09-000710 Willeen R. Withers vs. Alachua County School Board Status: Closed Recommended Order on Tuesday, October 13, 2009.

Summary: The denial of wheelchair-bound teacher's request to remain in the same classroom was not a withdrawal of a reasonable handicap accommodation or disparate treatment under facts of this case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLEEN R. WITHERS, )

)

Petitioner, )

)

vs. ) Case No. 09-0710

)

ALACHUA COUNTY SCHOOL BOARD, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held on

June 17, 2009, in Gainesville, Florida, before Ella Jane P.

Davis, a duly-assigned Administrative Law Judge of the Division

of Administrative Hearings.

APPEARANCES

For Petitioner: Emily Moore, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

For Respondent: Thomas L. Wittmer, Esquire

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601

STATEMENT OF THE ISSUE

Whether Respondent Employer committed an unlawful

employment practice against Petitioner on the basis of her

handicap.

PRELIMINARY STATEMENT

On June 20, 2008, Petitioner filed a Charge of

Discrimination/Complaint with the Florida Commission on Human

Relations (FCHR). On June 5, 2009, FCHR issued a Notice of

Determination: No Cause. Petitioner timely-filed a Petition

for Relief, and the cause was referred to the Division of

Administrative Hearings (DOAH) on or about February 10, 2009.

DOAH's file reflects all pleadings, orders and notices

intervening before final hearing on June 17, 2009.

At hearing, official recognition was taken of portions of

the Code of Federal Regulations, provided to the undersigned in

“hard copy.” Petitioner testified on her own behalf and

presented the testimony of Khalilah Pinkney, Shirley Ann Brown,

Evelyn Lipham, and Dr. Elizabeth LeClear, and had Petitioner's

Exhibits numbered 1-28, admitted in evidence, including the

depositions of Dr. Lise Fox, Karen Fisher, and Dr. Charles E.

Levy. Respondent presented the oral testimony of Dr. Elizabeth

LeClear, Dr. Danielle Franco, Dr. Kenneth J. Osfield,

Sandra Medeiros, David R. Mathis, Edward Gable, Joan Longstreth,

and Cathy Black. Respondent had Exhibits numbered R1-R8 (all

composites) and R9, Petitioner's deposition, admitted in

evidence.

Upon joint motion, the undersigned toured relevant parts of

Terwilliger Elementary School and its campus in the company of

both counsel.

FCHR failed in its obligation to provide a means of

preserving the record, but the parties had paid for a court

reporter, and a Transcript was filed on June 30, 2009.

Each party timely-filed a Proposed Recommended Order on or

before August 10, 2009, and each proposal has been considered in

the preparation of this Recommended Order.

Unless otherwise indicated, all references herein to

Florida Statutes are to the 2007 codification.

FINDINGS OF FACT

1. The parties have stipulated that: Respondent is a

public school district and is the employer of Petitioner at

Terwilliger Elementary School in Gainesville, Florida.

2. Petitioner has taught at Terwilliger for the past 12

years. Petitioner’s evaluations have consistently met or

exceeded Respondent’s performance standards. For 11 years,

until the 2008-2009 school year, her classroom was in Building

Two, a multi-classroom structure on the northwest corner of the

school. The instant controversy revolves around Petitioner's

transfer to a detached, "portable" classroom for the 2008-2009

school year.

3. The parties have stipulated that: Petitioner, a

teacher of Pre-K Exceptional Student Education (ESE) special

needs students, has 36 years experience. Her classes comprise

from seven to 14 students, ages three, four, and five. She has

mobility impairment and uses a wheelchair.

4. Petitioner has post-polio syndrome, which limits her

ability to walk. She uses a Pride Quantum 6,000 Power Chair,

which the parties have stipulated is a rechargeable battery-

powered wheelchair.

5. The District is pro-active in hiring and retaining

qualified teachers who happen to be handicapped, and makes

efforts to accommodate those handicaps. The credible evidence

is that while there may be more severely handicapped teachers

employed by the District, there are no other permanently

wheelchair-bound teachers at Terwilliger and no teacher in the

District fits her limitations, qualifications, and assignments

point-for-point.

6. At the present time, Terwilliger has 89 employees, a

faculty of 45 teachers and 560 students in Head Start and Pre-K

through fifth grade, from age three through 13.

