CAROL A. GAINER, )
vs. ) Case No. 99-2716
Respondent. )
A formal administrative hearing was conducted before the Division of Administrative Hearings by Daniel M. Kilbride, Administrative Law Judge, on October 27, 1999, in Melbourne, Florida. The following appearances were entered:
For Petitioner: Carol A. Gainer
For Respondent: Harold T. Bistline, Esquire
Whether the Respondent discriminated against Petitioner on the basis of age, handicap and retaliation in violation of the Civil Rights Act of 1992, Sections 760.01-760.11, Florida Statutes.
On November 19, 1997, Petitioner, Carol A. Gainer, filed a charge of discrimination with the Florida Commission on Human Relations (Commission). More than 180 days elapsed since the filing of the Complaint and the Commission had not completed its investigation. Pursuant to Section 760.11(8), Florida Statutes, Petitioner requested a formal administrative hearing on the charge before the Division of Administrative Hearings. On
June 17, 1999, the Commission referred this matter to the Division of Administrative Hearings for further proceedings under Section 120.57, Florida Statutes, and for the submission of a recommended order. An administrative hearing was scheduled for October 27, 1999.
At the hearing, Petitioner testified in her own behalf and presented the testimony of one witness. Nine exhibits were admitted in evidence. Respondent presented the testimony of two witnesses and submitted 11 exhibits which were admitted in evidence.
The Transcript of the hearing was filed on November 15, 1999. Petitioner has not filed proposed findings of fact or conclusions of law as of the date of this Order. Respondent timely filed its Proposed Recommended Order on December 3, 1999.
Petitioner, who was 52 years of age during the relevant time period, was employed as a guidance counselor at Apollo
Elementary School during the 1996-97 school year. Petitioner was one of two guidance counselors employed at the school. The other guidance counselor was Peggy Davis, who was 42 years of age during the relevant time period. Both Petitioner and Davis were licensed teachers and certified guidance counselors.
The Brevard County School District has a staffing plan that allocates to each school teaching units according to student population. Based upon the staffing plan, each school is funded to employ a certain number of teachers in each relevant certification and specialty. The principal of each school is permitted to shift allocated teaching units among the different certifications and teaching specialties to meet current program needs.
In 1995, Alice Graves was assigned as Principal of Apollo Elementary. When Graves arrived at Apollo, both Petitioner and Davis were employed as full-time guidance counselors.
Prior to Graves' assignment to Apollo, the school had earned 1.5 units in guidance based upon student population. In order to fund two full-time guidance counselors, the prior principal had borrowed 0.5 of a teaching unit from the regular program. Graves continued this guidance allocation until the 1997-98 school year.
During the 1995-96 school year, the Apollo Elementary School community of parents and teachers decided to implement a
computer lab to increase technology instruction in the school.
As part of the process a three-year technology plan was developed and submitted to the district and the State Board of Education to fund and staff the computer lab.
By the spring of 1997, the school community had raised the necessary funds and purchased 28 computers for the lab. The school was ready to activate the computer lab for the 1997-98 school year. It needed to hire a computer teacher to staff the program.
Staffing the computer lab required one full-time teacher. However, Apollo Elementary received no additional staffing from the District because of the computer lab. As a result, the principal was required to staff the lab within the school's existing staffing plan.
The principal examined the school's program needs and existing staffing. She determined that the most appropriate way to obtain the full teaching unit needed to staff the computer lab was to take a half unit from the basic program and match it with the half unit that had been allocated to fund one of the two
full-time guidance counselor positions. This staffing reallocation would have the least impact on class size, program needs and the student's educational environment. This plan also reduced the existing staffing in guidance by one-half unit, thereby returning it to the 1.5 units actually earned by the school based upon student population.
In order to accomplish the staffing reallocation to open the computer lab for the 1997-98 school year, the principal was required to reduce the existing guidance counselor staffing by one-half unit. To do this, the principal had to find another school in Area IV of the School District to share one full-time unit of guidance. In the spring of 1997, the principal began working with the Area IV superintendent's office to find a school to share the guidance unit.
In the early summer of 1997, a part-time position in guidance became available in Area IV at Enterprise Elementary. Principal Graves received permission from the Area superintendent to transfer one-half unit of guidance to Enterprise if that school's principal agreed. This would require that one of the two guidance counselors at Apollo be shared between the two schools.
