09-005281 Valeria Gaskin vs. Seminole County Public Schools Status: Closed Recommended Order on Thursday, April 15, 2010.

Summary: Petitioner's voluntary resignation cannot be construed as constructive termination when no disparate treatment, hostile work environment or gender discrimination was proved.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALERIA GASKIN, )

)

Petitioner, )

)

vs. ) Case No. 09-5281

)

SEMINOLE COUNTY PUBLIC SCHOOLS, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was held on February 4,

2010, in Sanford, Florida, before J. D. Parrish, a designated

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks Street

Orlando, Florida 32803

For Respondent: Serita D. Beamon, Esquire

Seminole County School Board

Educational Support Center

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

STATEMENT OF THE ISSUE

The issue is whether Seminole County School Board

(Respondent) engaged in disparate treatment of Valeria Gaskin

(Petitioner) such that the treatment of Petitioner constituted

gender discrimination that resulted in a constructive discharge

of Petitioner from her position with the school district.

PRELIMINARY STATEMENT

On July 31, 2008, Petitioner filed a complaint with the

Florida Commission on Human Relations (FCHR) that alleged

Respondent had subjected Petitioner to disparate treatment

constituting gender discrimination. Further, Petitioner claimed

that she had been constructively discharged from her employment

with Respondent as a result of such disparate treatment. The

FCHR conducted an investigation of the complaint and issued its

Determination of No Cause dated September 14, 2009. Thereafter,

Petitioner timely filed a Petition for Relief that was forwarded

to the Division of Administrative Hearings for formal

proceedings on September 28, 2009.

At the hearing, Petitioner testified on her own behalf and

presented the testimony of Kathy Dent, Julie Murphy, Kenneth

Lewis, John Reichert, and William Boone. Petitioner’s

Exhibit 35 was admitted into evidence. Respondent presented

testimony from Carolyn Perry as well as the same witnesses

Petitioner offered. Respondent’s Exhibits 4-9, and Composite

Exhibits 10, 16, 18, 20-23, 27, 29, 31, 32 and 35 were admitted

into evidence. The two-volume Transcript of the hearing was

filed on March 2, 2010. Thereafter, both parties timely filed

Proposed Recommended Orders that have been considered in the

preparation of this order. All citations to the Florida

Statutes are to Florida Statutes (2009) unless otherwise stated.

FINDINGS OF FACT

1. Petitioner is a female who was hired by Respondent on

November 25, 1991, as a school bus driver. At all times

material to this case, Petitioner’s performance of her duties as

a school bus driver relate to the ultimate issues of law and

fact to be resolved.

2. The employment relationship between Petitioner and

Respondent was governed by a Collective Bargaining Agreement

entitled “Agreement with the Seminole County Bus Drivers’

Association, Inc. and the School Board of Seminole County (union

contract).” Respondent is the entity charged by law to operate

the School District of Seminole County, Florida, and in that

capacity entered into the union contract.

3. Petitioner was charged with the responsibility of

reading the union contract and complying with its terms.

Petitioner acknowledged that she was directed to review the

contract and familiarize herself with it not less than annually.

The union contract required Petitioner to comply with school

board policies related to her employment duties.

4. Kenneth Lewis is Respondent’s Director of

Transportation under whose leadership all school buses are

operated and maintained. In the structure of the Transportation

Department, Mr. Lewis is followed by Julie Murphy, Assistant

Director of Transportation, who, in turn, supervises Area

Managers who perform the daily supervision of bus drivers. At

all times material to this matter, Kathy Dent was the Area

Manager under whom Petitioner served.

5. It is undisputed that Respondent’s policy prohibits the

use of cell phones while driving a school bus. All school bus

drivers are made aware of the policy and the policy is

reiterated in the Transportation Handbook (handbook) and is

discussed repeatedly throughout the school year during

department meetings. Petitioner acknowledged that she was

provided a handbook and knew that Respondent’s policy prohibited

the use of cell phones by school bus drivers while on a school

bus.

6. On or about October 3, 2007, Ms. Dent met with the bus

drivers under her charge (including Petitioner) to remind them

of the policy against cell phone use while on school buses.

7. On November 30, 2007, Ms. Dent met with Petitioner

individually to advise her again that cell phone use was not

permitted while driving a school bus.