7. Terwilliger has two Pre-K teachers, one of whom is

Petitioner.

8. The parties have stipulated that: Petitioner currently

has an adult paraprofessional (aide) in the classroom with her.

9. Petitioner sometimes has had two aides, depending on

the needs of the children in her class. At the present time in

the 2008-2009 school year, she has only eight students in the

portable. If the enrollment in Petitioner's class reaches eight

to 10 students, a second aide might be necessary. Aides work

with Petitioner and assist Petitioner by helping the children

during the school day.

10. Sandra Medeiros, the principal at Terwilliger from

2000 through 2006, had planned to move both Petitioner and the

other Pre-K teacher to self-contained portable classrooms

99-208L and 99-214L, in order for them to be nearer to the Head

Start classrooms. The goal was to have the Head Start children

interact more with the Pre-K children, so as to help the Pre-K

students converse more (improve language skills) and so as to

foster regular classroom behaviors. This process is called

“inclusion” and is a respected educational goal on both the

State and Federal levels. The move was planned for the 2006-

2007 school year.

11. At some point, Ms. Medeiros discussed the move with

Petitioner. In Spring 2006, Principal Medeiros had a ramp added

to portable classroom 99-214L and had the bathroom enlarged with

handrails, so as to render the new location accessible for

Petitioner. Additional wiring was installed for a refrigerator

and microwave.

12. However, Ms. Medeiros was transferred from Terwilliger

in June 2006. At that time, Petitioner had not yet moved to the

portable.

13. The new principal, Dr. Elizabeth LeClear, did not make

any changes for her first school year at Terwilliger.

14. At Petitioner's annual evaluation conference in May or

June 2008, Dr. LeClear explained to Petitioner that Petitioner

would be moving to self-contained portable classroom 99-214L,

located on the central east side of campus.

15. On June 20, 2008, Petitioner filed her Charge of

Discrimination with FCHR, alleging a denial of reasonable

accommodations and disparate treatment in the terms and

conditions of employment.

16. On July 10, 2008, Petitioner completed a self-referral

form and submitted it to Respondent, suggesting as a reasonable

accommodation that Petitioner be permitted to remain in her

current classroom assignment in Building Two.

17. Dr. LeClear relocated Petitioner and 25 other teachers

in order to have the school organized by grade level, with every

class in close proximity to the other classes and teachers of

that grade level. She intended for the teacher "teams" to be

together, in order to save time with student transitions to

reading groups and to assist with teacher supervision. She also

wanted the school to follow the District's Inclusion Model.

18. Respondent District permits and expects principals to

change the use of spaces to meet current needs of their school,

including fluctuating enrollments and evolving programs.

19. Terwilliger has six kindergarten classes. Those

classes are now located in Building Two. The centrium, which is

part of Building Two, is being converted to a computer and

reading lab.

20. The portable assigned to Petitioner and her current

eight students meets all mandatory standards for Pre-K

classrooms including, but not limited to, its providing 35

square feet per child.

21. Other Florida school districts operate Pre-K classes

in portables.

22. There are portables in use all over the school

district. Like Terwilliger, almost every school uses one or

more portables.

23. The pending move to the portable was stressful for

Petitioner. Some of her stress and concern arose because she

did not get written notification of the move until she had

already left for vacation in June 2008.

24. The parties have stipulated that: Petitioner was on

approved medical leave from August 11, 2008, through January 4,

2009. She returned from such leave in January 2009.

25. Not all the items Petitioner had acquired over the

years and which had occupied parts of Building Two would fit in

Petitioner's portable. Therefore, the move required that

Petitioner select what she was taking with her and discard or

store the remainder.

26. During the summer and fall of 2008, Dr. LeClear

offered the help of the custodial staff to assist Petitioner in

packing for the move to the portable and in physically moving

the boxes.

27. Eventually, some of Petitioner’s items were taken to

the portable; some were stored at Petitioner’s home; others were

stored on Terwilliger’s campus; and still others were stored at

another school.

28. Petitioner has not specifically requested more storage

space than is provided in her new portable classroom, but if her

class size increases to ten children, the administration would

be willing to work with her on some compromise regarding

storage.

