12-002475 Katherine E. Otto vs. Duval County Public Schools Status: Closed Recommended Order on Friday, December 28, 2012.

Summary: Petitioner resigned from her teaching position at Forrest High School and was not discriminated against on the basis of her age, race, or gender. Her complaint should be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KATHERINE E. OTTO , )

)

Petitioner , )

)

vs. ) Case No. 12 - 2475

)

DUVAL COUNTY PUBLIC SCHOOLS , )

)

Respondent . )

)

RECOMMENDED ORDER

A final hearing was held in this matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (DOAH) , on November 1, 2012, in

Jacksonville, Florida.

APPEARANCES

For Petitioner: Katherine E. Otto , pro se

Apartment 407

7740 Plantation Bay Drive

Jacksonville, Florida 32344

For Respondent: David J. D ' Agata, Esquire

Office of the General Counsel

City of Jacksonville

117 West Duval Street , Suite 480

Jacksonville, Florida 32202

STATEMENT OF THE ISSUE

The issue is whether Respondent , Duval County Public

Schools (DCPS), violated the rights of Petitioner , Katherine E.

Otto, under the Florida Civil Rights Act , chapter 760, Fl orida

Statutes .

PRELIMINARY STATEMENT

Petitioner alleges that DCPS terminated her employment as a

school teacher due to her race, gender , and age, in violation of

the Florida Civil Rights Act. She did not challenge her alleged

" termination " in an administ rative hearing before DOAH. Rather,

she filed a n Employment C omplaint of D iscrimination (Complaint)

with the Florida Commission on Human Relations (FCHR), which,

after an investigation, issued a " no cause " Notice of

Determination on June 8, 2012. FCHR su bsequently transferred the

matter to DOAH for further proceedings upon receipt of

Petitioner ' s Petition for Relief (Petition) , dated July 13, 2012.

DCPS maintains that Petitioner did not suffer an adverse

employment action, and actually resigned from her t eaching

position. Even assuming that DCPS did, in fact, terminate

Petitioner ' s employment, Respondent contends that it had several

legitimate reasons for doing so. Finally, DCPS asserts that FCHR

did not have jurisdiction over the controversy in the firs t

instance because Petitioner did not file the Complaint until more

than one year after the alleged " last act " of discrimination. In

light of these circumstances, DCPS states that it should be

reimbursed its litigation expenses and costs incurred in

defen ding the matter.

A final hearing was held on November 1, 2012. In addition

to her own testimony, Petitioner presented one witness at the

hearing, but did not present any documentary evidence into the

record. Respondent presented three witnesses and 20 ex hibits

into the record, to which Petitioner did not object.

At the conclusion of the hearing, the parties were given

until December 5, 2012, to file the proposed recommended orders.

The T ranscript of the hearing was filed on November 21, 2012, and

Respond ent timely filed its p roposed r ecommended o rder.

Petitioner did not make a post - hearing submission.

References to statutes are to Florida Statutes (201 2 ) unless

otherwise noted.

FINDING S OF FACT

1. Ms. Otto filed a Complaint with FCHR, alleging race,

s ex , and age discrimination against DCPS, having been employed by

the s chool d istrict as a school teacher from December 2009 until

September 2010.

2. The Complaint alleges that Dr. Alvin Brennan, the

principal of the Forrest High School, where Ms. Otto wo rked as a

teacher: (a) announced at a staff meeting that he " prefers all

black male young teachers " ; (b) announced at another staff

meeting that " anyone who takes off a Friday or a Monday . . .

will be fired " ; (c) verbally harassed Ms. Otto; and

(d) disch arged her for calling in sick.

3. The face of the Complaint shows that it was signed by

Ms. Otto on October 24, 2010 - only weeks after the last date of

alleged discriminatory conduct on September 8, 2010.

4. However, the " date stamp , " which also appear s on the

face of the Complaint , shows that it was not received by FCHR

until October 25, 2011.

5. Notably, FCHR sent to DCPS a " Notice of Filing of

Complaint of Discrimination " on November 10, 2011 , which was

stamped as received by DCPS on November 16, 20 11.

