STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASHRAF AMIDI ACHTCHI, )

)

Petitioner, )

)

vs. ) CASE NO. 92-7521

) FLORIDA A&M UNIVERSITY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, on April 25, 1994, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Marie A. Mattox, Esquire

1333 North Adams Street Tallahassee, Florida 32303

For Respondent: Bishop C. Holifield, Esquire

Florida A&M University

300 Lee Hall

Tallahassee, Florida 32307 STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner was not hired or re-hired for the school year beginning August 26, 1991 on account of her race or her national origin. Also at issue is whether the Petitioner was subjected to a hostile work environment while employed by the Respondent, because of her race or national origin.

PRELIMINARY STATEMENT

This cause arose upon the filing of a charge of discrimination with the Florida Commission on Human Relations (Commission) by the above-named Petitioner. After conducting its investigation of the matter, on November 3, 1992, the Commission issued a notice of determination of no cause, also affording the Petitioner notice of her rights to file a petition for relief to proceed further on her claim.

In due course, the Petitioner filed a petition for relief, without the aid of counsel, on November 23, 1992. The cause was thus transmitted to the Division of Administrative Hearings and the undersigned Hearing Officer. In her original charge of discrimination filed with the Commission in the free-form stage of this proceeding, the Petitioner alleged that she had been subjected to employment-related discriminatory practices because of her race which she

indicated was "white" and because of her national origin as an "Iranian". In filing her petition for relief, however, she neglected to specifically claim discrimination on the basis of national origin. However, by that point, the Respondent was on actual notice that, in fact, she was claiming such. In the prehearing stage of this proceeding, and consistently throughout the hearing, the Petitioner took the position that her claim was both based upon her race and upon her national origin. No timely objection to Petitioner's proceeding on her claim of discrimination due to national origin was raised. In any event, the Respondent had actual notice that such was a basis of her claim in this proceeding.

The cause proceeded to hearing as noticed, and the hearing was conducted over an approximate five-day period culminating in the final date on April 25, 1994. The Petitioner presented some 40 exhibits which were admitted into evidence and 17 witnesses, as well as the deposition of Reva Myers. The Respondent presented 56 exhibits (as well as one joint exhibit) which were admitted into evidence and 15 witnesses. Subsequent to the conclusion of the hearing, the parties elected to obtain a transcript of the proceedings and availed themselves of the right to submit proposed recommended orders containing proposed findings of fact and conclusions of law. An extended briefing schedule was requested and granted, and an extension thereof was granted upon motion by the Petitioner. The proposed findings of fact submitted by the parties are treated in this Recommended Order and addressed once again in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is a member of a protected class for purposes of Chapter 760, Florida Statutes, because of her national origin, as a native of Iran. She maintains in her pleadings that she considered herself to be "white" and asserted her racial discrimination claim on that basis. The Petitioner testified that she, and other members of the class of native Iranians are considered to be "white or Caucasian" and members of the "Aryan" genetic or racial origin. That testimony was not refuted. However, Iran is a modern-day nation state having its boundaries entirely within the continent of Asia; and native-born Iranians such as the Petitioner could be deemed to be Asians. If the Petitioner were considered to be "white", she would not be a member of a protected class for purposes of Chapter 760, Florida Statutes, and pertinent decisional law. She would and is a member of a protected class as an Iranian national and to the extent that status includes her in the class of "Asian".

   
   

2. The Petitioner first became employed for the Respondent at its New Beginnings Child Care Center (New Beginnings) on or about August 10, 1989. She began work as a teacher of four and five year olds at the New Beginnings pre- school located on the Florida Agricultural and Mechanical University (FAMU) campus. Later, she was re-assigned to teach two-year-old children during the 1990-91 school year. During the course of her employment there, she received a number of appreciation awards for the work she did while at New Beginnings.

   
   

3. Her educational background is such that she has an undergraduate degree in literature and humanities from the University of Iran, a master's degree in adult education from FAMU and plans in the future to complete a Ph.D. program, which she started but has not completed. Prior to working at New Beginnings, she had approximately 12 years experience working with pre-school age children, beginning around 1980. In that year, she began working at Small World Child Care Center (Small World) as a teacher for pre-kindergarten children and later worked with two year olds at Small World. She was later hired for the position

   of Director of Sunrise Child Care Center (Sunrise), serving in that capacity for three years. Thereafter, she worked at Killearn Lakes Elementary School (Killearn Lakes) as a pre-kindergarten teacher for approximately one and one- half years. The Petitioner was employed for approximately a month from May 2, 1989 to May 25, 1989 at Woodville Elementary School with the Leon County school system, in a temporary position. That job ended, however, because the position was not funded after May 25, 1989.

   
   

4. The Petitioner's next job was with the Respondent, commencing on or about August 10, 1989. She initially held a position of group child care instructor in an OPS capacity (other personal services). The parties have stipulated that the Petitioner's entire employment tenure at New Beginnings was as an OPS employee, through her last OPS appointment which expired by its contractual terms on August 2, 1991.

   
   

5. The Petitioner held the position of "group child care instructor" until January 3, 1991, at which time she received the title "classroom group leader". Between January 3, 1991 and June 1, 1991, she retained that position as classroom group leader. Between June 3, 1991 and June 30, 1991, her title was group child care instructor, still under the OPS contract. Thereafter, on July 1, 1991 and continuing through the expiration of her OPS contract on August 2, 1991, the Petitioner was hired and titled as an "Instructional Specialist".

   
   

6. OPS employees are temporary employees paid for the actual number of hours worked based upon time sheets and payroll certifications. They do not have reinstatement or retention rights. Thus, the Petitioner had no retention rights, as a contractual matter, as an OPS employee. She did have an expectation of re-hiring, however, based upon past policy and practice of New Beginnings and its management; and as Ms. Reva Myers candidly acknowledged, she would have been re-hired had she appeared for work at the appointed time on August 26, 1991.

   
   

7. The Director of New Beginnings is Ms. Reva Myers, who was supervised by the Dean of Student Affairs, Henry Kirby. Dean Kirby reports to Dr. Richard Flamer, Vice-President of Student Affairs. Counsel stipulated that Ms. Myers consistently recommended the Petitioner for employment at New Beginnings from August 10, 1989 to August 2, 1991. Dr. Flamer, Dean Kirby, Ms. Myers and Mrs. Hubbard, Associate Director of Human Resources and Personnel Relations, all testified that Ms. Myers had, and has, no authority to independently hire, discharge, or re-hire any employee at New Beginnings. Based upon Dr. Flamer's, Dean Kirby's, and Ms. Myers' testimony, neither the Petitioner's race nor national origin was ever considered when decisions regarding her employment at New Beginnings were being made. When she was hired, Ms. Myers, Dean Kirby, and Dr. Flamer did not consider her race. When the decision was made not to re-hire or retain the Petitioner, as of August 26, 1991, Ms. Myers, Dean Kirby, and Dr. Flamer, according to their testimony, did not consider her race either.