29. Principal LeClear and Petitioner have had

disagreements about what materials Petitioner may move from

their ultimate storage spots into her portable classroom. At

least once, the Principal has offered to go to the other school

with Petitioner to reach a mutual agreement on those items, but

Petitioner has not accepted her offer. At least once, the

Principal did not respond to Petitioner’s written request

concerning other items, and there is no clear explanation for

the Principal's lack of response. However, these and similar

situations are stressors amounting to simple miscommunications

and misunderstandings but which do not reflect a deliberate

failure of the Principal or the District to reasonably

accommodate a handicap.

30. Petitioner wants to return to her old classroom in

Building Two and to use an area in Building Two called the

"centrium" as she has done for 12 years.

31. The crux of Petitioner’s position is that she feels

the portable “houses” her, but does not accommodate her in

providing the quality program for her special needs students

that she has taken pride in providing throughout her previous

years at Terwilliger. This concern was echoed by parents and

others.

32. Dr. Lise Fox, a professor in the College of Behavioral

and Community Sciences at the University of South Florida, is a

long-time friend of Petitioner. For years, Dr. Fox has used

Petitioner and Petitioner’s Building Two classroom as exemplars

for her students training to teach special needs children.

Dr. Fox deposed that while Petitioner has run a model program

for years, Petitioner’s new environment (the portable) could be

deficient by national standards for Individuals with

Disabilities Education Act (IDEA) and ESE students.

Specifically, Dr. Fox was concerned that without the centrium,

Petitioner has no indoor play area for development of her

students’ gross motor skills.

33. Dr. Fox could not say that any Americans with

Disabilities Act (ADA) requirements were not being fulfilled in

the portable, but she opined that the difference between what

Petitioner was able to do as a teacher in Building Two and what

she is able to do as a teacher in the portable amounts to the

difference between a high quality Pre-K ESE program based on

national professional standards and a program that is merely

adequate by Federal and State requirements/standards. However,

neither Dr. Fox nor anyone else espousing the foregoing view,

were able to credibly state that Petitioner would not be able to

fulfill her job requirements or pass her professional

evaluations under her changed circumstances.

34. Building Two was in existence when Petitioner first

came to Terwilliger. It was designed for early childhood

education, which includes Pre-K and kindergarten. It is

accessible under ADA standards. For several reasons, Petitioner

considers Building Two more accommodating to her handicap and

better for her ESE students than her portable.

35. Building Two contains several classrooms plus the

of 805 square feet. Petitioner's classroom in the portable has

an area of 824 square feet.

36. The centrium was next to Petitioner’s classroom in

Building Two. Petitioner did not use the centrium for

instruction, but she sometimes used it for occupational and

physical therapy and as space where volunteers could work one-

on-one with individual children. The other Pre-K teacher also

used that area on occasion for similar projects.

37. Sometime in the past, Petitioner had received a grant

to acquire stimulating educational and play materials for her

classes. Technically, the items acquired at that time belong to

Respondent District, but Petitioner properly retained them in

her Building Two classroom, in its storeroom, and in the

centrium, and utilized them under the terms of the grant. She

also received District commendations for her acquisition of

these items. However, after the grant ended, she continued to

acquire more and more items on her own, to the extent that she

had to clear paths in her classroom for her wheelchair to move

through.

38. Her last year in Building Two, Petitioner used the

centrium mostly for storing a myriad of Pre-K toys and plastic

play equipment, many of which were not part of the curriculum,

but all of which had been acquired by Petitioner through grants,

garage sales, and donations. Some of the toys were dangerous,

due to deterioration or breakage. The sheer quantity of the

material in that space concerned two successive principals, and

the fire inspector.

39. A small office was next to Petitioner’s former

classroom in Building Two, as was a storage room, but neither

was being used for instructional purposes at the time Petitioner

was relocated to the portable. A kitchen space was next to

Petitioner’s former classroom, but its stove had been

disconnected for safety reasons years before Petitioner’s 2008

transfer. It was not demonstrated that a working kitchen is

necessary for any of the curricula Petitioner teaches. There is

no reason Petitioner cannot “socialize” children through food

preparation/play without actually cooking in either Building Two

or her portable, but the portable has been wired for a microwave

and refrigerator.

40. The student restroom in Petitioner’s previous

classroom had a shower area and a washer and dryer. The shower,

washer, and dryer were certainly convenient for dealing with

small children, but they are not required features of a Pre-K

program. At Terwilliger, the nurse’s station has a tub and

shower facility that can be used if one is needed.

