15-001800 Sharon Singleton vs. Escambia County School District Status: Closed Recommended Order on Friday, December 11, 2015.

Summary: Petitioner failed to prove that the non-renewal of her employment contract was due to age discrimination by her employer, the school district. Her petition should, therefore, be dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SHARON SINGLETON,

Petitioner,

vs. Case No. 15 - 1800

ESCAMBIA COUNTY SCHOOL DISTRICT,

Respondent.

_______________________________/

RECOMMENDED ORDER

A final hearing was held in th is matter before Robert S.

Cohen, Administrative Law Judge with the Division of

Administrative Hearings (DOAH), on August 6 , 2015, in Pensacola ,

Florida.

APPEARANCES

For Petitioner: Ryan M. Barnett, Esquire

Whibbs and Stone, P.A.

801 West Romana Street, Unit C

Pensacola, Florida 32502

For Respondent: Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

STATEMENT OF THE ISSUE

The issue is whether Petitioner was terminated from her

employment with Respondent for a discriminatory reason.

PRELIMINARY STATEMENT

Petitioner , Sharon Singleton, filed a n Employment Complaint

of Discrimination , along with s upporting documents, with the

Florida Commission on Human Relations (FCHR) against the Escambia

County School District ( Ð Respondent Ñ or Ð District Ñ ) , alleging she

was discriminated against based upon her age . Following an

investigation, FCHR issued a D eter mination : No Cause on

February 23, 2015 .

Petitioner filed a Petition for Relief on March 31, 2015 ,

with FCHR challenging its determination . The petition was

forwarded to the Division of Administrative Hearings on April 1,

2015 .

T he final hearing in t his case was scheduled to commence on

June 10 and 11, 2015 . On June 2, 2015, the parties filed a Joint

Motion for Continuance and Extension to File Prehearing

Stipulations. The motion was granted. The final hearing was

rescheduled for August 6 and 7, 20 15 , in Pensacola, Florida .

At the hearing, Petitioner testified on her own behalf and

presented the testimony of Tammy Kirkland, Edna Greene, and

Jeannie Taylor Bodie . Petitioner offered 12 exhibits, all of

which were admitted into evidence. Respondent p resented the

testimony of Kathy Cooper, Johnnie Odom, Sean Griffith, Ben

Romano, and Thomas Ingram. Respondent offered 15 exhibits , all

of which were admitted into evidence. The final hearing was

completed on August 6, 2015.

A two - volume Transcript was f iled on September 18 , 2015.

Petitioner and Respondent filed their proposed findings of fact

and conclusions of law on October 1, 2015 .

References to statutes are to Florida Statutes (201 5 ) ,

unless otherwise noted.

FINDING S OF FACT

1. Petitioner, Shar on Singleton, was employed by Respondent

in the Information Technology (IT) Department. Petitioner

served, as did other IT employees, under an annual contract.

2. Respondent is the administrative government entity for

the public schools of Escambia Count y, Florida. Contracts of

employment are with the Escambia County School Board.

3. Mr. Johnnie Odom supervised Petitioner until the last

eight months of her employment. Her supervisor was Kathy Cooper

during the last eight months of her employment.

4. F or many years, Petitioner and the other technicians

used a software program that supported the management of school

records that was known as Ð TERMS. Ñ During the last few years of

Petitioner Ó s employment, the District changed the supporting

software progr am from TERMS to a program known as Ð FOCUS. Ñ This

was a major conversion of software programs that took place over

an extended period of time.

5. When the FOCUS program was initiated, Respondent hired

three additional technicians to support FOCUS. Petit ioner

disagreed with the hiring of new technicians to support FOCUS,

but acknowledges she was not treated any differently from the

other Tech III support staff. Her disagreement was over the

hiring of the new technicians , rather than allowing the existing

ones to serve as primary support for FOCUS.

6. Petitioner sought a promotion to a higher level position

in 2011. The promotion process was administered by a selection

committee that interviewed and evaluated candidates. As a result

of the competitive s election, Petitioner was not recommended or

selected for the promotion. On two prior occasions, P etitioner

had sought a promotion , and on both occasions a selection

committee ranked and evaluated the candidates. Petitioner was

not successful in being sel ected or promoted on those two prior

occasions.

