STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEVITA PARKER,

vs.

Petitioner,

Case No. 17-2555

ORANGE COUNTY PUBLIC SCHOOLS,

Respondent.

/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on June 7, 2017, via video teleconference sites in Orlando and Tallahassee, Florida, before Administrative Law Judge Lynne A. Quimby-Pennock of the Division of Administrative Hearings

(Division).

APPEARANCES

For Petitioner: Levita S. Parker, pro se

4418 Middleburg Court

Orlando, Florida 32818

For Respondent: Jared A. Brooks, Esquire

Orange County Public Schools

445 West Amelia Street Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Petitioner, Levita Parker, was subject to a discriminatory practice by Respondent, Orange County Public Schools (Orange County), in violation of the sections 760.10 and

112.3187, Florida Statutes1/; and, if so, what remedy is

appropriate.

PRELIMINARY STATEMENT

On September 26, 2016, Ms. Parker filed a “Verified Charge of Unlawful Retaliation with the Florida Commission on Human Relations” (verified charge). After the Florida Commission on Human Relations (FCHR) determined there was no reasonable cause to believe that an unlawful practice occurred, Petitioner filed her Petition for Relief. The matter was then referred by FCHR to the Division to resolve the dispute.

At the hearing, Petitioner testified on her own behalf, and offered one exhibit into evidence.2/ To the limited extent that the document is authentic and is relevant, and the hearsay statements therein were corroborated by other competent testimony, the document has been considered. Respondent did not present any witnesses and did not submit any exhibits.

Once Petitioner rested her case, Respondent’s counsel moved for a directed verdict. Respondent’s counsel did not provide any statutory authority for the undersigned to issue a directed verdict and the motion was denied.

At the conclusion of the hearing, Petitioner asked for

30 days following the filing of the transcript in which to file the proposed recommended order (PRO). Respondent did not object, and the request was granted.

The Transcript was filed on June 28, 2017, and the undersigned immediately issued a Notice of Filing Transcript (notice). That notice confirmed that the “proposed orders in this matter must be filed with the Division of Administrative Hearings by close of business on or before July 28, 2017.” Both parties timely filed proposed recommended orders. To the extent that either PRO has information that was not subjected to cross- examination during the hearing,3/ that information has not been considered in the preparation of this Recommended Order.

Unless otherwise stated, all statutory references are to the 2016 codification of the Florida Statutes.

FINDINGS OF FACT

1. Petitioner is a female, who, at all times relevant to the discrimination allegation was (and is currently) employed by the Orange County Public Schools. Petitioner has been employed by Orange County for approximately 18 years. She is under contract as a “classroom teacher,” however she has been working as a behavioral specialist for the last 11 years.

2. Petitioner is certified to teach Exceptional Student Education (ESE), Business Education and Education Leadership.

3. Petitioner, along with the school principal and others, attended a “brain storming meeting” on October 5, 2016.4/ During that meeting, options were discussed on how to address the August 2016 resignation and departure of an ESE teacher. Many options

   
   

   were discussed, and later the assistant principal sent Petitioner an email directing her to assume responsibility for two classes on the following Monday.

4. Petitioner refused to teach the two classes.

   
   

5. In November 2016, Petitioner was presented with a “Directive.” In part, the directive provides:

   Under certain circumstances it becomes necessary to provide written clarification or guidance regarding the expectations of the district. Such letters are referred to as directives, and are not disciplinary in nature. (Emphasis added).

   
   

6. Petitioner did not lose any pay for her failure to teach the two classes. For school years 2015-2016 and 2016-2017, Petitioner received “effective” or “highly effective” evaluations.

7. Petitioner failed to identify the alleged protective whistleblowing action in which she participated. Petitioner failed to identify a causal connection between whatever the alleged protected activity was and the alleged adverse employment action.

8. Petitioner failed to present any credible evidence that Respondent discriminated against her.

   
   

   CONCLUSIONS OF LAW

   
   

9. The Division has jurisdiction over the parties to and the subject matter of this proceeding pursuant to sections

   120.569 and 120.57(1), Florida Statutes.

   
   

10. Petitioner has the burden of proving by a preponderance of the evidence that Respondent committed an unlawful employment practice. See § 120.57(1)(j), Fla. Stat. In her petition,

    Petitioner alleged a violation under the Florida Civil Rights Act regarding “discrimination, retaliation and harassment (and bullying).” She claimed she was engaged in a protected activity as a whistleblower, which led to the discrimination; however, she never identified the protected activity.

11. The preponderance of the evidence standard requires proof by “the greater weight of the evidence,” Black's Law

    Dictionary, 1201 (7th ed. 1999), or evidence that “more likely than not” tends to prove a certain proposition. See Gross v.

    Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).

    
    

12. Discrimination by an employer against an individual in retaliation for engaging in a protected activity is an unlawful employment practice under the law. See § 760.10(7), Fla. Stat.

13. In order to prove a prima facie case of retaliation, Petitioner must show that: (1) she was engaged in an activity protected by chapter 760; (2) she suffered an adverse employment action by her employer; and (3) there was a causal connection

    
    

    between the protected activity and the adverse employment action. See Pennington v. City of Huntsville, 261 F.3d 1262, 1266 (11th Cir. 2001).

14. Petitioner has failed to satisfy the first prong of the test. Petitioner never identified the protected activity she engaged in that resulted in the alleged retaliation. There is no evidence whatsoever that Petitioner engaged in a protected activity within the meaning of the law. Had Petitioner identified the protected activity, her petition would have failed, because she did not suffer an adverse employment action. The issuance of the directive is not considered discipline, she did not lose any pay, and her evaluations were either “effective” or “highly effective.” Accordingly, the charge of retaliation must fail.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Petitioner.

DONE AND ENTERED this 31st day of July, 2017, in Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY-PENNOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

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

Filed with the Clerk of the Division of Administrative Hearings this 31st day of July, 2017.

ENDNOTES

1/ Petitioner’s verified charge contained the reference to section 112.3187, Florida Statutes. However, the Petition for Relief, upon which this hearing was conducted, only recorded a check mark beside the statement regarding what Respondent was alleged to have violated: Florida Civil Rights Act of 1992, as Amended. Further, the following explanation was provided as “to how the alleged facts relate to the specific Florida Statute”:

The facts relate to violation under the Florida Civil Rights Act of 1992 of discrimination, retaliation and harassment (and bullying).

Respondent included section 112.3187 as part of its PRO. The undersigned finds it irrelevant to the hearing.

2/ Petitioner’s Exhibit 1 is the directive which is three pages. At the conclusion of the hearing, the court reporter was directed to take possession of Petitioner’s Exhibit 1 and to send it with the transcript to the Division. Upon receipt of the transcript and Petitioner’s Exhibit 1, it was noted that a fourth page was inadvertently attached to Exhibit 1. This extraneous page

detailed an appointment of some kind and has not been considered relevant or pertinent to this proceeding.

3/ Petitioner’s PRO included documentation related to a medical event which was not disclosed during the hearing.

4/ Petitioner never provided the year that this October meeting took place. Based on other testimony, the year is presumed to be 2016.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 (eServed)

Jared A. Brooks, Esquire Orange County Public Schools

445 West Amelia Street Orlando, Florida 32801 (eServed)

Levita S. Parker 4418 Middleburg Court

Orlando, Florida 32818

Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110

Tallahassee, Florida 32399 (eServed)

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: 17-002555

Orders for Case No: 17-002555