02-003678 Beatrice Crittendon vs. Bay County Status: Closed Recommended Order on Wednesday, July 2, 2003.

Summary: Evidence insufficient to show discrimination based on race or disability; person selected for job based on reasonable criteria and facts and had same disability as Petitioner. Petitioner`s back injury is not a handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BEATRICE CRITTENDON, )

)

Petitioner, )

)

vs. ) Case No. 02 - 3678

)

BAY COUNTY, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal h earing was held in this case

on May 6, 2003, in Panama City, Florida, before the Division of

Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Cecile M. Scoon, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

For Respondent: Robert C. Jackson, Esquire

Harrison, Sale, McCloy

& Thompson, Chartered

Post Office Box 1579

Panama City, Florida 32402

STATEMENT OF THE ISSUE

Whether Respondent discriminate d against Petitioner in her

employment because of her race and alleged disability in

violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

On November 15, 2000, Petitioner, Beatrice Crittendon,

filed a Charge of Discrimination with the Flor ida Commission on

Human Relations (FCHR). Petitioner’s charge alleged that the

Bay County School Board failed to transfer her to an exceptional

student education (ESE) clerk position in January 2000 because

of her race and alleged disability. Petitioner also alleged in

her charge that she was required to work in a physically

strenuous environment despite being in a light duty status.

After investigation, on August 15, 2002, FCHR issued a "Notice

of Determination: No Cause," finding no reasonable cause to

believe that any unlawful employment practice had occurred. On

September 24, 2002, Petitioner filed a Petition for Relief based

on the same allegations contained in her charge of

discrimination . The Petition was forwarded to the Division of

Administrati ve Hearings.

At the hearing, Petitioner testified in her behalf, called

six other witnesses, and introduced two exhibits into evidence.

Respondent called two witnesses and offered four exhibits into

evidence.

After the hearing Petitioner and Respondent filed Proposed

Recommended Orders on May 27, 2003, and May 28, 2003,

respectively.

FINDINGS OF FACT

1. Petitioner is an African - American female. She began

working for Respondent in January 1982 at the Margaret K. Lewis

School (MKL School). She was e mployed at the MKL school as a

teacher’s aide for approximately 18 years, from January 1982

through January 2000. Since January 2000, Petitioner remained

employed with Respondent at the A.D. Harris High School as a

clerical assistant.

2. The MKL Schoo l is a specialized school whose students

are severely physically or mentally handicapped. The school

environment is both challenging and rewarding. Many of the

students exhibit behavioral and/or physical problems in an

educational environment. Most of t he students require some type

of assistance either educationally and/or physically. During

the time period at issue here, Judith Riera was the principal of

the MKL School.

3. In 1993, Petitioner injured her back at the MKL school

after slipping on some f ood in the cafeteria. At a result of

this accident, Petitioner’s doctor recommended that she be

placed on light duty workplace restrictions with no heavy

lifting. Respondent attempted to honor her restrictions by

placing Petitioner in a light duty status at the MKL School.

For the most part, Petitioner was able to still function in a

classroom environment after her injury. However, she

occasionally encountered situations where not enough help was

available to assist her in lifting or physically helping a

student. The evidence did not show this lack of help was due to

Petitioner’s race or was directed at Petitioner to make her job

harder. Indeed, the lack of assistance appeared to be a school -

wide problem.

4. In 1996, Petitioner complained to the prin cipal that a

teacher with whom she was working treated her in a hostile

manner that Petitioner perceived as racially motivated, although

no racial remarks were made towards her. The principal

responded with a comment something like, "oh well, you know how

some people are." The principal did not recall any specific

detail about the 1996 incident. Given the length of time since

the incident occurred and the lack of specificity about the

complaint, the evidence does not demonstrate racial bias on the

part o f Respondent or the principal.

5. In 1998, Petitioner aggravated her existing injury in

an automobile accident. The accident resulted in additional

workplace restrictions. The additional restrictions included

refraining from overhead work, repetitive be nding, excessive

amounts of time standing, and lifting anything over 20 pounds.

By this time, Petitioner was also working with a vocational

rehabilitation counselor provided by the State, who assisted

Respondent and Petitioner in finding appropriate posit ions that

could accommodate Petitioner’s workplace restrictions.

Petitioner continued in the teacher’s aide position she had been

in until the vocational rehabilitation specialist working with

Petitioner notified the principal that the teacher’s aide

posi tion was too strenuous for Petitioner. Thereafter,

Petitioner was removed from the classroom and eventually moved

to another school. There was no evidence that this move was

motivated by a desire to discriminate against Petitioner.