41. Petitioner’s Building Two classroom had a changing

table; the portable does not. It is unclear whether Petitioner

herself used the changing table in her old classroom. Pre-K

students may be too large/heavy for that type of assistance. It

is possible, but not proven, that Petitioner's paraprofessional

could provide that type of assistance. Petitioner’s current

class has smaller sized children than those in her team

teacher’s Pre-K class, but Petitioner did not prove that she can

lift a child of either size onto a changing table from her

wheelchair.

42. It is good practice to ask parents to provide a change

of clothes for their Pre-K child to change into and for the

school to send home the soiled clothes. It is not “best

practice” to change a Pre-K child standing up, but it is a

permissible practice.

43. The Building Two classroom had a restroom with “itty

bitty” child-sized facilities and mid-range facilities. That

restroom also had bars for little and mid-size toilets. The

portable does not have the foregoing accommodations. The State

of Florida does not require that a Pre-K classroom have a

restroom, but the National Association for the Education of

Young Children has a standard for a restroom being available

within 40 feet of a Pre-K classroom, and either child-sized

fixtures or a stepstool for the children to use adult-sized

features. The portable meets these requirements.

44. Dr. Fox felt the potty-training facilities in the

portable’s rest room were inferior to those in Building Two, but

she acknowledged the portable’s restroom would serve if there

were steps to the wash bowl, which there were, and if a child’s

potty adapter were added.

45. The distance from Petitioner’s Building Two classroom

to an adult restroom is about 70 feet.

46. The restroom within the portable to which Petitioner

is now assigned is fully functional for Petitioner. It meets

ADA standards, but the arrangement of one handrail is not

optimal for Petitioner. Because Petitioner lifts with both arms

instead of with her legs, a railing on each side of the toilet,

instead of railings beside and behind the toilet, would be more

convenient for her than the present railing arrangement.

Rearrangement of the rear railing to one side of the toilet

might be a formidable job, given the placement of the toilet,

but that has yet to be determined, because Petitioner did not

ask to have the rear railing moved from the back to the side

prior to filing her Charge of Discrimination.

47. Petitioner’s assertion or suggestion that, contrary to

school policy and safety planning, when she worked in Building

Two, she usually parked in an area to which she was not assigned

is irrelevant to her allegations herein of disparate treatment

and failure to accommodate.

48. The distance from Petitioner’s former designated

handicapped parking space to Petitioner’s former classroom in

Building Two is 260 feet.

49. The distance from Petitioner's current designated

handicapped parking space to the portable she now occupies is

470 feet, but it connects directly, via sidewalks. Most, if not

all, of these sidewalks are under cover.

50. Sidewalks in the vicinity of Petitioner’s portable are

arguably less smooth than those utilized around Building Two,

but there is not a significant difference. Once, one of

Petitioner's wheelchair wheels got caught on, or near, one of

the sidewalks near the portable, and once Petitioner drove her

wheelchair into a grate, but each time she was quickly

extricated by other teachers and/or administrative staff.

51. At the present time, Petitioner’s portable has two

doors and two ramps, one of which is covered to protect her from

inclement weather. The type of door handles on the portable

were changed from knobs to levers. These handles meet ADA

requirements. Petitioner thinks the doors would be more

convenient for her if they opened in, rather than out. If they

opened in, it is possible that teaching space would be lost, and

it is unclear whether exterior doors opening inward could still

meet both ADA and Fire Code standards.

52. Respondent’s ADA expert, Dr. Kenneth J. Osfield, did a

site evaluation and testified that there are two exits out of

Petitioner’s portable for fire safety. This feature, the

walkways to the ramps, the ramps with handrails, the

entrances/exits, and the internal classroom space meet ADA

requirements, and, as previously stated, the restroom is already

handicapped-accessible for Petitioner per the ADA.

53. Dr. Osfield agreed with one of Petitioner’s concerns

which was also shared by Dr. Fox. Therefore, he suggested that

Respondent place fencing around the base of each portable so

that children could not crawl under them. He further suggested

that Petitioner remove her decorative items from one ramp and

the entrances/exits so that she could maneuver more easily.