7. For the 2011 - 2012 school year, Petitioner received

unsatisfactory ratings for her administrative/professional

techniques and skills, as well as for her professional

relationships with staff. Th e evaluati on contained a note

stating that Petitioner has difficulty in resolving conflicts

with her co - workers and that her supervisor would like to see her

resolve conflicts with her co - workers in a more diplomatic

manner.

8. Petitioner had received some uns atisfactory or needs

improvement marks in her previous years Ó evaluations, so 2011 -

2012 was not the first time she had received less than

satisfactory marks. Nevertheless, following the 2011 - 2012 annual

evaluation, Petitioner received an annual employment contract for

the next school year.

9. At the end of the next school year, Petitioner again

received an unsatisfactory mark for her professional techniques

and skills. She also was cited for needing improvement in other

areas. The notes to that evalua tion stated Petitioner had

improved her relationships with co - workers, but was still having

problems adjusting to the new programs that required modernizing

her skill set. Despite a few negative marks on her evaluation,

Petitioner received an annual contr act for the 2013 - 2014 school

year.

10. Petitioner did not dispute the fact that her evaluator

and supervisor, Mr. Odom, believed her performance was

unsatisfactory. She disagreed, however, with his assessment of

her performance.

11. Petitioner believed she had been demoted in the

2013 - 2014 school year and testified she signed a paper

acknowledging a demotion in a disciplinary meeting with the IT

department director, Tom Ingram. She did not receive a reduction

in salary o r benefits, however.

12. Mr. Ingram classified the action taken against

Petitioner as a restriction of her duties to Level I telephone

support , rather than the more challenging Level II telephone

support duties that she had performed in the past. He did not

consider this a demotion, but more of a recognition of assigning

Petitioner to duties that he believed she could better handle

with her skill set.

13. Petitioner testified that Ms. Cooper told her on

several occasions she should consider retirement. Petitioner

took this as eviden ce of Ms. Cooper Ó s belief she was too old to

perform her job. Ms. Cooper testified she made the suggestion

because Petitioner had an elderly mother who lived in a nursing

home and needed assistance. Ms. Cooper was responding to

Petitioner having told her she was left with little time to care

for her mother when she finished with work. Petitioner

acknowledged that her mother was elderly and needed help and that

she had told this to Ms. Cooper.

14. During Petitioner Ó s final eight months of employment,

s he worked mainly telephone support under the direction of

Ms. Cooper, the s upport m anager for the District. Ms. Cooper

manages the help desk and IT support staff. She manages two

levels of support. Level I support involves matters that can be

resolved b y telephone, while Level II support is for matters that

cannot be resolved in five minutes or less and require more

expertise to cure.

15. Ms. Cooper developed concerns about Petitioner Ó s

support performance. She took her concerns to the Director of

IT, Mr. Ingram. Similar concerns with Petitioner Ó s performance

had been raised by another support technician , as well. That

technician reported that one of the schools to which he and

Petitioner had both been assigned, asked that Petitioner not be

allowed to return there for support in the future.

16. When Ms. Cooper brought her concerns about Petitioner

to Mr. Ingram, he asked that she bring him documentation of her

concerns evidencing recent issues concerning Petitioner Ó s

performance.

17. Mr. Ingram m et with Petitioner on September 3, 2013, to

review her performance. Mr. Ingram Ó s notes from that meeting

document his concern with Petitioner Ó s performance and he

restricted her duties at that time to telephone support because

he did not believe she could independently provide on - site

support to more schools. His notes further indicate that

Petitioner was not satisfied with his conclusions regarding her

performance.

18. Mr. Ingram conducted a follow - up interview with

Petitioner on September 4, 2013, be cause Petitioner wanted to

share with him the evaluation she had received from Mr. Odom for

the 2012 - 2013 school year. Mr. Ingram told Petitioner he agreed

with the evaluation conducted and recorded by Mr. Odom.

19. Mr. Ingram had yet another meeting wit h Petitioner in

March 2014 regarding her performance. With Ms. Cooper present,

Mr. Ingram reviewed documentation concerning Petitioner Ó s

unsatisfactory performance. The meeting was held pursuant to a

Notice of Consideration of Disciplinary Action served on

Petitioner. As a result of the meeting, Mr. Ingram was not

confident Petitioner could satisfactorily improve her

performance. He believed that Petitioner refused to accept the

representative examples he gave her of her unsatisfactory

performance.

