STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ADHIM HOLLIS HOSEIN, )

)

Petitioner, )

)

vs. ) Case No. 07-1972

) MIAMI-DADE COUNTY PUBLIC SCHOOLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was conducted in this case pursuant to Sections 120.569 and 120.57(1), Florida Statutes,1 before Stuart M. Lerner, a duly-designated administrative law judge of the Division of Administrative Hearings, on July 19, 2007, by video teleconference at sites in Miami and Tallahassee,

Florida.

APPEARANCES

For Petitioner: Chester G. McLeod, Esquire

269 North University Drive, Suite E Pembroke Pines, Florida 33024

For Respondent: Janeen L. Richard, Esquire

Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132 STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful employment practice alleged in the employment discrimination charge filed

by Petitioner and, if so, what relief should the Florida Commission on Human Relations grant Petitioner.

PRELIMINARY STATEMENT

On March 27, 2006, Petitioner filed an employment discrimination charge, alleging that his employer, Respondent, "denied [him] the opportunity for employment" as a school bus driver because of his age. The charge was "dual filed" with the Florida Commission on Human Relations (FCHR)and the Equal Employment Opportunity Commission (EEOC). The EEOC, following an investigation of the charge, "determined that it was unable to conclude that the information obtained during the investigation established violations of the statutes [prohibiting employment discrimination on the basis of age]." On April 19, 2007, the FCHR issued a Right to Sue letter, advising Petitioner that he could "pursue this case in the Division of Administrative Hearings by filing a Petition for Relief with the FCHR within 35 days from the date of this Right to Sue letter," or, alternatively, "file a lawsuit in circuit court of the State of Florida anytime within one year from the date of this Right to Sue letter, provided such time period is not more that four years from the date the alleged violation occurred."

Petitioner, on or about May 4, 2007, filed a Petition for Relief with the FCHR. On May 8, 2007, the FCHR referred the

matter to the Division of Administrative Hearings (DOAH) for the assignment of a DOAH administrative law judge to conduct a hearing on the allegations of employment discrimination made by Petitioner against Respondent.

On July 16, 2007, the parties filed a Joint Pre-Hearing Stipulation, which provided, in pertinent part, as follows"

A, Concise Statement of the Nature of the Controversy:

This is a proceeding wherein ADHIM HOLLIS HOSEIN ("Petitioner") alleges that The School Board of Miami-Dade County, Florida ("School Board") discriminated against him based on his age. Petitioner states that Administrators refused to allow him to take the driving test to become a school bus driver.

B. A Brief, General Statement of each Party's Position:

1. It is the School Board's position that there is no basis to substantiate the charge based on age filed by the Petitioner. In his Charge of Discrimination, Petitioner alleges he was denied the opportunity to take the driving test to become a School Bus Driver. Petitioner did not officially apply for the position of School Bus Driver. Instead, he made general inquiries through his union representatives. In response to his inquiries, Petitioner was notified that he was not qualified for the position due to his driving history and driving record. The screening criteria for prospective School Bus Drivers clearly states that individuals will not be approved to drive a school bus for Miami-Dade County Public Schools if they have more than twenty-five (25) district assigned points. Based on Petitioner's

   entire driving record, the number of points assigned to him exceeds twenty-five (25).

   
   

2. It is the Petitioner's [co]ntention that the Respondent discriminated against the Petitioner by refusing to allow him to drive a bus even though the Petitioner passed the physical exam. The Petitioner had an accident and was required to take additional training classes. During the final training exercise, Petitioner was removed from [the] bus; barring him from passing the mandatory road test. The Petitioner overheard several administrators say that the Petitioner is blind and cannot see. The Petitioner requested to take the final road test and the Respondent refused to allow the Petitioner to take the test; barring him from driving a bus. Petitioner was told by an administrator with the Board that if he did not take another job he would be suspended for 30 days and then fired. After the threats were made, the Petitioner reluctantly applied to become a bus aide.

* * *

1. Facts Which Will Require No Proof at Hearing, with Reservations, if Any.

   
   

   1. At all times material hereto, Respondent was a duly constituted School Board, pursuant to Article IX, Florida Constitution.

      
      

   2. Petitioner was hired as a full-time bus driver in March of 1994.

      
      

   3. Petitioner's CDL driver's license number from March 29, 2000 to March 31, 2004 was H420-321-36-111-0 and his current CDL driver’s license number issued on March 31, 2004, is H250-008-36-110.

   4. On or about January 19, 1999, Petitioner submitted a doctor's note regarding his inability to work due to laser surgery on his eyes.

      
      

   5. Petitioner requested a leave of absence without pay from January 22, 1999-June 11, 1999.

      
      

   6. On August 5, 1999, Petitioner rear ended a recycling truck while operating a Miami- Dade County Public School bus.

      
      

   7. On August 9, 1999, Petitioner hit a tree while operating a Miami-Dade County Public School bus and did not report the accident. As a result, Petitioner was suspended for 30 calendar days.

      
      

   8. After an accident on March 26, 2001, Petitioner was charged with careless driving for an improper lane change.

      
      

   9. On June 15, 2001, he made a request for a voluntary career redirection to a bus aide. His request was approved.

      
      

   10. Petitioner filed his charge of discrimination on March 27, 2006.

       
       

2. Issues of Law on Which There Is Agreement:

   
   

   The Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621, et. seq. protects those employees who are age 40 and over from being discriminated because of their age.

   To bring an action for age discrimination in Florida, a complainant must file a charge with the Florida Commission on Human Relations (FCHR) and the Equal Employment Opportunity Commission (EEOC) within 300 days of the alleged discrimination.

   
   

   To establish a prima facie case of age discrimination based on direct evidence, Petitioner must establish the following

   criteria: (1) the evidence, if taken as true, must prove the existences of age discrimination without inference or presumption; (2) there must be a substantial nexus between the discriminatory statement and the adverse employment action; and the statement must be made by the decision maker responsible for the contested decision.

