The Issue The basic issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her race and thereby engaged in an unfair employment practice within the meaning of Section 760.10, Florida Statutes. The Petitioner asserts that she was discriminated against by the employer's failure to promote her. The Respondent denies any discrimination. At the hearing, both parties presented the testimony of witnesses and offered documentary exhibits. Subsequent to the hearing a transcript of the proceedings was prepared and filed. Pursuant to agreement of the parties, their proposed recommended orders were originally due by no later than February 1, 1988. At the request of the Petitioner, for good cause shown, the filing date was twice extended. On March 21, 1988, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The Respondent also filed a supporting brief. The post-hearing submissions of the parties have been carefully considered in the formulation of this recommended order. Specific rulings on all findings of fact submitted by all parties are contained in the Appendix which is attached to and incorporated into this recommended order.
Findings Of Fact Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact. The Petitioner, Rebecca Riley, a black female, began work at Nassau General Hospital in 1971 as a dietary aide or "salad girl." Currently, the Petitioner is employed by the Respondent as a cook. Petitioner's first supervisor was Ms. Hazel Adams. Ms. Adams was a white female. Ms. Adams was food service manager from the time the Petitioner was hired in 1971 until 1980. Ms. Adams became ill in 1975 and was eventually forced to leave her job at Nassau General in 1980 due to her failing health. During the latter part of 1979, the Respondent entered into a management contract with Methodist Regional Hospital Systems to provide new management for the hospital. As part of the new management team, Mr. Ronald Rice was hired by Methodist Regional Hospital Systems to be the new hospital administrator. Mr. Rice served in that capacity from 1980 until 1985. Mr. Rice was well qualified for that position by formal education and prior experience. When Mr. Rice began his employment as administrator, the Respondent hospital had a large number of management and financial problems which it was hoped the new management could resolve. When Ms. Adams left in 1980, Ms. Delia Boynt partially assumed the duties of food service manager. Ms. Boynt also had a severe health problem. Ms. Boynt was a white female. In August of 1981, Ms. Barbara Fletcher became consulting dietician to the hospital. Ms. Fletcher initially worked 8 hours per week, but as Ms. Boynt became progressively more ill, Ms. Fletcher started assuming the duties of food service manager, including doing the kitchen-paperwork, ordering food, and evaluating employees. With the passage of time, Ms. Fletcher's hours increased from 8 to 20 hours per week. Ms. Boynt left the hospital in September of 1982. At that time, Ms. Fletcher was working 20 hours a week as food service manager. Ms. Fletcher was concerned that when she left work each day at noon, there was no one left to function in a supervisory capacity in the kitchen. Because of this concern, Ms. Fletcher approached Mr. Rice concerning the creation of a head cook position. The head cook position would be primarily responsible for taking care of any problems that came about during the time when Ms. Fletcher was not at work. Also, the head cook would be responsible for checking in food received from vendors, performing inventories each month, ordering food, and cooking. When Ms. Fletcher made the suggestion to Mr. Rice concerning the creation of the head cook position, she intended to continue to function as the food service manager. Ms. Fletcher suggested to Mr. Rice that the head cook position be offered to all three of the cooks. In September of 1982, the cooks in the kitchen at the respondent hospital were Eddie Melton, Elizabeth Fullwood, and the Petitioner. When Ms. Fletcher offered the head cook position to Ms. Melton, Ms. Melton declined the position. The Petitioner expressed an interest in the position, as did Ms. Fullwood, who had been working at the hospital since August of 1981. Ms. Fletcher decided the best way to choose between the Petitioner and Ms. Fullwood would be to develop a test to determine which employee was more qualified. However, before Ms. Fletcher could develop the test, Ms. Fullwood approached her and informed her that she felt that the other employees in the kitchen would make a racial issue out of her pursuit of the job as head cook. Consequently, Ms. Fullwood withdrew her name from consideration for the head cook position. Ms. Fullwood is a white female. In 1982, all of the other nonsupervisory employees in the hospital kitchen were black. Ms. Fletcher then offered the head cook job to the Petitioner, who accepted the job. The Petitioner served as the