04-003183 Carolyn E. Allen vs. Diamond Academy, Inc. Status: Closed Recommended Order on Monday, October 3, 2005.

Summary: The evidence did not demonstrate termination based on race. One equivocal statement is insufficient to establish discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CAROLYN E. ALLEN, )

)

Petitioner, )

)

vs. ) Case No. 04 - 3183

)

DIAMOND ACADEMY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on March 14 and July 27, 2005, in Quincy, Florida, before Diane

Cleavinger, Administrat iv e Law Judge, Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Carolyn E. Allen, pro se

39 Pin e Tree Lane

Quincy, Florida 32351

For Respondent: Valerie E. Janard, Esquire

237 East Washington Street

Quincy, Florida 32351

STATEMENT OF THE ISSUE

The issue in this case is whether the Respondent committed

unlawful employment acts against Petitioner based on her race in

violation of Chapter 760, Florida Statutes (2004).

PRELIMINARY STATEMENT

On August 27, 2003, Petitioner, Carolyn E. Allen, filed a

Charge of Discrimination with the Florida Comm ission on Human

Relations (FCHR). The Charge of Discrimination alleged that

Respondent had subjected Petitioner to unlawful employment

actions based on her race. Specifically, the Charge of

Discrimination alleged that Respondent discriminated against

Pet itioner during her employment when an allegedly less

qualified, white female was hired for a similar position at a

higher salary than Petitioner and when Respondent allegedly

terminated her employment.

On July 28, 2004, the ( FCHR) filed a Notice of

Dete rmination: No Cause. Thereafter, on September 1, 2004,

Petitioner filed a Petition for Relief alleging the same facts

as contained in her earlier Charge of Discrimination. The

matter was referred to the Division of Administrative Hearings

for a formal h earing.

At the hearing, Petitioner offered the testimony of eight

witnesses and introduced one composite exhibit into evidence.

Respondent offered the testimony of one witness and introduced

six exhibits into evidence.

After the hearing, Petitioner f iled a Proposed Recommended

Order on August 9, 2005. Respondent filed a Proposed

Recommended Order on August 10, 2005.

FINDINGS OF FACT

1. Diamond Academy, Inc., is a Florida not - for - profit, tax

exempt corporation created to operate an education pro gram for

area residents who qualify for such program. The Academy

provides a family literacy program combined with a licensed

childcare facility. The program is provided to families in

poverty and helps family members improve their parenting skills,

furt her their educational needs and goals by aiding the parent s

with completing a high school, college or career degree or

certification, and improve their life skills and family

condition through help with employment, housing, etc. The

children are offered t he benefits of a research - based

curriculum, stimulation for brain development, and development

of social and academic skills that are needed to attend public

school. Parents interact with their children under the

supervision of staff to help improve their parenting skills and

better understand how to teach their children at home.

2. The first location of the Academy was in Quincy,

Florida. The staff at the Quincy location was black and

Caucasian with the majority of the staff being black. Most of

t he families served at the Quincy location were black. In early

Spring, 2003 the academy opened a second facility in

Chattahoochee, Florida. The Chattahoochee location served

mostly Hispanic families. Because of the school’s Hispanic

population, there wa s a need at the Chattahoochee location for

staff that was bi - lingual. Initially , the Chattahoochee

location staff was Hispanic and Caucasian. Eventually, black

employees were hired for the Chattahoochee location.

3. Judith Bergantino, who is white, is the founder and

director of the Academy at both locations. Her daughter - in - law,

Virginia "Missy" Bergantino, who is also white, was the child

care coordinator and supervisor at the Chattahoochee location.

4. Salaries at the Academy were primar ily based on the

level of the employment sought, the employee’s experience in

related fields, whether the employee was temporary and the

degree of college education achieved by the employee. Higher

salaries were given to those with college degrees or near ly

completed degrees, or a significant amount of hours in relevant

fields if the employee had no degree.

5. The Petitioner, Carolyn E. Allen , was employed by the

Respondent, Diamond Academy, Inc., in December 2002 as a

paraprofessional/teacher at its Quincy location. At the time of

her hire, Allen had a high school G.E.D. a childhood development

associates credential (CDA), and had earned 34 credit hours at

Tallahassee Community College. She was not close to completing

a college degree. Allen's sta rting salary was $15,000.00 and

complied with the Academy’s policy on salaries. Sylvia Sanders,

who is black, was Ms. Allen's immediate supervisor and received

a salary appropriate for her supervisory role and in compliance

with the Academy’s policy. The evidence did not demonstrate

that Ms. Allen’s salary was based on her race.

