MARSHALEE M. WRIGHT,
vs.
Respondent.
Case No. 20-3060
On September 11, 2020, Administrative Law Judge Robert J. Telfer III, of the Florida Division of Administrative Hearings (Division), conducted an evidentiary hearing pursuant to section 120.57(1), Florida Statutes (2018), by video teleconference at sites in Tallahassee and Gainesville, Florida.
For Petitioner: Marshalee M. Wright, pro se
For Respondent: Brian T. Moore, Esquire
School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601
Whether Respondent School Board of Alachua County (School Board) engaged in discriminatory employment practices or retaliated against Petitioner, in violation of the Florida Civil Rights Act (FCRA), as alleged in the Petition for Relief; and, if so, the appropriate penalty.
On December 3, 2019, Petitioner Marshalee M. Wright filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that the School Board discriminated against her, on the basis of her race and national origin, and retaliated against her. Ms. Wright’s Complaint stated:
Complainant (CP), an African American female, began her employment with Respondent on 8/15/2005 and held the position of Teacher. CP was subjected to disparate treatment, retaliation, different terms and conditions of employment because of her race and national origin (Jamaican). CP performed the duties and responsibilities of her position in a satisfactory manner and was not the subject of any disciplinary issues. CP was subjected to discrimination at the hands of but limited to Kelly Armstrong, former Principal of Glen Springs Elementary and current Principal of Oakview Middle School, Jacquette Rolle, Principal of Metcalfe Elementary, Carmen Ward, President of the Alachua County Teachers Union, Kevin Purvis, Superintendent of Human Resource, Karen Clarke, Superintendent of Alachua County Schools. CP was injured at work and was dropped off at the hospital by HR and left there. In the past, other employees were given the courtesy of contacting their family and an ambulance ride. CP received no workman’s compensation benefits. Despite CP being extremely qualified she was not considered for any administrative positions and after making several complaints to the teacher’s union and HR, Jacquette Rolle was allowed to harass me and ultimately tried to get rid of me. CP’s email and all her access to the School Board’s systems have been taken. CP was placed on leave without board approval, as the Florida Statutes and teacher’s contract states. CP’s benefits continue to be paid and despite a contract, CP have not been paid since June. CP was placed [on] unpaid administrative leave.
Thereafter, on June 14, 2020, Ms. Wright completed an election of rights, noting that more than 180 days elapsed since she filed her Employment Claim of Discrimination, and requesting that FCHR mail her a Petition for Relief to be completed and filed with the Division. On July 8, 2020,
Ms. Wright filed a Petition for Relief. Additionally, on July 8, 2020, FCHR transmitted the Petition to the Division, which assigned the undersigned Administrative Law Judge (ALJ) to conduct an evidentiary hearing.
The undersigned conducted the final hearing on September 11, 2020.
Ms. Wright testified on her own behalf, called no additional witnesses, and introduced no exhibits on her behalf. The School Board presented the testimony of the following witnesses: Beverly Finley, Supervisor of Human Resources for the School Board; Kelly Armstrong, former Principal of Glen Springs Elementary School; Kevin Purvis, Assistant Superintendent, Human Resources for the School Board; Laurie Bauer, Supervisor II, Human Resources for the School Board; Bart Brooks, Supervisor of Human Resources for the School Board; and Allen Davis, Gainesville Police Department Officer. The undersigned admitted Respondent’s Exhibits R1 through R5 into evidence.1
The one-volume Transcript of the hearing was filed with the Division on September 25, 2020. On September 30, 2020, Petitioner submitted a Proposed Recommended Order, and on October 1, 2020, Respondent submitted its Proposed Recommended Order, both of which the undersigned has considered in the preparation of this Recommended Order.
All statutory references are to the 2018 codification of the Florida Statutes, unless otherwise indicated.
1 At the final hearing, the parties and the undersigned agreed that Exhibits R1 and R4, which contained medical information concerning Ms. Wright, shall remain confidential.
Ms. Wright, an African-American woman of Jamaican descent, worked as a teacher in the Alachua County School District (School District) for several years, the last two positions being at Glen Springs Elementary School (Glen Springs), from 2016-2018, and Metcalfe Elementary School (Metcalfe), for the 2018-2019 school year.
Ms. Wright possesses a bachelor’s of arts in education and a master’s of arts in education, both from the University of Florida. In 2017, she completed an educational leadership program at the University of Florida. Thereafter, in October 2017, she entered the School District’s administrative pool, and she informed Glen Springs Principal Armstrong of her intentions to seek an administrative position within the School District.
