06-001434 Mike Jones vs. Suwannee County School Board Status: Closed Recommended Order on Wednesday, July 5, 2006.

Summary: Petitioner failed to show disparate treatment; the petition should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MIKE JONES, )

)

Petitioner, )

)

vs. ) Case No. 06 - 14 3 4

)

SUWANNEE COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Administrative La w Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Live Oak, Florida, on June 7, 2006. The following appearances

were entered:

For Petitioner: Mike Jones, pro se

Post O ffice Box 372

Live Oak, Florida 32064

For Respondent: Andrew J. Decker, IV, Esquire

Andrew J. Decker, III, Esquire

Post Office Box 1288

Live Oak, Flori da 32064

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was

subjected to an unlawful employment practice by Respondent due to

Petitioner's race, age, or sex in violation of Section 760.10,

Florida Statutes.

PRELIMINARY STA TEMENT

Petitioner filed a Charge of Discrimination against

Respondent with the Florida Commission on Human Relations (FCHR)

on September 12, 2005, alleging his constructive employment

termination by Respondent on the basis of a hostile work

environmen t as the result of Petitioner's race.

On or about March 14, 2006, the FCHR issued its

determination: No Cause.

On or about April 17, 2006, Petitioner filed a Petition for

Relief with the FCHR. Subsequently, on or about April 19, 2006,

the case was forwarded to DOAH for formal proceedings.

During the final hearing, Petitioner testified in his own

behalf, presented testimony of two witnesses and one composite

exhibit. Respondent presented testimony of two witnesses and one

composite exhibit .

No transcript of the final hearing was provided. Both

parties were offered the opportunity to file proposed findings

of facts and proposed conclusions of law. Both parties availed

themselves of that opportunity. The Proposed Recommended Order

of each party has been reviewed and considered in the

preparation of this Recommended Order.

References to Florida Statutes are to the 2006 Edition

unless otherwise noted.

FINDINGS OF FACT

1. Respondent employed Petitioner, an African - American

male, as a paraprofessional, non - instructional employee at all

times relevant to these proceedings. Respondent School Board is

the body politic responsible for the administration of public

schools within the Suwannee County School District.

2. Petitioner wa s a member of the non - instructional

chapter of the United Teachers of Suwannee County, Florida , and

was subject to the terms and conditions of the collective

bargaining agreement between that organization and Respondent.

Additionally, Petitioner’s employm ent was subject to the terms

and conditions set forth in the Continuing Contract of

Employment Non - Instructional Education Support Employees of the

Public Schools executed between Petitioner and Respondent.

3. Petitioner worked at the Suwannee Prima ry School in

Live Oak, Florida. Petitioner’s work schedule required him to

work Monday through Friday of each work week. Petitioner’s duty

day started at 7:30 a.m. and ended at 2:40 p.m. Marilyn K.

Jones, the p rincipal of the Primary School, was Petitio ner’s

immediate supervisor. Although their surnames are the same,

Principal Jones and Petitioner are not related.

4. Petitioner approached Jones on February 14, 200 5 , and

spoke with her regarding his recent employment with a state

prison. Petition er informed Jones that he had been hired as a

corrections officer and that he was required to attend

orientation and training sessions. Petitioner informed Jones

that the initial orientation and training sessions were held

during times he was required to work at the Primary School.

Petitioner asked for a couple days off from his work at the

Primary School to attend these initial sessions. Petitioner was

hopeful that once the training and orientation sessions were

completed, his work hours with the state prison would be from

4:00 p.m. to 11:00 p.m. and would not interfere with his

employment with Respondent.

5. Jones informed the Petitioner that he could use

personal leave time that he had accumulated to attend the

orientation and training sessions . Jones requested that

Petitioner keep her posted regarding the days he would be absent

and directed him to complete and submit the forms required to

take leave prior to the actual absences so that arrangements

could be made for substitute personnel to as sume Petitioner's

duties.

