06-000942 Rachell Stallworth vs. Okaloosa County School Board Status: Closed Recommended Order on Tuesday, October 3, 2006.

Summary: Petitioner claimed discrimination based on race and retaliation. The evidence demonstrated that actions taken by Respondent were management actions having nothing to do with Petitioner`s race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RACHELL STALLWORTH , )

)

Petitioner , )

)

vs. ) Case No. 06 - 0942

)

OKALOOSA COUNTY SCHOOL BOARD , )

)

Respondent . )

)

RECOMMENDED ORDER

This cause cam e on for final hearing before Harry L.

Hooper, Administrative Law Judge with the Division of

Administrative Hearings, on August 8, 2006, in Shalimar,

Florida.

APPEARANCES

For Petitioner: Jeffery D. Toney, Esquire

Post Office Box 579

Crestvie w, Florida 32536

For Respondent: Vickie Allene Gesellschap, Esquire

Anchors Smith Grimsley

909 Mar Walt Drive , Suite 1014

Fort Walton Beach, Florida 325 47

STATEMENT OF THE ISSUE

The issue is whether Respondent Okaloosa County Scho ol

Board engaged in an unlawful employment practice with regard to

Petitioner.

PRELIMINARY STATEMENT

Petitioner Rachell Stallworth (Ms. Stallworth), submitted

an Employment C omplaint of Discrimination to the Florida

Commission on Human Relations (Commiss ion), which was filed on

Augu st 1 2 , 2005 , and an Amended Employment Complaint of

Discrimination that was filed with the Commission on August 26,

2005 . Ms. Stallworth alleged that the Okaloosa County School

Board (School Board) discriminated against her be cause of her

race, black, and retaliated against her. She claimed a hostile

work environment based on race and disparate treatment based on

race. On February 6, 2006, the Commission entered a Not ice of

Determination: No Cause. Ms. Stallworth filed a Pet ition for

Relief with the Commission on March 6, 2006. The Petition was

transmitted to the Division of Administrative Hearings and was

filed on March 17, 2006.

The case was set for hearing on June 1, 2006, in Shalimar,

Florida. On May 30, 2006 , Ms. Stal lworth moved to continue the

case. It was thereafter set for August 8, 2006, and was heard

as scheduled.

Ms. Stallworth testified and presented the testimony of

Arden Farley . She offered Exhibit Nos. 1 through 6 , and they

were all admitted into evi dence . The School Board presented the

testimony of three witness es and offered Exhibit Nos. 1 through

3 , which were admitted into evidence. A Transcript was filed on

August 28, 2006. Both parties timely filed Proposed Recommended

Orders.

References to statu tes are to Florida Statutes (2004),

unless otherwise noted.

FINDINGS OF FACT

1. Ms. Stallworth, during the 2004 - 2005 school year, was a

teacher 's aide employed by the School Board at W. E. Combs

School in Ft. Walton Beach, Florida . She is a female Afric an -

American . She was assigned to assist Dawn Hall, who was a

teacher in the Teen Age Parenting Program (TAPP) at Combs.

Ms. Hall is a female of the Caucasian race.

2. Ms. Stallworth is a non - instructional employee of the

School Board and is a member o f the collective bargaining unit

of the Okaloosa County Educational Support Personnel

Association.

3 . The School Board of Okaloosa County operates the school

system in the Okaloosa County School District. It operates the

Combs School and the TAPP progra m. The TAPP program provides an

alternative education to students who are pregnant or who have

recently given birth. There are often babies in the classroom

of the TAPP program. The ages of students in the TAPP program

range from 12 to 19.

4 . The Scho ol Board of Okaloosa County is an employer as

that term is defined in Section 760.02(7) , Florida Statutes .

5 . Ms. Stallworth has been employed by the School Board

since June of 2000. She was a substitute teacher when she first

began working for the Scho ol Board. She began work at Combs

School on February 2, 2004. At the beginning of the 2004 - 2005

school year, she assisted Teresa Lancaster , a certified teacher .

She filed papers and made copies of materials, helped individual

students if they were strug gling in a particular area , and

accomplished such other tasks as were assigned by the teacher .

6 . Ms. Stallworth asserted that her relationship with

Ms. Lancaster was satisfactory and stated that she believed that

Ms. Lancaster was a very good teacher . However, the

relationship was not without conflict . S ch ool administrators

were aware that the two did not always get along . Citing

"burnout," Ms. Lancaster did not return after the Christmas

vacation at the end of 2004 . She was replace d by Dawn Hall.

