vs. ) Case No. 99-1780
Respondent. )
A formal hearing was held before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on January 5, 2000, in Sanford, Florida. The following appearances were entered:
For Respondent: Anthony D. Demma, Esquire
Meyer & Brooks, P.A.
Whether Respondent failed to properly represent Petitioner when she was terminated from her position as a school bus driver by the Seminole County School District on or about June 1994, on the basis of her race (African-American)
and handicap, in violation of Section 760.10(1)(a), Florida Statutes (1995).
Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR) on May 5, 1995, charging Respondent with employment discrimination. On or about January 28, 1999, a determination of No Cause was issued by the FCHR. On or about February 19, 1999, Petitioner sought an extension of time from the FCHR in which to file her Petition for Relief. On March 17, 1999, the FCHR granted Petitioner's request, allowing her to file the Petition on or before April 5, 1999. Petitioner filed a Petition for Relief with the FCHR on April 5, 1999. This matter was subsequently referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on April 15, 1999. Respondent subsequently filed a Motion to Dismiss for Lack of Jurisdiction and a Motion for Summary Final Order. A ruling on both motions was reserved until this Recommended Order.
and completion of discovery, a formal hearing was held on January 5, 2000.
Board for the period August 17, 1992, through June 30, 1995, was admitted as a Joint Exhibit. Petitioner testified in her own behalf. Nine exhibits were offered and received in evidence. Respondent presented the testimony of one witnesses, Nancy S. Wheeler, and three exhibits were received in evidence, together with the deposition testimony of Petitioner, taken October 4, 1999. Respondent's motion, at the conclusion of the hearing, to keep the record open in order to obtain and file copies of Petitioner's medical records was denied. A transcript was not ordered. The parties were permitted 30 days from the hearing in which to file proposed findings of fact and conclusions of law.
Petitioner filed a letter with proposed findings on January 31, 2000. Respondent filed Proposed Findings of Fact, Conclusions of Law and Supporting Brief on February 4, 2000. Both proposals have been given careful consideration in the preparation of this Recommended Order.
Based upon all of the evidence, the following findings of fact are determined.
The Seminole County School Bus Drivers' Association, Inc. (Respondent), is a labor organization as that term is defined under the Florida Civil Rights Act of 1992.
Petitioner was employed by the Seminole County School
Board (District) as a school bus driver during the relevant period of time from 1985 until June 1994.
At the end of the 1993-1994 school year, Petitioner was terminated as a bus driver by the District. At said time, Petitioner was a member of the Seminole County School Bus Drivers' Association.
Petitioner is an African-American female and a licensed bus driver. Joe Wicks (Wicks), who worked for Respondent and assisted Petitioner in her efforts to preserve her job at the end of the 1993-94 school year, is also African-American.
Respondent is a public sector union affiliated with the Florida Teaching Profession/National Education Association (FTP/NEA). The FTP/NEA manages the staff associated with its affiliated unions through entities called UniServ offices.
Nancy Wheeler (Wheeler) served as the executive director of the Seminole UniServ at the time Petitioner's employment was terminated by the District in 1994. In that capacity, Wheeler managed UniServ staff members who provided assistance to Respondent's members.
Another of Wheeler's duties as executive director was to advise Respondent's Board about the merits of particular grievances for which arbitration is requested by the member. Respondent's Board has authority over the arbitration process
used to enforce the collective bargaining agreement between bus drivers and the District. Over the years Wheeler served as executive director, 30 to 40 percent of Respondent's members have been African-American and Respondent's Board has been proportionally represented with African-Americans as well.
The grievance process available to members of Respondent consisted of the following steps: 1) Informal efforts to resolve dispute; 2) Step I hearing before the employee's immediate supervisor; 3) Step II hearing before the Superintendent or his designee; 4) Step III binding arbitration before neutral arbitrator.
At the end of the 1993-94 school year, District transportation officials proposed the employment termination of eight of Respondent's members because of their poor attendance patterns.
In late May 1994, Respondent filed a grievance on behalf of Petitioner concerning the District's proposed termination of her employment in which it alleged that the District did not have just cause to support Hampton's termination. That grievance was pursued through Step II.
Although the District ultimately decided to retain the employment of five of these bus drivers, no driver received assistance from Respondent beyond the Step II level
of the grievance process. Further, there was no obvious race- related pattern in the District's decision to retain only some of the drivers. Three of the eight drivers were African- American, and three white drivers and two African-American drivers from among them were ultimately retained by the District in June 1994.