head cook for only a very few days. After working as head cook for just a very few days, the Petitioner informed Ms. Fletcher that she did not feel that the job was worth the money she was to be paid and that Ms. Fletcher could have the job back. Upon the Petitioner's relinquishment of the head cook position, Ms. Fletcher approached Ms. Fullwood, the only remaining cook who had expressed an interest in the head cook position, and offered her the job. Ms. Fullwood still had reservations about accepting the job and spoke to the Petitioner to ensure that there would be no "hard feelings" if Ms. Fullwood were to accept the job. Having determined that there would be no hard feelings, Ms. Fullwood accepted the position of head cook on or about October 1, 1982. At this time, Ms. Fletcher still intended to continue to function as the hospital's food service manager. In mid-October of 1982, Ms. Fletcher experienced some domestic problems which resulted in her giving notice that she would be quitting her employment at the hospital. Her last day of employment was October 29, 1982. Because of Ms. Fletcher's notice that she would be leaving, it became incumbent upon Mr. Rice to hire a food service manager. The Florida Department of Health and Rehabilitative Services license standards for hospitals require a designated food service manager. Mr. Rice initiated the process of selecting a new food service manager by informing Cathy Fox, Ms. Fletcher's replacement as consulting dietician, that the hospital was required to hire a food service manager. At the same time, Mr. Rice asked Ms. Fox to draft a new job description for the position of food service manager. Mr. Rice wanted to upgrade all the job descriptions at the hospital for purposes of satisfying the Joint Commission on Accreditation. Joann Robinson, personnel director at Nassau General at that time, also had input into the drafting of the job description. The job description Ms. Fox developed required that the food service manager be: high school graduate with at least 2-3 years management experience in food service, or a 2 year food service technology course plus one year experience in food service management, or a 4 year college degree in Institutional Food Service Management. Mr. Rice also contacted Danny Bellford at the Job Corps and asked Mr. Bellford to recommend local people for the job of food service manager. The Job Corps sent two candidates for the position of food service manager to the hospital. Ms. Fox interviewed these two individuals and determined that neither of them was qualified. It was common knowledge throughout the hospital in mid-October 1982 that the position of food service manager was available. Ms. Fullwood, head cook at that time, approached Mr. Rice in his office and informed him that she was interested in the position. The Petitioner also expressed an interest in the position during a conversation held with Mr. Rice in the cafeteria. Thus, the two candidates from whom a food service manager would be selected were Ms. Fullwood and the Petitioner. Ms. Fox made the recommendation that Ms. Fullwood receive the position of food service manger. Mr. Rice accepted Ms. Fox's recommendation of Ms. Fullwood based upon his review of both the Petitioner's and Mrs. Fullwood's applications and Ms. Fullwood's superior qualifications. Upon comparing Ms. Fullwood's qualifications to the Petitioner's qualifications, it was obvious that Ms. Fullwood was clearly the better qualified candidate. Ms. Fullwood met all of the requirements in the job description. The Petitioner did not meet all of those requirements because the Petitioner did not have a high school diploma and did not have any management experience in food service. Ms. Fullwood had a GED certificate, had five years of experience as an assistant manager supervising three employees in a school food service position, and had successfully completed numerous courses regarding food service and food service management. At most, the Petitioner completed only one course related to her job, even though given opportunities to take other courses. In light of the superior qualifications of Ms. Fullwood, Mr. Rice approved Ms. Fox's recommendation of Ms. Fullwood for the position of food service manager. Mr. Rice did not consider the Petitioner's race at any time in his decision to select Ms. Fullwood for the food service manager position. There is no persuasive evidence of any improper motivation in the selection of Ms. Fullwood rather than the Petitioner. Since the selection of Ms. Fullwood for the position of food service manager, the Petitioner has made no effort to obtain other employment in a supervisory position in any type of institutional food service facility.