6. Petitioner did not, however, submit the proper leave

forms and the training period at the prison was longer than the

originally expected. Additionally, after discussions with the

payroll Department, Jones learned that the Petitioner did not

have enough accumulated leave time to allow for his previous

absences. Jones and the Petitioner had a telephone conversation

on March 5, 2005. Jones informed Petitioner that he had been

absent more times than their initial understa nding, that he had

failed to submit the leave forms in advance of the days he would

be absent, and that he did not have leave time available.

7. Petitioner apologized for the additional time that he

had been absent and again noted that he thought that af ter the

first few days of training, his work at hours at the prison

would be from 4:00 p.m. to 11:00 p.m. Jones told Petitioner

that his continued absences would be unauthorized and that she

did not want him to be fired for taking unauthorized leave.

Jo nes informed the Petitioner that if he wished to resign, he

could submit his resignation to her.

8. On March 7, 2005, Petitioner met with Jones and her

assistant principal Betty Ann Sumner, along with Sheryl Daniels,

the p resident of the Teacher’s Union, to discuss Petitioner’s

absences. Petitioner expressed his desire to work three days a

week at the Suwannee Primary School and the other two days at

his job with the prison. Jones reiterated her previous

statements to Petitioner that she was concerned fo r him and did

not want the School Board to terminate his employment based on

his absenteeism. Jones informed Petitioner that he had taken

days off from work without providing any advance notice and

advised that in the event of future absences, Petitioner must

submit the appropriate forms in advance. When Petitioner raised

the subject of a leave of absence until the fall semester so

that he could schedule his employment with the prison and

Respondent to avoid time conflicts, he was referred to

Respondent's district office.

9. Subsequently, Petitioner requested a 10 week leave of

absence with the Superintendent of the Suwannee County School

District, J. Walter Boatright, to continue to pursue training as

a corrections officer. Under School Board policy, an absence in

excess of five days has to be approved by the School Board.

Boatright declined to bring Petitioner’s request for leave to

the Suwannee County School Board based on his view that the

Board’s policies did not allow an employee an extended leav e of

absence to receive training for an unrelated second job, that

the end of the school year was approaching, and that the School

District needed the presence of all of its employees. As

established by Boatright's testimony, Respondent often has

difficul ty finding substitute personnel when its employees are

absent for wholly legitimate reasons.

10. Boatright informed Petitioner that he would not

recommend that the School Board approve Petitioner’s request and

would not bring Petitioner’s request to the S chool Board for its

consideration. Additionally, Boatright recommended that the

School Board deny Petitioner’s request for leave for the days

that he had already been absent. Petitioner never personally

appeared before the School Board to submit his requ est for

personal leave.

11. After Boatright's decision was communicated to him ,

Petitioner was again absent without leave on several occasions.

Petitioner met with Boatright on March 24, 2005. At that

meeting, Boatright warned Petitioner that he faced d isciplinary

action , including termination from employment if he continued to

be absent from his non - instructional position without leave.

In response to Boatright’s warnings, Petitioner said, “Anybody

can do what I do” and suggested that Boatright simply obtain a

substitute teacher to fill his position. Following Petitioner's

remarks, Boatright informed Petitioner that his role with the

Suwannee County School District as a paraprofessional,

non - instructional employee was important.

12. Sheryl Daniels, th e p resident of the United Teachers

of Suwannee County was also present at the meeting on March 24,

2005, with Boatright and Petitioner. Daniels asked Boatright to

reconsider Petitioner’s request for leave because Petitioner had

been a good employee in the past and this should merit some

additional consideration. Boatright, however, denied

Petitioner’s request for leave.

13. Later, Petitioner received a letter dated April 20,

2005, from Boatright, confirming and reiterating the warning

delivered to Petiti oner during the March 24, 2005. In this

letter, Boatright, advised Petitioner “that any further absence

without leave on your part after the receipt of this letter will

result in my recommendation to the Suwannee County School Board

for your termination.” Subsequent to Petitioner’s receipt of

the April 20, 2005, letter from Superintendent Boatright,

Petitioner was again absent without leave in late April and in

May of 2005.

