STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSIE F. JENKINS, )

)

Petitioner, )

)

vs. )

) EPISCOPAL CHILDREN'S SERVICES, )

)

Respondent. )

Case No. 03-0292

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for administrative hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, in Starke, Florida, on May 6, 2003. The appearances were as follows:

APPEARANCES

For Petitioner: Jessie F. Jenkins, pro se

Post Office Box 117 Lawtey, Florida 32058

For Respondent: John F. MacLennan, Esquire

225 Water Street, Suite 1800 Jacksonville, Florida 32202

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner was subjected to discrimination on account of her age by her termination by the Respondent, Episcopal Children's Services.

PRELIMINARY STATEMENT

This cause arose on September 26, 1997, when the Petitioner was informed that her position of employment was terminated due to an element of the child abuse and neglect policy maintained by the Respondent. The Petitioner was discharged for allegedly not following the policy which required notification of the Department of Children and Family Services when a child was missing from a field trip. The child had been left alone at the "Head start" center.

The Petitioner ultimately filed a charge of discrimination with the Federal Equal Employment Opportunity Commission (EEOC) and with the Florida Commission on Human Relations (Commission). The EEOC issued a determination that it was unable to conclude that violations of the relevant statutes had been established and thereafter on December 31, 2002, the Commission dismissed the charge and advised the Petitioner that she could pursue her claim before the Division of Administrative Hearings within 35 days of the date of that dismissal. The Petitioner elected to file a Petition for Relief on January 23, 2003, with the Commission and the matter was duly transferred to the Division of Administrative Hearings on January 27, 2003. The Petitioner alleges that she was discriminated against because of her age, based on her termination of employment by the Respondent.

The cause came on for hearing as noticed. The Petitioner presented her own testimony and that of witness Cynthia Ross. The Respondent presented the testimony of Jennifer Fasig, Rita Gail Rhoden, Susan Wilkinson, Alberta Hampton, and Lenora Smith Gregory. Additionally, the Petitioner presented exhibits one through four, which were admitted into evidence and the Respondent presented exhibits one through fourteen, which were admitted into evidence.

Upon concluding the proceeding the parties obtained a transcript thereof and elected to submit proposed findings of fact and conclusions of law which were timely submitted on June 17, 2003. Those Proposed Recommended Orders have been considered in the rendition of this Recommended Order.

FINDINGS OF FACT

1. The Petitioner was born on July 25, 1940. She had been employed with the federally funded Head Start Program in Bradford County, Florida for over 30 years. In 1996, the contract to operate the Head Start Program in Bradford County was submitted for competitive bids. The Respondent Agency made a bid for the contract and was awarded the contract. The Respondent begin operating the Head Start Program in the fall of 1996.

2. The Petitioner thereupon applied for employment with the Respondent on September 24, 1996. She was hired by the

   Respondent in the position of Lead Teacher. As Lead Teacher she had the responsibility to supervise other teachers at the Head Start Center in Starke, Bradford County, Florida. Her job description included as a part of her responsibilities:

   1. To supervise the day-to-day operations of the center assigned during working hours.

      . . .

      7. To directly supervise the teaching staff at the assigned center.

      
      

3. As lead teacher, the Petitioner received a starting compensation of $16,978.00, while other teachers received a starting compensation of $15,260.00 per year.

4. In addition to receiving a higher rate of compensation, the Petitioner would approve the daily lesson plans posted by other teachers. The other teachers submitted their time sheets to the Petitioner. The other teachers also informed the Petitioner when they were going to be absent and the Petitioner would arrange for substitutes to replace them. The other teachers would provide work requests regarding their classrooms to the Petitioner for appropriate handling.

5. On June 3, 1997, personnel of the Head Start Center in Starke took the children enrolled at the center on a field trip to the movie theatre in Starke. After the Petitioner and other teachers, had left the Center, a child was discovered unattended in one of the classrooms at the Center. The employee who discovered the child brought the child to Alise Watson at the

   Center. Ms. Watson was the social worker at the Center at that time.