   
   

   In order to state a circumstantial case of violation under the ADEA, Petitioner must show that he is (1) a member of the protected class; (2) was adversely affected;

   (3) was replaced by a person substantially younger, and (4) was qualified to do the work required by the position. After Petitioner fulfills the requirements necessary to establish a prima facie ADEA case, Respondent's burden is to articulate a non-discriminatory reason for its action. If Respondent is able to satisfy this burden of production, Petitioner has the burden to prove that the articulated reason was merely a pretext for discrimination.

   
   

3. Issues of Fact Which Remain to Be Litigated:

   
   

   1. Whether age was the only basis for the employment decision.

      
      

   2. Whether the School Board has articulated a legitimate non-discriminatory reason for the employment action.

      
      

4. A Concise Statement of those Issues of Law Which Remain for Determination by the Administrative Law Judge:

1. Whether Petitioner has established a prima facie case for age discrimination.

   
   

2. Whether Petitioner's claims are barred by the applicable statute of limitations.

* * *

As noted above, the final hearing in this case was held on July 19, 2007. Four witnesses testified at the hearing: Petitioner, Jerry Klein, Richard Rothberg, and Chris Dowda. In addition, 46 exhibits (Petitioner's Exhibits 1 through 7, and Respondent's Exhibits 1-39) were offered and received into evidence.

At the close of the evidentiary portion of the hearing on July 19, 2007, the undersigned established a deadline (30 days from the date of the filing with DOAH of the hearing transcript) for the filing of proposed recommended orders.

The Transcript of the final hearing (consisting of one volume) was filed with DOAH on August 17, 2007. Accordingly, proposed recommended orders had to be filed no later than Monday, September 17, 2007.

Petitioner and Respondent both timely filed their Proposed Recommended Orders on September 17, 2007.

FINDINGS OF FACT

Based on the evidence adduced at hearing, and the record as a whole, including the parties' Joint Pre-Hearing Stipulation, the following findings of fact are made:

1. Petitioner was born on March 31, 1936, in Trinidad- Tobago.

2. He migrated to the United States in 1974.

3. In or around May 1993, when he was 57 years old, Petitioner applied for a position as a school bus driver with Respondent and was subsequently hired.

4. Respondent is responsible for the operation, control and supervision of all public schools (grades K through 12) in Miami-Dade County, Florida, and for otherwise providing public instruction and related services, including transportation services, to school-aged children in the county.

5. Respondent provides transportation services through its Transportation Department.

6. Jerry Klein has headed the Transportation Department (as its Administrative Director) since 1993.

7. The Transportation Department operates eight transportation centers throughout the county.

8. Assigned to these eight transportation centers are a total of approximately 1,530 school bus drivers, who range in age from 22 to 77, with most being over 40.

9. The current job description for the position of school bus driver has been in effect since March 9, 1999. It provides that school bus drivers must meet the following "physical requirements" and "minimum qualifications requirements":

   PHYSICAL REQUIREMENTS

   
   

   This is light work which requires the following physical activities: sitting, standing, walking, climbing, twisting,

   reaching, grasping, talking, hearing and visual acuity. Heavy lifting, pushing, and pulling may occasionally be required. Work is performed indoors and outdoors and worker is subject to noise, heat, fumes and vibration.

   
   

   MINIMUM QUALIFICATIONS REQUIREMENTS

   
   

   1. Must hold a valid Commercial Driver's License, have a minimum of five (5) years licensed driving experience, and have an excellent driving record.

      
      

   2. Must be able to pass the examinations and tests required by the State of Florida to obtain a Class B Commercial Driver's License with a Passenger Transport Endorsement, without air brake restriction.

      
      

   3. Must have an acceptable background check.

      
      

   4. Must be able to pass a prescribed reflex test, physical examination, and drug test. Must be able to deal with stressful situations on a frequent basis.

      
      

   5. Must have completed eighth grade and have a demonstrated ability to read, write, and understand written instructions in English. High school diploma or GED preferred.

      
      

   6. Must be able to pass the Basic School Bus Training Course given by Miami-Dade County Public Schools Department of Transportation in accordance with Rule 6A- 3.0141 of the State of Florida Board of Education.[2]

      
      

   7. Good knowledge of county geography.

      
      

10. In 1993, in response to "several media reports" that some of its school bus drivers "were driving with suspended

licenses and [had] other types of problems with their driving record[s]," Respondent developed and reduced to writing criteria to be used to screen the driving records of applicants for school bus driver positions (Screening Criteria), criteria which, in all material respects, it still uses today. The document in which these Screening Criteria are set forth is entitled, "Screening of Driving Records for Prospective School Bus Drivers for M-DCPS and Private Company Drivers," and it reads, in pertinent part, as follows:

* * *

1. Each individual's transcript of Driver Record will be screened in accordance with the guidelines and criteria established by this document. The entire driving record will be checked for purposes of determining an individual's acceptability or unacceptability to drive a school bus for

   M-DCPS. The screening process will be conducted prior to employment for M-DCPS drivers and annually as part of the annual re-certification for all drivers operating under contract to M-DCPS.

   
   

2. Points will be assigned for each entry on the Transcript of Driver Record in accordance with the Appendix attached to this document, and Paragraph 2 above. Individuals will not be approved to drive a school bus for M-DCPS if they have:

   
   

   1. More than three (3) district assigned points during the past year

      
      

   2. More than six (6) points during the past three (3) years

   3. More than nine (9) points during the past five (5) years

      
      

      or

      
      

   4. More than twenty five (25) district assigned points total, on the entire record.

* * *

6. The Administrative Director, Department of Transportation, or his designee, may make exception to the guidelines above, as circumstances warrant. Drivers who are disqualified under the above guidelines may further appeal the decision to the Chief Business Officer.