6. At the hearing, Ms. Otto could not explain the apparent

delay of exactly one year and one day between the date she signed

the Complaint and the date it was stamped as received by FCHR.

7. Ms. Otto testified that she never actually typed the

Compl aint. Further, she stated the typed Complaint was

inconsistent with a handwritten version she originally submitted

to FCHR " a month or two before " October 24, 2010.

8. Surmising at the hearing that " someone " at FCHR must

have typed the Complaint, Ms. Ott o testified that she signed and

returned the document even though it showed that she was 11 years

older than her actual age of 50 years.

9. Ms. Otto ' s Petition for Relief contains accusations

about harassment and " racists remarks " by Dr. Brennan, and adds

that he and other DCPS personnel " committed purjery to [the

Commission] " [sic] during its investigation of the Complaint.

10. Unlike the Complaint, the Petition for Relief also

states that Ms. Otto was " was fired for no reason " as opposed to

being fired for calling in sick.

11. At the final hearing, Ms. Otto testified that she did

not know why she was fired, and it was only " possible " that she

was fired due to her race, gender , or age.

12. Ms. Otto testified that her Complaint and Petition were

based o n events in August and September 2010, shortly after

Dr. Brennan became the principal of Forrest High School.

13. By the end of the 2009 - 20 10 school year, Forrest High

School was identified as " critically low performing, " having

received consecutive " scho ol grades " of " F " or " D " over the

preceding school years.

14. The District was, therefore, required to treat Forrest

High School as a " turn - around school, " and replace/ " reconstitute "

much of its staff and administrative team.

15. Dr. Brennan, a veteran e ducator and administrator of

27 years, was selected by the superintendent to replace the

principal at Forrest High School at the beginning of the

2010 - 20 11 school year, since he had a successful track record for

improving other low - performing schools.

16. Dr. Brennan conducted various staff meetings just

before and during the first two weeks of the school year.

17. According to Ms. Otto, Dr. Brennan stated at one such

meeting that anyone who took a Friday off would be fired.

18. Ms. Otto testified that Dr. Brennan stated at another

meeting that he prefers to hire young African - American men.

Ms. Otto thereafter " felt like [she] was being harassed,

discriminated against because [Brennan] was just going after

white women. "

19. Despite these negative " feel ings " about Dr. Brennan,

Ms. Otto never made a complaint to the school d istrict about him

or his comments.

20. Ms. Otto stated that she privately met with Dr. Brennan

on only two occasions. During the first private meeting at the

beginning of the 2010 - 20 11 school year, Dr. Brennan " yelled " at

Ms. Otto for speaking with state officials who visited Forrest

High School due to its " turn­around " status. The second private

meeting was on September 8, 2010, when Dr. Brennan purportedly

" harassed " Ms. Otto for m issing lesson plans, and " yelled " that

she was fired.

21. In the days leading up to the September 8 conference,

Dr. Brennan and Assistant Principal Jeravon Wheeler visited

Ms. Otto ' s class and warned her about missing lesson plans.

22. At all times, Ms. Otto was aware that she was required

to have lesson plans readily available in her class.

23. During a scheduled classroom observation on August 31,

2010, Ms. Wheeler (once again) noted Ms. Otto ' s lack of lesson

plans.

24. A post - observation conference w as to take place on

Friday, September 1, 2010. There is conflicting evidence as to

whether Ms. Otto was present on that date. The record contains a

post - observation " teacher assessment instrument " which Ms. Otto

apparently signed and dated on September 1 , 2010.

25. However, Ms. Otto claims to have called in sick after

her observation and did not return to the school until

September 8, 2010.

26. When summoned to Dr. Brennan ' s office on the morning of

September 8, 2010, Ms. Otto assumed he wanted to discu ss her

illness - related absence and her discussions with " people from the

State. "

27. Ms. Wheeler also attended the September 8 conference

with Ms. Otto and Dr. Brennan.