6. Despite her restri ctions, Petitioner testified that she

was able to (and still can) care for herself, brush her teeth,

walk, drive, see, hear, and generally manage her daily living

responsibilities with occasional minor assistance. She also

continues to work for Respondent with these restrictions. Since

no major life activity is significantly impaired by Petitioner’s

injury, she does not have a handicap for purposes of employment

discrimination law.

7. In mid - December 1999, Respondent posted an

advertisement for an ESE cl erk position. The ESE clerk position

was a new position funded by a federal grant. Ms. Riera

testified that she felt, after speaking to the MKL School staff,

that the position would be best used to assist the teachers in

fulfilling the often burdensome a dministrative tasks necessary

to assist mentally and physically disabled children. The

consensus from the teachers and administrators was that the

position should be filled by someone who had: (1) good

interpersonal skills and relationships with the teac hers, and

(2) strong organizational skills because the ESE clerk would

have to organize and complete multiple and diverse

administrative tasks from the entire teaching staff.

8. The existing collective bargaining agreement with

para - professional person nel, including teacher’s aides like

Petitioner, required Respondent to advertise open positions at

the work site and the district’s central office for five days.

Five days is the minimum set by contract for advertising a

position. It is not uncommon for employment advertisements to

be longer than five days and/or extended by on - site management

in order to obtain the best qualified candidate pool for the

job. There was no evidence that suggested the employment

process used in this case was racially motiva ted to exclude

Petitioner from the ESE clerk position.

9. Neither party presented any direct evidence about when

initial applications for the ESE Clerk position were originally

due. It was generally agreed that it was some time before the

scheduled Chris tmas school break in 1999. The interviews were

also originally scheduled to occur before the Christmas break.

But, in light of the many student events and other tasks that

had to be completed before the break, Ms. Riera decided to

reschedule the ESE Cler k interviews until after the new year.

She likewise extended the deadline for applying for the position

until just before the interviews. Her policy was to grant an

interview to any internal MKL School candidate who expressed an

interest in an advertised position at the school.

10. Petitioner applied for the ESE clerk position.

11. Sometime in January 2000 before the interviews began,

Ms. Janice Rudd (white), a teacher’s aide at the MKL School,

contacted Ms. Riera about the ESE clerk position. Ms. Rudd

explained that she wished to be considered for the position.

Ms. Rudd submitted her application for the ESE position. The

evidence did not demonstrate that the application was untimely

or, more importantly, that the application was accepted in order

to exclude Petitioner from the ESE clerk position based on her

race or disability. Similar to Petitioner, Ms. Rudd was on

light duty and believed that her workplace restrictions may

force her to leave the classroom or, even worse to her, the

MKL School.

1 2. Ms. Rudd was also a long time employee at the MKL

School. She had been working there since August 1986. During

her 14 years at the MKL School, she had volunteered to serve on

several staff committees and got to know many different

teachers. The membe rs of the ESE clerk interview panel were

generally familiar with Ms. Rudd’s work performance prior to the

interview. What the interview members liked about Ms. Rudd was

her demonstrated ability to work with the majority of the

teachers at the school and h er demonstrated ability to stay

organized.

13. In 1993, Ms. Rudd injured her back while lifting a

child. At the time of the ESE clerk interviews, her workplace

restrictions included no overhead work, no repetitive bending,

and no lifting objects weighing more than 25 pounds.

14. Petitioner had a chronic problem with tardiness

throughout her time at the MKL School. Ms. Riera had formally

counseled Petitioner in writing, at least twice, for repeated

failure to timely appear at work. Petitioner’s performa nce

evaluations over this period also consistently noted that this

was a continuous problem that affected not only herself, but the

other staff members. At one point, Ms. Riera required

Petitioner to sign in and out of the front office to reiterate

how im portant punctuality was and to help assist Petitioner’s

timely arrival.

15. Timely arrival was important at the MKL School because

teachers and teacher’s aides, including Petitioner, at the MKL

School assisted students off the morning buses and, eventua lly,

to their classroom. If a teacher or aide was late, the other

staff members would have to step in and perform the absent

person’s duties in addition to their own during a very hectic

time at the school. Petitioner’s chronic tardiness caused such

morn ing difficulties. All four members of the interviewing

panel for the ESE clerk position knew of Petitioner’s chronic

tardiness and the problems it caused with the staff, and cited

it as a detraction in their review of the applicants for the ESE

clerk posi tion. The evidence did not show that Petitioner had

participated extensively on multiple staff committees as Ms.

Rudd had.

16. On January 3, 2000, Respondent held interviews for the

ESE clerk position. The interview panel consisted of Doris

Pigneri, a t eacher; Susan Bartholemy, a teacher; Ruth Kunuch, an

assistant administrator; and Ms. Riera, the principal. Seven

candidates were selected for interviews, including Petitioner

and Ms. Rudd. The interview panel asked the same questions of

all the candidat es. After the completion of all of the

interviews, the interview panel met and discussed the strengths

and the weaknesses of each candidate. Both Petitioner and

Ms. Rudd were liked by the staff and considered competent

teacher’s aides. They eventually s elected Ms. Rudd as the most

qualified and suitable person for the job. Ms. Riera offered

Ms. Rudd the position, which she accepted.