* * *

APPENDIX

DRIVING VIOLATION POINTS ASSESSED BY DISTRICT

VIOLATION POINTS

1. SPEEDING

   
   

   1. UP TO 14 MPH OVER POSTED

      SPEED LIMIT 3

   2. 15 MPH OR MORE, OVER

      POSTED SPEED LIMIT 4

   3. IN A SCHOOL ZONE 3

   4. DRIVING TOO FAST FOR CONDITIONS 3

* * *

1. FAILING TO COMPLY WITH STOP SIGN 3

2. FAILING TO COMPLY WITH TRAFFIC INSTRUCTION/DEVICE 3

* * *

1. IMPROPER TURNING 3

   * * *

   1. SEAT BELT VIOLATION . . . . 1

   2. CARELESS OR IMPROPER DRIVING 3

   
   

   * * *

   
   

   22. AT-FAULT ACCIDENT 2

   
   

   * * *

   
   

   Note: The district assesses points under this plan for all entries, regardless of conviction status or state disposition.

   
   

2. Although Mr. Klein, as the Transportation Department's Administrative Director, has had the authority to "make exception[s]" to these Screening Criteria, he has never done so.

3. Petitioner worked as an hourly school bus driver from June 10, 1993, until January 1994, when he became a full-time school bus driver, a position he held for approximately seven and a half years.3

4. During his employment as a school bus driver with Respondent, Petitioner was involved in several vehicular accidents while on duty in his school bus.

5. After one such accident, which occurred on August 9, 1999, Petitioner was suspended without pay by Respondent for failing to report the accident.4 The suspension began February 10, 2000, and ended March 13, 2000.

6. Petitioner's most recent accident as a school bus driver occurred March 26, 2001. Because the accident was deemed to have been "preventable," Petitioner was directed to complete retraining before resuming his school bus driver duties.

7. Petitioner began his retraining on May 16, 2001. He was unable to successfully complete the retraining, although given adequate time and a fair opportunity to do so.

8. On June 5, 2001, after Petitioner had had eight days of retraining5 (one in the classroom and seven on the road), Richard Rothberg, a Coordinator II for Operations and Training with Respondent, advised Petitioner that he "wasn't meeting the qualifications" to remain a school bus driver and asked him if he "would be willing to accept a demotion to a bus aide position so that he could retain his employment with [Respondent]."

   Mr. Rothberg told Petitioner that if he rejected the offer of a demotion, Petitioner's "case would be referred to the OPS [Office of Professional Standards]" and "he could be terminated." Petitioner's age played no role whatsoever in

   Mr. Rothberg's decision to end Petitioner's retraining and give him the choice to resign from his position as a school bus driver and take a bus aide position or face the possible termination of his employment with Respondent.

9. Petitioner opted to resign from his school bus driver position and accept a position as a bus aide rather than risk

   not having any job with Respondent. In his letter of resignation, Petitioner wrote that he was resigning because he had "fail[ed] driver retraining."

10. Respondent accepted Petitioner's resignation and appointed him to a bus aide position, effective June 15, 2001, as Petitioner had requested in his letter of resignation, a position in which he has remained.

11. In or around May 2004, Petitioner, through a union representative, John Nochi, contacted Mr. Rothberg's successor, Chris Dowda, to express Petitioner's interest in becoming a school bus driver again. Mr. Nochi, on Petitioner's behalf, asked Mr. Dowda "to check [Petitioner's] driving record to see if he would be qualified to be a school bus driver."

12. On May 14, 2004, Mr. Dowda obtained a print out of Petitioner's driving record (as maintained by the Florida Department of Highway Safety and Motor Vehicles) and "screened it." Applying the Screening Criteria, Mr. Dowda determined, correctly, that Petitioner had accumulated a total of more than

    25 district-assigned points over the period of his licensure and that he therefore was not qualified to be a school bus driver. Mr. Dowda thereafter telephoned Mr. Nochi and "told him what the results were" of the screening.

13. Mr. Dowda had "numerous [follow-up telephone] conversations" with Mr. Nochi, who had "a lot of questions" concerning the Screening Criteria.

14. During one of these telephone conversations, which took place sometime prior to the end of 2004, Mr. Dowda, in attempting to explain why the Screening Criteria were developed, posited the following:

    If there [are] bus driver[s] with a lot of citations on their record and they go out and they get into an accident and there are students injured on the bus and . . . the media gets a hold of their driving record we will see on the news, the media holding [it] up and say[ing], "Look who's driving for ou[r] district right now."

    
    

    Unbeknownst to Mr. Dowda, Petitioner was present in the same room as Mr. Nochi and listening on a speakerphone to what Mr. Dowda was saying to Mr. Nochi.

15. Mr. Nochi also contacted Mr. Klein and requested him to "review the driving record of [Petitioner] and see whether it would be acceptable to bring [Petitioner] back as a school bus driver." After conducting the requested review and determining that Petitioner had "a terrible driving record with more than 25 points assessed based on a long history of driving infractions," Mr. Klein informed Mr. Nochi that he "was not prepared to bring [Petitioner] back as a school bus driver because [Petitioner] didn't meet the minimum requirements of the [S]creening

    [C]riteria to become a school bus driver," adding that these requirements were not "waive[d] . . . for anybody."6

16. Effective 2005, all school bus drivers in the state needed to have (as they still do today) a school bus driver endorsement on their commercial driver's license.

17. That year (2005), Petitioner went to Northwestern High School to take a written test, administered by Respondent, to obtain such an endorsement, but was told that he was not eligible to, and therefore could not, take the test.

18. Petitioner subsequently took the test at the Department of Highway Safety and Motor Vehicles driver's license office in Pembroke Pines and received a passing score.