28. Contrary to Ms. Otto ' s view, Dr. Brennan and

Ms. Wheeler testified that the Septe mber 8 conference was

actually called to: (a) discuss the classroom observation;

(b) present a " non - compliance letter " for Ms. Otto ' s repeated

failure to provide lesson plans; and (c) place her on a " Success

Plan " formulated to improve her overall teachin g performance.

29. Ms. Otto walked out of the September 8 conference

before Dr. Brennan had the chance to provide her with the Success

Plan and non - compliance letter.

30. Dr. Brennan ' s contemporaneous handwritten notes on the

non - compliance letter indica ted that Ms. Otto abruptly quit

during the September 8 conference and " walked off the job. "

31. Ms. Otto testified that she left the September 8

conference because Dr. Brennan was screaming at her and yelled

that she was fired. She denied, however, that Dr. Brennan made

any comments about race, gender , or age at that time.

32. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan

neither raised his voice nor stated that Ms. Otto was fired

during the September 8 conference.

33. Rather, according to Dr. Brennan and Ms. Wheeler, it

was Ms. Otto who became indignant during the September 8

conference, and who abruptly quit and walked out of the school

after " throwing " her d istrict - issued laptop on the desk of

Dr. Brennan ' s assistant.

34. Ms. Otto testified that she ultimately submitted lesson

plans at some point after her August 31, 2010 , observation,

though that was disputed by Dr. Brennan.

35. Regardless, Ms. Otto admitted during the hearing that

she was " unprepared " during Ms. Wheeler ' s observation and t he

lesson plans entered into the record which she purportedly

prepared for the August 31 observation were incomplete and

inadequate.

36. Dr. Brennan and Ms. Wheeler concurred that the lesson

plans presented at the hearing were defective.

37. Ms. Otto tes tified that she contacted a lawyer with the

teacher ' s union immediately after the September 8 conference.

38. Ms. Otto thereafter learned that Dr. Brennan did not

have the authority to unilaterally fire her. Nevertheless,

Ms. Otto advised the union lawye r that she would not go back to

the school in any event because she was " allergic to it. "

39. Ms. Otto testified that the union lawyer gave her

assurances that she would be reassigned to another school. These

and other statements purportedly made by the union lawyer

amounted to hearsay and were not corroborated by other,

independent evidence.

40. Shortly after the September 8 conference, Ms. Otto

received from the s chool d istrict a letter dated September 9,

2012, which indicated its recognition of Ms. Ot to ' s resignation

and encouraged her to contact the sender (Ms. Dawn Gaughan) with

any questions.

41. Ms. Otto did not respond to the September 9, 2012,

letter, assuming that the union lawyer was securing her another

teaching position in a different school .

42. Ms. Otto testified that she called in substitutes on

the days immediately following the September 8 conference using

the school d istrict ' s automated telephone system. However, she

also stated that the personal identification number she needed to

ac cess the system was invalid at the time of her departure from

the school.

43. Having lost faith in the union lawyer ' s assurances,

Ms. Otto testified that she eventually spoke with the s chool

d istrict human resources ' personnel about the September 8

confer ence, but could not remember when that occurred.

44. Ms. Otto subsequently filed a claim for unemployment

compensation which was rejected on the grounds that she

voluntarily resigned from her position. However, an Unemployment

Compensation Appeals Refere e ultimately determined that Ms. Otto

was entitled to compensation because (during a telephonic hearing

on the matter) the s chool d istrict presented inadmissible hearsay

to debunk Ms. Otto ' s assertion that she had been fired.

45. At the hearing, Ms. Otto presented the testimony of

Ms. Judith Julian, who claimed that she was " forced to resign "

due to harassment by Dr. Brennan and Ms. Wheeler.

46. Ms. Julian stated that Dr. Brennan " harassed " her by

forcing her to park in the teacher ' s parking area , and Ms.

Wheeler harassed her by " following " Ms. Julian on campus during a

phone call.

47. Ms. Julian had " no idea " whether such " harassment " was

motivated by any animus toward her gender, age , or race, and also

commented that she was " replaced " by a male Caucasi an.