CONCLUSIONS OF LAW

17. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the part ies to this

proceeding. Section 120.57(1), Florida Statutes (2002).

18. Under the Florida Civil Rights Act, it is an unlawful

employment practice for an employer:

To discharge or refuse to hire any

individual, or otherwise to discriminate

against any ind ividual with respect to

compensation, terms, conditions, or

privileges of employment because of such

individual’s race, color, religion, sex,

national origin, age, handicap, or marital

status.

Section 760.10(1)(a), Florida Statutes. (2002).

19. Florida Co urts have determined that federal

discrimination law should be used as a guidance when reviewing

provisions of the Florida Civil Rights Act. See Brand v.

Florida Power Corporation , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); see also Florida Department of Co mmunity Affairs v.

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

20. The Supreme Court of the United States established in

McDonnell - Douglas Corporation v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981) , the analysis in cases alleging disparate treatment

discrimination such as the one at bar. This Court reiterated

and refined this analysis in St. Marys’ Honor Center v. Hicks ,

509 U.S. 502 (1993).

21. Pursuant to this analysis, Petitioner has the burden

of establishing a prima facie case of unlawful discrimination by

a preponderance of the evidence. If Petitioner establishes a

prima facie case, Respondent must articulate some legitimate

nondiscriminatory reason for its employment action. If

Respondent a rticulates such a reason, the burden then shifts

back to Petitioner to prove that Respondent’s proffered reason

is not the true reason for its actions, but instead a pretext

for discrimination. The Supreme Court, however, emphasized that

before finding di scrimination "the fact finder must believe the

Plaintiff’s explanation of intentional discrimination." Hicks ,

509 U.S. at 519. The Court stressed that even if the fact

finder does not believe the proffered reason given by the

employer, the burden at all times remains with Petitioner to

demonstrate intentional discrimination. Id .

22. In order to establish a prima facie case of

discrimination, Petitioner must establish that:

(a) She is a member of a protected class;

(b) She is qualified for the positio n;

(c) She was subject to an adverse

employment decision; and

(d) She was treated less favorably than

similarly - situated person outside the

protected class.

See Canino v. EEOC , 707 F.2d 468 (11th Cir. 1983); Smith v.

Georgia , 684 F.2d 729 (11th Cir. 1982) ; Lee v. Russell County

Board of Education , 684 F.2d 769 (11th Cir. 1984).

23. If Petitioner fails to establish a prima facie case of

discrimination, judgment must be entered in favor of Respondent.

See Bell v. Desoto Memorial Hospital Inc . , 842 F. Supp. 4 94

(M.D. Fla. 1994).

24. As indicated earlier, if a prima facie case is

established, a presumption of discrimination arises and the

burden shifts to Respondent to advance a legitimate,

non - discriminatory reason for the action taken against

Petition er. However, Respondent does not have the ultimate

burden of persuasion, but merely an intermediate burden of

production. Once a non - discriminatory reason is offered by

Respondent, the burden shifts back to Petitioner. Petitioner

must then demonstrate t hat the proffered reason was merely a

pretext for discrimination.

25. It was undisputed that Petitioner is a member of a

protected class due to her race and possessed the basic

qualifications to perform the ESE clerk position. However,

Petitioner did not demonstrate that she was treated less

favorably than others outside her protected class. All of the

applicants were treated the same by the interview committee and

competed under the same employment process. The evidence did

not demonstrate that Petition er was not hired for the ESE clerk

position based on her race.

26. Even assuming arguendo that Petitioner established an

initial prima facie case, she failed to carry the ultimate

burden of persuasion that the transfer decision was due to

intentional race discrimination. Here, Respondent provided a

legitimate non - discriminatory reason for its decision, that is,

the interview panel thought that Ms. Rudd was better qualified

and better suited for the position. Specifically, the interview

panel believed tha t Ms. Rudd possessed more of the important

qualities that they thought were crucial for the job: (1) good

interpersonal skills and relationships with the teachers; and

(2) strong organizational skills. This opinion was based on the

extensive and multiple school committees on which Ms. Rudd had

served. Such service is a reasonable basis for the committee

members to form such an opinion. No similar evidence of such

work was presented as to Petitioner.

27. Petitioner tried to establish that Respondent’s

r easons were pretextual but failed to provide any convincing

evidence that Respondent’s process and reasons were a sham.