   
   

8. The amount of time of which an employee can hold an OPS appointment is limited to 2,080 hours. When that limit is reached, the services can be severed from the University; or the employee's manager can seek approval to extend the employment of that individual. It is solely within the discretion of the hiring supervisor or manager or whoever in the management hierarchy has hiring authority. In 1991, such a request was submitted and approved to allow the Petitioner to maintain employment with the University because she had reached the 2,080 hour limit as an OPS employee. The University was under no obligation to submit and approve such a request and the Petitioner's employment could have been terminated from the University at that point. The request, however, was

   approved and signed by Ms. Myers, submitted by her, and Dean Kirby, Dr. Flamer, and Mrs. Mary Woodruff, which resulted in the Petitioner being able to continue her employment at New Beginnings. Ms. Myers testified that the Petitioner's race was not a consideration when she signed and submitted that request to extend the Petitioner's OPS employment time period.

   
   

9. In 1990, the Petitioner applied for a "Classroom Teacher I" permanent position. The State of Florida, Department of Education, required that a person have a valid Florida teaching certificate to be qualified for this position, as well as a degree in elementary education, early childhood education or child development, and a minimum of three years' experience working with young children. It is stipulated that the Petitioner was not qualified to fill this position because she did not have a valid Florida teaching certificate or one of the relevant degrees. The position was, therefore, filled by Ms. Naomi Griffin, who had a valid teaching certificate, a degree in elementary education or certification in early childhood. She also had a 20-hour child development course, as required by the State of Florida, and numerous years of experience in early childhood education, childhood care centers, and in the public school system. Ms. Griffin is black.

   
   

10. In May of 1991, Ms. Griffin submitted her resignation as Instructional Specialist; and three Instructional Specialists positions, which were permanent positions, were thereupon advertised by New Beginnings and FAMU. During the time Ms. Griffin had held the position, it had been re-classified by the Board of Regents from the Classroom Teacher I position to that of "Instructional Specialist", which no longer required a teaching certificate. Upon advertising the three positions, the Petitioner and Mrs. Jill Ardley applied for the permanent positions. The three positions were ultimately not filled, however, because New Beginnings did not have the salary rate or funds to fill and pay for those positions. The Petitioner, although she was not hired for the permanent position, because of a lack of funds and, for that reason, no one else was hired, was chosen to perform that job in an OPS capacity, instead of Ms. Ardley. The Petitioner had been interviewed by a committee assembled for the purpose of interviewing applicants for the Instructional Specialists position in May of 1991 and favorably recommended. Ms. Myers, the Director of New Beginnings is black and was an ex officio member of that committee. Although no one received the permanent Instructional Specialist position, the Petitioner served in that capacity as an OPS employee through August 2, 1991.

    
    

11. It is customary for New Beginnings and its employees to have a three- week break, with the school not operating during early August. The Petitioner and the other employees at New Beginnings would normally be required to return for the beginning of the fall school term several days prior to class resuming for the 1991-92 school year or about August 24th. The Petitioner, however, sometime in the spring or summer of 1991, requested of Ms. Myers the grant of an additional week of vacation time, so that she could travel to Europe and care for her sister's children while her sister was hospitalized for surgery. The Petitioner maintains that Ms. Myers approved the extra week of leave. Ms. Myers testified that she did not approve the Petitioner staying on vacation any longer than the starting date for the school year, which was August 26, 1991. The Petitioner maintains that she informed Ms. Myers that she would be back on August 30th or September 1st and that Ms. Myers approved that amount of vacation time and return date.

    
    

12. The record reveals, however, that what, in all likelihood, occurred was that Ms. Myers approved the return date conditioned on the Petitioner obtaining a qualified substitute teacher to stand in for her during her absence,

    if she was not going to be back in time to commence employment prior to or at the beginning of class days, August 26, 1991. This tends to be borne out by the Petitioner's own testimony to the effect that Ms. Myers assisted the Petitioner by providing her a list of substitute teachers for the Petitioner to review for her to find someone to work in her absence. Thus, it appears from the totality of the testimony of the Petitioner and Ms. Myers that the understanding was that the Petitioner would obtain a substitute teacher, as the Petitioner herself admits. In fact, however, she did not obtain a substitute teacher.

    
    

13. It is the normal custom and practice that OPS appointments expire on the last day of the school term in early August. Indeed, the Petitioner's OPS appointment expired on August 2, 1991. Those persons interested in new OPS employment appointments for the upcoming fiscal and school year are required to return to work sometime during the week prior to New Beginnings' opening for classes, which would have been on August 26, 1991. Therefore, employees were required to report sometime between August 23 and August 26, 1991 to become appointed as OPS employees, if that is their status, and to prepare their classrooms and other facilities and materials for the advent of classes on August 26, 1991.

    
    

14. Ms. Myers indicated in her testimony that she became concerned after not having heard from the Petitioner shortly before the school session was to commence. She testified that she attempted to contact the Petitioner at her home sometime prior to August 24, 1991, but there was no answering machine to record a message or at least she did not detect such when she called. The Petitioner maintains that she had an answering machine and that her husband was still in Tallahassee, Florida, during this time period and that Ms. Myers could have contacted him to learn of the Petitioner's return plans. The evidence does not reflect that Ms. Myers, at the time, knew that the Petitioner's husband was in town, however. There is no evidence to show, on the part of the Petitioner, that she or her husband made any attempt to contact Ms. Myers during the period of time in August when she was away from Tallahassee, Florida, and immediately prior to the time she would have to report for the impending school session.

    
    

15. The Petitioner acknowledged that she did not return to Tallahassee, Florida, until August 30, 1991. Since the Petitioner did not return on August 26, 1991 when the school opened, Ms. Myers recommended that Ms. Ardley be hired to the OPS position as an Instructional Specialist. In fact, Dean Kirby discussed with Ms. Myers the Petitioner's failure to show up for work, pursuant to earlier telephone conversations they had had on August 24th and 25th, and he agreed with Ms. Myers that New Beginnings had to have an instructor in place immediately. His memorandum of August 26, 1991 notes that the Petitioner was an OPS employee whose prior appointment had expired. Therefore, both he and Dr. Flamer agreed with the recommendation that Ms. Ardley be hired to replace the Petitioner. Ms. Ardley was then telephoned on Sunday night, August 25, 1991, by Ms. Myers, before school was to commence on the following day. Ms. Myers indicated at that time to Ms. Ardley that she was needed to start work as a "sub" or substitute teacher on the following day in the Petitioner's classroom.

