STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OMEREA HERRING, )

)

Petitioner, )

)

vs. ) Case No. 85-2619

)

SHANDS HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Consistent with the Order of the undersigned dated February 25, 1986, granting a continuance in this case, a hearing was held before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings, in Gainesville, Florida on March 27, 1986. The issue for consideration at this hearing was whether the Petitioner was improperly refused employment with the Respondent because of her handicap.

APPEARANCES

For Petitioner: Phil S. Whiteka, Esquire

537-3 N.E. 1st Street Gainesville, Florida 32601

For Respondent: Thomas M. Gonzales, Esquire

P. O. Box 639

Tampa, Florida 33601 BACKGROUND INFORMATION

On May 15, 1984, the Petitioner, Omerea E. Herring, filed a complaint of discrimination based on handicap with the Florida Commission on Human Relations (CHR) in which she alleged that she had been discharged from employment with the Respondent because of her visual handicap. Thereafter, an investigation into Petitioner's complaint was conducted by an investigator with the Office of Field Services for CHR who, on January 7, 1985, submitted an investigative report in which she concluded there was no reasonable cause to believe Respondent had discriminated against the Petitioner. Based on this investigation, on March 12, 1985, the Executive Director of CHR notified both the Complainant and the Respondent of the fact that the Complainant

had failed to establish reasonable cause to believe that an unlawful employment practice had occurred. Petitioner filed a request for redetermination of that action by the Director and on June 20, 1985, a redetermination notice, again finding no cause, was forwarded to both parties. Thereafter, on July 26, 1985, Petitioner, through counsel, filed a Petition for Relief from Unlawful Employment Practice and requested a formal hearing on July 31, 1985, the petition was transmitted to the Division of Administrative Hearings by the clerk of the Commission with a request for the appointment of a Hearing Officer. On September 6, 1985, the undersigned furnished the parties with a Notice of Hearing setting the hearing for March 4, 1986, on the basis of a stipulation filed by counsel for both parties on August 29, 1985 requesting that the case not be set for hearing for six months.

On February 20, 1986, counsel for both parties again entered a

Motion and Stipulation for Continuance and based on that action, the undersigned continued the hearing from March 4 to March 27, 1986.

At the hearing, counsel for Respondent furnished the Hearing Officer with a copy of a previously filed Motion to Dismiss which had been transmitted by counsel to the Division of Administrative Hearings on August 19, 1985 but which had not been furnished to the Hearing Officer. This Motion to Dismiss was based on the fact that the Petition was not timely filed nor was it supported by a timely charge of discrimination. Since this motion had not previously been furnished to the Hearing Officer, ruling was deferred until such time as testimony was presented. The Motion has been considered and is denied.

Subsequent to the hearing, counsel for Petitioner filed a pleading entitled Argument In Support of Petition for Relief And Setting Forth Findings of Fact. Respondent submitted a Brief in opposition to the Petition. Though statements of fact are included in the Petitioner's submission, they constitute restatements of the evidence submitted and support for Petitioner's argument on the merits and not ultimate findings of fact. Consequently, intermixed as it is, this submission is not readily capable of supporting specific factual rulings. The evidentiary statements contained therein however, for the most part, accurately reflect the state of the evidence.

FINDINGS OF FACT

1. Petitioner, Omerea E. Herring, is a registered nurse with a degree in nursing from LaGrange College in Georgia which she attended between 1976 and 1978. No limitation was placed on her degree nor on her license as a registered nurse because of her handicap.

2. Petitioner is handicapped visually. She was born with toxoplasmosis, a condition which leaves her nearsighted. This congenital condition has stayed the same over the years and will not likely change in the future.

   
   

3. During Petitioner's education, she used regular textbooks, not Braille. She continued college for a year after receiving her nursing degree taking courses in liberal arts, and then was hired as an R.N. in September, 1979 by West Georgia Medical Center.

   
   

4. Petitioner worked as a floating nurse, filling in and doing routine care and other general duties until she voluntarily left employment to move with her husband to another area in Georgia where she again secured employment as a registered nurse. Her duties entailed primarily sterilizing instruments and she remained in that job for approximately four months until her husband completed his education and they moved to Gainesville, Florida.