Petitioner experienced depression, a brief period of situational grief due to the unexpected death of a boyfriend, in early 1994 but suffered from no other medical condition during the 1993-94 school year. At the end of January 1994, Petitioner's treating physician (Dr. Fraser) authorized her to return to work after a short leave period. Petitioner, in fact, returned to her job as a driver for the rest of the
1993-94 school year. Petitioner fully recovered from her "depression" several months later and was able to return to full-time employment elsewhere by the end of 1994.
Although information about Petitioner's situational depression and her medical and other absence excuses was presented to Joseph Wise, Transportation Director (Wise), at the Step I Grievance hearing and to Dr. Paul J. Hagerty, Superintendent (Superintendent), at the Step II Grievance hearing, the School District's decision-makers (Wise and Superintendent Hagerty) determined there was just cause for Hampton's termination due to her long history of excessive
absenteeism.
In deciding whether to take Petitioner's grievance to arbitration, Respondent followed its normal practice including a personnel file review by Wheeler followed by her recommendations to Respondent's Board. Wheeler reviewed Petitioner's evaluation and disciplinary history concerning attendance problems and determined her case lacked sufficient merit to warrant taking it to arbitration. Those records reflected a five-year history of poor attendance, disciplinary warnings, and discipline imposed for poor attendance. Respondent's Board accepted Wheeler's recommendation that it not take Petitioner's case to arbitration.
Respondent had successfully assisted Petitioner with prior employment problems she encountered over the years without incident or complaint by Petitioner.
Neither Respondent's Board nor any staff member of Respondent, including Wicks and Wheeler, harbored any animus toward Petitioner. Assistance with her 1994 termination grievance though Step II was provided by Respondent absent any consideration of race or disability.
Further assistance was appropriately denied to Petitioner on the basis of her employment history which strongly supported the charges against her and rendered an
arbitration proceeding to challenge the termination futile. Petitioner's race and disability status played no role in Respondent's decision to forego taking Petitioner's grievance to arbitration.
Transportation Department officials, and ultimately the Superintendent, had complete authority over the final employment decisions made regarding Petitioner and the other bus drivers whose termination had been recommended by Wise at the end of the 1993-94 school year. At no time did Respondent, or any agent thereof, have any authority to control or reverse these decisions.
On May 27, 1994, Wicks and Petitioner signed and submitted a request for legal services to the FTP/NEA on the same day Respondent filed the grievance on Petitioner's behalf. The legal services document is a request that the FTP/NEA provide any legal assistance it might deem appropriate. The form specifically states that the FTP/NEA may decide to do so in its discretion. Wheeler did not have the authority to provide any legal services to Petitioner for the FTP/NEA; rather, that authority rested with the General Counsel of the FTP/NEA. Had Respondent taken Petitioner's grievance to arbitration, Wheeler, and not an attorney, would have handled the matter as was Respondent's usual practice.
Petitioner's position that her request for legal
services must be honored or it would be a violation of the labor contract is not supported by the evidence.
Petitioner did not suffer from a medical condition of sufficient severity and duration to entitle her to the disability protections of the Florida Civil Rights Act.
The medical evidence showed, however, that even those documents proved Petitioner's own physician (Dr. Fraser) repeatedly approved her return to work during the months in question, and that he did not expect the condition to have a significant impact on her once the proper medication regimen could be established. In fact, Dr. Fraser's note of May 11, 1994, states that he expected the medication-related side effect problem to be corrected over the next few weeks.
Petitioner testified, and the medical records confirm, that she took a period of leave because of her grief- related problems and that she worked from February to June 1994. Although Petitioner missed some days intermittently during the remainder of the year. Dr. Fraser returned her to work in short order each time. Petitioner also testified that she obtained and sustained other full-time employment by the end of 1994 and that she has not been treated for "depression" since 1994. It is obvious from the record that Petitioner's physician did not consider her condition to be so significant as to prevent her from working after the immediate period of
grief for which she sought and was granted leave.
Neither Wicks, Wheeler, Respondent's Board, nor any agent of Respondent took any action concerning Petitioner which was motivated by her race or medical condition.
Petitioner filed her Petition for Relief with the Florida Commission on Human Relations (FCHR) on April 5, 1999. The filing of the Petition was more than 35 days after the determination of no reasonable cause by the FCHR.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding and the parties thereto pursuant to subsections 120.569, 120.57(1), and 760.11(7), Florida Statutes.