8. On January 17, 2008, Petitioner was involved in a

vehicular accident and was talking on a cell phone at the time

of the crash. Petitioner acknowledged that she was using a cell

phone while driving on January 17, 2008, and that such use

violated school board policy. In fact, because Petitioner’s

school bus carried a digital video camera that recorded

Petitioner’s actions on January 17, 2008, Petitioner knew that

she could be terminated for cell phone use while driving a

school bus. More specifically, at the time of the accident the

video captured Petitioner exclaiming, "I’m going to lose my job

because I’m on the cell phone."

9. Subsequent to the accident Petitioner was on workers’

compensation/leave but returned to work to face a five-day

suspension without pay for her violation of the cell phone

policy. The letter advising Petitioner of the proposed

punishment clearly indicated that the recommendation for a five-

day suspension without pay from the Transportation Department

would be forwarded to the school superintendent for review and

action.

10. The school superintendent accepted the recommendation

and Petitioner was advised that she would serve the unpaid

suspension on May 13, 14, 20, 21, and June 3, 2008. These were

the first dates available after Petitioner returned to work.

11. On May 7, 2008, a date that Petitioner was driving her

bus on her designated route, a student complained that an ipod

had been stolen. To attempt to solve the complaint, a law

enforcement officer requested that the Transportation Department

pull the video from Petitioner’s bus to see if it could reveal

who might have taken the device. To that end, Assistant

Director Murphy contacted Ms. Dent to ask her to retrieve the

video and review it for the purpose requested.

12. Ms. Dent pulled the video hard drive from Petitioner’s

bus and viewed the footage for the purpose directed. Ms. Dent

discovered conduct she had not expected.

13. First, the video clearly showed that Petitioner

continued to use her cell phone while on the school bus. Even

in the face of her impending suspension, Petitioner disregarded

the school board policy and the directives from her supervisor.

Petitioner continued to talk on a cell phone while on the school

bus.

14. Second, the video clearly showed unbecoming conduct

between Petitioner and another school bus driver, William Boone.

During the video Mr. Boone can be seen approaching Petitioner

while she is seated at the driver’s position, place his hand and

arm under her skirt for an extended period of time, and then

later giving her an unspecified amount of money before

departing. This conduct occurred while Petitioner was in line

awaiting the start of her bus duties. Students were not on the

bus at the time.

15. Given the unexpected discoveries on the video, both

Petitioner and Mr. Boone were called to the transportation

office to meet with Mr. Lewis. Beforehand, however, the video

from Mr. Boone’s bus was retrieved to determine if any

inappropriate conduct could be seen on it. The video did not

disclose any such conduct. Mr. Boone was not observed using a

cell phone while on his bus and no additional unbecoming conduct

was depicted.

16. On May 9, 2008, a meeting was conducted with

Petitioner, Ms. Murphy, Ms. Dent, and Mr. Boone. Later

Mr. Lewis joined the group. Petitioner and Mr. Boone were

advised that their unbecoming conduct had been captured by the

bus video. Additionally, Petitioner was advised that her

continued use of a cell phone while on the school bus had also

been shown on the video.

17. The video spoke for itself. The video contained

irrefutable evidence of the conduct described above. Petitioner

and Mr. Boone were given the opportunity to see the video for

themselves. Both employees displayed embarrassment and concern.

Mr. Lewis advised Petitioner that her continued use of the cell

phone was in violation of the school board policy and advised

both employees that the unbecoming conduct that appeared to be

of a sexual nature was also not acceptable.

18. At some point Petitioner claimed that she and

Mr. Boone had been involved in a romantic relationship for an

extended period of time. Mr. Boone expressed concern that his

wife would find out about the incident. Mr. Boone denied that

he was engaged in sexual conduct but accepted that it appeared

that way. Further, Mr. Boone who held a previously untarnished

personnel record did not want to lose his job.

19. Mr. Lewis advised both Mr. Boone and Petitioner that

he would likely recommend termination for both of them. He did

not ask for their resignations, did not attempt to intimidate

them in any manner, but expressed concern at their lack of

judgment. As to Petitioner, since the video depicted her

continued use of the cell phone (an act not applicable to

Mr. Boone), Mr. Lewis expressed serious issue with Petitioner’s

behavior. Nevertheless, no one demanded that Petitioner resign

her position with the school district.

20. Later in the day, Petitioner and her union

representative met with Mr. Lewis to review the allegations.

Since Mr. Lewis did not change his position and the union did

not seem supportive of her cause, Petitioner became upset.