7 . Ms. Hall was absent with a medical problem the entire

month of January 2005. During that time it was necessary for

Ms. Stallworth to assume many of the duties that would normally

be accomplished by a certified teacher. This was true even when

a cert ified substitute was present in the classroom because of

the specialized nature of the TAPP program . The substitute

teachers relied on Ms. Stallworth's experience and skill in

working with the students .

8 . D ue to a budget shortfall that occurred during the

latter part of the school year , all of the staff at Combs were

asked to volunteer to do extra duties. Ms. Stallworth willingly

did all that she was asked , including emptying trash cans . She

was never asked by Mr. Gaines to mop floor s or clean toilet s.

The duties of a teacher's aide are relatively open - ended.

9 . When Ms. Hall returned to work after her illness

Ms. Stallworth was required to accomplish jobs normally done by

a certified teacher , such as computer data entry, taking

attendance, and sup ervising testing . These tasks were typical

of the tasks done by aides. The satisfactory completion of them

was the ultimate responsibility of Ms. Hall, however .

10 . William Gainey , who was the administrator of Combs

School during the 2004 - 2005 school y ear , supervised Ms. Hall and

Ms. Stallworth . He had a favorable opinion of Ms. Stallworth 's

performance and gave her outstanding evaluations .

11 . Subsequent to January 2005, Mr. Gainey received , from

time to time, verbal and written complaints about Ms. Hall, from

Ms. Stallworth , and from Ms. Hall's students , and from some

parents . The students said Ms. Hall was distant and not

availab le and that she made inappropriate comments about

abortion and using guns. Some students complained that she

yelled at them. They said she was often on the telephone and in

her office with her door closed. None of the complaints alleged

racial discrimination.

1 2 . Mr. Gainey suspected that some of the complaints from

the students were precipitated by Ms. Stallworth, who, he knew,

did not get along with Ms. Hall. Nevertheless, Mr. Gainey

investigated the complaints and found some were valid, although

none raised the issue of racial discrimination. He discussed

the complaints with Ms. Hall. He told her that if she repeat ed

certain behavior, he would put a letter in her personnel file.

He did not reprimand Ms. Hall because he felt a warning would be

sufficient.

1 3 . Mr. Gainey had observed Ms. Hall's class from time to

time and he noted that the two women only spoke when necessary

to accomplish classroom activities.

1 4 . Mr. Gainey had a meeting with Ms. Hall and

Ms. Stallworth in an effort to resolve their differences. This

effort failed because the two women disliked each other so

intensely, and were so emotional, that a civil resolution was

impossible.

1 5 . Subsequent to the meeting, Mr. Gainey received a

memorandum from Ms. Hall dated March 22, 2004. This memorandum

not ing the ongoing conflict with Ms. Stallworth, stated that

Ms. Stallworth was hostile toward her, and stated that

Ms. Stallworth engaged in unprofessional conduct toward her.

She noted that Ms. Stallworth called her "sick," "nasty," and

"pitiful" during the meeting. She stated that she did not need

an aide.

1 6 . Sometime prior to March 7, 2005, both Ms. Stallworth

and Ms. Hall complained to Arden Farley . Mr. Farley is the

program director in charge of equal opportunity, mediation, and

investigations for the School Board. Mr. Farley h as worked in

the equal opportunity area for twenty years in the mi litary , and

he has been addressing complaints of discrimination based on

race, creed, color, sex, national origin and religion for twelve

years for the School Board.

1 7 . He met with Ms. Stallworth and she revealed that she

was upset with Ms. Hall . She re lated that she thought that

Ms. Hall was unprofessional . Mr. Farley inquired as to whether

her concern involved issues of equal opportunity and discerned

that the matter did not involve civil rights . As he put it,

Ms. Stallworth , ". . . did not articul ate any ' EEO ' activity. "

Mr. Farley considered this to be a "management situation" and

suggested that she address the matter with Mr. Gainey.

1 8 . Mr. Farley became aware that Ms. Hall had complained

about Ms. Stallworth . He determined that the two wom en were

incompatible and unhappy with one another. Ms. Hall complained

to him that Ms. Stallworth would not follow her instructions,

and Ms. Stallworth stated that Ms. Hall was an incompetent

teacher. Both complaints were vague and Mr. Farley could not

g et the two women to provide him with specifics.

