was making the run after all. He asked Mr. Sapp to come see him once the children had been delivered to school.

   
   

10. Mr. Sapp did not come in person but he did telephone. Eventually, he admitted that he had overslept, and had experienced no mechanical difficulty with the school bus that morning. (At hearing, petitioner attributed his oversleeping to medicine he had taken.) Mr. Hohaus told him for the second time that he would not need his services again. When petitioner appeared at the administration building to complain to a superior, he called Mr. Hohaus a son of a bitch, and Mr. Hohaus threatened to stuff him in a trash can.

    
    

11. In August of 1989, Mr. Sapp applied to Robert Sites, who had just assumed the directorship of transportation, for a school bus driver's job. No regular positions were open at that time, but Mr. Sites inquired of all three route supervisors as to whether they would use his services as a substitute. Because each said no, he did not rehire petitioner as a substitute school bus driver.

    
    

    CONCLUSIONS OF LAW

    
    

12. Since FCHR referred respondent's hearing request to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1991), "the division has jurisdiction over the formal proceeding." Section 120.57(1)(b)3., Florida Statutes (1991).

    
    

13. Florida law forbids any employer, defined as any "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1991), "to fail or refuse to hire any individual . . . because of such individual's . . . sex . . . ." Section 760.10(1)(a), Florida Statutes (1991). The Human Rights Act of 1977 applies to governmental employers. Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991); Nicasio v. Ramos v. Walton County Board of County Commissioners, No. 91-4385 (DOAH; April 24, 1992).

    
    

14. Mr. Sites' decision not to rehire petitioner as a substitute school bus driver occurred less than 180 days before petitioner filed his complaint with the FCHR. But respondent originally discharged petitioner as a substitute school bus driver more than 500 days before the complaint was filed. Some ten months, wholly devoid of interaction between the parties, separated petitioner's termination from his application for rehire. Accordingly, under Section 760.10(10), Florida Statutes (1991), the FCHR and derivatively the Division of Administrative Hearings have jurisdiction over the non-hire, but not over the discharge claim. Kourtis v. Eastern Air Lines, 409 So.2d 139 (Fla. 5th DCA 1982).

    
    

15. Uncontroverted evidence established that respondent had no openings for permanent school bus drivers at the time petitioner sought to be rehired, and respondent's counsel elicited testimony from petitioner to the effect that he sought a permanent position at that time. But the evidence, taken as a whole, requires the inference that petitioner sought work as a school bus driver, even if on a substitute basis, when he applied in August of 1989. This explains Mr. Sites' checking with the route supervisors.

    
    

16. Ever since the decision in School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. Anderson v. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2nd DCA

1986). Petitioner has the burden initially to prove that he was not hired on account of his sex. Texas Department of Community Affairs v. Burdine, 450 U.S.

248 (1981). On the perhaps too generous assumption that petitioner made out a prima facie case here, he nevertheless failed to prove that he was not hired as a substitute driver because he was not female. Indeed, respondent established by clear proof that several legitimate, nondiscriminatory reasons accounted for its failure to rehire petitioner.

RECOMMENDATION

It is, accordingly, RECOMMENDED:

That the FCHR deny the petition for relief from an unlawful employment practice.

DONE and ENTERED this 19th day of June, 1992, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 19th day of June, 1992.

COPIES FURNISHED:

Pete Payton, Superintendent Escambia County School Board

P.O. Box 1470 Pensacola, FL 32597

Honorable Betty Castor Commissioner of Education The Capitol

Tallahassee, FL 32399-0400

Michael Sapp

5342 Deerwood Road

Pensacola, FL 32526

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

17 W. Cervantes Street Pensacola, FL 32501

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. 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: 91-005386

Orders for Case No: 91-005386