The principal contacted the District's Labor Relations office for instructions on how to carry out the transfer of one- half unit of guidance to Enterprise Elementary. She was instructed to follow Article VI F.3.a.(8) of the Collective Bargaining Agreement (CBA) between the School District and the Brevard Federation of Teachers. That provision governs transfers of teachers for reasons other than declining enrollment.
In accordance with the CBA, the principal sent certified letters to both guidance counselors assigned to Apollo Elementary, Davis, and Petitioner notifying them that a reduction
in guidance staffing was going to take place in the upcoming school year and asking for a volunteer to transfer to the shared position.
Davis responded in writing that she did not wish to be transferred.
Petitioner did not respond to the letter.
The principal then contacted Petitioner by telephone and asked her response to the letter. Petitioner told the principal she was not interested in the transfer.
Since neither Petitioner nor Davis volunteered to transfer to the shared position, the principal was required to select one of them to be involuntarily transferred.
Principal Graves decided to retain Davis in the full-time guidance position at Apollo Elementary and transfer
Petitioner to the shared position effective at the beginning of the 1997-98 school year.
The criteria the principal used in deciding which guidance counselor would remain in the full-time position at Apollo and which would transfer to the shared position was based upon the contributions each counselor made to the programs and students in the school.
Davis was much more involved than Petitioner in the school community and was active in the School Advisory Committee, the Student Council Program, and other school activities that were essential to promoting community services and self-esteem
for students. Davis was selected by her peers as the school's Teacher of the Year three times, was an exemplary teacher and guidance counselor, and was excellent at diffusing concerned and upset parents which was important in a guidance counselor in that position.
Graves believed that Davis was a more effective guidance counselor than Petitioner.
For all these reasons, Davis was retained as the full-time guidance counselor at Apollo and Petitioner was
transferred to the shared position effective at the beginning of the 1997-98 school year.
Petitioner was notified of the transfer. Thereafter, Petitioner requested a meeting with the Area IV superintendent to protest the transfer.
Petitioner was accompanied at the meeting by Fran Baer, President of the Brevard Federation of Teachers. The Area IV superintendent upheld the transfer.
Neither Petitioner nor Brevard Federation of Teachers grieved the transfer under the CBA.
Petitioner worked the shared position commencing at the beginning of the 1997-98 school year. Petitioner divided her time between Apollo Elementary and Enterprise Elementary alternating days at each school. Petitioner retired from the Brevard County School District effective the end of the 1997-98 school year.
Part-time or shared teaching assignments are commonplace in the Brevard County School District. The CBA between the School District and the Brevard Federation of Teachers recognizes this practice in Article VI of the CBA.
Currently, the guidance counselor staffing at Apollo Elementary is still 1.5 units and a guidance position is shared with Enterprise Elementary.
Although Petitioner did not desire the transfer, the principal had to transfer either Petitioner or Davis to the shared position to accommodate the staffing of the computer lab for the 1997-98 school year.
The decision to staff the computer lab teaching position by reducing the guidance allocation to the 1.5 units earned by student population was based upon the program needs of the school and to avoid increasing class size in the regular program.
The reasons articulated by Respondent for the reallocation of teaching units and the transfer of Petitioner to the shared position are credible and constitute legitimate non- discriminatory reasons for the actions taken.
The evidence does not support Petitioner's assertion that her age was a factor in the decision, nor was Petitioner's physical condition a factor in the decision.
Although Petitioner had some physical problems that occurred from time to time, the school staff was not aware that
Petitioner claimed to be disabled or handicapped and the staff did not perceive Petitioner to be handicapped.
The evidence does not support the assertion that Petitioner was retaliated against based upon her age, physical condition or for filing the charge of discrimination.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Sections
120.569 and 120.57(1), Florida Statutes.
Federal case law interpreting Title VII of the Civil Rights Act of 1965 and the Americans with Disabilities Act (ADA) is applicable to cases arising under Florida Civil Rights Act of 1992. Florida State University v. Sondel, 685 So. 2d 922 (Fla. 1st DCA 1996); Brand v. Florida Power & Light, 633 So. 2d 504 (Fla. 1st DCA 1994).
