vs. ) CASE NO. 92-3911
Respondent. )
Pursuant to notice, this cause came on for hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Pensacola, Florida.
For Respondent: Joseph L. Hammons, Esquire
HAMMONS & WHITTAKER, P.A.
The issues to be resolved in this proceeding concern whether the Petitioner was the victim of an unlawful employment discrimination on the basis of her religion or age and whether the Petitioner was the subject of unlawful retaliation. If that should be the case, then the remaining issue concerns the type and amount of lost wages and other benefits as a remedy.
This cause arose upon the filing of a discrimination charge against the Respondent, Escambia County School Board (Board), by the Petitioner, Patricia Goldberg. The Petition for Relief alleges that discrimination on account of age and religion was imposed on the Petitioner. After investigating the matter, the Florida Commission on Human Relations (Commission) determined that evidence did not exist establishing a violation of the statutes. Thereafter, a "no cause" determination was issued by the Commission on November 8, 1991.
The cause came on for hearing as noticed. The Petitioner called three witnesses at the hearing, and the Respondent called the Petitioner as a witness, as well as presenting the testimony of Mr. Thomas, Principal of Cordova Park Elementary School (Cordova), where the Petitioner had been employed, as a witness. The parties submitted proposed findings of fact and conclusions of
law. Those proposed findings of fact, to the extent that they can be separately ruled upon, are addressed in this Recommended Order and ruled upon specifically in the Appendix attached hereto and incorporated by reference herein. Those proposed findings of fact which are in reality legal argument by the party or so intertwined with legal argument that they cannot be cogently and separately ruled upon are rejected.
The Petitioner was a substitute teacher during most of 1990 with the Board and, as pertinent hereto, frequently substituted at Cordova. On or about November 6, 1990, she filed a complaint with the Commission charging discrimination against the Board and Cordova in hiring on the basis of religion and age. The Petitioner is of the Jewish faith and at the time of filing the complaint, was over the age of 40 years.
The matter was investigated by the Commission which concluded that there had been no violation of Chapter 760, Florida Statutes. A notice of determination of no cause was issued by the Commission on November 8, 1991, and a notice of redetermination of no cause was issued on or about January 27, 1992.
On approximately June 26, 1992, the Commission transferred the Petitioner's Petition for Relief to the Division of Administrative Hearings for formal proceedings. In that Petition, the Petitioner alleges discrimination on the basis of age, religion, and retaliation. The most recent date of discrimination alleged in that Petition is August, 1990.
The Petitioner alleges that she was not hired as a teacher at Cordova because of reasons related to her Jewish faith and her age of over 40 years. The only act of "retaliation" alleged in the Petition related to Mr. Thomas not having selected her for a full-time position "in retaliation for the complaints expressed by the parents regarding the termination of my appointment." The "appointment", according to the Petitioner in the Petition, concerned the Petitioner being hired on a temporary basis to teach a kindergarten class with that appointment to be terminated when another teacher was transferred to the staff at Cordova. No testimony was presented at hearing by the Petitioner or any witness called on her behalf concerning any of the allegations set forth in the original complaint of discrimination filed with the Commission or contained in the Petition transferred to the Division of Administrative Hearings.
The first witness called by the Petitioner was Mrs. Genie Nobles, a secretary at Cordova. Mrs. Nobles testified that at Cordova, when regular teachers need substitutes because of anticipated absences, those teachers generally contact the substitutes themselves and communicate with them themselves regarding the need for the substitute, as well as other necessary information concerning the requirements for the substitute teaching duties. On some occasions, teachers will ask administrative staff in the school office, whether it be Mrs. Nobles or another staff member, to call a specific person to substitute for that teacher. On a minority of occasions, the teachers may ask someone in the office to call a substitute without requesting a specific person as a substitute. On those occasions, the person making the calls will generally refer to an approved substitute teacher list and simply call someone on the list.
Mrs. Nobles was aware that the Petitioner had filed a complaint of discrimination when a question was raised by a teacher during a staff meeting; and Mr. Thomas, on being asked whether such a complaint had been filed,
confirmed that it had. Mr. Thomas made no editorial comment, however, regarding the nature or merits of the complaint nor expressed any opinion or admonition either for or against the hiring of the Petitioner as a substitute teacher.
Mrs. Nobles could not recall calling the Petitioner as a substitute teacher at any period of time after the filing of the complaint in November, 1990. Mrs. Nobles also testified that Mr. Thomas did not ever direct request, intimate, infer, or advise her or any other administrative staff or teacher that the Petitioner should not be called as a substitute teacher either before or after the complaint of discrimination was filed with the Commission. Mrs. Nobles was aware that one or more regular teachers at Cordova had expressed reservations about the Petitioner's reliability as a substitute relative to her meeting the required schedule for substitute teaching.