    
    

16. When she made her recommendation that Ms. Ardley be hired to replace the Petitioner, Ms. Myers was very aware of her educational experience, qualifications, and capabilities. Ms. Ardley had previously worked in a teaching capacity and had conducted workshops and in-service workshops where she trained other teachers, including the Petitioner and other staff of New Beginnings. She had proposed and implemented a mentoring program at New Beginnings, and 90 percent of the mentors in that program were "white". Ms. Ardley had a bachelors degree in elementary education from FAMU and a

    certification in early childhood education. She had graduated with honors with a 3.5 average and was qualified to teach from infanthood to sixth-grade students. She had obtained a master's degree in elementary education and educational leadership and graduated from that program with a 4.0 average. She is very highly regarded by instructors and members of the Department of Education at FAMU. Based upon the testimony of Dr. Evans, the Chairperson of the Department of Secondary Education and Foundations, College of Education of FAMU, the Petitioner has taken only three courses which would appear to be pertinent to elementary education or early childhood education while attending the University of Iran, FAMU, and Florida State University (FSU). Ms. Ardley, on the other hand, took 11 courses at the undergraduate level and 12 more courses on the graduate level which appear to be pertinent to an early childhood or elementary education capability. Ms. Ardley had numerous years of experience teaching in the Leon County school system and worked as a gifted school teacher. Ms. Ardley has a number of certifications qualifying her to teach different subjects, including one qualifying her to teach gifted students. The evidence shows that Ms. Ardley, by training, education and experience, was more qualified than the Petitioner to teach early childhood education, including any of the positions for teaching or care for children at New Beginnings.

    
    

17. While it is true that the OPS Instructional Specialist position, which the Petitioner held, and Ms. Ardley took, did not require certification as a teacher, the level of Ms. Ardley's educational attainments, certifications, and teaching experience renders her considerably more qualified than the Petitioner.

    
    

18. Ms. Ardley submitted a leave of absence request to the Leon County school system on August 19, 1991, because she intended entering, and had registered for, a master's program at FSU. She did not enter that program and immediately began looking for work, including for other positions in the Leon County school system. Shortly before that time, she had obtained her first continuing contract with the Leon County school system and was scheduled to work at the Academic Resource Center Gifted Program with Leon County schools for the 1991-92 school year but, instead, had submitted the leave request. She did not enter the master's program because the fellowship and related funds she was anticipating obtaining to finance her master's degree program was not received. Ms. Ardley testified, in a somewhat confused fashion, about whether her husband's absence and lack of income due to being with the troops in the Desert Storm operation or whether the loss of his job with the Tallahassee Police Department resulted in her needing to immediately begin looking for work after seeking a leave of absence. Her husband's suspension from the police department did not occur until after September 13, 1991 and the Desert Storm operation had concluded by mid 1991 or approximately June of that year. However, Ms. Ardley also testified that she did not obtain her fellowship and related funds to finance her master's degree program and that was the reason she began immediately looking for work, as well. The Petitioner seems to question the motives of Ms. Ardley and Ms. Myers concerning why Ms. Ardley sought and accepted the job at New Beginnings, asserting that the Petitioner's exhibit number 32 actually indicates that Ms. Ardley was hired on August 21st, and not August 26, 1991. That, coupled with the fact that Ms. Ardley's sister was already an employee at New Beginnings, would seem, apparently in the Petitioner's view, to indicate that there was some scheme or motive by Ms. Ardley and Ms. Myers to improperly purloin the Petitioner's employment position and give it to Ms. Ardley.

    
    

19. The Hearing Officer does not find that that is the motive behind the hiring of Ms. Ardley. Both the testimony of Ms. Myers and Ms. Ardley indicates that Ms. Ardley was not called with final instructions to report for duty until

    the night of August 25, 1991, for employment the following morning. Ms. Ardley testified that she was asked to report for duty then as a "sub" or a substitute teacher employee. That appears to be the date the final decision was made by Ms. Myers, after consulting her superiors, as found above, even if tentative plans to hire Ms. Ardley, in the event the Petitioner did not return, had been made several days previously between Ms. Ardley and Ms. Myers. This is borne out by the fact that Ms. Myers and Dr. Kirby both testified that the Petitioner would have been re-hired had she reported for duty by August 26, 1991.

    Moreover, even if Ms. Myers and Ms. Ardley had some preconceived plan to have Ms. Ardley take the position of the Petitioner before she returned from Europe and even if it worked an unfairness on the Petitioner, there is a nondiscriminatory basis for it in the preponderant evidence of record by the fact of Ms. Ardley's considerably-superior qualifications, compared to the Petitioner's. This is also shown by the fact that in the past, although she would have re-hired the Petitioner, Ms. Myers had had experience with certain deficiencies in the Petitioner's performance, at least in her view, and evidently some personality clashes with the Petitioner. These factors provide a reason for the substitution of Ms. Ardley in the Petitioner's former position, for reasons other than race or national origin discrimination.

    
    

20. Moreover, the evidence indicates that Ms. Ardley did not have any intention of becoming a permanent employee of New Beginnings. She requested Ms. Myers to write her a letter of reference for employment purposes, and Ms. Myers wrote such a letter dated July 12, 1991 giving her a very favorable recommendation; but it was not for a position at New Beginnings but, rather, for Pineview Elementary School. Ms. Ardley held no other position except the OPS position while employed at New Beginnings and only worked as an OPS Instructional Specialist from the period of August 26, 1991 to December 31, 1991. She returned to the Leon County school system in January of 1992.

    
    

21. During the Petitioner's employment, Ms. Myers had some concerns about her performance. She was frequently tardy and, although verbally counselled by Ms. Myers about her tardiness, she failed to modify her behavior. After verbal counselling seemed to have no effect, Ms. Myers wrote at least one letter to the Petitioner concerning her tardiness and admonished her about it. Further, the Petitioner did not plan adequate educational programs for her students. When she was hired in 1989, she was assigned to work with four year olds. However, as the year progressed, Ms. Myers realized that the Petitioner did not possess the necessary capabilities to prepare the children properly for kindergarten. Accordingly, the following year, she was assigned to work with the two year olds. Additionally, the Petitioner was in the habit of making frequent personal telephone calls, outside the designated hours for telephone calls, which was between 1:00 p.m. and 3:00 p.m. Because she was making personal telephone calls at times other than the designated time period, it meant that when she was talking on the telephone, her class was not properly supervised, which could cause a risk of violation of Department of Health and Rehabilitative Services (HRS) standards for such facilities.