A plaintiff's subjective belief that she has been discriminated against, however genuine, cannot alone be a basis for relief in an employment discrimination action. Little v. Republic Ref. Company, 924 F.2d 93 (5th Cir. 1991); Anderson v. HCA Deer Park Hospital, 834 F.Supp. 183 (S.D. Tex 1993).
ADA Claim
Petitioner presented no competent direct evidence that Respondent discriminated against her because of her age.
Walton v. McDonnell Douglas Corporation, 167 F.3rd 653 (11th Cir. 1998).
Because no direct evidence of age discrimination was presented, the McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs v. Burdine,
450 U.S. 248 (1981) burden shifting analysis applies to this case. Bogle v. Orange County Board of County Commissioners, 162 F.3rd 653 (11th Cir. 1998).
In order to establish a prima facie violation of the ADA and the Florida Civil Rights Act of 1992, an employee must present evidence that (1) she was a member of the protected group of persons between the ages of 40 and 70; (2) that she was subject to adverse employment action; and (3) that she was disadvantaged in favor of a substantially younger person. Bogle, supra; Cuddy v. Carmen, 694 F.2d 853 (D.C. Cir. 1982).
Once an employee makes out a prima facie case of age discrimination in violation of the ADA, the employer must respond with a legitimate, non-discriminatory reason for its action.
Once the employer has articulated a legitimate,
non-discriminatory reason for its actions, the prima facie case is dissolved and the burden shifts back to the employee to prove at a new level of specificity that the reason articulated by the employer is not true but is only a pretext for discrimination.
Texas Department of Community Affairs v. Burdine, supra at 255.
The ultimate burden of persuasion remains at all times with the employee. Cuddy v. Carmen, 694 F.2d 843 (D.C. Cir.
1982); Brand v. Florida Power Corporation, 633 So. 2d 504 (Fla. 1st DCA 1994).
The evidence presented at the hearing established that at the time the principal made the decision to transfer Petitioner to the shared position, Petitioner was 52 years of age. The evidence also established that Davis, who was selected to remain at Apollo, was 42 years of age. Assuming arguendo, and without deciding that the transfer was an adverse employment action under the ADA and that Davis was substantially younger than Petitioner, a prima facie case under the ADA could theoretically be established.
However, at the hearing Respondent articulated legitimate, non-discriminatory reasons for the decision to transfer Petitioner to the shared position and retain Davis as the full-time guidance counselor at Apollo Elementary. Petitioner failed to demonstrate that Respondent's reasons for the decision were false and merely a pretext for age discrimination. Petitioner did not carry her burden of proof, and her claim of age discrimination must be dismissed.
ADA Claim
Petitioner failed to present even a prima facie violation of the ADA and the Florida Civil Rights Act of 1992.
Petitioner did not demonstrate by a preponderance of evidence at the hearing that she had a physical impairment that substantially limits one or more major life activities. Neither
did Petitioner prove that Respondent perceived Petitioner to be a handicapped person as defined by the ADA. Furthermore, Petitioner failed to present any evidence that the action of Respondent in transferring Petitioner to the shared position, even if such action could be considered "adverse," was motivated in any way due to Petitioner's physical condition. See Goldsmith v. Jackson Memorial Hospital Public Health Trust, 33 F.Supp. 2d 1336 (S.D. Fla. 1998).
Retaliation
Petitioner's claim for retaliation must also fail. Petitioner claimed generally at the hearing that Respondent retaliated against her in the conditions of her employment. However, Petitioner failed to present any persuasive evidence that she was treated differently or less favorably than other similarly situated employees due to her age, physical condition or for filing the charge of discrimination.
Damages
Petitioner made generalized claims for monetary damages at the hearing but presented no competent evidence which would permit the finder of fact to determine the amount of damages to be awarded, if any.
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the petition.
DONE AND ENTERED this 27th day of January, 2000, in Tallahassee, Leon County, Florida.
DANIEL M. KILBRIDE
Filed with the Clerk of the Division of Administrative Hearings this 27th day of January, 2000.
Carol A. Gainer 1627 Rice Avenue
Harold T. Bistline, Esquire
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.