54. In assessing the interior teaching space, the ADA

expert found that Petitioner’s space in the portable was nicely

decorated and also was a nice learning environment, due to

Petitioner’s decorations and its general set-up. However, while

her arrangement is attractive and acceptable to the School and

District administrations, it presents access problems which are

not presented by the open floor plan utilized in Petitioner’s

team teacher’s smaller portable.

55. Petitioner’s placement or angling of a table in her

classroom immediately outside the portable’s restroom, and her

storage of other items in the restroom (large garbage cans,

chairs, boxes, etc.), make it difficult for her to maneuver her

wheelchair there. Dr. Osfield was able to suggest ways to solve

these problems, but they would require Petitioner’s cooperation.

56. Charles E. Levy, M.D., the parent of a child who had

been one of Petitioner’s students seven years ago, deposed that,

as a parent, he would be less comfortable and secure with

regards to his child’s learning and safety if his child were

educated in the current portable classroom than he had been when

his child was educated in Building Two. However, Dr. Levy

observed only Petitioner’s portable, not the other Pre-K

portable, and even he attributed Petitioner’s mobility problems

in her portable classroom to significant physical barriers

caused by her arrangement of the furniture.

57. Petitioner has chosen to retain more personal material

and equipment than her team teacher has. The other Pre-K

teacher has borrowed some of Petitioner’s toys and learning

devices and found them useful over the years, but she has not

consistently used the quantity of items that Petitioner has.

58. Petitioner’s teaching/learning material and equipment

appears to the administration to be more material and equipment

than is reasonably necessary to teach her class. It exceeds

published guidelines, which some educators, including

Petitioner, think is good, and which other educators think is

not so good.

59. Recycling learning toys and equipment throughout the

year and storing those not in use so as to keep children

interested in them when they are brought out again has merit.

Also, learning through new and innovative play has merit.

However, there is no credible evidence that Petitioner’s

handicap requires that she either store or display such a large

quantity of toys and equipment as she has chosen to retain.

Fewer items or storage of some of her items would increase her

mobility and render her more comfortable in the portable.

60. Petitioner’s team teacher in the other, smaller

portable has a less stimulating classroom but it operates

functionally, and she and her students have been successful. 1

61. No standard tests suggest that the students taught in

the clear and functional portable are any less successful than

those taught by Petitioner in the decorative and cluttered

portable or vice-versa .

62. Petitioner’s 2008-2009 school year students in the

portable have evidenced the same amount of overall educational

growth as did her 2007-2008 class in Building Two.

63. Terwilliger has several playgrounds. From Building

Two, Petitioner regularly used the playground to the north of

that building: North Play Area No. One. The paved area outside

Building Two had been extended at Petitioner’s request several

years before, so that it would be accessible to two children

then enrolled who were wheelchair-bound. Petitioner also used

this area.

64. Petitioner received a grant to put certain play items,

like riding toys, in the North Play Area, and apparently also

was commended for that initiative.

65. In the year immediately preceding the instant

complaint, while in Building Two, Petitioner’s class used North

Play Area No. One, up to five times per week, and used the Head

Start Play Area No. Two, between two and three times per week as

part of the inclusion program.

66. That year, Petitioner’s class used each playground

under the sole supervision of Petitioner’s paraprofessional or

with the paraprofessional present in the sandy area with them

and with Petitioner supervising from a nearby sidewalk or the

paved area. Petitioner raised no complaints about this system

before the move to the portable.

67. Both playgrounds are appropriate for Petitioner’s

students. However, the Head Start playground now assigned to

her portable allows Petitioner’s students the

interaction/inclusion that the School’s and District’s

administration desire.

68. The distance from Petitioner’s Building Two classroom

to Head Start Play Area No. Two is 460 feet. From Petitioner’s

portable classroom to the Head Start Play Area No. Two is 280

feet.

69. Petitioner has access to a third playground, the

“intermediate” or “school” playground, that has a sidewalk

approach, where she can get closer to the children than she can

at the Head Start Playground, but the more credible evidence

supports her belief that she is now “assigned” to the Head Start

Playground due to the administration’s desire to foster

interaction between the two types of classes.

70. Petitioner contended that her Head Start playground

assignment is inaccessible for her wheelchair. In this regard,

the greater weight of the evidence is that, using her

wheelchair, Petitioner cannot get directly into the sandy area

of either her old playground or the Head Start Playground.