    
    

22. Ms. Josie Rivera worked at New Beginnings from its opening in 1989 until March of 1990 and served as the Petitioner's assistant. By her own testimony, Ms. Rivera is "white" and a native of Puerto Rico. She testified that she complained to Ms. Myers concerning the way the Petitioner treated and handled students. She indicated that the Petitioner was reluctant to touch the students and to change the clothing of children when they had a bathroom-related "accident". Ms. Rivera found the Petitioner deficient in providing activities for her students necessary to developing manipulative skills, as far as hand and eye coordination are concerned. According to Ms. Rivera, the Petitioner was

    deficient in providing the students organized play. Ms. Rivera witnessed that many times the Petitioner would use the telephone when she should have been supervising her students.

    
    

23. In 1991, Mr. Larry Cone worked as an Administrative Secretary at New Beginnings. He remembered the Petitioner becoming frustrated at changing the clothing of students who had "accidents", and he even assisted her in changing students, particularly one student by the name of Brent Lang. He remembered the Petitioner becoming upset at changing Brent Lang frequently, and he suggested to her that he give her a hand with him and did so for approximately one week.

    
    

24. The testimony of Ms. Naomi Griffin also corroborates the problems which Ms. Myers experienced with the Petitioner's performance in that she also witnessed the Petitioner being tardy coming to work and making personal telephone calls at inappropriate times. These problems are corroborated by the testimony of Ms. Peggy Henry, the owner and manager, and Ms. Emily Ball, the Assistant Director of Killearn Lakes pre-kindergarten. The Petitioner was employed there and her tardiness and reluctance to properly care for her students was observed during her employment at that facility. She worked at Killearn Lakes for approximately one and one-half years and was often late to work or late returning from lunch. Her tardiness caused a problem for Killearn Lakes. Ms. Henry testified that she had a history of being late and, in fact, Ms. Henry had to take over and be accountable for her class at times. Her tardiness was a problem in terms of accurately complying with HRS rules and regulations concerning a proper pupil/teacher ratio, as well as safety and health concerns. This could have potentially resulted in a disciplinary action against the facility's license by HRS. Ms. Henry and Ms. Ball testified that on separate occasions, they each had had to care for a child who was bleeding because the Petitioner would not do so. They described the Petitioner as being extremely concerned about the AIDS virus and about washing her hands and cleanliness. The testimony reveals that the Petitioner was inordinately concerned with these matters, to the extent of not properly caring for children at times because of it. She had an aversion to caring for children who had injuries. Ms. Henry would not re-hire the Petitioner if the opportunity arose because of her reluctance to touch the children in her interaction with them and because of her problem with tardiness. Both Ms. Henry and Ms. Ball are "white".

    
    

25. In the face of the Petitioner's testimony concerning harsh treatment during her time of employment at New Beginnings, Mr. Cone denied that he had ever pushed or struck the Petitioner, and Ms. Myers denied refusing to allow her to eat and denied intentionally or knowingly spitting upon the Petitioner. Ms. Myers, Ms. Rivera, and Ms. Griffin all testified that the Petitioner freely received and made telephone calls and that her calls were not withheld from her.

    
    

26. The Petitioner is attempting to claim that a racially-hostile working environment existed at New Beginnings, but Dr. Flamer, Dean Kirby, Ms. Myers, Mr. Cone, Ms. Griffin, and Ms. Rivera testified that they did not identify the Petitioner's race as being white. Ms. Lang, whose son was in the Petitioner's class, testified that she herself did not consider the Petitioner to be "white", and, based upon her somewhat limited experience, did not observe any racial antagonism or hostility at New Beginnings.

    
    

27. The Petitioner has not testified that any racial slurs or ethnic slurs were made against her while she worked at New Beginnings in terms of her race or national origin. The Petitioner did testify that statements were allegedly made about "white" people and that one incident occurred involving a student at New Beginnings who was made fun of by other students. The student's skin appears to

    be "white", but the Petitioner herself indicated that the student is "black". The other incident involved statements made allegedly by Ms. Olabisi David.

    The Petitioner admitted, however, that she did not take those comments to be directed personally against her; and there was no showing that the Petitioner's supervisor or anyone in supervision of New Beginnings knew of or condoned any comments, such as those made by Ms. David.

    
    

28. Additionally, the Petitioner claimed that she was not allowed to use pictures and illustrations in instructional materials of persons other than "black" persons in instructing her children. The Petitioner acknowledged, however, that she did use classroom materials that had pictures of white people, including stick figures, dolls, and posters. The Petitioner also identified many of the exhibits entered into evidence by the Respondent that had pictures and representations of "white" people, which were at New Beginnings while she was employed there and available for her use, including the series of Lady Bird's Book, Real Things Number Book, a Mother Goose book, The First Thousand Words in Spanish (book), Ella Jenkin's We Are America's Children (album cover), and Play Your Instruments and Make a Pretty Sound (album cover). The Petitioner admitted that many of these exhibits were used at New Beginnings while she was employed there. Further, Ms. Myers testified that videos, including Cinderella, Aladdin and His Magic Lamp, The Ninja Turtles, Honey I Shrunk The Kids, and Snow White, which had "white" people featured were used at New Beginnings. Consequently, a racially-hostile working environment was not shown to exist at New Beginnings in these particulars. Further, Ms. Myers made special concessions for the Petitioner in allowing her to leave work early to pick up her children from their school by allowing her to come in early to make up the time. This accommodation also tends to show that a hostile working environment on the account of race or national origin did not exist.

    
    

29. The Petitioner was not the only non-black person employed at New Beginnings. Ms. Josie Rivera is white, and she worked at New Beginnings with the Petitioner. The Petitioner and Ms. Rivera had an altercation of some sort and had difficulty getting along with each other. Immediately after the incident, both the Petitioner and Ms. Rivera were reprimanded by Ms. Myers and informed by her that if the incident happened again, they would both be disciplined. Ms. Myers did not consider the Petitioner to be "white". Additionally, Ms. Smitah Shah, whose race is Asian and whose national origin is India, worked at New Beginnings with the Petitioner. Ms. Shah testified that she did not ever feel that Ms. Myers discriminated against her while she was employed at New Beginnings and, in fact, when she left New Beginnings, Ms. Myers recommended her highly for employment at the FSU Educational Center for Child Development. Ms. Shah had to leave New Beginnings because the money to fund her salary for her position expired.

    
    

30. The Respondent provided the Petitioner aides and assistants to help her during her tenure working at New Beginnings. Ms. Myers named approximately

    12 people who had worked in an assistance capacity with the Petitioner at various times during her tenure at New Beginnings, including people who worked as volunteers.

