School Bd. of Leon County v. Hargis, WW-222

• Decision Date: 16 June 1981
• Docket Number: No. WW-222,WW-222
• Citation: 400 So.2d 103
• Parties: 38 Fair Empl.Prac.Cas. (BNA) 432 SCHOOL BOARD OF LEON COUNTY, Appellant, v. Mary E. HARGIS and Florida Commission On Human Relations, Appellees.
• Court: Florida District Court of Appeals

Page 103

400 So.2d 103

38 Fair Empl.Prac.Cas. (BNA) 432

SCHOOL BOARD OF LEON COUNTY, Appellant, v. Mary E. HARGIS and Florida Commission On Human Relations, Appellees.

No. WW-222.

District Court of Appeal of Florida, First District.

June 16, 1981.

Charles A. Johnson, Tallahassee, for appellant.

Aurelio Durana and Larry K. White, Tallahassee, for appellee.

ROBERT P. SMITH, Jr., Judge.

This is an appeal by the Leon County School Board from a final order of the Commission on Human Relations, following referral to the Division of Administrative Hearings for a hearing and recommended order, Section 120.57, in which the Commission ultimately finds that the Board illegally discriminated because of race against a black employee, Mary Hargis, by refusing to permit her to apply and be considered for a certain food service job in Fairview Middle School. Section 23.167(1)(a), Fla.Stat. (1979). We reverse the Commission's order because it improperly substitutes the Commission's view of disputed facts for that of the hearing officer who conducted the evidentiary hearing; but, finding in the Commission's order and briefs a possible alternative ground for the Commission's decision, involving questions of policy and procedure on which the Commission's views are entitled to greater deference, we remand the case to give the Commission a further opportunity to enter an order satisfactorily expounding those views on a proper record foundation.

The Human Rights Act of 1977, Section 23.161 et seq., prohibits unfair employment practices discriminating "with respect to compensation, terms, conditions, or privileges of employment, because of ... race, color, religion, sex, national origin, age, handicap, or marital status." Section 23.167(1) (a). To remedy such discriminatory practices the Act creates the Florida Commission on Human Relations, a 12-member body appointed by the Governor and confirmed by the Senate, drawn from "various racial, religious, ethnic, social, economic, political, and professional groups within the state." Section 23.163. The Commission is empowered to receive and consider complaints of discriminatory employment practices and, finding that such a practice has occurred, to "issue an order prohibiting the practice and providing affirmative relief from the effects of the practice, including reasonable attorney's fees." Section 23.167(13). The Commission's actions are subject to the Administrative Procedure Act, Chapter 120.

At the time of the events giving rise to the complaint, Hargis was employed at Fairview School in a food service position identical to the one for which she made futile application in September 1978, except that the job she wanted offered five-and-a-half hours' work each day and the job she held offered but three-and-a-half. In October 1977 a fellow worker in the five-and-a-half hour job at Fairview School was taken ill, and Hargis and other three-and-a-half hour workers were given an opportunity by the food service manager to speak for the extra-hours job on a temporary basis. Only Minnie Barfield, who is Caucasian, spoke for the extra work. Hargis declined due to a conflicting schedule for taking her children to school. Barfield therefore was given the extra two hours' work on a temporary basis, pending the return of the incumbent, who was granted leave without pay. Then began a series of administrative misadventures. First, in January, School Board records unaccountably transferred Barfield permanently to the ill incumbent's position for pay purposes, though the incumbent was not ousted. Then, when all "permanent" appointments expired at the end of the school year, the Board's personnel mechanism routinely ground out invitations to all eligible "permanent" 1977-78 employees, calling for them to express interest in reappointment to their respective permanent positions for 1978-79. To this invitation Barfield said yes, and an appointment form was issued on August 3, 1978, duly approved by the School Board, appointing Barfield anew to the five-and-a-half hour permanent position for the 1978-79 school year.

On August 17, the former incumbent, who had been carried in leave-of-absence status for the last several months of the past school year, resigned. A vacant permanent position was thus at last created, which the Board's personnel mechanism recognized as such. In due course the Board published and posted at Fairview School a job opportunity bulletin. The hearing officer found:

Respondent's (School Board's) personnel department issued a Job Opportunity Bulletin on September 5, 1978, announcing the vacancy which stated that anyone interested in being considered for the position should contact the personnel office before the application deadline of September 12, 1978.