1 9 . Mr. Farley conducted a cursory investigation . The

reason he pursued the matter, to the extent that he did, is

because there was some indication that an ethics violation may

have occurred and ethics vi olations also fall under his purview .

He learned that each of the women had stated that they were

going to "get rid of" the other. He learned from a student that

both of the women were disrespectful to the other in the

presence of the students. He did n ot uncover any indication

that race or bias was involved in the situation.

20 . Ms. Stallworth stated , in a letter dated March 25,

2005, addressed to Mr. Farley, that Ms. Hall had called her a

"mad woman." She said that Ms. Hall had made comments in the

c lassroom about guns, abortions, sexual preference s of

administrators, and had sprayed a household cleaner on a

student's desk. The largest part of the letter addressed what

Ms. Stallworth believed to be unprofessional behavior on the

part of Ms. Hall. Th ere is no assertion of any racial bias

contained in this document.

21 . On April 6, 2005, Ms. Stallworth penned a memorandum

to Mr. Gainey, which addressed what she believed to be

Ms. Hall's shortcomings. In this memorandum she claimed that

Ms. Hall crea ted a hostile environment for the paraprofessional

and students in her classroom. Apparently the paraprofessional

to which she referred was herself . She made additional

allegations that addressed claims that Ms. Hall used poor

teaching methods and was no t dedicated to her mission. There is

no assertion of any racial bias in this document.

22 . On June 15, 2005, subsequent to learning that she was

to be transferred to Crestview, Ms. Stallworth penned a letter

to Mr. Farley that addressed behavior on the p art of Ms. Hall

that she believed to be unprofessional. This letter is two and

one - quarter pages long and does not mention racial

discrimination. It complains generally that Ms. Hall made

slanderous comments about her and others and engaged in

unprofessi onal conduct in front of her students. She asked

repeatedly, "why am I being punished?"

2 3 . Petitioner first made allegations of racism on

August 10, 2005, and August 26, 2005, when she signed Employment

Complaints of Discrimination. Even in thes e fili ngs it is clear

that she wa s primarily angry because she believed she had been

required to do certain jobs in the classroom without an increase

in pay and because she was transferred. She noted that her

nemesis, Ms. Hall, was not the subject of discipline .

2 4 . Petitioner repeated these allegations of racism on the

part o f Ms. Hall , under oath, during the hearing. The

allegations , expanded at the hearing, follow:

a. Ms. Stallworth c laimed that Ms. Hall said that

Filipinos are nasty , and that she didn't w ant her daughter with

a Filipino because she didn't want slant - eyed grandchildren.

She said that Filipinos eat rats.

b. Ms. Stallworth claimed that Ms. Hall said, with regard

to her daughter dating a black person, that the guy was a thug

and she couldn' t stand him and she was going to buy a gun and

she hoped her daughter " blowed " his head off because she just

didn't like him.

c. Ms. Stallworth claimed that Ms. Hall said that snuff

reminded her of the color of black skin.

d. Ms. Stallworth claimed that Ms. Hall said that she ,

Ms. Stallworth, was a mad black woman.

2 5 . Ms. Hall denied making these remarks, under oath, at

the hearing, and there was no evidence that contradicted her

denial. It is found that the complaints made at or near the

time Ms. St allworth was working with Ms. Hall accurately reflect

her complaints, which were management or professional

complaints, not race - based complaints.

2 6 . Mr. Gainey had a high opinion of Ms. Stallworth and

gave her an outstanding evaluation. He did not part icipate in

the decision to transfer Ms. Stallworth to Crestview.

2 7 . Frank Fuller was Assistant Superintendent for

Nontraditional Schools for the School Board during times

pertinent. He was Mr. Gainey's supervisor. He was aware of the

conflict between M s. Stallworth and Ms. Hall during the late

winter and early spring of 2005 . Mr. Fuller suggested that

Mr. Gainey bring the two women together and attempt to

ameliorate their differences and that suggestion led to the

unfruitful meeting discussed above .

2 8 . Mr. Fuller made the decision to transfe r

Ms. Stallworth from the Combs campus in Ft. Walton Beach, north

to Crestview, in part because Ms. Burrows , the TAPP teacher in

Crestview , requested an aide. Ms. Burrows had been teaching in

the TAPPS program i n Crestview for a number of years without an

aide. Ms. Burrows insisted on having a good aide if she was to

teach a reinvigorated TAPPS program in Crestview.

Ms. Stallworth, who was an excellent aide, was the person she

needed, in Mr. Fuller's opinion.