Section 760.11(7), Florida Statutes, provides in substantial part:
If the commission determines that there is no reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing under ss. 120.569 and 120.57, but any such request must be made within 35 days of the date of determination of reasonable cause and any such hearing shall be heard by an administrative law judge and not by the commission or commissioner. If the aggrieved person does not request an administrative hearing within 35 days, the claim will be barred . . . .
Petitioner's failure to file her Petition for Relief
to the FCHR within the prescribed and mandatory 35-day time limitation set forth in Section 760.11(7), Florida Statutes (1999), deprives the Division of Administrative Hearings and the FCHR of its jurisdiction. The statute clearly and unequivocally states that failure to meet this requirement bars such a claim. There is no other provision in the statute which would authorize the FCHR to extend the time to file a Petition for Relief as it did in this case. Wright vs. HCA Central Florida Regional Hospital, Inc., 18 FALR 1160 (1995), cf. Milano vs. Moldmaster, Inc., 703 So. 2d 1093 (Fla. 4th DCA 1997).
The ruling on Respondent's Motion to Dismiss was reserved in the Order of December 6, 1999. Respondent's Motion to Dismiss for Lack of Jurisdiction should be granted.
At the hearing of this matter, a large portion of Petitioner's testimony centered around Petitioner's interpretations of several sections of the collective bargaining agreement (the Contract) which she contends were violated by Respondent's handling of her employment termination matter. Notwithstanding the fact that Petitioner displayed substantial misunderstandings of the provisions she cited, the very fact that Petitioner emphasized alleged breaches of the union's obligations to her found in the Contract demonstrates the erroneous nature of her
discrimination action under Chapter 760, Florida Statutes. Petitioner submitted into evidence Respondent's response to the FCHR. The document clearly explains in its first three pages why it believes Petitioner has pursued the wrong cause of action and that the proper cause is one over which the Public Employees Relations Commission (PERC) has exclusive jurisdiction.
Petitioner frequently demonstrated her lack of understanding of the terms of the Contract during the hearing. For example, Petitioner testified that the terms of Article II, Section 2, which provide employees with the right to be presented by any bargaining agent of their choosing and to refrain from exercising the right to be presented, means to her that she has the absolute right to legal representation from Respondent because she did not elect to refrain from further assistance. However, this Contract section merely tracks the Right to Work provisions of Florida's Constitution (Article I, Section 6) and means that employees can vote to be represented by an bargaining agent of their choosing but cannot be forced to join a union.
Petitioner testified that Article XI, Section 3 of the Contract, which provides all employees with access to the grievance procedure, automatically means that each employee has the right to representation by an attorney to pursue a
matter beyond the grievance process and/or obligates the union to take to arbitration any grievance that an employee desires. In fact, Petitioner was provided access to the grievance procedure. Her employment dispute was taken through Step II of the grievance process.
Respondent's executive director, Nancy Wheeler, clarified this matter at the hearing. Wheeler testified that Article XI, Section 4, specifically provides discretion to Respondent to determine whether a particular grievance should be submitted to arbitration, if the result at Step II is not satisfactory to Respondent.
Florida and federal court case law concerning the extent of the union's obligation to pursue grievances to arbitration directly conflict with Petitioner's interpretation of that provision. See Vaca vs. Sipes, 386 U.S. 171 (1965); Myrick vs. AFSCME, 6FPER-11074 at 125 (1980). Respondent, therefore, clearly had the authority to deny further assistance and access to arbitration to Petitioner and did so for appropriate reasons in this instance.
Petitioner also testified that she believes the last paragraph of Article XI, Section 4, which emphasizes that employees have the right to be represented by legal counsel in any employment matter, means that a union is obligated to provide and pay for a member's legal counsel in all such
matters. In fact, this provision simply provides that the union does not have the right to preclude a member from having his or her own legal counsel, as Wheeler testified at the hearing.
Petitioner similarly jumps to the conclusion that the provisions of Article XII, Section 1A and B pertaining to the accrual and use of sick leave, somehow preclude an employer from raising concerns that certain individuals are absent too frequently. Nothing in these provisions makes reference to any right Petitioner held under this Contract which was violated by Respondent.
Petitioner demonstrated during her testimony that she believes that Respondent violated its duty of fair representation by failing to honor its Contract with her as a member. That assertion should have been raised to the Public Employees Relations Commission (PERC), which has exclusive jurisdiction over such claims. Further, Petitioner does not understand the Contract's provisions and that no contract violation by Respondent occurred.