The School District did not hire or promote Ms. Wright to an administrative position during the 2017-2018 school year. Mr. Purvis, the School District’s Assistant Superintendent for Human Resources, testified that it is normal for a person who enters the administrative pool for consideration for an administration position to wait some time before receiving an appointment to such a position. Mr. Purvis testified that is not common for an administrative pool applicant to be appointed assistant principal or principal within three months of entering the administrative pool.
In December 2017, Ms. Wright approached Principal Armstrong and expressed that she was experiencing what she believed was harassment, including an attempted break-in at her apartment, people tracking or following her, someone tampering with her car’s gas tank, someone hacking her cell phone, and an instance in which a fire truck, which she believed may have been operated by another school principal’s husband, allegedly attempted to block her car from driving to a School District leadership meeting. Ms. Wright requested leave to deal with these issues, which Principal Armstrong granted.
On February 9, 2018, while Ms. Wright served as the Behavior Resource Teacher at Glen Springs, she was involved in an incident in the cafeteria, where some students were being served breakfast. Ms. Wright testified that she noticed one student was “staggering” and then fell down. Then, she began to feel “sick” and “woozy,” and noticed three other students who “appeared to look dizzy and sick too.” She also made a statement that she observed other teachers who were falling in slow motion. She then ordered a lockdown of the cafeteria, and ordered all students to their classrooms.
Ms. Wright then went to the front office, and Principal Armstrong called the school nurse and district office, which sent a school resource officer from a neighboring school, and Ms. Finley (the School Board’s Supervisor of Human Resources), to Glen Springs. Ms. Wright refused services from the school nurse, although she admitted that she did not feel well. When
Ms. Finley and the school resource officer arrived, she agreed to be transported by Ms. Finley to the emergency room at North Florida Regional Medical Center (NFRMC).
Ms. Finley drove Ms. Wright to NFRMC, and she and the school resource officer, who followed in a separate vehicle, waited until Ms. Wright was admitted to the emergency room. Ms. Finley testified that she and the school resource officer gave Ms. Wright their cell phone numbers, and told her to call when she was released.
Ms. Wright stated that NFRMC discharged her, with little treatment, that same day (a Friday). However, over that weekend, she experienced other issues and requested to be returned to NFRMC, and was transported after receiving EMS services. Ms. Wright’s recounting of this second visit to NFRMC offers a harrowing description of a ten-day hospital stay that included an unusual hospital room with a bed on the floor, visits from a judge, and nurses and doctors (one of whom she believed was the parent of a
Glen Springs kindergartner) injecting her with substances that caused partial paralysis.
After her second discharge from NFRMC, and after receiving clearance from her treating physician, on March 12, 2018, the School District decided to not return Ms. Wright to her previous position at Glen Springs, but rather placed her in a temporary position at the Student Services Department at the Manning Center, analyzing charter school data and serving as a liaison for charter school families, for the remainder of the school year. Ms. Wright received the same salary and benefits as her teaching position at Glen Springs.
Ms. Wright requested that Ms. Finley, an African American woman, facilitate her placement in a new teaching position for the next school year. Ms. Finley offered Ms. Wright a position at Lake Forest Elementary School as a Title I Intervention teacher, which she declined. Thereafter, Ms. Finley offered Ms. Wright a position at Metcalfe as a Title I Intervention teacher for the 2018-2019 school year, which she accepted.
During her employment at Metcalfe, Principal Jacquette Rolle asked Ms. Wright to utilize a certain curriculum for instruction and perform assessments in order to track student performance, as required under School Board and state guidelines. When Ms. Wright refused to do so, Principal Rolle issued a 24-hour notice for a meeting to be held at Metcalfe with Principal Rolle and other School District officials, on October 5, 2019.
Ms. Wright testified that she had another subsequent meeting with Principal Rolle, in which Principal Rolle “yelled in my face, not in a low tone, at a high tone.”
On April 9, 2019, while working at Metcalfe, Ms. Wright contacted the FBI to complain that someone had again hacked her cell phone. The FBI referred her to the Gainesville Police Department, which then contacted Metcalfe’s school resource officer, Officer Davis, to respond.
Officer Davis testified that, after the Gainesville Police Department dispatch center contacted him, he met with Ms. Wright. Officer Davis testified that she relayed concerns about events that happened at Glen Springs, that different school principals were following her, that people were in her attic, and that her car had been tampered with at a car dealership. He stated that “[s]he was like continually talking. She would talk about one subject and then all of a sudden she would change to another subject that was unrelated to what she was actually talking about at the time.”