14. On April 28, 2005, Petitioner received his annual

employment evaluation. The evaluation was performed by Jones,

his principal. An employee’s overall evaluation rating is

determined by adding the employees’ scores in seven different

categories. Although Petitioner received an overall rating of

“Effective,” Petitioner’s rating wi th respect to his

professional responsibilities was “Needs Improvement.” Jones’

evaluation noted that although Petitioner did a good job in the

computer lab, his frequent absences were a concern and that

student behavior had deteriorated in Petitioner’s classes when

he was absent.

15. On April 28, 2005, Boatright filed a petition with the

School Board to terminate Petitioner’s employment. A hearing

was scheduled for May 15, 2005. The School Board rescheduled

the May 15, 2005, hearing, however, when Pe titioner requested

additional time to prepare for the hearing.

16. Thereafter, Petitioner was served with an Amended

Petition for Termination of Employment filed by Boatright. The

Superintendent’s Petition for Termination of Employment charged

Petitioner with violating Suwannee County School Board Policy

Section 6.22, which states, “[a]ny employee of the District who

is willfully absent from duty without leave shall forfeit

compensation for the time of the absence and the employee

contract shall be subject to cancellation by the School Board.”

17. By letter dated May 31, 2005, Petitioner submitted a

letter of resignation to Respondent. In that letter, Petitioner

wrote that he was submitting his resignation due to the denial

of his request for an unpaid le ave of absence and the need to

avoid further damage to his reputation. Petitioner also stated

in the letter that he thought he had been the subject of

discrimination and was left with no alternative but to resign

his position.

CONCLUSIONS OF LAW

18 . The Division of Administrative Hearings has

jurisdiction over the parties to, and the subject matter of

these proceedings. §§ 120.56(9) and 120.57(1), Fla. Stat.

19. Chapter 760, Florida Statutes, the "Florida Civil

Rights Act of 1992," provides security from discrimination based

upon race, color, religion, sex, national origin, age, handicap,

or marital status.

20. The adverse effectuation of an employee’s

compensation, conditions and privileges of employment on the

basis of race is an unlawful employment practice.

21. The burden of proof rests with Petitioner to show a

prima facie case of employment discrimination. After such a

showing by Petitioner, the burden shifts to Respondent to

articulate a nondiscriminatory reason for the adverse action.

If Respondent is successful and provides such a reason, the

burden shifts again to Petitioner to show that the proffered

reason for adverse action is pre - textual. School Board of Leon

County v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

22. A lso, provisions of Chapter 760, Florida Statutes, are

analogous to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. Sections 2000e, et seq . See Department of Corrections

v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991). Petitioner

must show that: (a) he belongs to a racial minority; (b) he was

subjected to an adverse employment action; (c) he was qualified

for his position; and (d) Respondent treated similarly situated

employees outside the protected class more favorably. Holifield

v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997). Petitioner has

not met his initial burden of proof and cannot show that

Respondent's termination was a pretext for intentional

discrimination because he did not show that Respondent treated

"similarly situated" emplo yees outside his protected class more

favorably. See Abel v. Dubberly , 210 F.2d 1334, 1339 (11th Cir.

2000) where the court stated, "absent some other similarly

situated but differently disciplined worker, there can be no

disparate treatment."

23. P etitioner offered no evidence of other similarly

situated but differently disciplined workers. Respondent's

policy is applied in a consistent manner to all employees

without regard to the employee's race.

24. The testimony and other evidence produced b y

Petitioner are not sufficient to establish that racial

discrimination by Respondent toward Petitioner occurred.

Petitioner failed to show that Respondent’s basis for his

termination was pre - textual in any way.

RECOMMENDATION

Based on the foregoi ng Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Relief.

DONE AND ENTERED this 5 th day of July, 2006, in

Tallahassee, Leon County, Florida.

S

DON W. DAVIS

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 Cle rk of the

Division of Administrative Hearings

this 5 th day of July, 2006.

COPIES FURNISHED :

Mike Jones

Post Office Box 372

Live Oak, Florida 32064

Andrew J. Decker, IV, Esquire

Andrew J. Decker, III, Esquire

Post Office Box 1288

L ive Oak, Florida 320 64

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florid a 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 th e final order in this case .