Recommendation For all of the foregoing reasons, it is recommended that the Petition in this case be dismissed and that the relief sought by the Petitioner be denied. DONE AND ENTERED this 11th day of May, 1988, at Tallahassee, Florida. MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of May, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3625 The following are my specific rulings on all findings of fact proposed by all of the parties. Findings proposed by the Petitioner (The paragraphs of the Petitioner's proposed findings are not numbered. The ordinal numbers below correspond to the order of the paragraphs, with each indentation of the text of the proposals being treated as a new paragraph. For convenience, page numbers are also included.) First paragraph (page 1): First sentence rejected as statement of position rather than proposed finding of fact. Second, third, and fourth sentences rejected as subordinate and unnecessary details. Fifth sentence accepted. Sixth and seventh sentences rejected as subordinate and unnecessary details. Eighth and ninth sentences rejected as not supported by competent substantial evidence or contrary to the greater weight of the evidence. Second paragraph (page 1) : First three sentences accepted. Last sentence rejected as not supported by competent substantial evidence and, as in any event, irrelevant to the issues in this case. Third paragraph (pages 1-2): First sentence accepted in substance. Second sentence rejected as contrary to the greater weight of the evidence. Third sentence accepted in substance. Fourth sentence rejected as not supported by competent substantial evidence and as, in any event, irrelevant to the issues in this case. Fourth paragraph (page 2): Accepted. Fifth paragraph (page 2): Accepted in substance, with clarifying details added and editorial comments omitted. Sixth paragraph (page 2): Accepted in substance. Seventh paragraph (page 2): Accepted. Eighth paragraph (page 2): Accepted in substance. Ninth paragraph (page 3): First two sentences accepted in substance. Third sentence rejected as irrelevant because this was a "head cook" position, not a food service manager position. Last sentence rejected as unnecessary editorial comment. Tenth paragraph (page 3): First sentence rejected as contrary to the greater weight of the evidence. The remainder of this paragraph is rejected as irrelevant. Eleventh paragraph (page 3): First sentence accepted in substance. Second sentence rejected as contrary to the greater weight of the evidence. Parenthetical sentence accepted in substance. Last sentence rejected as not supported by persuasive competent substantial evidence. Twelfth paragraph (page 3): Rejected as unnecessary argument or editorial comment rather than proposed findings. To the extent it constitutes proposed findings of fact, it is cumulative and unnecessary. Thirteenth paragraph (page 3): Rejected as irrelevant to the issues in this case. Fourteenth paragraph (page 4): First sentence accepted, but in context with additional information about Fullwood's employment history. Second sentence rejected because it contains details contrary to the greater weight of the evidence. Fifteenth paragraph (page 4): First sentence rejected because it contains details contrary to the greater weight of the evidence. Second sentence rejected as irrelevant. Third sentence rejected as not supported by competent substantial evidence. Last four sentences rejected as procedural details. Findings proposed by Respondent Paragraphs 1 and 2: Accepted. Paragraph 3: Accepted in substance, with numerous unnecessary details omitted. Paragraph 4: Rejected as irrelevant to disposition of the issues in this case. Paragraphs 5, 6, 7, 8, 9, 10, and 11: Accepted. Paragraph 12: Rejected as unnecessary details. Paragraphs 13, 14, 15, 16, 17, 18, and 19: Accepted. Paragraphs 20, 21, 22, and 23: Accepted in substance, with numerous subordinate details omitted. Paragraph 24: Accepted. Paragraph 25: Rejected as subordinate and unnecessary details. Paragraph 26: Accepted. COPIES FURNISHED: Calvin Moore, Esquire 619 South 10th Street Fernandina Beach, Florida 32034 Mr. Johnell Preliou, President National Association for Advancement of Colored People Nassau County Branch Post Office Box 403 Fernandina Beach, Florida 32034-0403 Patrick D. Coleman, Esquire James M. Craig, Esquire Coffman, Coleman, Andrews & Grogan Post Office Box 40089 Jacksonville, Florida 32203 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1925
