STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEXTER V. THOMAS, )

)

Petitioner, )

)

vs. ) Case No. 99-0507

) SCHOOL BOARD OF ORANGE COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on April 19, 2000, in Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Dexter V. Thomas, pro se

3920 Country Club Drive, Number 3

Orlando, Florida 32808

For Respondent: Frank C. Kruppenbacher, Esquire

Orange County School Board Post Office Box 3471 Orlando, Florida 32802-3471

STATEMENT OF THE ISSUE

Whether Petitioner was subjected to a hostile work environment condoned by Respondent due to his sex in violation of Section 760.10(1), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (Commission) on August 4, 1995.

After the Commission took no action on the complaint for over two years, Petitioner signed a form dated January 27, 1998, withdrawing his charge and requesting an administrative hearing. The form was filed with the Commission and this case was transmitted to the Division of Administrative Hearings on February 2, 1999, for hearing. Following an emergency motion to continue, an order granting Respondent's motion was issued on

May 4, 1999. Discovery followed and following a second continuance granted at Respondent's request, this hearing was held.

At hearing, Petitioner testified in his own behalf, called no other witnesses, and introduced nine exhibits in evidence.

Following the close of Petitioner's case, Respondent made a motion to dismiss for failure to timely request an administrative hearing within the time provided by statute and for failure to adduce sufficient evidence at the hearing to establish a prima facie case of sexual harassment. The motion was granted. The proceeding was recorded but not transcribed. Respondent filed a proposed Recommended Order of Dismissal which has been given careful consideration.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The School Board of Orange County, Florida, (Respondent) is an employer within the definition found in Section 760.02, Florida Statutes.

2. Dexter V. Thomas (Petitioner) was an employee of Respondent, as defined in Section 760.02, Florida Statutes, during the relevant time period.

3. Petitioner timely filed his Charge of Discrimination (Charge) with the Commission, pursuant to the Florida Civil Rights Acts of 1992, on August 4, 1995. The Commission failed to make a Cause/No Cause Determination within 180 days of the filing of the Charge. Petitioner filed a form with the Commission on January 27, 1998, seeking to withdraw his Charge and filed a Petition for Relief to proceed to an administrative hearing. Petitioner has not filed a Petition with the Commission.

   However, the Commission forwarded Petitioner's Charge to the Division of Administrative Hearings for a formal hearing on February 2, 1999, and this proceeding followed.

4. Petitioner is an adult male and a United States citizen of African-American descent.

5. Petitioner worked as a custodian at Apopka Middle School on the day shift from 1989 until his termination on November 22, 1995.

6. Petitioner testified that he had received good evaluations until the fall of 1994, when a new principal took

   charge of the school. Shortly thereafter, it was Petitioner's perception that he was being harassed because of certain statements that he made to other school employees about the faculty and staff at Apopka Middle School which he believed to be true.

7. The statements made by Petitioner were defamatory in nature. In addition, they were perceived by other school board employees as threatening to the safety and welfare of staff and students.

8. Due to these statements and his general conduct while working his shift, Petitioner was relieved of duty with pay on September 21, 1995.

9. On October 4, 1995, Petitioner was directed to be examined by a licensed psychiatrist at the expense of the school board.

10. Petitioner refused to be examined by the school board's licensed psychiatrist on the grounds that it was part of the continuing conspiracy to silence him about illegal activities he believed were going on at Apopka Middle School.

11. Petitioner was subsequently terminated by action of the school board on November 22, 1995.

12. None of the testimony and other evidence produced by Petitioner, taken as true, could be construed to establish a prima facie case of sexual harassment by employees or supervisors of Respondent.

13. Petitioner failed to offer any credible evidence that he was subjected to any unwelcome sexual advances, request for sexual favors, or other conduct of a sexual nature by employees of Respondent.

14. Petitioner appears to have mistakenly checked the "race" box on his Charge of Discrimination. At the hearing, Petitioner did not raise any contentions that he suffered discrimination on the basis of race while in the employ of Respondent.

    CONCLUSIONS OF LAW

    
    

15. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto, pursuant to Sections 120.569 and

    120.57(1), Florida Statutes.

    
    

16. Petitioner is an "aggrieved person" as defined by Section 760.02(10), Florida Statutes.

17. Respondent is an employer, as defined by Section 760.02(7), Florida Statutes, in that the school board employs more than 15 persons, including those employees who work at Apopka Middle School.