Ms. Marie Nelson is the librarian at Cordova. She acknowledged that a misunderstanding had occurred regarding scheduling of the Petitioner as a substitute teacher involving her schedule and that of another teacher, Ms. Holman. The Petitioner had made a commitment to Ms. Holman to substitute on specific days; however, Ms. Nelson needed the Petitioner for a longer period of time and requested Ms. Holman to release the Petitioner from her obligation to Ms. Holman so that the Petitioner could substitute for Ms. Nelson. Ms. Nelson recalls that Ms. Holman agreed to this. Due to some misunderstanding, however, Ms. Holman concluded at some point in time that the Petitioner had not fulfilled her commitment to her and became unhappy with the Petitioner as a substitute because she had not substituted as previously committed, at least in the view of Ms. Holman.
Ms. Nelson testified that Mr. Thomas had never instructed her not to call the Petitioner as a substitute. She established that Mr. Thomas had never directed, inferred, intimated, advised, or otherwise communicated any intention that she should not call the Petitioner as a substitute, even after the filing of the complaint with the Commission in November, 1990. Ms. Nelson had not called the Petitioner after the filing of the complaint because, for a period of time, funds were not available for substitutes. After that period when funds were not available had elapsed, Ms. Nelson's daughter had become qualified to be a substitute teacher and was thereafter called by Ms. Nelson when the need for a substitute arose.
Ms. Judy Meyer is a teacher at Cordova who testified on behalf of the Petitioner. Ms. Meyer testified that during the summer of 1992, she had asked the Petitioner if she would be available to teach on a substitute basis for a gifted class during that summer. Ms. Meyer later advised the Petitioner that she would not call her to substitute after all because she was seeking a teacher who was certified in gifted teaching, believing at that point that such certification was required. Ms. Meyer subsequently learned that gifted certification was not required for such a substitute teacher but, in the meantime, had already scheduled another person to be a substitute teacher. That person was not certified in certified teaching either since, in the meantime, Ms. Meyer had learned that such certification was not required.
Ms. Meyer had asked Mr. Thomas, after initially inquiring as to the petitioner's availability to teach the gifted class, as to whether he had any objections to her calling the Petitioner as a substitute. Mr. Thomas told her that he would leave that decision up to her. Mr. Thomas never directed, instructed, inferred, advised or otherwise showed intent to or otherwise tried to influence Ms. Meyer against calling the Petitioner as a substitute teacher. Ms. Meyer did testify that she felt somewhat uncomfortable about calling the Petitioner once she knew that she had filed the complaint of discrimination.
Ms. Meyer made a personal decision not to call the Petitioner to substitute during the summer session on the occasion described above. It is not shown that that decision was influenced in any way by Mr. Thomas or other supervisory personnel.
The Petitioner called no other witnesses other than the three witnesses referenced in the above Findings of Fact. No testimony was elicited by the Petitioner from these witnesses in her case-in-chief concerning any discrimination in hiring on the basis of religion or age.
Mr. Charles Thomas testified on behalf of the Respondent. He was the Principal at Cordova during times material to the subject complaint and is now Principal at Pleasant Grove Elementary School in Escambia County. Sometime after the Petitioner filed the complaint in November, 1990, a teacher inquired of him at a staff meeting concerning a rumor she had reportedly heard that such a complaint had been filed. Mr. Thomas did not elicit that inquiry and did not previously disclose to any staff members the fact of the existence and filing of the complaint. Upon being questioned directly by that teacher, however, he did truthfully acknowledge that a complaint had been filed; but he made no further comment regarding the complaint as to its merits, accuracy, or any other editorial comment concerning it.
Mr. Thomas, as did the teachers and other staff members who testified in the Petitioner's case-in-chief, testified and established that he had never instructed, directed, inferred, intimated, admonished, or advised any teacher or staff member against calling the Petitioner as a substitute teacher. Mr. Thomas was aware that some members of the staff, specifically Ms. Holman and Ms. Vinson, were unhappy with the Petitioner concerning her reliability and availability as a substitute when scheduled. He understood that Ms. Holman's unhappiness stemmed from an incident involving the Petitioner committing to Ms. Holman for a period of time as a substitute and thereafter agreeing instead to substitute for Ms. Nelson, the instance referenced in the above Findings of Fact. He was unaware of the basis for Ms. Vinson's concern about the Petitioner's reliability as a substitute teacher. He simply could not recall the details of the reasons she had reservations concerning the Petitioner's substituting.