Findings Of Fact The hearing proceeded and testimony was taken from Dr. Pillot, Mr. Bayard, and Mr. Brown regarding the composition and organization of the classified non-instructional employees of the school system. There are approximately 900 employees in the county's classified service who are all potential members of the employer group. This total number will be reduced because of lack of funds. Column A below shows the breakdown of employees by general job classification; Column B shows the number of employees after reductions are made. All figures taken from Exhibit 2. A B Secretarial/Clerical 174 167 Food Service 157 157 Custodial/Delivery 200 159 Maintenance 75 67 Teachers' Aides 12 1/ Data Processing 12 12 Transportation 93 2/ 93 There are 716 employees in the aforestated classifications. Approximately 525 employees would be encompassed in the group sought by the Petitioner. The clericals, teachers' adies, and data processing personnel total 191 employees. The Intervenor seeks to represent all 716, however, a unit composed solely of clericals would represent roughly 27 percent of the total. The figures used above are not adjusted for employees who are managerial, confidential, or "supervisory". ORGANIZATION The complete and detailed organization of the school system is set out in Exhibit 20, however, the system is generally organized as follows: | SCHOOL BOARD | | | | |Superintendent | | Superintendent | | | | | | Staff's | | | | | | | | Associate | | Director | | Associate | |Superintendent | | Data | | Superintendent | | Business | | Processing | | Instruction | | | | | | | | | | | | | | | | |Director | |Director | |Director | |Coord.| |Coord.| |School | |Transpor-| |Facilit- | | Finance | | Food | |Purch-| |Prin- | | tation | | ies | | | | Serv.| | asing| | cipals| | | | | | | | | | | | | | | | | | | | Bus | | Food | | Head | |Teachers'| |Clerical| |Drivers| |Service| |Custodian| | Aides | | Staff | | | |Manager| | | | | | | | | | | | | | | | | The system is basically broken into two portions, one dealing directly with educational services and the other with support services. The Data Processing Unit reports directly to the superintendent and performs work for both education and support. The support services branch contains the staff directors and administration for transportation, maintenance, food services, finance and purchasing. However, bus drivers from transportation, custodians from facilities, and food service employees are under the direction, directly or indirectly, of the principal of the school to which they are assigned. Principals are also responsible for the supervision, directly or indirectly, of the clerical staff and teachers' aides assigned to their school. JOB CLASSIFICATIONS AND DUTIES Secretarial and clerical personnel are found throughout the school system's organization, at various levels of the administrative staff and at the schools. On the staff they perform regular office clerical duties and at schools they perform bookkeeping, secretarial, maintain records of registration and attendance, and operate switchboards. There were at the time of hearing 174 such positions, however, a reduction of 8 secretarial positions in the central office was programmed. Note the stipulation by the parties and the positions expressed by the parties concerning exclusion of various secretarial positions at p. 398, Vol. II of Transcript. In brief this would exclude the superintendent's two secretaries, the secretaries of the two associate superintendents and the assistant superintendents. There were differences of opinion regarding whether the secretaries to the principals should be excluded. Based upon the testimony of Mr. Brown, who is a principal, it would appear that the duties of the principal's secretary are not clerical. According to his testimony, his secretary is solely in charge of specific administrative functions such as athletic ticket sales, registration and eligibility of athletes, etc. It would appear that she has broad powers and discretion in performing these tasks under the general supervision of the principal. Based on his testimony, a principal's secretary is more than a typist, and performs the functions of am administrative assistant to the principal administering specific programs under his direction. DATA PROCESSING There are 12 Data Processing employees. They perform various functions directly relating to the programming, operation, and analysis of the data processing function. The unit is under the control of a director, however, he reports to the superintendent as opposed to the associate superintendent for Business. Although the parties generally would exclude the other directors as managerial, they did not expressly agree to the exclusion of the director of Data Processing. The Hearing Officer cannot see any substantial difference in function which would warrant treating this position differently from the other directors. Because he reports directly to the superintendent, he actually holds a higher position in the system than other directors. The Data Processing Unit is located at the central office. TRANSPORTATION The Transportation Division is a part of the business branch, and is physically located adjacent to the central office. This division is responsible for school bus transportation and employs 116 drivers of which 93 are employed by tie system solely as drivers. There are 23 drivers who are also employed in some alternate capacity by the school system. The division is responsible for route planning and driver