PERC has exclusive jurisdiction over a public union member's claim that her union did not fulfill its duty to fairly represent her in violation of Section 447.501(2), Florida Statutes (1999). The Division of Administrative Hearings, therefore, has no jurisdiction over this matter
because Petitioner's allegations are in the nature of a duty of fair representation claim. See Maxwell vs. School Board of Broward, County, Florida, 330 So. 2d 177, 179 (Fla. 4th DCA 1976).
Assuming arguendo that DOAH and the FCHR have jurisdiction in this matter, the State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended. 42 USC Section 2000e, et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race. Section 760.10(1)(a), Florida Statutes. The FCHR and the Florida courts interpreting the provisions of the Florida Civil Rights Act of 1992 have determined that federal discrimination law should be used as guidance when construing provisions of the Act. See Brand vs. Florida Power Corp. 633 So. 2d 504,509 (Fla. 1st DCA 1994); Florida Department of Community Affairs vs. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper vs. Lakeland Regional Medical Center, 16 FALR 567, 574 (FCHR
1993).
The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. vs. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs vs. Burdine, 450 U.S. 248 (1981), and again in the recent case of St. Mary's Honor Center vs. Hicks, 509 U.S. 502, 113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick vs. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). McDonnell Douglas places upon Petitioner the initial burden of proving a prima facie case of racial discrimination. See also Laroche vs. Department of Labor and Employment Security, 13 FALR 4121 (FCHR 1991); Davis vs. Humana of Florida, Inc., 15 FALR 231 (FCHR 1992).
Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:
The employee is a member of a protected group;
The employee is qualified for the position;
The employee was subject to an adverse employment decision [employee was terminated];
The position was filled by a person of another race or that she was treated less favorably than similarly-situated persons outside the protected class; and
There must be shown by the evidence that there is a causal connection between a and c. Canino vs. EEOC, 707 F.2d 468, 32
FEP Cases 139 (11th Cir. 1983); Smith vs. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee vs. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th
Cir. 1984).
Proving a prima facie case serves to eliminate the most common non-discriminatory reasons for the Petitioner's disparate treatment. See Teamsters vs. U.S., 431 U.S. 324,
358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely that those actions were based on impermissible considerations. The presumption is that more often than not, people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. vs. Waters, 438 U.S. 567, 576 (1978).
Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, non- discriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory
animus." Texas Department of Community Affairs vs. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff."
Id. at 254-255. This
burden is characterized as "exceedingly light." Perryman vs. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).
Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated non-discriminatory reasons or that the replacement was more qualified than Petitioner. Texas Department of Community Affairs vs. Burdine, at 257-8.
In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that Respondent intentionally discriminated against Petitioner remains at all times with Petitioner. Texas Department of Community Affairs vs. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center vs. Hicks, 509 U.S 502, 113 S.Ct. 2742 (1993).
In the case sub judice, Petitioner did not provide any testimony or any documents in the nature of direct evidence of her claim that Respondent discriminated against her. The record reflects that the individual who assisted Petitioner in her grievance with the District, Joe Wicks, is African-American. Petitioner did not testify that Wicks, Wheeler, or any member of Respondent's staff or Board harbored any hostility toward her or made any remarks of discriminatory nature. In fact, Petitioner testified that Wheeler had previously and successfully assisted her with employment problems she had encountered over the years.
In discrimination cases (race and/or disability) where no direct evidence if discriminatory intent exists, the burden-shifting proof framework set forth in McDonnell Douglas Corp vs. Green, supra, must be applied to determine if an inference of improper motive can be sustained. As it relates to the facts most pertinent to this case, the McDonnell Douglas framework requires a showing that similarly-situated persons outside the protected class did not suffer the same adverse action suffered by Petitioner (or were treated more favorably in comparison). The fundamental problem with Petitioner's case is that she attempts to hold Respondent liable for what she suspects was a discriminatory decision by Director Wise, and subsequently by District Superintendent
Hagerty, to terminate her employment while not terminating the employment of Carla Green, a white bus driver who also had some history of attendance problems.
It is undisputed in the record that no bus driver member of Respondent whose employment was proposed to be terminated late in the 1993-94 school year for attendance- related problems received any assistance from Respondent beyond Step II of the grievance process, the level of assistance provided to Petitioner. It is also undisputed from the record evidence that there was no obvious pattern of termination of similarly-situated bus drivers on the basis of race. Also, since Petitioner provided no evidence of any disability-related considerations which may or may not have applied to other similarly-situated bus drivers at the time, the record reflects no suspicious disability-related patterns. The only comparative information of any kind submitted by Petitioner were documents excerpted from the personnel file of Carla Green, a white bus driver who was retained by the District at the time Petitioner was fired. This evidence, however, establishes nothing about Respondent's motives in providing assistance to Green and Petitioner and does not in any way indicate that Respondent did more to protect Green's job.