    
    

31. The Petitioner also seems to have been distressed by the fact that she had to change children's diapers or soiled clothes. There is a dispute in the evidence concerning whether children in diapers were admitted to the New Beginnings as students and whether the Petitioner had to accept such children in her "class". New Beginnings, indeed, had a policy that children to be enrolled had to be "potty trained". The Petitioner maintains that she was harassed and discriminated against by being forced to accept children who were not potty

    trained and being solely responsible for changing their soiled clothing or, arguably, their diapers. In fact, credible evidence shows that New Beginnings had a policy against accepting children who are not potty trained, but because the Petitioner was assigned to the two-year-old age group of children, it was a nature adjunct of working with children of that age and level of development that some will frequently have "potty accidents". Consequently, although the Petitioner seems to have regarded this chore as distasteful and, indeed, it likely was so, there was no showing that she was singled out for performing such duties by reasons of harassment on account of her race or national origin or for any other reason of harassment.

    
    

32. The Petitioner also contends that her right to have a lunch hour was curtailed or eliminated. The credible evidence indicates that the Petitioner was not denied a lunch hour. In fact, the Petitioner was provided a lunch hour. Further, the Petitioner and Ms. Myers had an agreement or understanding that the Petitioner could come in early so that she would be able to leave New Beginnings before normal working hours ended or at 3:00 p.m. or 3:30 p.m., so that she could pick up her own children, at their school location, at the end of their school day. There is no credible evidence that this privilege was offered to other teachers at New Beginnings, who had to work a normal work day from 8:00

    a.m. to 5:00 p.m.

    
    

33. The Petitioner claimed as further evidence of hostility in her working environment that she was subjected to constant harassment which caused a stress- related illness and hospitalization. She provided no medical evidence to support her testimony of that claim. Ms. Myers accompanied the Petitioner to the hospital on one occasion and established that her illness was due to medicine she was taking which made her have heart palpitations. According to the Petitioner's own testimony, she also had a history of "nerve problems" and taking blood pressure medication and had been doing so for the past 13 or 14 years.

    
    

34. She also maintains that she was not informed of any change in her employment status before, during or after her vacation, but introduced into evidence a letter signed by Ms. Myers dated August 26, 1991 clearly indicating that her OPS contract had expired on August 2, 1991. Even without that letter, she had notice from the original appointment form that her appointment would expire on August 2, 1991. Her continued employment thus depended on her understanding with Ms. Myers, as with other OPS employees, that she arrive in time to commence the new school year or, in her own case, that she obtain a substitute if she were going to be still on vacation. She did neither. Ms. Myers made an effort to contact her before the school year started, somewhere around August 23-24, 1991, and was unable to do so. It is very questionable whether Ms. Myers had a duty to contact her in any event. It was the Petitioner's responsibility to contact her employer and insure that proper arrangements for her continued employment had been made and, if her absence was necessary, that a proper substitute had been obtained. The Petitioner failed to fulfill that duty.

    
    

35. There has been no credible evidence that during her tenure as an employee at New Beginnings, the Petitioner was subjected to a hostile environment due to race or national origin reasons. She may have had altercations with several employees, including especially, Ms. Rivera, and maybe even Ms. Myers, but such involved questions of her performance or might be attributable to personality conflicts. They did not stem from any hostile attitude or pattern of conduct toward her based upon her race or national origin, according to the preponderant, credible evidence in this record. This

    finding is supported additionally by the evidence that the Petitioner and her family enjoyed a number of social occasions, such as Christmas dinners and parties with the staff of New Beginnings, including at least one occasion planned and paid for by Ms. Myers, as delineated fully in paragraph 37 of the Respondent's proposed findings of fact, which is adopted by reference herein.

    
    

36. Ms. Jessie Aloi, Director for Graduate and International Admission, and Ms. Cynthia Seaborn, Associate Director of graduate students, work at FSU and are friends of the Petitioner. Ms. Aloi and Ms. Seaborn suggested to the Petitioner that she apply for a position as Admissions Officer I at FSU. She did so in the fall of 1991, and Ms. Aloi and Ms. Seaborn sat on the committee which interviewed her. Ms. Aloi was responsible for calling prior employers and contacted Ms. Myers. Ms. Aloi testified that the information received from Ms. Myers did not really have a negative effect upon the decision not to choose the Petitioner for the position, because the first choice of the search committee for the position was another person based simply upon that person's qualifications. Ms. Aloi stated that the recommendation from Ms. Myers more concerned the Petitioner's communication problem, posed by apparent difficulties with the English language, which was consistent with the reservation Ms. Aloi and other members of the committee had about hiring the Petitioner. The person hired was simply an excellent candidate and had superior qualifications to the Petitioner, and the supervisor of that position also was more favorable towards the applicant who was FSU's first choice. Ms. Aloi's testimony shows that the conversations she had with Ms. Myers concerning the Petitioner had no substantial impact on the Petitioner's rating for employment in that position. There were two candidates who were tied for first ranking for that position ahead of the Petitioner, who was ranked second. Both Ms. Aloi and Ms. Seaborn, the Petitioner's friends, ranked the Petitioner as the number two candidate.

    The information provided by Ms. Myers did not prohibit the Petitioner from mitigating her damages and seeking employment, including employment at FSU. She did not get the position simply because two candidates ahead of her were more qualified.

    
    

37. In summary, it has not been demonstrated that a hostile, racial environment existed at New Beginnings which resulted in harassment or other derogatory, discriminatory behavior toward the Petitioner on account of her race or national origin. Further, even it be deemed that Ms. Ardley was a replacement for the Petitioner in the OPS position, which the Petitioner lost by failing to arrive timely for work after vacation, the evidence of record reflects that Ms. Ardley was clearly more qualified than the Petitioner for that position. When coupled with the fact that the Petitioner's supervisor, Ms. Myers, had reservations and difficulties with the Petitioner's performance in the past, this shows not only articulation but competent, credible evidence of a legitimate, non-discriminatory, business reason for hiring Ms. Ardley to replace the Petitioner in that OPS position. With regard to the permanent position which the Petitioner applied for and was interviewed for in May of 1991, along with Ms. Ardley, the permanent "Instructional Specialist" position, the Petitioner's apparent claim of discrimination in failing to be hired fails because no one from a racial or national origin class other than the Petitioner was chosen for it. No one was chosen since the positions were not filled for fiscal deficiency reasons. The evidence also reflects that the committee who interviewed the Petitioner and had authority to at least recommend a candidate for the position, considered the Petitioner their first choice. Consequently, in view of the preponderant, credible evidence of record, culminating in the above Findings of Fact, it has not been demonstrated that the Petitioner has

    been the victim of disparate treatment in the employment decision which affected her, on account of her race or national origin nor that she has been subjected to a hostile, racially-discriminatory, or national-origin-based discriminatory working environment.