18. Petitioner contends that he was unlawfully terminated and subjected to a hostile work environment by Respondent because it unlawfully discriminated against him due to his sex (male). Petitioner relies on the Florida Civil Rights Act of 1992, Section 760.10, et seq., Florida Statutes (1995).

19. Petitioner's request for an administrative hearing was untimely because Petitioner failed to request an administrative hearing within 35 days after the Commission's failure to issue a determination regarding Petitioner's Charge of Discrimination within 180 days of the Charge being filed. Section 760.11(4), (6), and (8), Florida Statutes, are applicable to and controlling in this case.

20. Section 760.11(4), (6), and (8), Florida Statutes, reads in pertinent part:

    1. In the event that the commission determines that there is reasonable cause to believe that a discriminatory practice has occurred in violation of the Florida Civil Rights Act of 1992, the aggrieved person may either:

       1. Bring a civil action against the person named in the complaint in any court of competent jurisdiction; or

       2. Request an administrative hearing under ss. 120.569 and 120.57.

          * * *

          
          

          (6) Any administrative hearing brought pursuant to paragraph (4)(b) shall be conducted under ss. 120.569 and

          120.57. . . . An administrative hearing pursuant to paragraph (4)(b) must be requested no later than 35 days after the date of determination of reasonable cause by the commission.

          
          

          * * *

          
          

          (8) In the event that the commission fails to conciliate or determine whether there is reasonable cause on any complaint under this section within 180 days of the filing of the complaint, an aggrieved person may proceed under subsection (4), as if the commission determined that there was reasonable cause.

21. Florida appellate courts have held that the 35-day limitation on requesting an administrative hearing begins to run at the expiration of the 180-day period in which the Commission has to make a determination regarding a Petitioner's allegations. Milano v. Moldmaster, Inc., 703 So. 2d 1093, 1094 (Fla. 4th DCA 1997). In light of the express holding of the courts, the above- referenced case must be dismissed on the basis of untimeliness.

22. Petitioner filed his Charge of Discrimination with the Commission on August 4, 1995. The Commission failed to determine whether there was reasonable cause to believe that a discriminatory practice occurred with regard to Petitioner's allegations within 180 days of Petitioner's filing of his Charge of Discrimination (that is, by February 19, 1996). Petitioner did not request an administrative hearing under Sections 120.569 and 120.57, Florida Statutes, until at least January 27, 1998, when Petitioner requested that his Charge of Discrimination be withdrawn from the Commission's jurisdiction. Petitioner's failure to request an administrative hearing within 35 days of February 19, 1996 (that is, March 25, 1996), is fatal to his claim.

23. In addition, the Florida Civil Rights Act of 1992 prohibits certain specified unlawful employment practices and provides remedies for such violations. That statute provides, in pertinent part, as follows:

    1. PURPOSES, CONSTRUCTION; TITLE

       
       

       * * *

       
       

       1. The general purposes of Section 760.01-

          760.10 are to secure for all individuals within the State freedom from discrimination because of race, color, religion, sex, national origin, age, handicap, or marital status and thereby to protect their interests in personal dignity, to make available to the state their full productive capacities, to secure the state against domestic strife and unrest, to preserve the public safety, health and general welfare, and to promote the interests, rights, and privileges of individuals within the state.

          
          

       2. Section 760.01-760.10 shall be construed according to fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provisions involved.

       
       

       * * *

       
       

    2. Definitions.

    
    

    (7) "Employer" means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such person.

    
    

    * * *

    
    

    760.10 Unlawful employment practices; remedies construction

    1. It is an unlawful employment practice for an employer:

       1. To discharge . . . an individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

24. The Florida Civil Rights Act of 1992 is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e-2. School Board of Leon County v. Weaver, 556 So. 2d 443

    (Fla. 1st DCA 1990). In Florida, there is a long-standing rule of statutory construction which recognizes that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in the federal courts to the extent the construction is harmonious with the spirit of the Florida legislation. O'Loughlin v. Pinchback, 579 So. 2d 788 (Fla. 1st DCA, 1991).