Ms. Murphy offered to speak to Mr. Lewis on Petitioner’s behalf

to see if she would be eligible for another employment position

within the school district.

21. Petitioner was afforded additional opportunities to

meet with her union representative and to determine what, if

any, response she would make regarding the allegations. At that

point in time, Petitioner knew or should have known that the

conduct depicted on the bus video would lead to the

recommendation from Mr. Lewis to the school superintendent that

Petitioner’s employment as a bus driver be terminated.

22. Petitioner knew or should have known based upon the

previous disciplinary action against her that her supervisors

could not take disciplinary action against her based upon their

authority. Moreover, for Petitioner to be terminated, the

school superintendent would have to make the recommendation to

the school board for its action. In this case, that

recommendation never happened.

23. Instead, Petitioner submitted a letter of resignation

to Ms. Murphy. Additionally, Petitioner stated to Ms. Murphy

that she did not want Ms. Murphy to look for another employment

opportunity within the school district for her. Petitioner’s

letter of resignation selected May 30, 2008, as its effective

date.

24. It is undisputed that Petitioner continued to use a

cell phone in violation of the school board policy despite being

aware of the consequences for violation of the policy.

25. Mr. Boone also faced disciplinary action for his part

in the recorded conduct. As previously indicated, Mr. Boone had

an unblemished record with the school district prior to the

conduct described in this cause. He had worked for the school

district almost 20 years without serious incident of any kind.

Ultimately, Mr. Reichert, the Executive Director of Human

Resources and Professional Standards for the Respondent,

determined that there was insufficient evidence against

Mr. Boone to recommend his termination to the school board.

Instead, Mr. Boone was suspended without pay for five days.

Mr. Boone did not challenge that decision and duly served his

suspension.

26. Mr. Boone did not admit that he had fondled Petitioner

but did acknowledge that his conduct was unbecoming a school

board employee. While more direct in admitting what occurred

between Mr. Boone and herself, Petitioner also acknowledged that

their behavior was inappropriate. Petitioner argues that both

employees should have been treated similarly. Further,

Petitioner maintains that Mr. Boone received better treatment,

that is to say, less severe disciplinary measures, than she.

Petitioner claims that her resignation was influenced by gender

discrimination and ultimately a constructive discharge based

upon the disparate treatment she received when compared to

Mr. Boone.

27. Petitioner did not file a complaint against the school

board at the time of the incident claiming that her resignation

was being coerced or was involuntarily tendered. At the time of

resignation, Petitioner did not know what disciplinary action

would be taken against Mr. Boone. Additionally, Petitioner knew

or should have known that she could contest any disciplinary

action brought against her and that she would be entitled to a

hearing. Finally, Petitioner knew or should have known that her

union could advise her and participate (as guided by their

decision) in any disciplinary action against her based upon the

terms of the union contract.

28. Petitioner did not attempt to withdraw her letter of

resignation prior to its effective date.

29. Petitioner and Mr. Boone are no longer on friendly

terms.

30. Petitioner timely filed her claim with the FCHR

seeking relief based upon gender-related disparate treatment.

She maintains that conditions of her job environment constitute

a constructive termination of her employment with Respondent.

FCHR issued its determination of no cause and Petitioner timely

pursued the instant administrative action.

CONCLUSIONS OF LAW

31. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

cause pursuant to Sections 120.569, 760.11, and Subsection

120.57(1), Florida Statutes.

32. The Florida Civil Rights Act of 1992 (FCRA), Chapter

760, Florida Statutes, prohibits employers from discriminating

against employees based upon their gender.

33. Subsection 760.10(1)(a), Florida Statutes, states:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, 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, age, handicap, or marital

status.

34. Respondent is an “employer” as defined in Subsection

760.02(7), Florida Statutes, which provides:

(7) “Employer” means any person employing

15 or more employees for each working day in

each of 20 or more calendar weeks in the

current or preceding calendar year, and any

agent of such person.

35. Florida courts interpreting the provisions of Section

760.11, Florida Statutes, have held that federal discrimination

laws should be used as guidance when construing the provisions

of the Florida law. See Florida Department of Community Affairs

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

law interpreting Title VII is applicable to cases arising under

Chapter 760, Florida Statutes. See Florida State University v.

Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Harper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385 (11th Cir. 1998).