19. On August 23, 2005, he was issued a commercial driver's license with a school bus driver endorsement.

20. Petitioner subsequently went to Mr. Klein and showed him the newly issued license. Mr. Klein responded to being shown the license by repeating what he had told Mr. Nochi concerning Petitioner's having "too many points on his driving record" to be qualified under the Screening Criteria to become a school bus driver with Respondent.

21. Although he has made inquiries about the possibility of his regaining a school bus driver position with Respondent, Petitioner has not submitted an official application for such a position at any time following his demotion. Under the hiring

    system Respondent has developed, the filing of an application is a prerequisite to becoming a school bus driver.

22. On March 27, 2006, following his meeting with

    
    

    Mr. Klein, Petitioner filed the employment discrimination charge against Respondent which is the subject of the instant proceeding. The "particulars" of the charge were described by Petitioner as follows:

    I believe that I was discriminated against because of my age, 69. Chris Dadow [sic] made a derogatory comment about look who's driving our school buses. I was instructed to go and get a new license, and I complied. Mr. Chris Dadow [sic] refused to give me the driving test so I [could] become a School Bus Driver. I was ultimately denied the opportunity for employment.

    
    

23. In fact, it was Petitioner's driving record, not his age, that prompted Mr. Dowda, as well as Mr. Klein, to take the positions they did, following Petitioner's demotion, regarding his ineligibility to fill any vacant school bus driver position.

24. The comment made by Mr. Dowda about which Petitioner complained in his charge had nothing to do with Petitioner's, or

    anyone else's, age.

    
    

    CONCLUSIONS OF LAW

    
    

25. The Florida Civil Rights Act of 1992 (Act) is codified in Sections 760.01 through 760.11, Florida Statutes, and Section 509.092, Florida Statutes. "The Act, as amended, was [generally] patterned after Title VII of the Civil Rights Acts

    of 1964 and 1991, 42 U.S.C. § 2000, et seq., as well as the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 623.

    Federal case law interpreting [provisions of] Title VII and the ADEA is [therefore] applicable to cases [involving counterpart provisions of] the Florida Act." Florida State University v.

    Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); see also

    
    

    Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000)("The [Act's] stated purpose and statutory construction directive are modeled after Title VII of the Civil Rights Act of 1964."); and School Board of Leon County v. Hargis, 400 So. 2d 103, 108 n.2 (Fla. 1st DCA 1981)("Florida's job discrimination statute is patterned on Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.").

26. Among other things, the Act makes certain acts "unlawful employment practices" and gives the FCHR, if it finds following an administrative hearing conducted pursuant to Sections 120.569 and 120.57, Florida Statutes, that an "unlawful employment practice" has occurred, the authority to issue an order "prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay."7 §§

    760.10 and 760.11(6), Fla. Stat.

    
    

27. To obtain such relief from the FCHR, a person who claims to have been the victim of an "unlawful employment practice" must, "within 365 days of the alleged violation," file

    a complaint ("contain[ing] a short and plain statement of the facts describing the violation and the relief sought") with the FCHR, the Equal Employment Opportunity Commission, or "any unit of government of the state which is a fair-employment-practice agency under 29 C.F.R. ss. 1601.70-1601.80."8 § 760.11(1), Fla.

    Stat. This 365-day period within which a complaint must be filed is a "limitations period" that can be "be equitably tolled, but . . . only [based on the] acts or circumstances . . . enumerated in section 95.051," Florida

    Statutes. Greene v. Seminole Electric Co-op., Inc., 701 So. 2d 646, 648 (Fla. 5th DCA 1997).

28. "[D]iscrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. . . . [E]ach discrete act starts a new clock for filing charges alleging that act." AMTRAK v. Morgan, 536 U.S. 101, 113 (2002).

29. "[A] failure to rehire subsequent to an allegedly discriminatory firing, absent a new and discrete act of discrimination in the refusal to rehire itself, cannot resurrect the old discriminatory act [and restart the limitations period]. Otherwise, a potential [complainant] could always circumvent the limitations [period] by reapplying for employment." Burnam v.

    Amoco Container Co., 755 F.2d 893, 894 (11th Cir. 1985); see also Delaware State College v. Ricks, 449 U.S. 250, 261 n.15

    (1980)("Mere requests to reconsider . . . cannot extend the limitations periods applicable to the civil rights laws."); Smith v. Bruno's Supermarkets, Inc., No. 04-00730-CB-M, 2006

    U.S. Dist. LEXIS 59584 *12 (S.D. Ala. 2006)("Plaintiff's response to defendant's limitation argument is to ignore the June 6th notice altogether, and to proceed on the apparent assumption that the limitations period began to run sometime after December 17, 2001, the date plaintiff delivered a letter to Bruno's requesting reinstatement. But plaintiff fails to address, or even acknowledge, clearly established law that a request for reinstatement or reemployment does not begin the limitations period anew. A claim for failure to rehire must be based on a new discrete act of discrimination, and no such assertion is made here. Plaintiff's request for reinstatement does not save his untimely EEOC charge.")(citations omitted); and Redd v. Fisher Controls, 814 F. Supp. 547, 550 (W.D. Tex. 1992), aff'd, 35 F.3d 561 (5th Cir. 1994)("[F]ailure to reinstate or rehire does not generally constitute an actionable new act of discrimination or continuing discrimination so as to allow the limitations period to begin at the time when the former employee requests reinstatement.").

30. "[O]nly those claims that are fairly encompassed within a [timely-filed complaint] can be the subject of [an administrative hearing conducted pursuant to Sections 120.569

    and 120.57, Florida Statutes]" and any subsequent FCHR award of relief to the complainant. See Chambers v. American Trans Air, Inc., 17 F.3d 998, 1003 (7th Cir. 1994).

31. The "unlawful employment practices" prohibited by the Act include those described in Section 760.10(1)(a), Florida Statutes, which provides as follows:

    It is an unlawful employment practice for an employer:[9]

    To discharge or to fail or refuse to hire any 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,[10] handicap, or marital status.