In the absence of direct evidence of discrimination
or differential treatment by Respondent toward Petitioner, Petitioner cannot make out a prima facie case of race or disability discrimination. Therefore, a determination that no discrimination by Respondent occurred is required. Pound vs. Stone, 945 F.2d 796 (4th Cir. 1991); Hazen Paper Company vs.
Biggins, 505 U.S. 604 (1993). Therefore, Petitioner has failed to come forward with sufficient evidence to meet her initial burden of proof on the issue of racial or handicap disability discrimination.
Even in the event the record can be construed to indicate the presence of a prima facie case of race and/or disability discrimination, the testimony and the documentary evidence presents a persuasive statement of Respondent's legitimate, non-discriminatory reasons for the decision not to take Petitioner's case to arbitration. Having put forth such a legitimate basis for its actions, the McDonnell Douglas framework shifts the burden of proof of discrimination back to Petitioner, and she must provide evidence that the stated,
non-discriminatory reason is pretextual. Petitioner has failed to provide any evidence from which a reasonable fact finder could conclude that Respondent acted for any reason other than that stated by Respondent at the hearing.
Petitioner has failed to show Respondent's stated motives were pretextual and cannot sustain any claim that a discriminatory
motive existed.
In sum, Petitioner provided no evidence, other than her own surmise driven solely by outcome (she lost her job, others did not), to support any claim of improper motivation by Respondent in its handling of her employment dispute with the Seminole County School Board. Respondent's suspicions about the District's motives neither raise a prima facie claim of discrimination by Respondent, nor overcome the legitimate, non-discriminatory reason provided by Respondent for its actions.
With respect to the claim of disability discrimination, Petitioner also failed to prove that she suffered from a condition of sufficient severity and duration to avail herself of the protections of Section 760.10(1)(a), Florida Statutes. The only condition from which Petitioner contends she suffered during the pertinent period is her situational "depression" brought on by the unexpected death of her boyfriend in January 1994. In order to state any claim of disability discrimination, the complaining party must show that she suffered from a physical or mental condition which substantially limits one or more major life activities. 42
U.S.C. Section 12102(2).
To determine whether an impairment substantially limits an individual's major life activity, consideration must
be given to the impairment's nature and severity, its duration or expected duration, and its actual or expected permanent or long-term impact. Gordon vs. E.L. Hamm and Associates, 100 F.3rd 907 (11th
Cir. 1996). The medical information provided by Petitioner during the hearing is uncorroborated hearsay.
There was no medical explanation given and not even a diagnosis mentioned, which has no evidentiary value in the absence of more detailed medical testimony.
Depression, by itself, does not constitute a disability. Pritchard vs. Southern Company Services, 92 F.3d 1130, 1133 (11th Cir. 1996). The courts have firmly established that short-term conditions do not substantially impair major life activities under the law. See Spades vs. City of Walnut Ridge, Arkansas, 186 F.3rd 897 (8th Cir. 1999), where an individual's depression is decreased with medication and counseling resulting in adequate functioning, that person is not substantially impaired under the Americans with Disabilities Act (ADA); Colwell vs. Suffold County Police Department, 158 F.3rd 635 (2nd Cir. 1999)(a condition that only affects an individual's major life activities for a
post-traumatic stress disorder is not sufficiently permanent as to have a long-term impact for purposes of coverage under the ADA); Sanders vs. Arneson Products, 91 F.3rd 1351 (9th Cir. 1996)(a temporary period of depression caused by an individual's diagnosis with cancer does not entitle the individual to the protections of the ADA because of depression); Sevens vs. Stubbs, 576 F. Supp. 1409 (N.D. Ga. 1983)(a transitory ailment that has no substantial permanent impact is not a disability protected by law). Based upon the holdings of these cases as they apply to the record evidence in this matter, Petitioner has failed to prove that she suffered from a medical disorder of substantial severity and duration to entitle her to the protections of the Florida Civil Rights Act.
RECOMMENDED that the Florida Commission on Human Relations enter a final order which dismisses the Petition for Relief for lack of jurisdiction and/or denies the Petition on the merits.
DONE AND ENTERED this 24th day of February, 2000, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
this 24th day of February, 2000.
Anthony D. Demma, Esquire Meyer & Brooks, P.A.
15 days 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.