6. At the onset of her employment with the Academy,

Ms. Allen received a document titled "Child Care Teachers and

Aides." The document established the Academy's high standa rd of

behavior , with positive and respectful attitudes expected of its

teachers and aides. A critical requirement was that each

teacher/aide be punctual each morning and stay until the daily

work was completed.

7. In early December 2002, just a fter Ms. Allen was hired,

Judith Bergantino was at an out - of - town conference on the

federal requirements governing the even start grant under which

Respondent was operated. During her absence the Quincy location

was short - staffed. Missy Bergantino was fu nctioning as the

supervisor at the school. During this time, Ms. Allen became

angry at Missy Bergantino, other staff, and parents and children

at the Quincy school. The outburst occurred when Ms. Allen was

told by Missy Bergantino that she needed to acco mpany the

parents and their children off - campus to the “Born to Read”

Program at the Gadsden County Public Library. The task was

within Ms. Allen’s job description. Ms. Allen did not feel she

should have to accompany these families. Ms. Allen put her

fi nger in the face of Missy Bergantino and, in a disrespectful

manner, yelled that she would go this time, but didn’t think it

was her job and that the matter was not over. The outburst

caused Missy Bergantino to call Judith Bergantino on her cell

phone whi le she was at the conference. Because she could not

resolve the problem over the phone, Judith Bergantino closed the

school for the day.

8. Upon her return, Judith Bergantino elected to send

Ms. Allen home with pay for the rest of December, with the

understanding that she would return in January 2003 after Missy

Bergantino transferred to the Academy’s soon - to - be - opened site

in Chattahoochee. Also, upon her return from the conference,

Judith Bergantino informed Ms. Allen that she could not be a

teach er at the Academy because the new federal guidelines

required the position of teacher to be filled by someone with a

college degree or very close to completing a college degree.

Therefore, Ms. Allen, with her current credentials, was only

qualified for th e paraprofessional position at the Academy.

Ms. Allen was upset over the impact of the guidelines on her

position and potential for future salary increases.

9. In January of 2003, Judith Bergantino hired Karen

Davis, who was white, to work at the Ch attahoochee location.

The Chattahoochee staff was hired prior to the school’s opening

to the public so that they could help fix up the building in

which the Academy was located. When not at the school, staff

w ere expected to train at home. The evidence demonstrated that

this altered work schedule was necessary due to the preparations

required to open the Chattahoochee location. There was no

evidence that the altered work schedule was motivated by racial

considerations.

10. Ms. Davis was a high sch ool graduate who had completed

130 hours of college credits in the field of criminology.

Although Ms. Davis did not have a CDA, as Ms. Allen did, she

otherwise ha d an impressive resume in the area of helping

children with special needs such as those serve d by the Academy.

Her community service experience included tutoring with the

Gadsden County Literacy Program; Dance Instructor for Special

Olympics; Chief Advisor to the Boy Scouts of America, Explorer

Post 202; Volunteer Medical Director for a local Boy Scout camp;

volunteer service with Gadsden Association for Retarded

Citizens, and charter membership with the Apalachee Mental

Health Advisory Board. Her resume also reflected that she had

worked with disabled and orphaned children in Jerusalem. In

addi tion, Ms. Davis had six years of experience with the Gadsden

County Sheriff's Department as a child abuse investigator and

had a favorable letter of recommendation from the Sheriff.

11. Judith Bergantino initially offered Ms. Davis a

starting salar y of $15,000.00. Ms. Davis asked for more, and

based upon Ms. Davis's substantial past experience and her 130

hours of college credits, Judith Bergantino and Ms. Davis agreed

to a starting salary of $18,000.00. The higher salary was

justified because Ms. Davis had more than enough hours to have

obtained a college degree and had significant experience in

related fields, including work with people similar to those

served by the Academy. The higher salary, also, complied with

the Academy’s salary policy. T he evidence did not demonstrate

that the higher salary was based on the race of Ms. Davis.

12. Judith Bergantino initially and incorrectly entered

Ms. Davis in the Academy’s personnel system in the position of

teacher with a associate’s degree. The information was not

corrected until this hearing and it came to Ms. Bergantino's

attention that the information was incorrect. The correction

was not intended to create misleading information or evidence

for this hearing.