    
    

32. In the instant case, Petitioner has alleged in his employment discrimination charge that Respondent committed such an "unlawful employment practice" by "denying [him] the opportunity for employment" as a school bus driver "because of [his] age."

33. Petitioner had the burden of proving, at the administrative hearing held in this case, that not only was he the victim of such discriminatorily motivated action, but also that such action occurred within the statutorily prescribed "limitations period" or, in the alternative, that circumstances exist justifying the tolling of this period. See Department of Banking and Finance Division of Securities and Investor

    Protection v. Osborne Stern and Company, 670 So. 2d 932, 934 (Fla. 1996)("'The general rule is that a party asserting the affirmative of an issue has the burden of presenting evidence as to that issue."'); Florida Department of Health and Rehabilitative Services v. Career Service Commission, 289 So. 2d 412, 414 (Fla. 4th DCA 1974)("[T]he burden of proof is 'on the party asserting the affirmative of an issue before an administrative tribunal.'"); Montes v. Vail Clinic, Inc., No.

    05-1385, 2007 U.S. App. LEXIS 19293 *16 (10th Cir. August 14,

    
    

    2007)("[T]he obligation to demonstrate timeliness in filing a charge is a condition precedent to suit and thus a burden for plaintiffs to carry."); Hong v. Children's Memorial Hospital, 993 F.2d 1257, 1261 (7th Cir. 1993)("To ultimately prevail on a disparate treatment claim under Title VII, the plaintiff must prove that she was a victim of intentional discrimination."); and Williams v. Enterprise Leasing Co., 911 F. Supp. 988, 993 (E.D. Va. 1995)("[T]he burden of proving that the limitations period has been satisfied falls on the plaintiff once the issue has been appropriately raised by the defendant.").

34. "Discriminatory intent may be established through direct or indirect circumstantial evidence." Johnson v. Hamrick, 155 F. Supp. 2d 1355, 1377 (N.D. Ga. 2001); see also

    Scholz v. RDV Sports, 710 So. 2d 618, 624 (Fla. 5th DCA 1998)("A prima facie case of unlawful racial discrimination can be

    established by direct or circumstantial evidence."); and United States Postal Service Board of Governors v. Aikens, 460 U.S.

    711, 714 (1983)("As in any lawsuit, the plaintiff [in a Title VII action] may prove his case by direct or circumstantial evidence. The trier of fact should consider all the evidence, giving it whatever weight and credence it deserves.").

35. "Direct evidence is 'evidence, which if believed, proves existence of a fact in issue without inference or presumption.' For example, statements or admissions of an employer or its agent can be direct evidence." Scholz, 710 So. 2d at 624 (citation omitted). "If the [complainant] offers direct evidence and the trier of fact accepts that evidence, then the [complainant] has proven discrimination." Maynard v. Board of Regents, 342 F.3d 1281, 1289 (11th Cir. 2003).

36. "[N]ot every comment concerning a person's age presents direct evidence of discrimination." Young v. General Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988). "[D]irect evidence is composed of 'only the most blatant remarks, whose intent could be nothing other than to discriminate' on the basis of some impermissible factor. . . . If an alleged statement at best merely suggests a discriminatory motive, then it is by definition only circumstantial evidence." Schoenfeld v.

    Babbitt, 168 F.3d 1257, 1266 (11th Cir. 1999). Likewise, a statement "that is subject to more than one interpretation . . .

    does not constitute direct evidence." Merritt v. Dillard Paper Co., 120 F.3d 1181, 1189 (11th Cir. 1997).

37. "[D]irect evidence of intent is often unavailable." Shealy v. City of Albany, Ga., 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to be victims of discrimination "are permitted to establish their cases through inferential and circumstantial proof." Kline v. Tennessee Valley Authority, 128 F.3d 337, 348 (6th Cir. 1997).

38. Where a complainant attempts to prove intentional discrimination using circumstantial evidence, the "shifting burden framework established by the [United States] Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973) and Texas Dep[artmen]t of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67

    L. Ed. 2d 207 (1981)" is applied. "Under this framework, the [complainant] has the initial burden of establishing a prima facie case of discrimination. If [the complainant] meets that burden, then an inference arises that the challenged action was motivated by a discriminatory intent. The burden then shifts to the employer to 'articulate' a legitimate, non-discriminatory reason for its action.[11] If the employer successfully articulates such a reason, then the burden shifts back to the [complainant] to show that the proffered reason is really pretext for unlawful discrimination." Schoenfeld, 168 F.3d at

    1267 (citations omitted). "The analysis of pretext focuses only on what the decisionmaker, and not anyone else, sincerely believed." Little v. Illinois Department of Revenue, 369 F.3d 1007, 1015 (7th Cir. 2004); see also Schaffner v. Glencoe Park District, 256 F.3d 616, 622 (7th Cir. 2001)("[T]the Park District stated that it did not promote Schaffner because it believed she was unable to work well with others. Schaffner argues that there is a genuine issue of material fact regarding whether she could work well with others. The district court agreed with her, based on the affidavit of one of her co-workers and the affidavits of several parents whose children had participated in the Kids' Club. However, the issue is not whether Schaffner worked well with others, but whether the Park District honestly believed that she did not. In order to rebut the Park District's articulated reason, Schaffner must present evidence that it did not believe its own assessment. The

    affidavits of parents and of Schaffner's coworkers simply do not contradict whether the Park District honestly believed Schaffner worked well with others. . . . Because Schaffner did not present any evidence to contradict the Park District's honest, albeit possibly mistaken belief (as opposed to the underlying truth of that belief), she may not overcome the Park District's second articulated reason for not promoting her."); Komel v.