assignments. Drivers work approximately five hours a day and may be assigned two to three routes for different schools. However, while driving a particular route they are responsible to the principal of that school. In that respect the principal has effective powers of discipline through the Director of Transportation. In the director's office there are am assistant director, route coordinator, and assistant route coordinator for south county. There was mention of a chief mechanic who assigned work on the buses, however, there was no testimony relative to a mechanical section although the superintendent indicated that school system employees did perform the maintenance. P. 72, Vol. I. FACILITIES DEPARTMENT This is the largest department having approximately 250 employees. The department consists of the Planning, Inspection, Maintenance, Signal Repair, and Custodial Sections. The Planning Section consists of an architect, who is excluded from the unit by the parties, and two draftsmen. The draftsmen have the necessary training or experience to perform engineering drafting. They were sought by Petitioner and Intervenor for inclusion in the proposed unit. The Inspection Section is actually one inspector who inspects all construction for compliance with specifications and applicable codes. The parties stipulated to his exclusion. The Signal Repair Section consists of the supervisor, who was excluded by stipulation, and 7-9 repairmen who worked on communications equipment, office machine repair, and audio visual equipment. The section is divided into signal and office machine and audio visual repair subsections. The repairmen are not interchanged between the subsections. MAINTENANCE SECTION This section has the most complex organization and varied functions. It is supervised by the supervisor of maintenance. It is divided into three subsections: mechanical, structural and south county. Each subsection is under the direction of a supervising foreman. All of the aforementioned positions are excluded by stipulation of the parties. Mechanical Subsection has 15-18 employees who work in one of the three trade arena found in the subsection: plumbing, electrical and air conditioning. Each trade area has a working foreman. A locksmith, who is a skilled worker, is normally assigned to carpentry. Grounds, which was formerly a separate section, is now a subsection and the working foreman in charge of grounds does the work formerly done by the supervising foreman of grounds, and the same job performed by the other supervising foremen but he receives a lower salary rate. The Petitioner and Intervenor would not stipulate to his exclusion. There are 8-10 skilled and semiskilled workers in grounds. There are no specific job titles in grounds. The South County Section employs 8-10 persons. This is a separate suborganization with one administrative secretary. There are no working foremen. The employees represent the various skills found in the headquarters sections, performing all maintenance functions on school facilities in South Sarasota County. The shop facility is supervised by the shop foremen who supervises 3-4 skilled and semiskilled employees who work on automobiles, welding, and steel fabrication. There are 5-6 school mechanics who perform general repairs and are on the Facilities Division payroll but who rotate around to the various schools and work directly for the principals. They are assigned duties by and report to the principal of the school at which they are working. These employees have carpentry backgrounds. CUSTODIAL SECTION This section is comprised of supervisor, who is excluded by stipulation by the parties, 6-7 roving custodians, and about 175 custodians who are assigned directly to one of the 28 county schools. At each school, the head custodian supervises the custodians assigned at that school. The head custodian receives a higher salary. Although the head custodian does assign work, has the authority to effectively recommend discipline, and evaluates those under him, he also performs custodial functions. The Petitioner and Intervenor would both include the head custodians within the proposed unit. TEACHERS' AIDES Teachers' aides dare not sides to teachers in the truest sense, but perform various duties as assigned by the principal of the school to which they are assigned. These duties may range from clerical to library assistants to hall and bus monitors. They are rated by the principals for whom they work. These positions are apparently funded for a school term and the number authorized may vary; however, a principal may also elect to convert teacher positions into teacher aide positions in order to obtain a greater total number of positions. The number of teacher aides is dependent, therefore, in part on how much money is available for such positions and how many positions are converted by principals. There were no usable estimates of how many teacher