Officer Davis testified that, as a police officer, he has received training with respect to identifying individuals experiencing mental health crises, and in de-escalating such situations. Although Officer Davis did not believe that Ms. Wright met the criteria for consideration for a Baker Act, he reported that she was experiencing mental health issues that needed to be evaluated.
Officer Davis prepared a report, dated April 9, 2019, that he shared with Principal Rolle and that was also provided to the School District. Principal Rolle also provided a letter, dated April 9, 2019, that summarized her concerns with Ms. Wright, to the School District.
Mr. Purvis, the School Board’s Assistant Superintendent for Human Resources, received Officer Davis’s report, as well as Principal Rolle’s letter, and decided that Ms. Wright must undergo a “Fitness for Duty” evaluation, pursuant to School District Policy 3161. This policy states:
If the Superintendent believes an instructional staff member is unable to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations, the staff member will be offered the opportunity for a meeting to discuss these issues.
The Superintendent may require an instructional staff member to submit to an appropriate examination by a health care provider designated by the Board to determine whether or not the staff
member is able to perform essential functions of the position to which the staff member is assigned, with or without reasonable accommodations. The Board shall pay any uninsured fees for such examinations.
The staff member will be required to execute a release that complies with the requirements of the Health Insurance Portability and Accountability Act (HIPAA) in order to allow the report of the medical examination to be released to the Superintendent and to allow the Superintendent or his/her designee to speak to the health care provider who conducted the medical examination to get clarification. Refusal to submit to an appropriate examination or to execute the HIPAA release will be grounds for disciplinary action in accordance with the terms of the applicable collective bargaining agreement.
As required by Federal law and regulation and Board Policy 3122.02, Nondiscrimination Based on Genetic Information of the Employee, the Superintendent shall direct the provider that is designated by the Board to conduct the examination, not to provide any genetic information in the report of the medical examination.
Pursuant to State law and in accordance with the Americans with Disabilities Act, as amended, the results of any such examination shall be treated as a confidential medical record and will be exempt from release, except as provided by law. As required by Federal law, if the District inadvertently receives genetic information about an individual who is required to submit to an appropriate examination from a medical provider it shall be treated as a confidential medical record.
Upon the recommendation of the Superintendent and approval of the Board, an instructional staff member may be placed on a leave of absence related to fitness for duty. Such leave shall be
without pay; however, the employee may use accrued leave, if available. Furthermore, the Superintendent may recommend the instructional staff member’s dismissal based upon the results of the medical examination.
The instructional staff member is entitled to a hearing as provided for in Florida law or the terms of the applicable collective bargaining agreement.
Ms. Wright contended at the final hearing that she never met with the School District Superintendent, who, under this policy, is the individual responsible for requiring a “fitness for duty” evaluation. Mr. Purvis testified that it is the common practice of the School District for the designee of the Superintendent, such as the Assistant Superintendent for Human Resources, to require a “fitness for duty” evaluation.
Mr. Purvis, Mr. Brooks (the School District’s Supervisor of Human Resources), and Ms. Wright met and discussed this policy and the “fitness for duty” evaluation. On April 10, 2019, the School District placed Ms. Wright on paid administrative leave pending the outcome of a “fitness for duty” evaluation.
Several doctors examined Ms. Wright and these doctors referred her to a licensed psychologist, who conducted an evaluation on May 2, 2019; the psychologist concluded that Ms. Wright was not fit to return to her duties as an elementary school teacher.
On June 5, 2019, Mr. Purvis, Mr. Brooks, Ms. Wright, and Carmen Ward (the teacher union’s president), had a meeting in which Mr. Purvis and Mr. Brooks shared the results of the “fitness for duty” evaluation. Mr. Purvis explained to Ms. Wright that, based on the psychologist’s evaluation, she was deemed to be unfit for duty, and would be placed on a leave of absence for the 2019-2020 school year.
At a September 17, 2019, meeting, the School Board approved the placement of Ms. Wright on unpaid leave.
Mr. Purvis afforded Ms. Wright the opportunity to use her accrued paid leave during this unpaid leave time period, and gave her a deadline of June 27, 2019, to notify the School District’s human resources department of her decision. Ms. Wright did not meet that deadline, but later, on January 6, 2020, requested some paid leave, which Mr. Purvis granted.
Ms. Finley and Mr. Purvis credibly testified that the School District would welcome Ms. Wright back to employment with the School District, if she would receive appropriate treatment and clearance from a medical professional that would indicate she met the “fitness for duty” requirement in School District Policy 3161. After more than a year, Ms. Wright has failed to make any attempt to do so.