At this point, events critical to the evaluation of this Human Rights Act complaint ensued. The union contract applicable to food service workers provided that employees applying for a vacancy must be considered before an employment decision is reached. And the School Board's applicable employment directive provides that applicants for a position must file an application with the personnel department and that, after close of the advertising period, a list of qualified applicants is to be submitted to the school principal for interviews, followed by the principal's recommendation to the personnel department, followed by the appointment. In practice the Fairview School food service manager rather than its principal conducts interviews and recommends food service appointments.

On about September 6, 1978, Hargis saw the Job Opportunity Bulletin posted in the School Board's administration building and made inquiry concerning the advertised position at the office of the Board's director of food service, who a month earlier had routinely recommended Board appointment of Barfield, as stated above. Upon inquiring, Hargis was advised by an employee in the office that the job had already been filled. Hargis went next to the Fairview School principal, who told her he would look into the matter. He did so and was advised by his school manager of food service "that she had not offered the job to (Hargis) because (Hargis) had previously declined the position in 1977." Hargis then pursued the matter with her food service manager, who confirmed that Barfield would retain the position because she had worked in it the prior year. Neither Barfield nor Hargis ever filed a written application for the "permanent" 1978-79 appointment.

Hargis thereupon filed her complaint with the Commission on Human Relations. Although empowered by statute and its rules to hold factfinding hearings itself, ¹ the Commission assigned the case for hearing to DOAH, whose officer conducted a hearing and heard the witnesses. The hearing officer, after making appropriate findings of fact essentially as we have narrated the events above, announced as a "conclusion of law" that the School Board was negligent in assuming the job was already properly filled when Hargis inquired about the opening and was negligent in failing to follow contractual hiring procedures, but that "no evidence was presented at the hearing from which it can be concluded or even inferred that (Hargis) was the subject of unlawful discrimination because of her race or color." The hearing officer thus recommended that the Commission dismiss the complaint.

After a nonevidentiary hearing on the recommended order, the Commission issued a final order adopting the hearing officer's findings of fact but substituting "conclusions of law" to the effect that the School Board's nondiscriminatory explanation for its failure to hire Hargis a claimed "lack of coordination and communication in advertising the vacancy" was "merely a pretext for racial discrimination against Mrs. Hargis." In reaching this conclusion the Commission emphasized Hargis' qualifications for the job, including her seniority over Barfield; the informality of procedures by which Barfield was deemed selected for the position "prior to the proper posting of notices and without complying with (the School Board's) collective bargaining agreement"; and, seemingly most important, the School Board's failure to take corrective action to reopen the appointment when, in September 1978, both the Fairview principal and its food service manager were apprised that the selection process had excluded from consideration a qualified employee the only black food service worker at Fairview. The Commission stated:

It can only be concluded that (the School Board) knew of the racially discriminatory impacts of its decision and that (the Board) intended the consequences of its acts.

Finally, the Commission stated it was "obvious that (the School Board) ... sought to cover up its unlawful activity by posting of vacancy announcements after the employment decision had been made."

Obviously the Commission's conclusions are in irreconcilable conflict with the hearing officer's conclusion that

... no evidence was presented at the hearing from which it can be concluded or even inferred that (Hargis) was the subject of unlawful discrimination because of her race or color.

In determining the propriety of the Commission's substitution of ultimate findings for those of the hearing officer, we give no great weight to the labeling of the conflicting findings as "conclusions of law" rather than "findings of fact." Though the hearing officer's labeling informs us that he properly sensed the presence of policy and legal considerations in the task of weighing the evidence of racial discrimination, and he chose not to mask his ultimate finding as wholly a finding of fact, we nevertheless give the hearing officer's finding effect to the extent the issue was "simply the weight or credibility of testimony by witnesses," or was determinable "by ordinary methods of proof," " or was in a factual realm concerning which "the agency may not rightfully claim special insight. " ...