aides would be employed in 1975-76. However, since the school year has begun at this time, this would be a valid area for staff inquiry to supplement the record. CENTRAL ADMINISTRATIVE OFFICE The Central Administrative Office of the school system is composed of the following sections or offices and personnel: Superintendent's Office Superintendent 2 Secretaries 2 Associate Superintendents 2 Secretaries Personnel Office Coordinator of Personnel Assistant Coordinator 5 Secretaries Coordinator of Planning Coordinator Secretary Federal Project Coordinator Coordinator Secretary Vocational Adult Education Assistant Superintendent Secretaries Evaluations Coordinator Coordinator Secretary Test Control Clerk Pupil Services Coordinator Coordinator Secretary 4-5 Clerks Media Coordinator Audio Visual Supervisor Clerks Book Processing Department 6 Clerks Although those functional organizations differ somewhat from those depicted in Exhibit 20, they are included to indicate primarily the distribution and functions of clerical personnel within the central office. It should be noted that all of the proposed reductions in clerical staff were to occur at the central office, where 8 positions were to be eliminated. The parties would exclude nonclassified employees which would exclude the various coordinators. FOOD SERVICE Food Service Coordinator This is a staff position within the superintendent's office staff which consists of the coordinator and assistants who are charged with coordination of purchasing and bookkeeping. The coordinator has no direct control supervision over food service personnel who work at schools. At each school there is a food service manager and in some instances, an assistant manager, whose duties are to supervise the food program at that school. The manager is responsible for the financial management, assignment of duties, and has effective disciplinary control of the food service workers at the school. The assistant manager has essentially the same duties when the manager is not present. Because there are several schools without kitchens, food must he brought in for students. These are satellite operations, and have a satellite manager whose duties are similar but not as complex as a manager's duties because there are no cooking facilities. The Petitioner would exclude all three of the foregoing positions, while the Intervenor would include these positions. The School Board has no position regarding these positions. It would appear from the authority vested in the managers that they are solely responsible for the program at their school but report to the principal. The assistant managers and satellite managers have essentially the same duties, authority, and functions. The food service workers work directly for tie food service manager and either cook or prepare food, serve food, or clean up the food preparation and service areas of the cafeteria. They are assisted to 50150 degree by custodial personnel in cleaning duties. There ore approximately 157 food service workers. FINANCE DIVISION Coordinator or Director is responsible for the internal audit functions. He is assisted by several bookkeepers. In addition there is the manger of investments, the payroll office and several special project bookkeepers. PURCHASING DIVISION The coordinator or director of Purchasing is responsible for ordering and warehousing equipment, materials, and supplies for the school system. He is assisted by an assistant who is a working foreman, 3-4 secretary-bookkeepers, a warehouse manager, and several warehousemen. COMMUNITY OF INTEREST In addition to the organization of the school system and the duties of the various personnel discussed above, the following factors also bear on the community of interest of the employees. Clearly all the full time appointed classified employees have the same fringe benefits regarding holidays, retirement, insurance, sick and annual leave. All salaries are established by the same procedure, starting with a study by the staff, a proposal from the superintendent's office to the School Board, and concluding with board amendment, if necessary, and final approval. The five salary schedules in effect are all keyed to a base of the basic instructional salary. Some employees are paid more and some less than starting teachers but that salary range is the base from which non-instructional salaries are developed. Separate salary schedules exist for secretarial-clerical, supervisory, maintenance, custodial, and data processing personnel. The hours worked by various personnel differ. Secretarial-clerical and data processing personnel work 371/2 hours per week, while all other personnel work 40 hours per week. All members of classified service have the same basic right of employment regarding grievances and appeals of personnel action. This report respectfully submitted this 22nd day of January, 1976. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