Ms. Wright presented no persuasive evidence that the School Board’s decision concerning, or actions affecting, her, directly or indirectly, were motivated in any way by race or national origin-based discriminatory animus. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful race or national origin discrimination.
Ms. Wright presented no persuasive evidence that the School Board retaliated against her for participating in a statutorily-protected activity. There is no competent, substantial evidence in the record, direct or circumstantial, upon which the undersigned could make a finding of unlawful retaliation.
CONCLUSIONS OF LAW
The Division has jurisdiction over the subject matter and the parties to this proceeding in accordance with sections 120.569, 120.57(1),
and 760.11(7), Florida Statutes. See also Fla. Admin. Code R. 60Y-4.016 (providing upon a petition for relief from an unlawful employment practice, a hearing shall be conducted by an administrative law judge).
The FCRA protects individuals from discrimination and retaliation in the workplace. See §§ 760.10 and 760.11, Fla. Stat. Section 760.10 states, in pertinent part:
It is an unlawful employment practice for an employer:
To discharge or 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, pregnancy, national origin, age, handicap, or marital status.
* * *
(7) It is an unlawful employment practice for an employer … to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
Because the FCRA is patterned after federal anti-discrimination laws, such as Title VII of the Civil Rights Act of 1964 (Title VII), courts rely on federal Title VII cases when analyzing race discrimination and retaliation claims brought pursuant to the FCRA. See Ponce v. City of Naples, 2017 WL 4574649, at *4 (M.D. Fla. Oct. 13, 2017); Harper v. Blockbuster Entm’t Corp., 139 F.3d 1385, 1387 (11th Cir. 1998) (finding that complaint fails for the same reasons under Title VII and the FCRA); Valenzuela v. GlobeGround N. Am., LLC, 18 So. 3d 17, 21 (Fla. 3d DCA 2009).
The burden of proof in an administrative proceeding is on Ms. Wright as the complainant. See Dep’t of Banking & Fin., Div. of Sec. & Investor Prot.
v. Osborne Sten & Co., 670 So. 2d 932, 935 (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.”). To show a violation of the FCRA,
Ms. Wright must establish, by a preponderance of the evidence, a prima facie case of discrimination or retaliation. See St. Louis v. Fla. Int’l. Univ., 60 So. 3d 455, 458-59 (Fla. 3d DCA 2011) (reversing jury verdict awarding damages on FCRA racial discrimination and retaliation claims where employee failed to show similarly situated employees outside his protected class were treated more favorably). A “prima facie” case means it is legally sufficient to establish a fact or that a violation happened unless disproved.
The “preponderance of the evidence” standard is the “greater weight” of the evidence, or evidence that “more likely than not” tends to prove the fact at issue. This means that if the undersigned found the parties presented equally competent substantial evidence, Ms. Wright would not have proved her claims by the “greater weight” of the evidence, and would not prevail in this proceeding. See Gross v. Lyons, 763 So. 2d 276, 289 n.1 (Fla. 2000).
Race Discrimination
A Title VII plaintiff may establish a claim of unlawful race discrimination or disparate treatment through either direct or circumstantial evidence. See Robertson v. Interactive College of Technology/Interactive Learning Sys., 743 Fed. Appx. 269, 275 (11th Cir. July 16, 2018). The Eleventh Circuit has defined direct evidence of discrimination as “evidence which, if believed, would prove the existence of discrimination without inference or presumption.” Holifeld v. Reno, 115 F.3d 1555, 1561 (11th Cir. 1997).
Ms. Wright presented no direct evidence of discrimination based on race or national origin.
When reviewing race discrimination claims supported by circumstantial evidence, courts follow the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 37 L. Ed. 2d 668 (1973). This framework involves a three-step process. Ms. Wright must first
establish a prima facie case of discrimination. If Ms. Wright does so, a presumption of discrimination arises against the School Board. Then, the School Board has the burden to articulate a legitimate, non-discriminatory reason for its action. If the School Board can articulate such a reason,
Ms. Wright’s presumption of discrimination evaporates. Finally, Ms. Wright has the burden of proving that the School Board’s legitimate reason was a pretext for discrimination. A “pretext” is a reason given in its justification for conduct that is not the real reason. See McDonnell Douglas Corp., 411 U.S. at 802; Scholz v. RDV Sports, Inc., 710 So. 2d 618, 624 (Fla. 5th DCA 1998).