6. Ms. Watson brought the child with her to the movie theatre and reported the incident to the Petitioner, because the Petitioner was lead teacher. Under the Respondent's policy, this incident was one which should be reported, both to the Respondent's Jacksonville Office and to the Florida Abuse and Neglect Hotline telephone line. Ms. Jenkins did not ask Ms. Watson if the incident had been reported, either to the Respondent's central office or to the Florida Abuse Hotline. Ms. Jenkins had received copies of the Respondent's policies regarding reporting incidents of abuse or neglect and acknowledged at the hearing that the incident was one which was required to be reported.

7. On June 4, 1997, Ms. Lenora Gregory, the Respondent's Head Start Director, learned of the June 3rd incident. On that date she met with the teacher in whose classroom the child had been left and that teacher's assistant. After interviewing the teacher and her assistant, Ms. Gregory and the Respondent recommended to the Head Start Policy Council that the teacher and her assistant be terminated because of this incident. Under the Head Start Program, the Respondent has the authority to recommend termination of a Head Start employee, but only the Head Start Policy Council has the authority to actually

   terminate an employee. The Head Start Policy Council accepted the Respondent's recommendation and terminated the employment of the classroom teacher and the teacher's assistant.

8. The Respondent investigated the Petitioner's responsibility for the June 3, 1997, incident as well. The Respondent's policy placed the responsibility for reporting the incident on the lead teacher:

   The person noticing or suspecting abuse and/or neglect must immediately notify the lead teacher of the center. If she is unavailable, notify the secretary or social worker.

   1. They will notify the Child Abuse Registry at 1-800-342-9152.

   2. Failure to do so carries up to a

   $500.00 fine and/or 60 days in jail.

   
   

9. Ms. Lenora Gregory and Dr. Susan Wilkinson, the Respondent's chief executive officer, requested that the Petitioner meet with them to discuss the June 3, 1997, incident. The Head Start Policy Council, at the request of Dr. Wilkinson, authorized Dr. Wilkinson to offer the Petitioner the opportunity to resign or retire. The alternative would be a recommendation by the Respondent to the Policy Council that the Petitioner's employment be terminated. On August 19, 1997, a meeting was held to discuss the Petitioner's employment with the Respondent. The Petitioner was present with her attorney, as was Dr. Wilkinson, and Ms. Gregory. The June 3, 1997, incident was discussed. Dr. Wilkinson asked the Petitioner how long she had

   been employed with the Head Start Program and the Petitioner responded that she had been employed for 30 years. Dr.

   Wilkinson then offered the Petitioner an opportunity to resign or retire as a face-saving measure for the Petitioner. Dr.

   Wilkinson told the Petitioner and her attorney that if she did not resign or retire the alternative would be termination.

10. The Petitioner decided to neither resign nor retire and the Respondent recommended her termination. That recommendation was accepted by the Head Start Policy Council. The reason for the termination was the Petitioner's responsibility for the June 3, 1997, incident, both failing to report the incident, as required of the lead teacher, and failing to take appropriate steps to avoid the incident in her role as lead teacher and overall supervisor of the Center.

11. The Petitioner contends that she was not "available" and that therefore under the Respondent's policy, it became the duty of Alise Watson, as social worker, to report the incident. Ms. Watson did not report the incident. No disciplinary action was taken against Ms. Watson.

12. On August 26, 1998, the Equal Employment Opportunity Commission issued its notice of dismissal and a "right to sue" to the Petitioner, being unable to conclude that there had been a violation of the law.

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. Sections 120.57(1), 120.569, and 760.11(7), Florida Statutes.

14. Pursuant to Sections 760.10(1)(a) and 760.10(7), Florida Statutes, it is unlawful for an employer to discriminate against an employee based on age. In order to sustain her claim of age discrimination based on a termination, the Petitioner must prove a prima facie case showing: (1) That she is a member of a protected class; (2) That she was performing her job duties and responsibilities in an appropriate manner; (3) That she was terminated; (4) That the individual who was hired or was promoted was not a member of the Petitioner's protected group, or alternatively, a similarly situated employee outside the Petitioner's protected group was treated differently. See McDonnell-Douglas Corporation v. Green, 411 US 792 (1983); Carter v. Three Springs Residential Treatment, 1302 F.3d 635 (11th Cir. 1998).