48. According to Ms. Julian, lesson plans: (a) are

" absolutely " important; (b) should be available at all times; and

(c) are part of a teacher ' s contractual duties.

49. Ms. Julian testified that the only personal interaction

she had with Dr. Brennan was during a classroom observation when

Dr. Brennan stated that she was " a great teacher. "

50. Ms. Julian stated that she never heard Dr. Brennan make

statements about Ms. Otto ' s race, gender , or age.

51. Ms. Julian did not attend and , therefore , could not

comment on the September 8, 2010 , conference. She did, however,

recall statements purportedly made by Dr. Brennan at a staff

meeting regarding a preference to hire African - American teachers.

52. Dr. Brennan and Ms. Wheeler testified that Dr. Brennan

made no such announcement, though he did discuss the need for a

staff which reflected the demographics of the community served by

Forrest High School.

53. Dr. Brennan also presented statistics showing that his

hiring decisions had no appreciable impact on staff demographics

at the high school. Rather, African - American staff members

increased by only seven percent and the percentage of male

teachers at the school actually decreased between the 2009 - 20 10

and 2010 - 20 11 school years.

54. Regardless, the test imony and evidence of record show

that school principals do not have unilateral authority to

terminate a teacher.

55. The testimony offered by Dr. Brennan and Ms. Wheeler

was consistent with contemporaneous notes and statements they

prepared in September 2010 as well as other written statements

they later prepared for the School District ' s Office of Equity

and Inclusion in November 2011.

56. The collective bargaining agreement between the school

d istrict and the teachers ' union, Duval Teachers United (DTU ),

stresses the importance of lesson plans and the expectation that

teachers shall have them at all times.

57. The agreement also provides that insubordinate conduct

and failure to prepare lesson plans merit discipline up to and

including dismissal.

58. Further, the collective bargaining agreement also

contains s chool d istrict policies against harassment and

directions on how to process complaints.

59. Ms. Otto was aware of these policies and procedures,

but never lodged any complaints against Dr. Brenna n with school

d istrict officials.

60. Based on the testimony and evidence of record, the

greater weight of the evidence demonstrates that Ms. Otto

resigned from her position during a September 8, 2010 , conference

with Dr. Brennan and Ms. Wheeler.

61. Fur ther, the evidence shows that Ms. Otto failed to

provide timely and complete lesson plans despite several warnings

from her superiors. This failure alone would support dismissal,

as would Ms. Otto ' s insubordinate conduct or abandonment of her

post.

62. T he Employment Complaint of Discrimination, filed with

FCHR by Ms. Otto appears to be signed and dated by her on

October 24, 2010, only 46 days after the last incident giving

rise to her claim occurred. However, the date stamp from FCHR on

that document is for October 25, 2011, more than 365 days after

the September 8, 2010 incident. No explanation was given for

this discrepancy in the dates on the complaint giving rise to

this matter.

63. Ms. Otto testified at the hearing that she " didn ' t care

which way this case goes " and was " happy " just to be there.

CONCLUSIONS OF LAW

64 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § § 120.5 69, 120.57, and 7 60.11 , Fla. Stat.

65. Ms. Otto cl aims that she was discriminated against by

DCPS based on her race, gender , and age, in violation of the

Florida Civil Rights Act (FCRA), which prohibits discrimination

in the workplace because of these and other immutable traits,

such as an individual ' s co lor, national origin, handicap, or

marital status. See § 760.10, et. seq. , Fla. Stat. (2012).

66. As the Petitioner in this discrimination case, Ms. Otto

must prove the claims against DCPS under the preponderance of the

evidence standard. See Gross v. F BL Fin. Servs., Inc. , 557 U.S.

167, 179 (2009) ( " we hold that a plaintiff . . . must prove, by a

preponderance of the evidence, that age was the ' but for ' cause

of the challenged adverse employment action " ).