13. On January 27, 2003, Ms . Allen signed a document

titled "Terms for Employment at Diamond Academy." This document

spelled out the three most important characteristics expected of

a staff member: a positive and productive manner; knowledge of

each member's job, including ongoing education; and orientation

of the daily schedules and activities to the requirements of the

Even Start grant and the Day Care license. By signing this

document, Ms. Allen again agreed, among other things, to come to

work on time and stay until the day's work was completed, and to

remain flexible in fulfilling daily tasks, as determined by the

supervisor. She also agreed to maintain a cheerful, positive

demeanor with the children and adults enrolled in the program to

help elevate their self - esteem and the atmosphere of the school.

14. At some point, Judith Bergantino in discussing the

goals of the school stated that black families in Gadsden County

maintained a matriarchal way of child rearing with emphasis on

physical discipline and yelling. The co mment was not directed

at anyone, but was made to illustrate the type families served

by the A cademy and that the A cademy policies were oriented

around an opposite approach to parenting. This type statement

does not appear overtly offensive. The evidence did not

demonstrate the exact words of the statement. However Ms. Allen

claims she was offended by it, but did not complain at the time.

However, only one statement with equivocal interpretations is

insufficient to establish racial bias on the part of

M s. Bergantino or the A cademy.

15. Around March 2003 , both Ms. Allen and Ms. Davis

attended a three or four - day training course called "Parents as

Teachers." The course was held in Chipley, Florida. All

expenses were paid by the Academy. Upon compl etion, Ms. Allen

was to receive a raise in salary to $18,000.00, the same salary

as Ms. Davis. By April 2003, both employees would have been

paid equally and received the same fringe benefits. Ms. Allen,

however, did not receive the increased salary beca use her

employment ended on April 2, 2003.

16. Around the end of March 2003, Ms. Allen's stepfather

died. Ms Allen was given several days off by Judith Bergantino

to attend the funeral and be with other family members. While

Ms. Allen was gone, an all - day in - service training was scheduled

for the staff on March 31. In preparation for the training

Judith Bergantino surveyed Ms. Allen's classroom. Organization

in the classroom, with everything in its place, was required of

all classroom personnel. Judith Bergantino was dismayed to see

toys and puzzle p ieces scattered around the room, which appeared

to be unplanned and in disarray. In the course of the training,

the instructor made recommendations for a better room

arrangement for Ms. Allen's classr oom and reorganized the room

according to her recommendations.

17. Ms. Allen returned to work on April 1, 2003.

Ms. Allen stood in the doorway of her classroom, noted the

changes, threw her hands up and said, "Oh, no! I can't take

this, what happene d to this room?" She left with her things and

did not return to work that day or call her supervisor. The

school was left short - staffed and Ms. Sanders had to fill in for

Ms. Allen. Understandably, Ms. Bergantino was very irritated at

Ms. Allen's behavi or and did not wish Ms. Allen to return to

work.

18. The following day, Ms. Allen did not return to work.

By that time, Judith Bergantino had drafted a letter to

Ms. Allen noting that Sylvia Sanders had reported to her that

Ms. Allen had quit her po sition at the Academy. The letter

requested Ms. Allen return the benefits check she had received

for the month of April 2003 .

19. Later in the day , Ms. Allen called Judith Bergantino.

Ms. Allen was clearly distraught over her step - father's death

an d the reconfiguration of her classroom. Ms. Bergantino felt

that Ms. Allen was too emotional to be working with small

children, and advised her to take some time off from employment

to get professional help and heal. When Ms. Allen realized

Ms. Bergantin o was not going to rehire her, she became very

upset and said, "You mean I'm fired? This ain't over yet!"

None of these facts demonstrate that Ms. Allen was terminated

based on her race.

20 . The Academy also employed Latarsha Seymore as a

paraprofe ssional. Ms. Seymore is black, and who, at the time of

her employment had completed nursing school , but had not taken

her licensure examination in nursing. She needed to earn income

during the summer and made it clear that her employment was

temporary un til she could pursue her desired career as a nurse.

Ms. Seymore's employment circumstances were not similar to

Petitioner's employment circumstances ; b ecause she was

temporary , her salary was $15,000.00. Again , the difference in

salary was reasonable bec ause she was temporary. The salary,

also complied with the Academy’s salary policy.

21 . Although Ms. Allen complained that blacks were

segregated at the Quincy location and not permitted to work at

the Chattahoochee location, the evidence did not demonstrate

that either site’s employment decisions were based on race.

Indeed, Ms. Allen’s complaint ignores the fact that the Quincy

location had a racially - mixed staff. As evidence for her

assertion Ms. Allen testified about Andrea McNeil, a black co -

worker in Quincy who wanted to transfer to Chattahoochee, but

was initially denied. Ms. McNeil's transfer was initially

denied because of difficulties she had had working with Missy

Bergantino, the supervisor of the Chattahoochee site. After Ms.