    Jewel Cos., 874 F.2d 472, 475 (7th Cir. 1989)("[T]he fact that

    the employee takes issue in general terms with the employer's overall evaluation is not sufficient to create a triable issue on pretext. As we have recently stated, the employee's 'own self-interested assertions [even where accompanied by the conclusory statements of a co-worker] concerning her abilities are not in themselves sufficient to raise a genuine issue of material fact.'"); and Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)("Smith, of course, testified that he had versatility, and that his competence as an analyst was not confined to the field of logistics. Smith's perception of himself, however, is not relevant. It is the perception of the decision maker which is relevant.").

39. "Although the intermediate burdens of production shift back and forth, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against the employee remains at all times with the plaintiff." EEOC v. Joe's Stone Crabs, Inc., 296 F.3d 1265, 1273 (11th Cir. 2002); see also Brand v. Florida Power Corp., 633 So. 2d 504, 507 (Fla. 1st DCA 1994)("Whether or not the defendant satisfies its burden of production showing legitimate, nondiscriminatory reasons for the action taken is immaterial insofar as the ultimate burden of persuasion is concerned, which remains with the plaintiff.").

40. "A prima facie case of age discrimination case requires that [complainants] demonstrate . . . qualification for

    their position, an adverse employment action, and circumstances that support an inference of age discrimination." Kassner v.

    2nd Avenue Delicatessen, Inc., No. 05-4237-cv, 2007 U.S. App. LEXIS 17523 *10-11 (2d Cir. July 24, 2007).

41. Ordinarily, in a failure-to-hire age discrimination case, the complainant must show he or she applied for the position in question. Such a showing is unnecessary, however, where (as in the instant case) the employer has dissuaded the complainant from applying for the position by suggesting to the complainant that taking such action would be fruitless. See

    Smith v. J. Smith Lanier & Co., 352 F.3d 1342 (11th Cir. 2003)("[T]there are 'limited situations' where an employee need not necessarily apply for a position before alleging discrimination."); Babrocky v. Jewel Food Co., 773 F.2d 857, 867 (7th Cir. 1985)("Because an employer may create an atmosphere in which employees understand that their applying for certain positions is fruitless, even nonapplicants can in appropriate circumstances qualify for relief under Title VII."); and Syvongxay v. Henderson, 147 F. Supp. 2d 854, 858 (D. Ohio 2001)("In very limited circumstances, a plaintiff can sustain a failure-to-hire claim under Title VII without ever applying for a position. But this occurs only when an employer's discriminatory conduct somehow prevented the plaintiff from applying or rendered the act of applying futile.").

42. Where the administrative law judge does not halt the proceedings "for lack of a prima facie case and the action has been fully tried, it is no longer relevant whether the [complainant] actually established a prima facie case. At that point, the only relevant inquiry is the ultimate, factual issue of intentional discrimination. . . . [W]hether or not [the complainant] actually established a prima facie case is relevant only in the sense that a prima facie case constitutes some circumstantial evidence of intentional discrimination." Green v. School Board of Hillsborough County, 25 F.3d 974, 978 (11th Cir. 1994)(citation omitted); see also Aikens, 460 U.S. at 713- 715 ("Because this case was fully tried on the merits, it is surprising to find the parties and the Court of Appeals still addressing the question whether Aikens made out a prima facie

    case. We think that by framing the issue in these terms, they have unnecessarily evaded the ultimate question of discrimination vel non. . . . [W]hen the defendant fails to persuade the district court to dismiss the action for lack of a prima facie case, and responds to the plaintiff's proof by offering evidence of the reason for the plaintiff's rejection [as a candidate for promotion], the factfinder must then decide whether the rejection was discriminatory within the meaning of Title VII. At this stage, the McDonnell-Burdine presumption 'drops from the case,' and 'the factual inquiry proceeds to a

    new level of specificity.' After Aikens presented his evidence to the District Court in this case, the Postal Service's witnesses testified that he was not promoted because he had turned down several lateral transfers that would have broadened his Postal Service experience. The District Court was then in a position to decide the ultimate factual issue in the case. . . .

    Where the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether 'the defendant intentionally discriminated against the plaintiff.'")(citation omitted); Beaver v. Rayonier, Inc., 200 F.3d 723, 727 (11th Cir. 1999)("As an initial matter, Rayonier argues it is entitled to judgment as a matter of law because Beaver failed to establish a prima facie case. That argument, however, comes too late. Because Rayonier failed to persuade the district court to dismiss the action for lack of a prima facie case and proceeded to put on evidence of a non- discriminatory reason--i.e., an economically induced RIF--for terminating Beaver, Rayonier's attempt to persuade us to revisit whether Beaver established a prima facie case is foreclosed by binding precedent."); and Carmichael v. Birmingham Saw Works, 738 F.2d 1126, 1129 (11th Cir. 1984)("The plaintiff has framed his attack on the trial court's findings largely in terms of

    whether the plaintiff made out a prima facie case of discrimination. We are mindful, however, of the Supreme Court's admonition that when a disparate treatment case is fully tried, as this one was, both the trial and the appellate courts should proceed directly to the 'ultimate question' in the case: 'whether the defendant intentionally discriminated against the plaintiff.'").

43. The instant case was "fully tried," with Petitioner and Respondent having both presented evidence.

44. A review of the evidentiary record fails to reveal any discrete act of aged-based discrimination committed by Respondent against Petitioner during the 365-day period prior to the March 27, 2006, filing of Petitioner's employment discrimination charge.

45. Mr. Rothberg's ending Petitioner's retraining and giving Petitioner the choice to accept a demotion or face the possible termination of his employment with Respondent was not such an act. Not only was this conduct motivated by legitimate business considerations (relating to Petitioner's unsatisfactory performance during retraining) rather than Petitioner's age, it occurred almost five years prior to the filing of Petitioner's employment discrimination charge, well outside the 365-day "limitations period" set forth in Section 760.11(1), Florida Statutes. Moreover, although in his Proposed Recommended Order

    Petitioner alleges that Mr. Rothberg's actions constituted "age discrimination," in his employment discrimination charge Petitioner did not make such an allegation, complaining, instead, about Mr. Dowda's stymying his post-demotion efforts to be rehired as a school bus driver for Respondent.