29. T he decision to move Ms. Stallworth was made in May

2005, about two weeks before the end of the school year.

Mr. Fuller, in deciding to transfer Ms. Stallworth determined

that it was in the best interest of all parties that a

unilateral transfer b e made.

30 . T he general population shift in Okaloosa County is to

the north. It was anticipated that the campus where Combs was

located would be leased to the University of West Florida and

ultimately that occurred. Mr. Fuller had a desire to stabili ze

the program in the north and evaluate the future of the program

in the south .

31 . Ms. Stallworth's race was not a factor in the decision

to move her to Crestview. It was not a transfer motivated by

retaliation. Indeed, Ms. Stallworth never made a co mplaint

about an unlawful employment practice that might precipitate

retaliation until some two months after she learned that she was

going to be transferred . A lthough Mr. Fuller was aware that

Ms. Stallworth had filed a complaint with Mr. Farley , he was not

aware of the nature of the complaint.

32 . Her complaints did not contain any allegation of civil

rights violations that would trigger retaliation as described in

Chapter 760. She was not, in other words, engaging in a

protected activity when she com plained that Ms. Hall was rude

and incompetent.

33 . Ms. Hall resigned her position with the School Board

on May 24, 2006.

3 4 . The job site to which Ms. Stallworth was transferred

is much closer to her home in Crestview than the job site at

Combs. She as serted some inconvenience because h er doctors were

in proximity to Combs and some college classes she was taking

were nearer Combs than Crestview.

35 . "Full justification," for the transfer was not

provided to Ms. Stallworth as Article 10.B.2.a of the Mas ter

Contract between the School Board and the Okaloosa County

Education Support Personnel Association requires.

3 6 . Ms. Stallworth has not received a poor evaluation, has

not been disciplined, has not been demoted, has not been

suspended, has not been te rminated, and has not suffered a

decrease in pay or benefits.

CONCLUSIONS OF LAW

37 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. Sections 120.569, 120.57(1), and 760.01, Florida

Statutes, et seq .

38. Ms. Stallworth has the ultimate burden of proving by

the preponderance of the evidence that Respondent committed an

unlawful employment practice. Florida Department of

Transportation v. J.W.C. Company, Inc., 396 So. 2d 778 (Fla. 1st

DCA 1981) .

39. Petitioner is an "aggrieved p erson" and Respondent is

an "employer" within the meaning of Section 760.02(10) and (7),

Florida Statutes, respectively.

40. Section 760.10(1)(a), Florida Statutes, makes i t

unlawful for the School Board, "To discharge or to fail or

refuse to hire any in dividual, 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, national origin, sex,

handicap, or marital status."

41 . Se ction 760.10(7), Florida Statutes, provides that it

is an unlawful employment practice for an employer to

discriminate against a person because that person has opposed an

unlawful employment practice or because that person has made a

charge under Chapter 7 60 , Florida Statutes .

42. The Florida Civil Rights Act, Section 760.01, et seq .,

is patterned after Title VII of the Federal Civil Rights Act, 42

U.S . C. Section 2000e, et seq . Federal case law interpreting

Title VII and similar federal legislation is app licable to cases

arising under the Florida Act. See Florida Department of

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

and School Board of Leon County v. Weaver , 556 So. 2d 443 (Fla .

1t DCA 1990).

43. Discriminatory intent can be est ablished through

either direct evidence or circumstantial evidence. Racially

derogatory statements can be direct evidence if the comments

were : (1) made by the decision - maker responsible for the

alleged discriminatory act and (2) made in the context of t he

challenged decision.

44. The remarks made by Ms. Hall, recited at paragraph 24,

above, even if she did make them, are not direct evidence of

discrimination, because they were not made by a decision - maker

in the context of carrying out an adverse acti on. The decision -

maker was Dr. Fuller. If these remarks were made at all, they

were merely "stray remarks." Vickers v. Federal Express

Corporation , 132 F. Supp. 2d 1371 (S.D. Fla. 2000).

45. Because there is no direct evidence of discrimination,

Ms. St allworth must prove her case through circumstantial

evidence by using the burden shifting framework set forth in

McDonnell Douglas Corp. v. Green , 411 U.S. 792, 802 - 03 (1973).