36. Petitioner has the ultimate burden to establish

discrimination either by direct or indirect evidence. Direct

evidence is evidence that, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 578 (11th Cir. 1989). For

example, blatant remarks, the content of which could be nothing

other than to discriminate, constitute direct evidence of

discrimination. See Earley v. Champion International

Corporation , 907 F.2d 1077 (11th Cir. 1990). There is no

evidence of direct discrimination on Respondent’s part in this

case. Petitioner was never spoken to in a derogatory fashion by

anyone. Her gender was never the subject of any conversation or

disciplinary action.

37. Therefore, Petitioner must establish a prima facie

case of discrimination. To do so Petitioner must establish:

she is a member of a protected group; she is qualified for the

job; she was the subject of adverse employment action; and she

was treated less favorably than a similarly situated person

outside her protected class. See St. Mary’s Honor Center v.

Hicks , 509 U.S. 502 (1993); Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981); McDonnell Douglas Corp.

v. Green , 411 U.S. 792 (1973).

38. If Petitioner establishes the facts necessary to

demonstrate a prima facie case, the employer must then

articulate some legitimate, nondiscriminatory reason for the

challenged employment action. The employer is required only to

“produce admissible evidence which would allow the trier of fact

rationally to conclude that the employment decision had not been

motivated by discriminatory animus.” Burdine , supra at 257. If

a petitioner in an employment discrimination case cannot

establish each element of a prima facie case of discrimination,

the burden of persuasion never shifts to the employer to

articulate its legitimate nondiscriminatory reason for taking

the challenged action. See Pace v. Southern Railway System ,

701 F.2d 1383, (11th Cir. 1983).

39. Additionally, to establish a prima facie case of

constructive discharge, Petitioner must show, under an objective

standard, that her working conditions were so difficult,

intolerable, or unpleasant that a reasonable person in her

position would feel compelled to resign. See Bourgue v. Powell

Elec. Mfg. Co. , 617 F.2d 61 (5th Cir. 1980); McCaw Cellular

Communications of Florida, Inc. v. Kwiatek , 763 So. 2d 1063

(Fla. 4th DCA 1999).

40. Petitioner failed to meet her burden of proof in this

cause. Although a member of a protected class (female),

Petitioner did not prove that she was treated in a disparate

manner. Moreover, Petitioner failed to prove Respondent ignored

or failed to correct a difficult or intolerable work

environment. Mr. Boone did not have a history of conduct that

had been previously cited for discipline. Mr. Boone did not

repeat that conduct despite warnings and disciplinary measures.

Mr. Boone did not resign his employment with the school

district. In short, to compare Petitioner’s behavior with

Mr. Boone’s is not factually accurate. Petitioner probably knew

her employment could be terminated based upon her continued use

of the cell phone while on the school bus; further, Petitioner

could not deny her conduct with Mr. Boone. In that context she

resigned. Obviously she regretted her decision to do so, but

Respondent did nothing to coerce that decision. On the other

hand, Mr. Boone faced the disciplinary action meted out by

Respondent and accepted the consequences of his behavior. With

no prior history of discipline, Mr. Boone received a punishment

that Petitioner had already been given for her prior violation

of policy. Therefore, the circumstances of the work environment

did not cause Petitioner’s resignation. The likely consequences

of her behavior led to the resignation. Petitioner was not

qualified to continue her position as a school bus driver, as

she was unable or unwilling to comply with the cell phone

policy. By continuing to use the cell phone while on the bus

she placed herself and occupants of the bus in danger. By

resigning prior to an adverse employment decision, Petitioner

eliminated the possibility that she could be treated differently

from another person similarly situated that was outside her

protected class. Respondent took no adverse action against

Petitioner. Thus Petitioner failed to establish a prima facie

case of discrimination.

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 Petitioner’s claim for

relief as she was not treated in a disparate manner, did not

experience a hostile work environment, and did not establish

that she was qualified to continue her position as a bus driver

for Respondent.

DONE AND ENTERED this 15th day of April, 2010, in

Tallahassee, Leon County, Florida.

S

J. D. PARRISH

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 15th day of April, 2010.

COPIES FURNISHED :

Serita D. Beamon, Esquire

Seminole County School Board

Legal Service Department

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

Jerry Girley, Esquire

The Girley Law Firm

125 East Marks Street

Orlando, Florida 32803

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Bill Vogel, Ed.D. Superintendent

Education Support Center

400 East Lake Mary Boulevard

Sanford, Florida 32773-7127

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.