20 . After concluding at the March meeting that Petitioner Ó s

performance would not sufficiently improve, Mr. Ingram decided

not to renew Petitioner Ó s annual contract when it expired in

June 2014.

21. Petitioner believed she had been marginalized by her

perc eived demotion to a Level I telephone support technician.

She also was removed from ZENworks, a scheduling program she had

previously been involved with over the years, becoming the only

employee on the support team that was not allowed to participate

in that program.

22. Petitioner believed that all the criticisms of her work

by management were hyper - technical, and that she received little,

if any, feedback or training during the period for which she was

evaluated when the unsatisfactory findings were ma de. She also

attempted to show that others who made errors similar to hers

were given promotions. The evidence presented on this point was

insufficient to support her claim of disparate treatment.

23. Several retired or long - serving District employees

testified that their interaction over the years with Petitioner

resulted in responsive and high - quality service from Petitioner.

None of these witnesses testified about specific support they

received from Petitioner during the last three years of her

emp loyment, employing the new FOCUS system, which served as the

basis for the non - renewal of her contract.

24. Petitioner testified she should receive damages in the

amount of $384,000 as the result of her employment being

terminated while she was a particip ant in the midst of D.R.O.P.

CONCLUSIONS OF LAW

25 . The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and the

parties thereto pursuant to sections 120.569, 120.57(1), and

760.11(4)(b), Florida Statutes.

2 6 . Section 760.10(1)(a) states as follows:

(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, term s, conditions,

or privileges of employment, because of such

individual Ó s race, color, religion, sex,

national origin, age, handicap, or marital

status.

27 . Petitioner is an Ð aggrieved person, Ñ and Respondent is

an Ð employer Ñ within the meaning of sectio n 760.02(10) and (7),

respectively.

28 . The Florida Civil Rights Act (FCRA), sections 760.01

through 760.11, as amended, was patterned after Title VII of the

Civil Rights Act of 1964, 42 U.S.C. § 2000 et seq. Federal case

law interpreting Title VII is a pplicable to cases arising under

the FCRA. See Green v. Burger King Corp. , 728 So. 2d 369, 370 - 71

(Fla. 3d DCA 1999); FSU v. Sondel , 685 So. 2d 923 (Fla. 1st DCA

1996).

29 . Petitioner has the burden of proving by a preponderance

of the evidence that Res pondent has discriminated against her .

See Fla. Dep Ó t of Transp. v. J.W.C. Co., Inc. , 396 So. 2d 778

(Fla. 1st DCA 1981).

30 . The United States Supreme Court has established an

analytical framework within which courts should examine claims of

discriminat ion, including claims of age and disability

discrimination. In cases alleging discriminatory treatment, the

p etitioner has the initial burden of establishing, by a

preponderance of the evidence, a prima facie case of

discrimination. St. Mary Ó s Honor Ctr. v. Hicks , 509 U.S. 502

(1993); Combs v. Plantation Patterns , 106 F.3d 1519 (11th Cir.

1997).

31 . Petitioner can establish a prima facie case of

discrimination in one of three ways: (1) by producing direct

evidence of discriminatory intent; (2) by circu mstantial evidence

under the framework set forth in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973); or (3) by establishing statistical

proof of a pattern of discriminatory conduct. Carter v. City of

Miami , 870 F.2d 578 (11th Cir. 1989). If Petitio ner cannot

establish all of the elements necessary to prove a prima facie

case, Respondent is entitled to entry of judgment in its favor.

Earley v. Champion Int Ó l Corp. , 907 F.2d 1077 (11th Cir. 1990).

32 . To establish a prima facie case of discriminatio n,

Petitioner must show: (1) that s he is a member of a protected

class; (2) that s he suffered an adverse employment action;

(3) that s he received disparate treatment from other similarly

situated individuals in a non - protected class; and (4) that there

is sufficient evidence of bias to infer a causal connection

between h er age or sex and the disparate treatment. Andrade v.

Morse Ops . , Inc. , 946 F. Supp. 979, 982 (M.D. Fla. 1996).