46. To demonstrate race discrimination under McDonnell

Douglas Corp. v. Green , Ms. Stallworth must first establish a

prima facie case of race discrimination. Thereafter, the School

Board may offer legitimate, nondiscriminatory reasons for its

action. If the School Board does that, in order to prevail,

Ms. Stallworth must establish that the School Board's

articulated legitimate, nondiscriminatory reasons were a pretext

to mask unlawful discrimination. Smith v. J. Smith Lanier &

Co. , 352 F.3d 1342 (11th Cir. 2000).

47. In order to prove a prima facie case, Ms. Stallworth

must demonstrate that: (1) she is a member of a protected

class; (2) she was subjec ted to an adverse employment action;

and (3) she was treated differently than similarly situated

employees of a different race. McDonnell Douglas Corp. v.

Green , supra .

48. Ms. Stallworth is a member of a protected class , but

she was not subjected to an adverse employment action. Being

required to accomplish additional tasks because a teacher is

absent, and being transferred to a work site closer to one's

residence , albeit a circumstance that might cause some minor and

occasional inconveniences, are not actions that result in an

adverse effect on the " compensation, terms, conditions, or

privileges of employment ." See Burlington and Northern Santa Fe

Railway Co. v. White , 126 S. Ct. 2405 (2006). For that reason

alone, she has not proven a prima facie ca se.

49. In any event, the School Board articulated its reason

for the transfer to Crestview , and its reason had nothing to do

with Ms. Stallworth's race.

50 . Ms. Stallworth did not demonstrate that she was

treated differently than similarly situated empl oyees of a

different race. She did not produce a single "comparator,"

which might have provided some evidence of discrimination.

5 1 . If one assumes, arguendo , that Ms. Stallworth did

prove a prima facie case of racial discrimination, the School

Board pr ovided nondiscriminatory reasons for its actions.

Ms. Stallworth offered no evidence to suggest that this reason

was pretextual.

5 2 . Ms. Stallworth also asserted that she was subjected to

a hostile work environment based on her race. In order to

succee d with this claim she must demonstrate that, (1) she

belongs to a protected group; (2) she was subject to unwelcome

harassment; (3) the harassment was based on her race; (4) the

harassment was sufficiently severe or pervasive to alter the

terms and conditi ons of employment and to create a

discriminatorily abusive working environment ; and (5) provide a

basis for holding the employer liable." Chambers v. Walt Disney

World Co. , 132 F. Sup p . 2d 1356 (M.D. Fla.) .

5 3 . Ms. Stallworth can satisfy elements one and two. She

is in a protected class. To be sure, Ms. Hall's harassment was

unwelcome. However, Ms. Stallworth cannot satisfy element three

because the harassment was not based on race. It was based on

Ms. Hall's dislike of Ms. Stallworth.

5 4 . With reg ard to the fourth element, f our f actors are

relevant in determining whether conduct is sufficiently severe

and pervasive from an objective standpoint to alter an

employee's terms or conditions of employment: "(1) the

f requency of the conduct; (2) the seve rity of the conduct;

(3) whether the conduct is physically threatening or

humiliating, or a mere offensive utterance; and (4) whether the

conduct unreasonably interferes with the employee's job

performance." Mendoza v. Borden, Inc. , 195 F.3d 1238 (11th C ir.

1999).

5 5 . The verbal jousting and irritating behavior of two

people isolated in a classroom together do not indicate

harassment of the kind that would satisfy the Mendoza

requirements. Accordingly, no hostile work environment based on

race is found.

5 6 . Ms. Stallworth's assertion that she was a victim of

retaliation is also unfounded. Section 760.10(7), Florida

Statutes, provides that, "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. . . ." Ms. Stallworth did not

oppose an unlawful employment practice at all. If anything, she

exposed poor teaching methods on the part of Ms. Hall. See

Harper v. Blockbus ter Entertainment Corp. , 139 F.3d 1385, 1388

(11th Cir. 1998) and EEOC v. Navy Federal Credit Union , 424 F.3d

397 (4th Cir. 2005).

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that Rachell Stallworth's Employm ent Complaint

of Discrimination and an Amended Employment Complaint of

Discrimination be dismissed.

DONE AND ENTERED this 3rd day of October , 2006, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrative Law Judge

Division of Administra tive 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

Division of Administrative Hearings

this 3rd day of Octob er , 2006 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Vickie Allene Gesellschap, Esquire

Anchors Smith Grimsley

909 Mar Walt Drive , Suite 1014

Fort Walton Beach, Florida 325 47

Jeffery D. Toney, Esquire

Post Office Box 579

Crestview, Florida 32536

Cecil Howard, 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 Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.