71. Dr. Levy has become Petitioner’s friend and adviser

with regard to wheelchair functionality. He is the Chief of

Rehabilitative Medicine at North Florida/South Georgia Veterans

Health System. In his opinion, Petitioner’s Pride Quantum 6000

wheelchair should work adequately for Petitioner over most

grassy areas in sunny weather, but it will become bogged down in

sandy or boggy areas.

72. On the date of hearing, Dr. LeClear also was

temporarily using a power wheelchair due to a recent injury. In

her wheelchair, she has reached the Head Start Playground on the

grassy area and the hard sand, but she conceded that her

wheelchair will not go through the soft sand. She feels the

sidewalk edge is sufficiently near for Petitioner to instruct

the students with a paraprofessional closer to them. The

perimeter of the school grounds is fenced, so child escape is

not a viable issue.

73. Petitioner’s old playground had sidewalks surrounding

it and a paved area that allowed Petitioner’s wheelchair to get

closer to its outside play equipment, possibly at a better

auditory angle, and the Head Start playground has a ring of

grass between the sandy play area and the sidewalk where

Petitioner must stop her wheelchair. However, in either

location, Petitioner would have to rely on her paraprofessional

to be with the children on the sandy surface that actually

constitutes the playground area, because Petitioner's wheelchair

does not move well through grass and/or sand.

74. Dr. Fox and Petitioner deplored Petitioner’s inability

to get within three feet of her students on the Head Start

Playground. Although Petitioner particularly laments a loss of

educational opportunity because she is not able to “pour sand”

with her students under the new playground constrictions, it

appears that there are sand and/or rice tables for pouring sand

and/or rice located between two sidewalks near the base of one

of the ramps leading to her portable and that Petitioner’s

wheelchair can access children and pouring activities there.

75. Any further modifications to either playground would

change their character from “playground” to something else, and

more concrete might create a danger for the children climbing on

equipment near or above it.

76. Terwilliger’s Head Start playground is superior to

some of the Pre-K playgrounds at other schools because it has a

cover from the sun and more activities. It is suitable for the

children involved; meets Pre-K standards; has newer equipment

than the other playground favored by Petitioner; has fewer

“pinch points”; and can be used by the special needs children

now enrolled. The very fact that it has a larger sandy area

than Petitioner’s previous playground seems to be a safety

factor for the children involved.

77. The District had issued a February 6, 2007, written

reprimand to Petitioner with regard to her having instructed a

paraprofessional to allow a child with a traumatic brain injury

to play on a jungle gym in one of the playgrounds. This

reprimand was required by professional practices standards

simply because a complaint had been made. The issue did not

revolve around which playground Petitioner was using; it

revolved around unfamiliarity of those on the scene with the

particular child’s Individualized Education Plan (IEP). It was

an isolated incident and not representative of Petitioner’s

general teaching abilities, personal responsibilities, or

professional track record. However, the incident suggests that

anything but sandy soil or rubber shreds for a playground can

increase the danger inherent in any playground.

78. Fire drills, tornado or inclement weather alerts, and

any other untoward incident might require evacuation of the

portable classroom. Such evacuations are possible for

Petitioner in her wheelchair. Under fire evacuation

circumstances, Petitioner may have to stay on a hard surface

nearer to the school than her students do, because of her

wheelchair. There is no credible evidence that this situation

puts Petitioner's students, who are accompanied and overseen by

a paraprofessional, or puts Petitioner, in greater danger than

any of them were in whenever they had to evacuate from Building

Two.

79. Prior to litigation, Petitioner had never specifically

requested that the sidewalks be extended closer to her new

playground, that additional fencing be provided to keep children

from “escaping” the school ground, that the District grade or

otherwise alter the playground approaches for her, or that her

evacuation routes be altered. Therefore, Respondent cannot be

held liable for a failure to accommodate on these issues.

CONCLUSIONS OF LAW

80. The Division of Administrative Hearings has

jurisdiction of the subject matter and the parties to this

cause, pursuant to Sections 120.569 and 120.57(1), Florida

Statutes (2008).

81. Section 760.10, Florida Statutes, provides, in

pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual with respect to

compensation, terms, conditions, or

privileges of employment because of such

individuals race, color, religion, sex,

national origin, age, handicap , or marital

status. (Emphasis supplied.)