3 3 . Ð [N]ot every comment concerning a person Ó s age presents

direct evidenc e of discrimination. Ñ Young v. Gen . Foods Corp. ,

840 F.2d 825, 829 (11th Cir. 1988). Ð [D]irect evidence is

composed of Ò only the most blatant remarks, whose intent could be

nothing other than to discriminate Ó on the basis of some

impermissible factor . . . . If an alleged statement at best

merely suggests a discriminatory motive, then it is by definition

only circumstantial evidence. Ñ Schoenfeld v. Babbitt , 168 F.3d

1257, 1266 (11th Cir. 1999). Likewise, a statement Ð that is

subject to more than one in terpretation . . . does not constitute

direct evidence. Ñ Merritt v. Dillard Paper Co. , 120 F.3d 1181,

1189 (11th Cir. 1997). The comments made by Ms. Cooper that

maybe Petitioner should retire appear related to the fact that

Petitioner has an elderly mot her in a nursing home who would

benefit from her care, not that she is too old to perform the

essential tasks of her job. Ms. Cooper Ó s testimony on this point

was credible , and the evidence does not support a finding that

Ms. Cooper Ó s remarks regarding Pe titioner retiring were intended

to discriminate against her.

34 . Ð [D]irect evidence of intent is often unavailable. Ñ

Shealy v. City of Albany Ga. , 89 F.3d 804, 806 (11th Cir. 1996).

For this reason, those who claim to be victims of discrimination

Ð are p ermitted to establish their cases through inferential and

circumstantial proof. Ñ Kline v. Tenn. Valley Auth. , 128 F.3d

337, 348 (6th Cir. 1997).

35 . In McDonnell Douglas , 411 U.S. 792, 800 - 803 (1973), the

Supreme Court articulated a burden of proof sche me for cases

involving allegations of discrimination under Title VII, where

the plaintiff relies upon circumstantial evidence. The McDonnell

Douglas decision is persuasive in this case, as is Hicks , 509

U.S. 502, 506 - 07 (1993), in which the Court reiterat ed and

refined the McDonnell Douglas analysis. Pursuant to this

analysis, the plaintiff (Petitioner herein) has the initial

burden of establishing by a preponderance of the evidence a prima

facie case of unlawful discrimination. Failure to establish a

pr ima facie case of discrimination ends the inquiry. See Ratliff

v. State , 666 So. 2d 1008, 1012 n.6 (Fla. 1st DCA 1996), aff Ó d ,

679 So. 2d 1183 (1996) ( citing Arnold v. Burger Queen Sys. , 509

So. 2d 958 (Fla. 2d DCA 1987)).

36 . If, however, the plaintiff (Petitioner herein) succeeds

in making a prima facie case, then the burden shifts to the

defendant (Respondent herein) to articulate some legitimate,

nondiscriminatory reason for its complained - of conduct. If the

defendant carries this burden of rebuttin g the plaintiff Ó s prima

facie case, then the plaintiff must demonstrate that the

proffered reason was not the true reason, but merely a pretext

for discrimination. McDonnell Douglas , 411 U.S. at 802 - 03;

Hicks , 509 U.S. at 506 - 07.

37 . In Hicks , the Court stressed that even if the trier - of -

fact were to reject as incredible the reason put forward by the

defendant in justification for its actions, the burden

nevertheless would remain with the plaintiff to prove the

ultimate question of whether the defendant intentionally had

discriminated against him. Hicks , 509 U.S. at 511. Ð It is not

enough, in other words, to disbelieve the employer; the fact

finder must believe the plaintiff Ó s explanation of intentional

discrimination. Ñ Id. at 519.

38 . In order to p rove intentional discrimination,

Petitioner must prove that Respondent intentionally discriminated

against her . It is not the role of this tribunal to second - guess

Respondent Ó s business judgment. As stated by the court in

Chapman v. AI Transp ortation , 22 9 F.3d 1012, 1030 (11th Cir.

2000) :

[C] ourts do not sit as a super - personnel

department that reexamines an entity Ó s

business decisions. No matter how mistaken

the firm Ó s managers, the [Civil Rights Act]

does not interfere. Rather, our inquiry is

limited to whether the employer gave an

honest explanation of its behavior. An

employer may fire an employee for a good

reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as

long as its action is not for a

discriminatory reason.