67. The FCRA is construed in conformity with it s federal

counterpart, Title VII of the Civil Rights Act, and its related

regulations. See Chanda v. Engelhard/ICC , 234 F.3d 1219, 1221

(11th Cir. 2000), Greene v. Seminole Elec. Coop., Inc. , 701 So.

2d 646, 647 (Fla. 5th DCA 1997). (Title VII provides t hat " [i]t

shall be an unlawful employment practice for an employer to fail

or refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employmen t,

because of such individual ' s race, color, religion, sex, or

national origin . . . . " 42 U.S.C. § 2000e - 2(a)(l)(2012)).

68. The " McDonnell Douglas [McDonnell Douglas Corp. v.

Green , 411 U.S.792 (1973 s hifting burden analysis " is applied

to claims of this nature. See St. Johns Cnty . Sch. Dist. v.

O ' Brien , 973 So. 2d 535, 541 (Fla. 5th DCA 2007).

69. Under McDonnell Douglas , a plaintiff must first

establish a prima facie case of discrimination. This requires

proof that: (a) the plaintiff belongs to a " protected class " of

individuals; (b) the plaintiff was subjected to adverse

employment action; (c) similarly - situated employees outside of

the plaintiff ' s class were treated more favorably than the

plaintiff; and (d) the plaintiff was qualified to do th e job.

See City of W. Palm Beach v. McCray , 91 So. 3d 165, 171 (Fla. 4th

DCA 2012) ( citing U.S. E.E.O.C. v. Mallinckrodt, Inc. , 590 F.

Supp. 2d 1371, 1375 (M.D. Fla. 2008) ) .

70. An " adverse employment action " is " an ultimate

employment decision, such as discharge or failure to hire, or

other conduct that alters the employee ' s compensation, terms,

conditions, or privileges of employment . . . . " Haines v.

Potter , 137 Fed. Appx. 216, 217 (11th Cir. 2005).

71. Conduct that does not meet this level of subst antiality

may not constitute " adverse employment action, " as that term is

construed in the law. See , e.g , Vitt v. City of Cincinnati , 97

Fed. Appx. 634, 640 (6th Cir. 2004) (employee ' s unfavorable

performance review which allegedly contained untrue statem ents

did not constitute adverse employment action), Garrison v.

Gambro, Inc. , 428 F.3d 933, 939 (l0th Cir. 2005) (suggestion that

an employee resolve a dispute without lawyers was not a

retaliatory act that affected her employment status and,

therefore, di d not constitute adverse employment action), Poppy

v. City of Willoughby Hills , 96 Fed. Appx. 292, 296 (6th Cir.

2004) (mayor ' s rude gesture and comment to city employee was not

adverse employment action).

72. Once a prima facie case is established, the b urden then

shifts to the employer to articulate a legitimate,

nondiscriminatory reason for its employment action. If the

employer meets this burden, the presumption of intentional

discrimination disappears, but the plaintiff can still prove a

claim by sho wing that the reason proffered is pre - textual. See

O ' Brien at 541.

73. The proffered reasons are not pre - textual, however,

" unless it is shown both that the reason was false, and that

discrimination was the real reason. " Houston v. Town of Palm

Beach Sh ores , 2012 U.S. Dist. LEXIS 167146, 19 (S.D. Fla., 2012),

quoting Cooper v. S. Co. , 390 F.3d 695, 725 (11th Cir. 2004).

74. Here, before applying the McDonnell Douglas shifting

burden analysis, it is arguable that Ms. Otto ' s Complaint is

" time barred " und er the FCRA, which serves as the sole basis for

her claims.

75. The FCRA provides that " [a]ny person aggrieved by a

violation of [the Act] may file a complaint with the commission

within 365 days of the alleged violation. . . . " § 760.11(1),

Fla. Stat.

7 6. Where the charge of discrimination is filed with FCHR

more than 365 days after the alleged act of discrimination, it is

time - barred and not actionable. See City of W . Palm Beach v.