46. Mr. Dowda, in 2004 (more than 365 days prior to the filing of the charge), did advise Petitioner, through Mr. Nochi, that Petitioner was not eligible to be rehired as a school bus driver. Mr. Klein12 told Mr. Nochi13 and Petitioner14 the same thing.15 In rendering such advice, however, both Mr. Dowda and Mr. Klein were simply giving their honest and unbiased assessment of Petitioner's eligibility based on their application of the Screening Criteria to Petitioner's particular situation, as they understood it from a review of his driving record. Petitioner's age played no role whatsoever in either Mr. Dowda's or Mr. Klein's actions.

47. While Petitioner may sincerely believe that he was the victim of age discrimination at the hands of Respondent, the record not only is devoid of evidence (either direct or circumstantial) to support a finding that Respondent engaged in such discriminatory conduct,16 it affirmatively establishes otherwise.

48. In light of the foregoing, Respondent's employment discrimination charge must be dismissed.

RECOMMENDATION

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

RECOMMENDED that the FCHR issue a final order finding Respondent not guilty of the unlawful employment practice alleged by Petitioner and dismissing his employment discrimination charge.

DONE AND ENTERED this 28th day of September, 2007, in Tallahassee, Leon County, Florida.

S

STUART M. LERNER

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 28th day of September, 2007.

ENDNOTES

1 Unless otherwise, specified, all references to Florida Statutes in this Recommended Order are to Florida Statutes (2007).

2 Florida Administrative Code Rule 6A-3.0141 provides as follows:

1. School bus operators are defined as any persons employed or contracted to the school district to transport prekindergarten through grade 12 students in school buses as defined in Section 1006.25, F.S.

   
   

2. At the time of initial employment the school board shall assure that the operator of a school bus meets the following requirements:

   
   

   1. Has five (5) years of licensed driving experience.

      
      

   2. Has submitted to the superintendent a written application for employment in a form prescribed by the school board.

      
      

   3. Has filed a set of fingerprints for the purpose of the required background check for determining criminal record.

      
      

3. Form ESE 479, Florida School Bus Operators Medical Examination Report for Commercial Driver Fitness Determination is hereby incorporated by reference and made a part of this rule to become effective November 2006. This form may be obtained from the Director of the School Transportation Management Section or the Bureau of Education Information and Accountability Services, Department of Education, 325 West Gaines Street, Tallahassee, Florida 32399.

   
   

4. Prior to transporting students on a school bus each operator shall meet the following requirements:

   
   

   1. Hold a valid commercial driver license with a passenger endorsement and a school bus endorsement.

      
      

   2. Successfully complete forty (40) hours of preservice training consisting of at least twenty (20) hours of classroom

      
      

      instruction and eight (8) hours of behind- the-wheel training based upon the Department's Basic School Bus Operator Curriculum, Revised 2006, which is hereby incorporated by reference and made a part of this rule. This document may be obtained from the Bureau of Career Development, Department of Education, The Florida Education Center, Tallahassee, Florida 32399, at a cost not to exceed actual production and distribution costs.

      
      

   3. Demonstrate the ability to prepare required written reports.

      
      

   4. Be physically capable of operating the vehicle as determined by physical examination, Form ESE 479, prescribed by the Commissioner and given by a physician designated by the school board and as determined by a dexterity test administered by the school district.

      
      

   5. Demonstrate physical and mental capabilities required to carry out all assigned responsibilities as a school bus operator.

      
      

5. A certification of training provided by the Commissioner shall be issued by the district to each operator successfully completing the forty (40) hours of preservice training.

   
   

6. Each district school board shall obtain a driver's history record from the Department of Highway Safety and Motor Vehicles for each regular school bus operator, substitute operator, or any other individual certified to drive a school bus by the district. The schedule for reviewing these records shall be:

   
   

   1. Prior to initial employment;

      
      

   2. Prior to the first day of the fall semester.

      
      

   3. Thereafter, the district shall continuously screen operator records using the automated weekly updates, ensuring proper retrieval documentation for every week.

   
   

7. Driver history records shall be requested in a manner prescribed by the Department of Highway Safety and Motor Vehicles using the Automated School Bus Driver's License Record Check System through the Department's data base. All school districts shall obtain and review records for school bus operators using the automated data base system. For any operator licensed in another state, the district shall obtain and review the driver's history record from the appropriate state.

   
   

8. Each school district shall establish a school board policy that specifies which infractions of the traffic code deem an applicant unqualified for hire and which causes any employee to be subject to a prescribed follow-up action. At a minimum, this policy shall state that any district school bus operator or contracted operator who should have known that his or her license has expired or has been suspended or revoked shall be subject to prescribed disciplinary measures up to and including dismissal by the school board.

   
   

9. At least annually, the school district shall assure that the operator of a school bus meets the following requirements:

   
   

   1. The requirements of paragraph (4)(a) of this rule.

      
      

   2. Successfully complete a minimum of eight (8) hours of inservice training

      
      

      related to the operator's responsibilities for transporting students.

      
      

   3. Successfully pass a dexterity test administered by the school district and maintain a valid Medical Examiners Certificate.

      
      

10. At the time of reemployment, the school board shall assure that each school bus operator meets all of the requirements of subsections (2) and (3) and paragraph (4)(a) of this rule. If not more than a twelve continuous calendar month break in service has occurred, an operator shall be required to complete eight (8) hours of inservice training related to their responsibilities for transporting students prior to driving a school bus with students. If a period exceeding twelve (12) calendar months has occurred, the operator shall be required to successfully complete all of the requirements of subsections (2) through (5) of this rule.