The Respondent also called the Petitioner as a witness. The Petitioner testified that prior to filing the complaint of discrimination in November, 1990, she had substituted on several occasions at Cordova and that after filing the complaint, she was not called again to serve as a substitute. She acknowledged the truth of the statement in her deposition of August 3, 1993; that after the filing of the complaint, approximately one year prior to that deposition, Ms. Hall, a teacher at Cordova, had inquired as to her availability to substitute and the Petitioner had turned down the offer because she was unavailable, since she was performing a job concerning civil service testing at the time Ms. Hall required her services.
The Petitioner acknowledged that a dispute had occurred with Ms. Holman concerning her availability and that Ms. Holman was upset because she had a perception that the Petitioner had not fulfilled her commitment. She also acknowledged a scheduling commitment to another teacher, Ms. Hall, and that she had changed her schedule and agreed instead to substitute for Ms. Nelson rather than Ms. Hall. The Petitioner testified that Ms. Hall was not upset but that Ms. Nobles was somewhat upset at having to make an additional call to locate another substitute for that occasion. The Petitioner also acknowledged that Ms. Vinson did have concerns regarding her availability as a substitute but simply
believed that Ms. Vinson did not have a factual basis justifying that concern. Thus, by the Petitioner's own acknowledgment, Ms. Vinson did have a concern militating against her calling the Petitioner as a substitute teacher regardless of whether that concern was factually justified.
The Petitioner acknowledged that subsequent to the filing of the complaint in November of 1990, she had been called on other occasions to be a substitute teacher at several other elementary schools operated by the Board. She was not aware of any perception in those other schools of any concern among faculty members regarding her availability or reliability as a substitute teacher.
The Petitioner has established that she is a member of a protected class, being over the age of 40 years and being of a particular religious faith (Jewish). She has not established, however, that she was either not hired as a substitute teacher or teacher or that she was terminated and that available teaching or substitute teaching positions were instead given to non-Jewish teachers or to teachers under the age of 40 years.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1991).
The Petitioner avers that she was not hired as a teacher by the Board because of her religious faith, Jewish, and because of her age of over 40 years. She also claims "retaliation" based upon the filing of the complaint with the Commission. Chapter 760, Florida Statutes, prohibits discrimination on the basis of race, color, religion, sex, national origin, age, handicap, or marital status. Section 760.10(7), Florida Statutes, makes it unlawful for an employer to discriminate against any person because that person has opposed an unlawful employment practice. The case of Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (1st DCA 1991), provides that Federal case law dealing with Title VII of the Civil Rights Act of 1964, as amended, is applicable in construing Chapter 760, Florida Statutes, the "Florida Human Rights Act", as it was patterned after Title VII of the Federal Act.
In McDonnell-Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court established an allocation of the burden of production, the requirements for a prima facie case of discrimination, and an order for the presentation of proof in Title VII discriminatory-treatment cases. Under the McDonnell-Douglas formula, to establish a prima facie case, a petitioner must prove (1) membership in a protected group, (2) that the plaintiff is qualified for the position sought,
(3) that the plaintiff was not hired for the position sought, (4) that the position remained open and was ultimately filled by someone from outside the protected group. Under the McDonnell-Douglas scheme, "establishment of a prima facie case in effect creates a presumption that the employer unlawfully discriminated against the employee." See, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094 (1981). That presumption places upon the defendant, the employer, the burden of producing an explanation to rebut the prima facie case. This has generally been described as articulating a non-discriminatory reason for the action of which the plaintiff complains. Burdine, supra. Once the employer articulates a non-discriminatory reason, then the plaintiff or petitioner has the opportunity to attempt to demonstrate that the articulated reason is, in fact, a pretext for what really
is unlawful discrimination. While the McDonnell-Douglas presumption shifts the burden of production to the defendant, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff (i.e. "Petitioner"). Burdine, 450 U.S. at 253, 101 S.Ct. at 1093.
Initially, the United States Supreme Court revisited the McDonnell- Douglas standard and the significance of the shifting burden of production, relative to the ultimate burden of persuasion, in St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993). The Supreme Court noted in that case that once a defendant in a Title VII case has succeeded in carrying the burden of production regarding a legitimate, non-discriminatory reason for the challenged action, the McDonnell-Douglas scheme, along with its presumptions and burdens is no longer relevant. The defendant's "production", whether persuasive or not, requires the trier of fact to proceed to the ultimate question of whether the plaintiff had actually proven that intentional discrimination for the unlawful basis alleged, has occurred. The employee continues to carry the burden of persuasion as to the ultimate fact of discrimination even if the trier of fact concludes that the proffered reason offered by the employer is unpersuasive or even is contrived. See, St. Mary's Honor Center, 113 S.Ct. at 2756.