    
    

    CONCLUSIONS OF LAW

    
    

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

    
    

39. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or to fail or refuse to hire an individual or to otherwise discriminate against an individual with respect to compensation, terms, conditions, or privileges of employment on account of that person's race, color, religion, sex, national origin, age, handicap, or marital status. The provisions of Chapter 760, Florida Statutes, related to discrimination are patterned essentially after Title VII of the Civil Rights Act of 1964, 42 U.S.C., Section 2000E, et. seq.; Hargis v. School Board of Leon County, 400 So.2d 103, 108, n.2 (Fla. 1st DCA 1981). Thus, federal decisions construing similar provisions of Title VII should be accorded great weight in construing similarly-cast Florida statutory provisions. See, Pasco County School Board v. PERC, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corporation, 10 FALR 6189 (Fla. 1985).

    
    

40. In McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 258 (1981), the United States Supreme Court established the basic allocation of burdens and order of presentation of proof in discrimination cases. The burden of proof is allocated by the Supreme Court in Burdine, as follows:

    
    

    First, the plaintiff has the burden of proving by a 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 non-discriminatory 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.

    
    

41. The federal burden and allocation of proof standards have been adopted in Florida by the Commission and Florida courts as being applicable to cases arising under Chapter 760, Florida Statutes. See, School Board of Leon County

    v. Hargis, supra.; Kilpatrick v. Howard Johnson Company, 7 FALR 5468, 5477 (1985); Joe Nees v. Delchamps, Inc., 8 FALR 4389 (1986).

    
    

42. Whether a petitioner has demonstrated a prima facie case of discrimination is a factual question and it must be resolved by asking whether an ordinary person could reasonably infer discrimination from the facts shown, if they are unrebutted. See, Goldstein v. Manhattan Industries, Inc., 758 F.2d 1435, 1433, rehrg. denied, 765 F.2d 154 (11th Cir., cert. denied, 474 U.S. 1005 (1985).

43. If the trier of fact accepts the sufficiency of the evidence to establish a prima facie case, the respondent must then rebut the presumption of discrimination thus created by articulating a legitimate, non-discriminatory reason for the employment decision involved. See, Burdine, supra. The Respondent can satisfy this burden merely by presenting evidence sufficient to raise a genuine issue of fact concerning whether it has discriminated. Once the Respondent articulates a non-discriminatory reason for the action in question, the burden then shifts to the Petitioner to prove, by a preponderance of the evidence, that the articulated reason is pretextual for what really amounts to illegal discrimination. See, Burdine, supra. at 233, and McDonell Douglass, supra. at 804. This evidence may consist of properly drawn statistics, racist comments by the persons responsible for the employment decision, or comments derogatory to the Petitioner's national origin, comparative evidence or by proof that the asserted reason is unworthy of belief. See, Rollins v. TechSouth, Inc., 833 F.2d 1525 (11th Cir. 1987).

    
    

44. It is important to note, however, that the ultimate burden of persuasion remains with the charging party, the Petitioner, to show intentional discrimination by the Respondent. That burden of persuasion never shifts, rather, merely, the burden of going forward with evidence in the manner asserted in the above test shifts between the parties. In a disparate treatment case, the petitioner's ultimate burden is to show that he or she was treated differently because of his or her race or national origin. See, Morrison v. Booth, 763 F.2d 1366 (rehrg. denied), 770 F.2d 1084 (11th Cir. 1985); St. Mary's Honor Center v. Hicks, 113 S.Ct. 2742 (1993). Thus, the issue to be resolved does not concern whether the Respondent made an appropriate and fair employment decision or whether its employment and disciplinary policies are insensitive or unfair. Rather, the issue is whether the Respondent, in making its employment decision, treated the Petitioner differently from other employees. See, Gilchrist v. Bolger, 733 F.2d 1551, 1553-54 (11th Cir. 1984), and Willingham v. Macon Telegraph Publishing Company, 507 F.2d 1084, 1092 (5th Cir. 1975).

    
    

45. In St Mary's Honor Center v. Hicks, supra., the Supreme Court noted that once a defendant in a Title VII discriminatory treatment has succeeded in carrying its burden of production regarding a legitimate, nondiscriminatory reason for its challenged action, the McDonell Douglass framework with its presumptions and burdens is no longer relevant and the respondent's production, whether persuasive or not, requires a trier of fact to then proceed to the ultimate question of whether the plaintiff has met the burden of persuasion which has remained with the plaintiff (Petitioner) to prove that the defendant or respondent intentionally discriminated against the petitioner for the unlawful basis alleged by the petitioner. The ultimate burden of persuasion of the trier of fact remains with the petitioner as to the ultimate fact of intentional discrimination, even though the trier of fact may conclude that the proffered reason by the employer is unpersuasive or even contrived. The respondent is thus not required to persuade the trier of fact that its decision was actually motivated by the reason articulated but, rather, must produce a legitimate, nondiscriminatory, articulated reason. If that burden of production is satisfied by the respondent, the trier of fact must then be persuaded by the petitioner that the proffered reason was a pretext for what really amounted to intentional discrimination. That burden may be satisfied by showing directly that a discriminatory reason more likely than not motivated the decision or, indirectly, by showing that the proffered reasons are not worthy of belief.

    See, also, Department of Corrections v. Chandler, 582 So.2d 1183 (Fla. 1st DCA 1991).

46. The Petitioner in the case at bar has asserted in her charge of discrimination and petition that she has been discriminated against on account of her race, which she asserted to be "white". If she is considered to be white, she has not established a prima facie case under the McDonell Douglass standard cited and explained above, because a member of the white race is not in a "protected group". For a white person to successfully maintain a case of racial discrimination, it must be proven that a pervasive pattern of racial discrimination by the majority non-white racial members in the work place against the white person created a "hostile work environment". Such a petitioner must demonstrate that she was subjected to unwelcome racial harassment and that the harassment affected the terms, conditions, or privileges of her employment and that the decision-makers in management of the work place caused the discrimination directly or knew of it and refused to take appropriate steps to prevent it, applying the Doctrine of Respondeat Superior. See, Coney

    v. Department of Human Resources of the State of Georgia, 787 F.Supp. 1434 (M.D. Ga. 1992).