( citations omitted) .

39 . At the administrative hearing held in this case,

Petitioner had the burden of proving that s he was the victim of a

discriminatorily motivated action. See Dep Ó t of Banking & Fin.,

Div. of Sec. & Investor Prot. v. Osborne Stern & C o. , 670 So. 2d

932, 934 (Fla. 1996) ( Ð The general rule is that a party asserting

the affirmative of an issue has the burden of presenting evidence

as to that issue. Ñ ); Fla. Dep Ó t of Health & Rehabilitative Servs.

v. Career Serv. Comm Ó n , 289 So. 2d 412, 414 (Fla. 4th DCA 1974)

( Ð The burden of proof is Ò on the party asserting the affirmative

of an issue before an administrative tribunal. ÓÑ ).

40 . Petitioner made a prima facie showing that due to her

age, 62 , s he is a member of a protected class, and the non -

renewal of her contract qualified as an adverse employment

action, but failed to make a prima facie case that s he received

dissimilar treatment from other similarly - situated individuals in

a non - protected class , that there was any bias against her , or

that her employment was terminated for a discriminatory reason .

41 . Ð To show that employees are similarly - situated the

Petitioner must show that the Ò employees are similarly - situated

in all relevant aspects. ÓÑ Knight v. Baptist Hosp. of Miami,

Inc. , 330 F.3 d 1313, 1316 (11 th Cir. 2003) . Ð The comparator must

be nearly identical to the petitioner, to prevent courts from

second guessing a reasonable decision by the employer. Ñ Wilson

v. B/E Aero space , Inc. , 376 F.3d 1079, 1091 (11th Cir. 2004). In

other words , Petitioner must be Ð matched with persons having

similar job - related characteristics who were similarly situated Ñ

to Petitioner. MacPherson v. Univ. of Montevallo , 922 F.2d 766,

775 (11th Cir. 1991).

42 . Plainly stated, in order to establish the third element

of the prima facie case, Petitioner must produce evidence that

would permit the trier of fact to conclude that Respondent

treated employees of a different age more favorably than

Petitioner. See Lathem v. Dep Ó t of Child . & Youth Servs. , 172

F.3d 7 86, 793 (11th Cir. 1999).

43 . Petitioner cannot meet this burden because s he has

presented no competent evidence of any similarly - situated

employees outside of h er protected class being treated more

favorably. The comments from Ms. Cooper are easily con strued to

relate to Petitioner Ó s mother Ó s need for more of her time, rather

than related to her job performance or her perception that her

employers believed she could not perform her job due to her age.

44 . In Damon v. Fleming Supermarkets of Fla., Inc. , 196

F.3d 1354, 1361 (11th Cir. 1999), the court noted that courts

Ð are not in the business of adjudging whether employment

decisions are prudent or fair. Instead our sole concern is

whether unlawful discriminatory animus motivates a challenged

employment decision. Ñ The present case lacks proof of

discriminatory intent in the District Ó s non - renewal of

Petitioner Ó s employment contract.

45 . Based upon the evidence and testimony offered at

hearing, Petitioner failed to establish a prima facie case

against Respondent for age discrimination or any other type of

discrimination . Accordingly, Respondent is not found to have

committed the Ð unlawful employment practice Ñ alleged in the

employment discrimination charge which is the subject of this

proceeding. Ther efore, the employment discrimination charge

should be dismissed and none of the damages claimed by Petitioner

should be awarded to her .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Comm ission on Human Relations

issue a final order finding Respondent did not commit the

Ð unlawful employment practice Ñ alleged by Petitioner and

dismissing Petitioner Ó s employment discrimination charge.

DONE AND ENTERED this 11th day of December , 2015 , in

Tall ahassee, 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 11th day of December , 2015 .

COPIES FURNISHED:

Ryan M. Barnett, Esquire

Whibbs and Stone, P.A.

801 West Romana Street, Unit C

Pensacola, Florida 32502

(eSer ved)

Joseph L. Hammons, Esquire

The Hammons Law Firm, P.A.

17 West Cervantes Street

Pensacola, Florida 32501 - 3125

(eServed)

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

(eSe rved)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 da ys 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.