First, Petitioner alleged that the decision maker, Ms. Riera,

had extended the application submission deadline and coerced

Ms. Rudd to apply for the position because of racial bias.

However, Ms. Riera stated that she extended the interviews and

application deadline for administrative convenience at the end

of a busy semester. Further, it was not unusual for an on - site

manager to extend an application or interview period. Moreover,

acceptance of qualified applicants in order to afford all

interested personnel an opportunity to apply does not

demonstrate racial bias. Finally, Ms. Rudd testified that she

contacted Ms. Riera directly about the position. Since Ms. Rudd

contacted Ms. Riera about the position, not the other way around

as Petitioner alleged, Petitioner’s argument of manipulation of

the process by Ms. Riera fails.

28. Next, Petitioner alleged that she was more qualified

than Ms. Rudd and that the interview process was somehow biased

against her. The evidence presented, however, does not support

Petitioner’s allegations. The interview panel asked the same

questions of all the candidates and met afterwards to discuss

each cand idates' strengths and weaknesses. No interview panel

member noted any hint of bias or favoritism during the

interviews and discussions. All the interview panel members

were generally aware of both Ms. Rudd’s and Petitioner’s

performance and Petitioner’s problems with punctuality and its

corresponding effect on the other staff members. In the end,

Ms. Rudd was the consensus recommendation for the position.

29. Courts should not second guess the legitimate

employment decisions of employers. The Courts d o not sit as a

super - personnel board, guaranteeing review of every workplace

infraction or decision. See Cofield v. Goldkist, Inc. , 267 F.3d

1264, 1269 (11th Cir. 2001). This is especially true in

questions involving differing qualifications between job

candidates. The employer is the best judge of what kind of

person is needed for specific duties. Here, the MKL School

staff reasonably judged the qualities and abilities of the

person who would assist them. Therefore, Petitioner has failed

to establish any discriminatory actions by Respondent and the

Petition for Relief should be dismissed as to racial

discrimination.

30. Finally, Section 760.10, Florida Statutes, also

prohibits discrimination in employment because of an

individual’s handicap. "Handicap " is not defined by the

statute, but Florida courts have adopted the federal definition

for claims alleging handicap discrimination brought under the

Florida Civil Rights Act. See Brand , 6 33 So. 2d at 509.

Federal law requires that Petitioner prove that she (1) had a

physical or mental impairment which substantially limited one or

more major life activities; (2) had a record of such impairment;

or (3) was regarded as having such an impairment. See 29 U.S.C.

Section 706(8)(3).

31. The United States Suprem e Court recently reiterated

that Congress did not intend every physical limitation to be

considered a disability. In fact, most limitations will not

meet the high standard required by law. See Toyota Motor

Manufacturing Kentucky, Inc. v. Williams , 534 U. S. 184, 197

(2002)(requiring that there be a "demanding standard for

qualifying as disabled"). Examples of major life activities

that would have to be substantially impaired for a limitation to

qualify as a disability are caring for oneself, walking, seei ng,

speaking, breathing, learning, and working.

32. Petitioner is not considered handicapped under the

Florida Civil Rights Act. She testified that she was able to

care for herself, brush her teeth, see, hear, drive, walk, and

generally manage her daily living responsibilities with

occasional assistance. She also continued to work for

Respondent the entire time she had these physical restrictions.

Although somewhat limiting, her physical restrictions were not a

substantial limitation on a major life act ivity. Therefore,

Petitioner’s disability charge should be dismissed.

33. Even if Petitioner were to qualify as handicapped, she

still would not have established a prima facie case of

disability discrimination. The successful candidate, Ms. Rudd,

had si milar workplace restrictions. Both Petitioner and

Ms. Rudd were on light duty. Both Petitioner and Ms. Rudd had

problems with their backs which limited lifting, standing, and

overhead work. And both Petitioner and Ms. Rudd were working

with a vocational rehabilitation counselor who was concerned

that they may not be able to continue working in the classroom

at the MKL School with their workplace restrictions. Thus, even

if Petitioner is considered handicapped under the statute, she

did not establish a p rima facie case of disability

discrimination, because she was similarly situated to the

successful candidate, Ms. Rudd. Therefore, the Petition for

Relief should be dismissed.

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.

DONE AND ENTERED this 2nd day of July, 2003, in

Tallahassee, Leon County, Florida.

S

___________________________________

DIANE CLEAV INGER

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

Divi sion of Administrative Hearings

this 2nd day of July, 2003.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Bill Harrison

Bay County

1311 Balboa Avenue

Panama City, Florida 32401

Robert C. Jackson, Esquire

Harrison, Sale, McCloy

& Thompson, Chartered

Post Office Box 1579

Panama City, Florida 32402

Cecile M. Scoon, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

Cecil Howar d, General Counsel

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 Reco mmended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the final order in this case.