82. Respondent qualifies as an "employer" as defined in

Section 760.02(7), Florida Statutes. Case law establishes that

where an employer knows of a handicap, it must make reasonable

accommodations so as to hire and retain a handicapped person.

83. Petitioner qualifies as a “handicapped person”. She

asserts that the employer herein has discriminated against her

through disparate treatment and by a withdrawal of reasonable

accommodations for her disability.

84. The shifting burdens of proof in discrimination cases

have been extensively examined in Department of Corrections v.

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

Pursuant to the [Texas Department of

Community Affairs v.] Burdine, [450 U.S.

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207

(1981)] formula, the employee 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. If the presumption arises, 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, nondiscriminatory reason for the

employment decision, a reason which is

clear, reasonably specific, and worthy of

credence. Because the employer has the

burden of production, not of persuasion,

which remains with the employee, it is not

required to persuade the trier of fact that

its decision was actually motivated by the

reason given. If the employer satisfied its

burden, the employee must then persuade the

fact finder that the proffered reason for

the employment decision was a pretext for

intentional discrimination. The employee

may satisfy this burden of showing directly

that a discriminatory reason more likely

than not motivated the decision, or

indirectly by showing that the proffered

reason for the employment decision is not

worthy of belief. If such proof is

adequately presented, the employee satisfies

his or her ultimate burden of demonstrating

by a preponderance of the evidence that he

or she has been a victim of intentional

discrimination.

85. Petitioner asserts that by moving her to the portable

classroom environment and assigning her to the Head Start

playground, Respondent has taken actions adverse to her

employment and has thereby withdrawn reasonable accommodations,

and that Respondent’s proffered reasons for the relocation of

her classroom and reassignment of her children’s playground are

pre-textual.

86. Herein, no evidence was presented that Petitioner was

treated differently from her co-workers because of her handicap.

Indeed, in the summer of 2008, a majority of Terwilliger’s

teachers were moved to different classrooms. The school's other

Pre-K teacher, who is not disabled, was also assigned to a

portable classroom that is actually smaller than Petitioner’s

portable but which is substantially its equivalent.

87. Respondent re-assigned 25 of the school's 41 faculty

members for the 2008-2009 school year for functional,

educational reasons. The new assignments are designed to permit

members of each grade level team to be in close proximity so as

to facilitate student transactions and interactions. Petitioner

and others were relocated so that the classrooms in Building Two

could be used to house six kindergarten classes and so that the

centrium could be converted into a reading lab and computer

center.

88. Petitioner was moved from a classroom that is ADA-

compliant to another classroom that is ADA-compliant. Her new

classroom has 824 square feet to the old classroom's 805 square

feet. Her new classroom also has an ADA-compliant restroom

within it. Before the move, she went to another playground up

to five times per week and to the Head Start playground two to

three times per week, and now she goes exclusively to the Head

Start playground between five and eight times per week. Pouring

sand may have to be done in another location and a concrete slab

is no longer available to help her get as close to the children

on the Head Start playground as she could get to those on the

other playground, but Petitioner has the same paraprofessional

who performs the functions Petitioner has never been able to

perform in the sandy and boggy areas of any playground.

89. Petitioner’s classroom is actually closer to the Head

Start playground than before, and use of the Head Start

playground supports the legitimate educational goal of

"inclusion."

90. The only difference that could legitimately be called

less accommodating to Petitioner is that Petitioner's currently

assigned handicapped parking space is 210 feet further from her

portable than her old parking space was from her old classroom.

However, this change is offset by a direct, covered sidewalk.

Also, the evidence does not support a conclusion that any other

handicapped space would be closer to the new portable than the

one currently assigned to Petitioner. On balance, such a minor

inconvenience to Petitioner versus a more integrated physical

plant for both the entire student body and the educational staff

cannot constitute a failure to “reasonably accommodate”

Petitioner.

91. Petitioner’s reassignment to a portable classroom is a

change of location only. She still has the same

paraprofessional aide in the classroom, teaches the same

curriculum, and has the same or a lesser number of Pre-K

students. The move does not involve any change in Petitioner’s

compensation, hours of work, or other terms of employment. There

are slight differences in her facilities, but that is all.