    
    

11. All school bus operators shall be subject to the Federal requirements of 49 C.F.R., Parts 382 and 391 related to the substance abuse testing and alcohol detection program.

3 In early 1999, after having failed a vision test that was part of his annual physical examination, Petitioner had laser eye surgery to correct his vision. He requested, and was granted, a leave of absence without pay to recover from the surgery. He was on leave from January 22, 1999, until March 16, 1999.

4 Petitioner had been involved in another on-duty accident just four days earlier.

5 "Most people" are able to complete retraining in two or three days.

6 Exactly when this discussion took place, the evidentiary record does not reveal.

7 The FCHR, however, has no authority to award monetary relief for non-quantifiable damages. See Simmons v. Inverness Inn, No. 93-2349, 1993 Fla. Div. Adm. Hear. LEXIS 5716 *4-5 (Fla. DOAH October 27, 1993)(Recommended Order)("In this case, petitioner does not claim that she suffered quantifiable damages, that is, damages arising from being terminated from employment, or from being denied a promotion or higher compensation because of her race. Rather, through argument of counsel she contends that she suffered pain, embarrassment, humiliation, and the like (non- quantifiable damages) because of racial slurs and epit[he]ts made by respondents. Assuming such conduct occurred, however, it is well-settled in Florida law that an administrative agency (as opposed to a court) has no authority to award money damages. See, e. g., Southern Bell Telephone & Telegraph Co. v. Mobile America Corporation, Inc., 291 So. 2d 199 (Fla. 1974); State, Dept. of General Services v. Biltmore Construction Co., 413 So.2d 803 (Fla. 1st DCA 1982); Laborers International Union of N.A., Local 478 v. Burroughs, 541 So. 2d 1160 (Fla. 1989). This being so, it is concluded that the Commission cannot grant the requested relief, compensatory damages.").

8 "[W]hen a charge is dually filed with the EEOC and the FCHR, the date of filing with the EEOC shall also be considered the date of filing with the FCHR." Wells Fargo Guard Services v. Lehman, 799 So. 2d 252, 254 (Fla. 3d DCA 2001).

9 An "employer," as that term is used in the Act, is defined in Section 760.02(7), Florida Statutes, as "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 a person."

10 "The [FCHR] has held that the [Act] unlike [its federal counterpart], which protects only individuals over age 40, prohibits discrimination based on any age, from 'birth to death' [and therefore] prohibits favoring the old over the young, as well as the young over the old." Stewart v. Pasco County Board of County Commissioners, No. 06-3314, 2007 Fla. Div. Adm. Hear. LEXIS 63 *16 (Fla. DOAH January 31, 2007)(Recommended Order). In other words, the Act protects everyone, regardless of age, from age discrimination.

11 "To 'articulate' does not mean 'to express in argument.'" Rodriguez v. General Motors Corporation, 904 F.2d 531, 533 (9th Cir. 1990). "It means to produce evidence." Id.

12 While Mr. Dowda was mentioned in Petitioner's employment discrimination charge, Mr. Klein was not. In his Proposed Recommended Order, however, Petitioner belatedly claims that, like Mr. Dowda, Mr. Klein too engaged in age-based discriminatory conduct in taking the position that Petitioner could "not be re-hired as a bus driver . . . because of [Petitioner's] having accumulated over 25 points on his driver's record since 1974."

13 The only witness to testify about the conversation between Mr. Klein and Mr. Nochi was Mr. Klein, who testified that he did not "have an exact recollection" as to when the conversation took place.

14 Mr. Klein's statement to Petitioner was made within the 365- day "limitations period," but it was merely a reiteration of a determination that had initially been made and communicated by Respondent (through Mr. Dowda) to Petitioner (through Mr. Nochi) outside the "limitations period." See Lannom v. Barnett Banks, Inc., No. 93-5465, 1995 Fla. Div. Adm. Hear. LEXIS 4138 *22-23 (Fla. DOAH February 23, 1995)(Recommended Order)("No less legal authority than the United States Supreme Court has stated, in determining a Title VII discrimination case, that 'mere requests to reconsider . . . cannot extend the limitations periods applicable to the civil rights laws.' See, Delaware State College v. Ricks, 449 U.S. 250, 101 S. Ct. 498, 66 L. Ed. 431 (1980). Consequently, it is clear that the statute of limitation ran from BBI's first notification to Petitioner that he would not be employed. The fact that it was necessary to reiterate this decision to him again on March 25, 1992 does not alter when the statute of limitation began to run.").

15 Although Petitioner never officially applied to be rehired as a school bus driver, his failure to have done so is not fatal to his claim that he was unlawfully discriminated against by Respondent in his efforts to regain his old position because, in light of what he had been told by Mr. Dowda and Mr. Klein, he had reason to believe that submitting such an application would be a fruitless act.

16 "Petitioner's speculation and personal belief concerning the motives of Respondent are not sufficient to establish intentional discrimination." Constantini v. Wal-Mart Stores East, L.P., No. 5326, No. 06-2461, 2007, Fla. Div. Adm. Hear. LEXIS 127 *13 (Fla. DOAH February 28, 2007)(Recommended Order); see also Lizardo v. Denny's, Inc., 270 F.3d 94, 104 (2d Cir.

2001)("[A] jury cannot infer discrimination from thin air. Plaintiffs have done little more than cite to their mistreatment and ask the court to conclude that it must have been related to their race. This is not sufficient.").

COPIES FURNISHED:

Chester G. McLeod, Esquire

269 North University Drive, Suite E Pembroke Pines, Florida 33024

Janeen L. Richard, Esquire Miami-Dade County School Board

1450 Northeast 2nd Avenue, Suite 400

Miami, Florida 33132

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

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: 07-001972

Orders for Case No: 07-001972