Both Title VII of the Civil Rights Act of 1964, as amended, and Chapter 760, Florida Statutes, prohibit an employer from discriminating against any person because that person has opposed a practice made unlawful under Title VII or under the provisions of Chapter 760, Florida Statutes. It is important to note, however, that the statutory provisions against discrimination are directed to employer action or inaction which amounts to discrimination and not necessarily that which may be committed by private individuals. Discrimination by co-workers, without the direction or approval of the employer is not discrimination prohibited under Title VII. See, Silver v. KCA, Inc., 586 F.2d 138 (9th Cir. 1978).
The Petitioner, at hearing, failed to produce any evidence that the employer had discriminated against her in the terms and conditions of employment. Specifically, she failed to introduce into evidence that the employer had failed to hire her or to continue to hire her as a substitute teacher for reasons of religious faith or age. The Petitioner thus failed to establish a prima facie case of discrimination against her resulting in her inability to obtain employment for reasons relating to religious faith or age. She did not show that any positions remaining open when she was not hired were ultimately given to persons outside her protected religious or age class.
Indeed, the focus of the evidence presented at hearing was solely with "retaliation", purportedly through the Respondent's failure to continue to hire the Petitioner as a substitute teacher on grounds that she had previously filed a complaint of discrimination in hiring against the employer, the Respondent herein. In order to pursue a claim of retaliation under Section 760.11(1), Florida Statutes, the Petitioner must file a complaint with the Commission within 365 days of the alleged violation. The Petitioner made a bare claim of "retaliation" in her Petition for Relief, but the evidence does not show that she actually filed a claim of retaliation with the Commission within 365 days of the alleged last instance of retaliation. The question of the Petitioner's failure to satisfy administrative remedies under Section 760.11, Florida Statutes, aside, however, it is clear from the evidence presented that the fact of retaliation by the employer, the Respondent herein, has not been proven.
The evidence presented by the Petitioner concerning her claim of retaliation was that, prior to filing the administrative complaint of discrimination with the Commission on the basis of her religious faith and age in November of 1990, she was a frequent substitute teacher at Cordova. After that time, she showed that she did not substitute at Cordova again. She did substitute repeatedly at other schools owned, operated and maintained by the Respondent Board, however.
The evidence presented established that the petitioner was a frequent substitute teacher prior to filing the complaint in November of 1990 and after that did not substitute again at Cordova. There was, however, no testimony that the employer, through the Principal at Cordova, had directed, suggested, advised, admonished, inferred or otherwise expressed any intent that the Petitioner should not be called again to serve as a substitute teacher at Cordova or at any other school. There was testimony which showed that when the Petitioner had previously served as a substitute teacher, she was not always available to keep commitments for the satisfaction of one or more of the teachers who had called her. Even if those teachers were mistaken as to the reasons she was unavailable, the reasons ascribable to those teachers' failure to call her to substitute thereafter do not constitute a discriminatory reasons based upon religion or age, even had those teachers been her employers, which was not established. Her employer was the Board and its supervisory personnel in the person of Mr. Thomas, the Principal. Further, at least one teacher did not call her due to lack of funds. It is reasonable to conclude from the evidence that some of the teachers may have declined to call her to substitute because of concerns regarding her reliability. It is reasonable to conclude that other teachers who knew of the complaint of discrimination may have concluded, for their own private reasons, that it would not be appropriate to call her to substitute at Cordova. It does not matter whether the absence of calls for substitute teaching duties after the filing of the complaint were caused by lack of funds, perceptions as to her unreliability, or certain teachers' perceptions that it would be inappropriate to call her while an administrative complaint of discrimination was pending. The fact remains that the Petitioner's proof is devoid of any evidence whatever that the employer, directly or indirectly, caused or intended to cause the Petitioner not to be called for further substitute work at Cordova or any other location in the Escambia County school system. The Petitioner simply failed to establish any discrimination in hiring on the basis of religious faith or age and has further failed to establish that the Board discriminated against her because she had opposed an employment practice she deemed to be, and had pled to be, unlawful. It must, therefore, be concluded that the Petition must fail for lack of proof.
Based on 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
RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the Petitioner's Petition for Relief in its entirety.
DONE AND ENTERED this 3rd day of January, 1994, in Tallahassee, Florida.
P. MICHAEL RUFF Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of January, 1994.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3911
The petitioner's proposed findings of fact are not all amenable to specific rulings since they are intertwined with legal argument and discussions and recitations of testimony. The paragraphs are not numbered and, therefore, to the extent the proposed findings of fact can be ruled upon, the paragraphs are referenced in this Appendix with a number which corresponds to the serial order of the paragraphs as they appear in the Petitioner's post-hearing pleading.
Respondent's proposed Findings of Fact 1-24. Accepted.
Joseph L. Hammons, Esquire HAMMONS & WHITTAKER, P.A.
Dr. William Maloy Superintendent
P.O. Box 1470
All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.