92. The only accommodation Petitioner is willing to

consider is a return to her old classroom, but that would not

constitute a reasonable accommodation, because such an

accommodation would disrupt the entire functionality of

Terwilliger’s education system.

93. The issue herein is not whether the portable classroom

provides a "Cadillac" education to pre-K ESE children.

"Excellence in education" is a goal with which laymen, as well

as educators, can identify, but it does not encompass

perfection. School systems have to deal with cramped, if not

wholly inadequate, budgets and seek "the biggest bang for their

buck," while at the same time complying with IDEA, ESE, and ADA,

among a myriad of other State and Federal laws.

94. Nothing in the term "reasonable accommodation"

requires Respondent to provide precisely the work environment

Petitioner wants or to duplicate a work environment Petitioner

unilaterally feels is ideal. The term must be construed to mean

an accommodation that presently, or in the future, enables

Petitioner to perform the essential functions of her job. Wood

v. Green , 323 F.3d 1309 (11th Cir. 2003). A disabled employee

cannot force an employer to make a particular accommodation if

another reasonable accommodation is available and offered to the

employee. Llanes v. Sears Roebuck and Company , 46 F. Supp. 2d

1300 (S.D. Fla. 1997). If the employer offers a reasonable

accommodation, its obligation is fulfilled. The change of

assignments/location herein does not prevent or newly inhibit

Petitioner from performing the essential functions of her job.

95. Petitioner has failed to prove the third element of

her prima facie case -- that she suffered an adverse employment

action, or, alternatively, Respondent has provided valid, not

pre-textual, reasons for its employment decisions.

96. Assuming arguendo , but not ruling, that Petitioner has

proven a prima facie case, she has not proven that Respondent’s

reasons for moving her to the portable were pretextual.

97. As evidence that Respondent’s stated reasons for her

relocation are pretextual, Petitioner asserts that prior to the

move, others, particularly Principal LeClear, were frustrated

with the toys and “stuff” Petitioner had accumulated and left in

her Building Two classroom and the centrium; that the

measurements submitted in evidence comparing the two classrooms

are flawed because the centrium and other areas adjoining her

Building Two classroom were not included in those measurements;

and that Respondent offered, and had admitted in evidence, only

a single isolated letter of reprimand within Petitioner’s 12-

year career at Terwilliger.

98. Petitioner is correct that the single letter of

reprimand is isolated. However, that reprimand was not offered

as one of Respondent’s reasons for relocating/reassigning

Petitioner to a portable. Respondent agrees that Petitioner is

an outstanding teacher.

99. Respondent acknowledged that Petitioner sometimes used

the centrium but Respondent’s measurements of the classrooms

were performed by an appropriately ADA-qualified expert, and

Petitioner does not dispute the measurements of the respective

classrooms. These measurements were appropriately offered by

Respondent to demonstrate that the portable classroom meets ADA

requirements and to show how the portable’s space equates with

the space in Petitioner’s prior classroom.

100. As to the “stuff” issue, two principals’ and a fire

inspector's concerns over Petitioner's clutter were never

offered by Respondent as reasons for the school-wide classroom

reorganization, and it is unreasonable to speculate that such a

massive reorganization, together with the financing and creation

of a new computer and reading lab, would be undertaken just to

oust Petitioner, her equipment, and her materials from the

centrium. Assuming, arguendo , but not ruling, that such a

motive existed, the possession by Petitioner of such articles

was not proven to be essential to Petitioner's accomplishing her

job duties, and the Principal even found storage space for

Petitioner's articles.

101. Petitioner has not borne her ultimate burden of

proof.

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 and its

underlying Charge of Discrimination.

DONE AND ENTERED this 13th day of October, 2009, in

Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

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 13th day of October, 2009.

ENDNOTE

1/ The other Pre-K teacher testified that she, personally, could

not maneuver or teach in a wheelchair in her portable because

she had never used a wheelchair and because the bathroom in her

portable was too small and not ADA-compliant. She did not know

if she could use a wheelchair in Petitioner’s portable.

COPIES FURNISHED :

Thomas L. Wittmer, Esquire

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601

Dr. Joan Longstreth

Alachua County School Board

620 East University Avenue

Gainesville, Florida 32601

Emily Moore, Esquire

Florida Education Association

300 East Park Avenue

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, 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.