In order to establish a prima facie case of discrimination or disparate treatment, Ms. Wright must show that: (a) she belongs to a protected class;
she was subject to an adverse employment action; (c) her employer treated similarly situated employees outside of her protected class more favorably; and (d) that she was qualified to do the job. See McDonnell Douglas Corp., 411 U.S. at 802-04; Burke-Fowler v. Orange Cty., 447 F.3d 1319, 1323 (11th Cir. 2006).
It is undisputed that Ms. Wright belongs to a protected class: African American Female of Jamaican origin. Further, the School Board subjected Ms. Wright to an adverse employment action, when it placed her on leave without pay.
However, Ms. Wright did not establish that the School Board treated any similarly-situated employees outside of her protected class more favorably, with respect to either her consideration for an administrative position, or in the School District’s decision to place her on unpaid leave. If a petitioner fails to identify similarly-situated employees outside of her protected class who the employer treats more favorably, her “case must fail because the burden is on [her] to establish [her] prima facie case.” Jones v. Bessmer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.), modified on other grounds, 151 F.3d 1321 (11th Cir. 1998). Ms. Wright failed to identify a comparator outside of her protected class that the School Board treated more
favorably, and has thus failed to establish a prima facie case for unlawful racial or national origin discrimination or disparate treatment.
Additionally, the School Board has articulated a legitimate, non- discriminatory reason for not appointing Ms. Wright to an administrative position and placing her on unpaid leave. This burden is a very light one. See Holifield, 115 F.3d at 1564. The School Board established that Ms. Wright could not satisfy the “fit for duty” requirement, based on a psychological evaluation. Ms. Wright did not establish pretext.
Further, because Ms. Wright could not satisfy the “fit for duty” requirement, she has not established that she is qualified to do the job.
Ms. Wright failed to establish a prima facie case of unlawful racial or national origin discrimination or disparate treatment, and the School Board articulated a legitimate, non-discriminatory reason for not appointing her to an administrative position and placing Ms. Wright on unpaid leave. Accordingly, her race and national origin discrimination claim must fail. Retaliation
To establish a prima facie case of retaliation, Ms. Wright must show that: (a) she was engaged in statutorily protected expression or conduct; (b) she suffered an adverse employment action; and (c) there is a causal relationship between the two events. Holifield, 115 F.3d at 1566.
In order to satisfy the “statutorily protected expression or conduct” requirement, Ms. Wright must establish that her opposition to unlawful employment practices was sufficient to communicate to the School Board that she believed that the School Board was engaged in unlawful discriminatory conduct. See Murphy v. City of Aventura, 616 F. Supp. 2d 1267, 1279 (S.D. Fla. 2009); Webb v. R&B Holding Co., Inc., 992 F. Supp. 1382, 1389 (S.D. Fla. 1998).
If Ms. Wright establishes a prima facie case of retaliation, the burden then shifts to the School Board to articulate a legitimate, non-retaliatory reason for its action. See Addison v. Fla. Dep’t of Corr., 683 Fed. Appx. 770,
774 (11th Cir. 2017); Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir. 2000). This burden is a very light one. See Holifield, 115 F.3d at 1564.
If the School Board meets this burden, the burden then shifts back to Ms. Wright, to show that the School Board’s proffered reason is mere pretext. See James v. Total Sols., Inc., 691 Fed Appx. 572, 574 (11th Cir. 2017); Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1237 (11th Cir. 2016).
Ms. Wright contends “all incidents of workplace harassment were reported to the [School District’s] Human Resource Department[,]” and that the School Board retaliated against her by not appointing her to an administrative position and placing her on unpaid leave.
However, the School Board has articulated a legitimate, non- retaliatory reason for placing Ms. Wright on unpaid leave. The School Board established that Ms. Wright could not satisfy the “fit for duty” requirement, based on a psychological evaluation. Further, Ms. Wright did not establish pretext.
Ms. Wright failed to establish a prima facie case of unlawful retaliation, and the School Board articulated a legitimate, non-retaliatory reason for not appointing her to an administrative position, and placing her on unpaid leave. Accordingly, her retaliation claim must fail.
Based upon the foregoing Findings of Fact and Conclusions of Law, the undersigned hereby RECOMMENDS that the Florida Commission on Human Relations issue a final order dismissing Marshalee M. Wright’s Petition for Relief.
DONE AND ENTERED this 14th day of October, 2020, in Tallahassee, Leon County, Florida.
ROBERT J. TELFER III
Division of Administrative Hearings this 14th day of October, 2020.
Tammy S. Barton, Agency Clerk
School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601
Marshalee M. Wright Post Office Box 141981
Brian T. Moore, Esquire
School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed)
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
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.