25. In Department of Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), the court analyzed the types of claims under the Florida Civil Rights Act of 1992. In that case, the court noted as follows:

    Pertinent federal case law discloses two means by which a discriminatory employment claim may be tried. The first, . . ., by showing disparate treatment, and the second, by showing discriminatory impact. When employing the former, a claimant must establish an employer's intentional discrimination, however, as to the latter, intentional discrimination is not required, and the claimant essentially challenges practices which are fair in form but discriminatory in operation. [citations omitted] Id. at 1185 n. 2

26. Petitioner in this case has sought to establish a disparate treatment claim. The Chandler court delineated the procedure for establishing a disparate treatment claim. The Court held as follows:

    The United States Supreme Court set forth the procedure essential for establishing such claims in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 3 S.Ct. 1817, 36 L.Ed. 2d 668

    (1973), which was then revisited in detail in Texas Department of Community Affairs v.

    Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67

    L.Ed.2d 207 (1981). Pursuant to the Burdine formula, the employee has the initial burden of establishing a prima facie case of intentional discrimination, which once established raises a presumption that the employer discriminated against the employee. If the presumption arises, the burden shifts to the employer to present sufficient evidence to raise a genuine issue of fact as to whether the employer discriminated against the employee. The employer may do this by stating a legitimate, nondiscriminatory reason for the employment decision; a reason which is clear, reasonably specific, and worthy of credence. Because the employer has the burden of production, not one of persuasion, which remains with the employee, it is not required to persuade the trier of fact that its decision was actually motivated by the reason given. If the employer satisfies the burden, the employee must then persuade the fact finder that the proffered reason for the employment decision was pretext for intentional discrimination. The employee may satisfy this burden by showing directly that a discriminatory reason more likely than not motivated the decision, or indirectly by showing that the proffered reason for the employment decision is not worthy of belief. If such proof is adequately presented, the employee satisfies his other ultimate burden of demonstrating by a preponderance of evidence that he or she has been the victim of intentional discrimination. [citations omitted]. Id. at 1185-86.

27. If the Commission finds that Petitioner's request for an administrative hearing was timely, Petitioner has failed to

    establish a prima facie case of sexual harassment/hostile work environment claim against Respondent by failing to show that:

    1. He belongs to a protected group;

    2. He was subjected to unwelcome sexual harassment; such as sexual advances, request for sexual favors, and other conduct of a sexual nature, and that these actions in the workplace created an intimidating hostile and offensive working environment;

    3. The harassment was based on his sex (gender);

    4. The harassment affected a term, condition or privilege of his employment, by impeding his job performance, and his psychological well-being; and

    5. The employer knew or should have known of the harassment in question and failed to take appropriate remedial action.

    Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir. 1999); Hall v. Gus Construction Co., Inc., 842 F.2d 1010 (8th Cir.

    1988). See U.S. Postal Service Board of Governors v. Aikens, 460

    
    

    U.S. 711, 715 (1983); Harris v. Forklift Systems, Inc., 114 S.Ct. 367 (1993).

28. As required in Burns v. McGregor Electronic Industries, Inc., 955 F.2d 559 (8th Cir. 1992), the determination of whether a hostile work environment exists must be made by the trier of fact in light of the totality of circumstances. Taking into consideration the credibility of the witness and having reviewed the documents offered in support of his contentions, I find them to be incredulous and unsubstantiated.

29. It is, therefore, held that Petitioner failed to meet his burden of proving both that he was subjected to unwelcome sexual harassment and that he suffered harassment because of his

sex. Petitioner also failed to meet his burden of proving that he was subjected to a discriminatorily abusive working environment.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

RECOMMENDED that a final order be entered as follows:

1. The Charge of Discrimination should be dismissed, as Petitioner's request for administrative hearing was not timely filed under Chapter 760.11(4),(6), and (8), Florida Statutes.

2. In the alternative, Petitioner has failed to prove that he was discriminated against on the basis of his sex by being subjected to a hostile work environment and the Petition should be dismissed.

DONE AND ENTERED this 6th day of June, 2000, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 6th day of June, 2000.

COPIES FURNISHED:

Frank C. Kruppenbacher, Esquire Orange County School Board

Post Office Box 3471 Orlando, Florida 32802-3471

Dexter V. Thomas

3920 Country Club Drive, Number 3

Orlando, Florida 32808

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dennis Smith, Superintendent Orange County School Board Post Office Box 271

Orlando, Florida 32302-3471

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-000507

Orders for Case No: 99-000507