15. In this case it is undisputed that the Petitioner was over 40 years of age at the time of her termination. Because of her long employment with Head Start and because the Respondent did not argue to the contrary, it can be presumed that she was performing her job duties satisfactorily and it is also

    undisputed that she was terminated. However, the Petitioner did not meet the final element of her prima facie case because there is no evidence as to the age of her replacement and there is no evidence that a similarly situated employee was treated differently from the Petitioner.

16. The Petitioner contends that Ms. Alise Watson, the social worker, was similarly situated but that contention is without merit. In order to be similarly situated, the employee must be identical in all respects to the Petitioner. Holbrook v. Reno, 196 F.3d 255, 261 (DC Cir. 1999) wherein it was held that to show that another employee is similarly situated, "[a] plaintiff must . . . demonstrate that all of the relevant aspects of her employment situation were nearly identical to those of the employee being compared." The Petitioner was the lead teacher and as such was in overall charge of the Head Start Center. Ms. Watson had no supervisory responsibilities.

17. While the Petitioner contends that Ms. Watson was equally guilty of violating the Respondent's policy on reporting the June 3, 1997, incident, the Respondent concluded that such was not the case because, in the Respondent's view, the Petitioner was indeed "available" and thus reporting of the incident was her responsibility. The Respondent's determination that the Petitioner was "available," for purpose of its policy and therefore having the reporting responsibility, was within

    the Respondent's discretion as an employer. It could legitimately determine that the Petitioner, being at the theatre in Stark and in close proximity to the Head Start Center and/or in verbal contact with the other employees involved in operations and the incident that day was thus "available" and had the reporting responsibility, which she clearly did not follow. Thus, even if one were to decide that termination was especially harsh or overly strict, it was a determination the employer could discretionarily make. It does not exhibit age discrimination animus.

18. Assuming that the Petitioner had demonstrated a prima facie case of age discrimination, the burden to go forward would be on the Respondent "to articulate some legitimate, non- discriminatory reason" for the termination. McDonnell-Douglas

    Corporation v. Green, supra. The Respondent is required to explain or to produce evidence of legitimate, non-discriminatory reasons for the termination. Board of Trustees v. Sweeney, 439 US 24 (1978). If the Respondent succeeds in carrying its burden to show a legitimate, non-discriminatory reason for the employment action, the employee must then go forward with evidence to show that those reasons are pretextual. St. Mary's Honor Center v. Hicks, 113 S. Ct. 2742 (1993).

19. In the instant case, the Respondent presented evidence that the termination was based upon the June 3, 1997, incident,

    the responsibility the Respondent felt the Petitioner bore regarding that incident and which it felt she had not complied with. The Petitioner was terminated as a result of this incident because, as lead teacher, she had over-all supervisory responsibility for the Center and she had the responsibility to report the incident as required by the Respondent's policy.

20. The Petitioner contends that Dr. Wilson's inquiry regarding the Petitioner's length of employment with the Head Start Center constitutes evidence of age discrimination. That is not the case. Such comments are not direct evidence of age discrimination. Clark v. Coats and Clark, Inc., 990 F.2d 1218 (11th Cir. 1993) (employer telling plaintiff that employer wished the plaintiff to accept early retirement, effective immediately, not deemed direct evidence of age discrimination). In a similar case where the employer was offering resignation or retirement as a face-saving gesture to the employee, such an offer was not considered evidence of age discrimination. Kaniff v. Allstate Insurance Company, 121 F.3d 258 (7th Cir. 1997) In summary, the Petitioner has offered no evidence to show that the Respondent's explanation for the termination of her employment was pretextual, even assuming arguendo that the Petitioner had reached that state or level of proof by establishing a prima

facie case of age discrimination, which she did not do.

RECOMMENDATION

Having considered 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, therefore,

RECOMMENDED

That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety.

DONE AND ENTERED this 30th day of July, 2003, in Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF 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 30th day of July, 2003.

COPIES FURNISHED:

Jessie F. Jenkins Post Office Box 117 Lawtey, Florida 32058

John F. MacLennan, Esquire

225 Water Street, Suite 1800 Jacksonville, Florida 32202

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Suite 100

Tallahassee, Florida 32301

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: 03-000292

Orders for Case No: 03-000292