    
    

47. In the case at hand, although the Petitioner asserted that she has been discriminated against on account of race, for being a white person, she did not establish that the Respondent and its management personnel, who were decision makers, nor her co-workers, knew that the Petitioner was "white" during the course of her employment and thereafter up until the time of the filing of her claim with the Commission. In order for intentional discrimination to be demonstrated against a particular race, it has to be established that the alleged actor or actors accused of discrimination knew that the complainant was of a particular race, in this instance, "white". The Respondent affirmatively demonstrated through various witnesses, referenced in the above Findings of Fact, that personnel, including management, decision-making personnel, at New Beginnings and at the FAMU administrative level, believed the Petitioner to be "Asian" (because Iran is part of Asia) or an Iranian national. The Respondent attempts to make the point that the Petitioner actually held herself out as being "black", because she had indicated to others that she had relatives who were "black", or appeared to be black, and had a brother who appeared to have "black features" and looked "black". The Respondent also asserts that the Petitioner indicated, on three different OPS contracts signed by her, that she was black. The Petitioner asserts, however, that she never indicated on those forms herself that her race was black. Even though she signed the forms, she either signed them in blank or did not notice that "black" had been indicated as her race, or that designation was added later, but that she did not so indicate that herself. The Petitioner's testimony in this regard is accepted as credible. How the indication of her race as being "black" appeared on the OPS contract forms cannot be determined from this record.

    
    

48. Moreover, as demonstrated by the above Findings of Fact, based upon the Hearing Officer's resolution of the candor and credibility of the witnesses' testimony and the non-testimonial evidence, there is no showing that a hostile work environment was forced upon the Petitioner for racial or national origin, discriminatory reasons. There may have been altercations between the Petitioner and various co-workers or management personnel, including Ms. Myers, but those altercations and any offense the Petitioner may have felt because of them were not shown by the Petitioner to have been because of reasons of her race or, indeed, of her national origin, for the reasons delineated in the above Findings of Fact. The Petitioner did not demonstrate that any perceived harassment, which has not been found to exist, affected the terms, conditions, or privileges of her employment. In fact, the Petitioner was accorded accommodation in terms of when she took her lunch hour and when she could leave work for the day to

    pick up her children at their school, which was not accorded to other employees, who had to work from 8:00 a.m. to 5:00 p.m.

    
    

49. In summary, the Petitioner has not established a prima facie case of racial discrimination on the basis of her being a member of the white race because she did not establish that that is a protected class for purposes of the McDonell Douglass mandated elements of proof, referenced above. Moreover, she did not establish a prima facie case of anti-white (or Asian) racial discrimination and harassment through a hostile work environment, because she did not establish that a hostile work environment existed, on account of her race or otherwise. Additionally, she did not establish that the employer or its representatives, employees or agents, in a decision-making capacity themselves, or through the Doctrine of Respondeat Superior, knew or understood that she was "white" or maintained herself to be.

    
    

50. The Petitioner has also failed to establish a prima facie case under the McDonell Douglass four-part formula referenced above, in terms of the permanent Instructional Specialist position she applied for, but did not receive. One element of a prima facie showing of racial discrimination under that formula requires that the position sought remained open after the Petitioner failed to receive the position and that it was ultimately filled by someone outside of the Petitioner's protected group. Whether the Petitioner proceeds under the banner of being a member of the white race, the Asian race, or under the banner of national origin (Iranian), it was established clearly that the position was never filled by anyone because of budgetary constraints. Accordingly, as to the permanent Instructional Specialist position applied for by the Petitioner and Ms. Ardley, neither of whom obtained the position, a prima facie case of racial or national origin discrimination has not been established.

    
    

51. Turning now to the central issue of the Respondent's failure to re- hire the Petitioner in her OPS position and, instead, hiring Ms. Ardley to replace her, the Petitioner has established, in terms of national origin discrimination concepts, that she was a member of a protected group by being an Iranian national. She has shown that she was qualified for the position sought in that, by the Respondent's own admission, she would have been re-hired if she had been present for duty at the appropriate time and had consistently been appointed and recommended for re-appointment as an OPS employee throughout her career at New Beginnings. The totality of the evidence indicates that she was still, in the mind of the FAMU decision makers, qualified for the position sought, even though she had had some deficiencies in her performance in the position. There is no question that she was not re-hired in her OPS position, that the position then was open and ultimately filled by someone outside of her protected group, that is a non-Iranian, the black teacher, Ms. Ardley.

    
    

52. The Respondent, however, came forward and articulated and, indeed, proved with credible, preponderant evidence, a legitimate, nondiscriminatory business reason for hiring Ms. Ardley instead of the Petitioner, as delineated in more detail in the above Findings of Fact.

    
    

53. The Petitioner had been instructed to obtain a substitute teacher if she was not going to be back on time for the start of the new school year, as shown by the Petitioner's own admission that Ms. Myers had given her a list of potential substitutes for her to contact. The Petitioner failed to obtain a substitute and failed to communicate, as was her duty, her whereabouts to Ms. Myers and when she could be expected to return and report for work. The Respondent established that it was critical that the Petitioner or a substitute teacher be present no later than the day school classes started at New

    Beginnings and it was actually the normal practice and expectation of the employer that its personnel be there two or three days before the school year started in order to prepare classrooms, programs, and lesson plans, etc. This the Petitioner failed to do and in failing, failed to make appropriate arrangements for a substitute teacher to perform her duties until she could return from her trip. Thus, for these reasons, as explained more fully in the above Findings of Fact, which have been arrived at after considering all of the admitted testimony and evidence, in resolving credibility and weight of the testimony of the various witnesses, the Respondent has proven a legitimate, nondiscriminatory reason for the non-re-hire of the Petitioner in her OPS position. In response to this showing by the Respondent, the Petitioner has not proven by preponderant, persuasive evidence that the reasons asserted by the Respondent are a pretext for what amounted to intentional discrimination on account of her race or her national origin.

    
    

54. The Petitioner, no doubt, felt offended at times by actions of other employees and even of Ms. Myers, but there was no showing by credible evidence that she was required to use pictures, books, and other instructional media which showed only black people in their illustrations. It was not shown by credible testimony or evidence that Ms. Myers or other management personnel refused to allow her to eat lunch or refused to allow her to eat lunch in the normal eating area. It was not demonstrated that Ms. Myers or other management personnel purposely required her to change diapers or at least to be the sole employee who had to clean up "potty accidents" with children as a matter of racial or national origin-related harassment. Rather, to the extent these instances occurred, they were a normal adjunct of the age class of children under the Petitioner's charge, that is, two year olds, who, even if deemed to be "potty trained", can frequently have accidents at such a tender age.