McCray , 91 So. 3d 165, 172 (Fla. 4th DCA 2012) ( " McCray ' s time to

file a charge based on his termination expired a year after it

occurred. Under the federal counterpart of the FCRA, discrete

discriminatory acts are not actionable if time barred, even when

they are related to acts alleged in timely filed charges " );

Brewer v. Clerk of Circuit Court , 720 So. 2d 602, 604 (Fla. 1st

DCA 1998) (affirming dismissal of employment discrimination and

retaliation complaint for failing to comply with statutory

prerequisites).

77. For purposes of calculating this 365 - day period, the

FCRA provides that FCHR " shall clearly stamp on the face of the

complaint " the date upon which it is filed and, " if clearly

stamped . . . that date is the date of filing. " § 760.11(1),

Fla. Stat.

78. As explained above, although Ms. Otto appears to have

sign ed her Complaint on October 24, 2010, FCHR ' s stamped receipt

date is October 25, 2011. The coincidence of the October 25

stamped date versus the October 24 (even with different years)

handwritten date was unexplained at the hearing. Perhaps the

date stam p had the incorrect year displayed. Perhaps Ms. Otto ' s

signature was affixed to the complaint on October 25, 2011 , which

would have been more than 365 days from the last incident

complained of by Petitioner. These are questions left unanswered

following the hearing. I accept that Ms. Otto, based upon her

testimony, intended to timely file the C omplaint, yet the date

stamp discrepancy remains a mystery. Based upon section

760.11(1), I cannot ignore FCHR ' s date stamp and, since no one

from the agency was called to testify on the issue of the

timeliness of the C omplaint, I cannot make a finding that the

C omplaint was definitely timely filed. I also cannot conclude

that Ms. Otto filed her complaint untimely in bad faith because

FCHR should have refused the C omplaint at the time it was filed

if it was more than 365 days from the last incident giving rise

to the C omplaint.

79. Regardless of the timing issue , based on the findings

of fact outlined above, Ms. Otto failed to establish a prima

facie case of discr imination, as the preponderance of the

evidence shows that she resigned from her position and did not

suffer an adverse employment action. DCPS presented substantial

proof that Ms. Otto was subject to termination despite her race,

age , and gender. Specif ically, the record demonstrates that

Ms. Otto could have been discharged based on either: (a) her

persistent failure to provide lesson plans, (b) her insubordinate

conduct during the September 8, 2010 , conference, or (c) the

abandonment of her post when s he " walked off the job " and never

returned to Forrest High School. These findings render the

timeliness issue moot.

80. In sum, Ms. Otto filed a complaint of discrimination

against DCPS which may have been untimely, but was definitely

factually flawed. The evidence does not support her position

that Dr. Brennan spoke before the faculty and made assertions

that he preferred to hire only young African - American men as his

teachers. It is obvious that Ms. Otto persisted with her case

merely out of misplaced anger towards her principal, and not out

of a sincere belief she had been discriminated against.

81. In light of the facts set out above, DCPS may be

entitled to reimbursement of its legal fees, costs, and expenses

incurred in defending this cause pursua nt to c hapter 120 , Florida

Statutes. In order to determine whether Ms. Otto ' s complaint of

discrimination was brought for an improper purpose or was not

supported by sufficient law or fact at the time it was filed, a

separate action for attorney ' s fees an d costs may be filed by the

DCPS pursuant to section 120.595 or 57.105, Florida Statutes, in

the event FCHR enters a final order in favor of Respondent.

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 Katherine E. Otto ' s

Employment C omplaint of D iscrimination and P etition for R elief.

DONE AND ENTERED this 2 8 th day of December , 2012 , in

Tallahassee, Leon County, Florida.

S

ROBERT S. COHEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 8 th day of December , 2012 .

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

Katherine E. Otto

Apa rtment 407

7740 Plantation Bay Drive

Jacksonville, Florida 32344

Katherine E. Otto

785 Oakleaf Plantation Parkway, Unit 814

Orange Park, Florida 32065

David J. D ' Agata, Esquire

Office of the General Counsel

117 West Duval Street , Suite 480

Jacksonvill e, Florida 32202

Cheyanne Costilla, Interim 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 exception s 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.