McNeil a lso had a confrontation with Sylvia Sanders, her

supervisor in Quincy, Judith Bergantino talked to her daughter -

in - law about the situation. Ms. McNeil was transferred to

Chattahoochee. Additionally, Ms. McNeil had also been a client

of the Academy and th roughout her time there had received

financial aid from the Academy, completed her high school

education with Academy help and also received transportation

help from the Academy. Ms. McNeil did not complain about

initially not being transferred as she des ired. She did not

feel such action was racially motivated. Petitioner never

requested and did not desire to transfer to the Chattahoochee

location. Eventually, by January 2004, two black employees had

been hired at the Chattahoochee location.

CONCLUSION S OF LAW

2 2 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter under

Sections 120.57 and 120.60, Florida Statutes (2004), and Section

760.11, Florida Statutes (2004).

2 3 . Respondent is an employer wit hin the meaning of the

Florida Civil Rights Act of 1992, as amended, and Title VII of

the Civil Rights Act of 1964, as amended.

2 4 . Pursuant to the formula established in Texas

Department of Community Affairs v. Burdine , 450 U.S. 248, 101

S.CT. 1089, 67 L. ED. 2d 207 (1981), Petitioner has the initial

burden of establishing a prima facie case of intentional

discrimination, which once established raises a presumption that

the employer discriminated against the employee.

2 5 . If the presumption ari ses, the burden shifts to the

employer to present sufficient evidence to raise a genuine issue

of fact as to whether the employer discriminated against the

employee. The employer may do this by stating a legitimate,

non - discriminatory reason for the emplo yment decision. If the

employer satisfies its burden, the employee must then persuade

the fact - finder that the proffered reason was a pretext for

intentional discrimination. Said another way, the employee must

show directly that a discriminatory reason, more likely than

not, motivated the employment decision, or indirectly by showing

that the proffered reason is not worthy of belief.

2 6 . In this case, Ms. Allen's evidence failed to establish

a prima facie case that she was terminated by Respondent b ecause

of Ms. Allen's race. Instead, the evidence demonstrated that

Ms. Allen walked off her job leaving the facility short - staffed

and violated the terms of her employment.

2 7 . Although Ms. Allen also argued that the Academy

discriminated against h er when it hired Karen Davis, a white

female who did not possess a CDA credential, for $3,000.00 more

than Ms. Allen, a comparison of the two employees reflects that

Ms. Davis had earned substantially more college credits than

Ms. Allen and had an impressi ve breadth of experience in working

with children as well as adults. Moreover, by the time

Ms. Allen walked off the job, both employees would have earned

the same annual salary and benefits.

2 8 . Ms. Allen also failed to provide substantial evidence

that she was discriminated against with regard to her location

of employment. Ms. Allen admitted that, after she was hired by

Respondent at the Quincy location, she never applied for a

transfer to the Chattahoochee location. While there were

primarily bl ack employees at the Quincy location when Ms. Allen

worked there, the staff was still racially diverse. Indeed, the

racial mix at Chattahoochee has since changed to include black

employees.

2 9 . Ms. Allen also failed to make a prima facie case that

r emarks by Judith Bergantino created an intimidating, hostile or

offensive work environment. The policies of Diamond Academy

forbid corporal punishment of children or disciplining them by

screaming at them or snatching them around. While Judith

Bergantino may have commented to a group of employees that

included Ms. Allen about her observations of the local black

matriarchal mentality, she did not include Ms. Allen in that

stereotype. Moreover, one out of context, equivocal statement

does not demonstrate r acial bias.

30 . Finally, even assuming that Ms. Allen established a

prima facie case of discrimination, all of the actions taken by

Respondent had a reasonable, non - discriminatory basis. None of

the Respondent’s reasons were shown to be a pretext fo r racially

motivated activity. 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 Petition for Relief be

dismissed.

DONE AND ENTERED t his 3 rd day of October , 2005, in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(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 3 rd day of October , 2005.

COPIES FURNISHED :

Carolyn E. Allen

39 Pine Tree Lane

Quincy, Florida 3235 1

Judith Bergantino , Director

Diamond Academy, Inc.

100 South Madison Street

Quincy, Florida 32351

Valerie E. Janard, Esquire

237 East Washington Street

Quincy, Florida 32351

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apa lachee 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 sub mit 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.