    
    

55. There were, no doubt, personality conflicts with Ms. Myers and other personnel, particularly Ms. Rivera. These are not shown to be part of a racially-hostile environment, policy, practice or pattern of racial or national- origin-related harassment directed at the Petitioner, however. Ms. Myers did have problems with certain elements of the Petitioner's performance in her job, particularly her tardiness, and she did attempt to modify her behavior by verbal reprimands and on at least one occasion, by written letter of reprimand. Although personality conflicts may arise between a manager and an employee, including Ms. Myers and the Petitioner, due to Ms. Myers' management style, the law is well settled that personality conflicts do not create a civil rights cause of action under Chapter 760, Florida Statutes, or Title VII. See, Valdez

    v. Mercy Hospital, 961 F.2d 1401 (8th Cir. 1992); Clements v. General Accident Insurance Company of America, 631 F.Supp. 1477 (E.D. Mo. 1986); and Huck v. Whirlpool Corporation, 550 F.Supp. 968 (S.D. In. 1982).

    
    

56. Further, to the extent this claim is based upon a failure to re-hire for reasons of race or national origin discrimination, the Petitioner has introduced no evidence of a comparative individual not of the Petitioner's alleged protected class (whether "white", "Asian", or national original (Iranian)), who was treated differently than the Petitioner. The Petitioner has not shown that the Petitioner was not re-hired to the OPS position as an Instructional Specialist under circumstances (failure to timely report, history of tardiness, failure to obtain a substitute) for which a so-similarly situated "black", non-Asian, non-Iranian, non-white employee was re-hired. Absent a showing that the Petitioner was not rehired under circumstances for which a similarly-situated employee, not a member of the Petitioner's protected class, was rehired, the Petitioner has not actually proven a prima facie case of race

    or national origin discrimination. See, Pouncey v. Prudential Insurance Company, 668 F.2d 795 (5th Cir. 1982).

    
    

57. Even if it be assumed arguendo that the Petitioner has established a prima facie case of discrimination case on account of her race or national origin, the Respondent has articulated legitimate, nondiscriminatory business reasons for the employment decision not to rehire the Petitioner in her OPS position and to hire the more-qualified Ms. Ardley in that position as a temporary OPS employee, for the reasons explained in more detail in the above Findings of Fact. In the face of that articulation and, indeed, proof of legitimate, nondiscriminatory reasons for the employment decision at issue, the Petitioner has not presented direct or indirect evidence of racial discrimination. The Petitioner has not presented comparative instances of disparate treatment and no direct or circumstantial statistical or other evidence that the Respondent's actions were motivated by reasons of race or national origin discrimination. There is no evidence in the record which would show that race was actually the motivation for any action taken with reference to the Petitioner. Indeed, for instance, Ms. Shah, a person of East Indian or Asian origin, was let go from her position at New Beginnings. It was established by credible evidence, however, that she was let go for reasons of budgetary constraints because there remained no funds to pay her salary. The Respondent established that it was well-pleased with Ms. Shah as an employee and that the Respondent wished to keep her employed, but was unable to do so. When she had to be let go, Ms. Shah was given a very favorable recommendation by Ms. Myers. Moreover, Ms. Shah testified, as an Asian employee, a non-black, that she had never experienced or observed any evidence of racial or national origin discrimination during the operation of New Beginnings. The Petitioner failed to prove by a preponderance of the evidence, that the proffered reasons lacked credibility or that the Respondent's actions were more likely than not motivated by racial animus, rather than legitimate business needs of New Beginnings. The Petitioner has thus failed to meet her burden of proof. The Petitioner's allegations of racial and national origin discrimination involving her not being rehired have not been established. Moreover, her allegations of a racially- hostile working environment, to the extent that she may be deemed a member of the white race, have not been established. The Petitioner has failed to carry her burden of proof and persuasion that the articulated reasons for her not being rehired, which were legitimate business reasons, were pretextual. Reasons based upon sound business practices, established herein by the Respondent, go a long way in establishing a legitimate, nondiscriminatory reason for the employment action at issue and did so in this case. See, Chandler, supra.

    
    

58. Accordingly, having considered the preponderant credible evidence of record and the above Findings of Fact, it is concluded that the employment action taken and contested by the Petitioner herein has not been proven to have occurred due to racial or national-origin-related discrimination nor that a hostile working environment existed relative to the Petitioner's race.

RECOMMENDATION

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 denying and dismissing the petition for relief filed herein in its entirety.

DONE AND ENTERED this 9th day of November, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF 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 9th day of November, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-7521

Petitioner's Proposed Findings of Fact

1-23. Accepted, but not dispositive in themselves of the material issues presented for resolution and subordinate to the Hearing Officer's findings of fact on this subject matter.

24-25. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

26-31. Rejected, as not entirely in accord with the preponderant credible evidence of record and as subordinate to the Hearing Officer's findings of fact on this subject matter.

32-39. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not as necessarily material to resolution of the issues presented.

40-44. Accepted, but not necessarily for the material import with which these proposed findings are advanced and as subordinate to the Hearing Officer's findings of fact on this subject matter.

45-46. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter and not accepted as to the material import with which the proposed findings are advanced. The Hearing Officer has resolved the reason Ms. Ardley was looking for employment in his findings of fact.

1. Rejected, as immaterial to resolution of the relevant issues presented for resolution.

2. Accepted, but not material.

49-51. Rejected, as immaterial to resolution of the relevant issues presented and as subordinate to the Hearing Officer's findings of fact on this subject matter.

52-53. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter.

54-71. Rejected, as not supported in a material way by the preponderant, credible evidence of record and subordinate to the Hearing Officer's findings of fact on this subject matter.

72-79. Accepted, in terms of these witnesses expressing satisfaction with the Petitioner's performance with their children but if scant materiality because of the brief period of time these witnesses had an opportunity to observe the Petitioner's performance and the operations of New Beginnings. The Hearing Officer, in any event, has found the Petitioner qualified for the duties of her position for which she was not re-hired.

80. Rejected, as immaterial. The witness referenced was only present at New Beginnings for a week and had little opportunity to observe, and rejected in the sense that this proposed finding of fact is subordinate to the Hearing Officer's findings of fact on this subject matter.

81-88. Accepted, but not necessarily of material weight in resolution of the justiciable issues presented for resolution. The Petitioner's reputation for truth and honesty may, indeed, be very good, but her perceptions can be flawed.

Respondent's Proposed Findings of Fact

The Respondent's proposed findings of fact numbered 1-40, to the extent they are consistent with those found by the Hearing Officer herein in this Recommended Order, are accepted. To the extent they are not so consistent, they are rejected as being immaterial, unnecessary, or as not entirely supported by the preponderant credible testimony and evidence of record.

COPIES FURNISHED:

Marie A. Mattox, Esquire 1333 North Adams Street Tallahassee, Florida 32303

Bishop C. Holifield, Esquire Florida A&M University

300 Lee Hall

Tallahassee, Florida 32307

Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana C. Baird, Esq.

General Counsel

Human Relations Commission Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

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.

Docket for Case No: 92-007521

Orders for Case No: 92-007521