   
   

5. When Petitioner applied for her nursing jobs, she informed her prospective employers of her condition and because of her handicap, there were some limits placed on her duties. For example, she requested not to be assigned to a heavy medication area and in each case, the hospital accommodated her. She asked for these limitation so as to not run the risk of inadvertently placing patients in danger.

   
   

6. When Petitioner came to Gainesville, she was interviewed at Shands and at the time of her application, advised the interviewer she was physically handicapped and noted it on her application for employment. She was, nonetheless, selected for a further interview with the head nurse of the newborn nursery, Mrs. Wyman. Subsequently, as a result of this second interview, she was hired as an RN I in the newborn nursery starting in July, 1980.

   
   

7. Petitioner worked on several shifts, primarily the seven am to three pm shift, but for three weeks during October, 1980, she worked the three to eleven pm shift.

   
   

8. While on duty, her primary duties were to admit and assess patients, describe vital signs and discharges, and bathe and feed babies. She was also required to instruct new mothers on how to care for their children and did substantial charting. During her time in the nursery she did not give injections or administer medications because of her vision problems. She was unable to read the small print on the medicine bottles. Her supervisor knew this and agreed to the limitation and made alternate arrangements for the administration of medications.

   There was ample staff to do this consisting of between six and eight people on the shift of whom four or five were RN's and the others LPN's, Clerks and Aides.

   
   

9. In November, 1980, she went on maternity leave. When she was originally hired, she was five months pregnant and it was obvious she would have to take maternity leave within a short time. Before leaving, she orally got permission from her supervisor. Her leave was to be for three to six months and when she left work, she was given no indication she would not be allowed to come back.

   
   

10. It was only after the birth of her child, when she went to the hospital to fill out certain insurance forms for the hospital group insurance policy, that she was told by Mr. Bruce Malsbury, an official in the hospital personnel department, that there had been some difficulties with her work in the nursery and she would not be re-placed at Shands Hospital when she was ready to return off maternity leave. When she asked Mr. Malsbury about the availability of alternate employment with the hospital, since it was apparent to her that the decision not to bring her back was related to her visual handicap, he said there was no alternative placement available. To the day of the hearing, she has not received any official notice in writing of her termination. However, in January, 1981, she submitted a letter of resignation to Mr. Malsbury based on her need to be at home with her new child. Petitioner claims however, that this letter was suggested to her by Mr. Malsbury, after he advised her that she would not be rehired, on the basis that if she could show that she resigned, it would be easier for her to secure employment elsewhere. No evidence to contradict this was presented by Respondent. Mr. Malsbury did not testify and the custodian of the records was unfamiliar with the background relating to the letter in question.

11. When it became obvious that Petitioner would not be rehired at Shands, she applied at the Alachua General Hospital in early 1981 for employment as an RN. Though she interviewed, she was turned down on the basis, she was told, of a poor recommendation from Shands.

    
    

12. Respondent contends that Petitioner was terminated from employment as a part-time temporary employee on November 12, 1980, involuntarily, because of derogatory comments contained in her personnel record. On the termination report, signed by Mrs. Wyman on January 12, 1981, there was a recommendation that Petitioner not be rehired in any job. The termination was based on two incidents reflected in incident reports both dated October 27, 1980, thirty minutes apart. In each case, the shift supervisor, Ms. Hitchcock, wrote the Petitioner up because of

    minor injuries to infants which, it was claimed, were resulting from the improper handling of the infants by Petitioner.

    
    

13. Petitioner did not take any action to contest the decision of the Respondent at the time. When Mr. Malsbury discussed the situation with Petitioner at the time she came in to file the insurance forms, he merely indicated there had been a complaint filed by Ms. Hitchcock, but gave no specifics. This was the only notice she was given of any complaints about her work and it related only to the one shift in October, 1980.

    
    

14. Her license as a registered nurse is currently in effect, but during the period June, 1981 through June, 1984, her license was suspended for a period of time. The complaints submitted by Ms. Hitchcock to the Board of Nursing were identical to those described above including allegations that she was too rough with the babies, bumped into things with them, and was improper in her bottle feeding. Though she has applied for employment at other hospitals besides Shands and Alachua General in the general area where she lives, she has not been hired. She is now employed in industry as an industrial nurse doing primary care for employees.

    
    

15. In addition to the part time job in industry, Petitioner also worked for the Sunland system as a cottage nurse during the period August to December, 1981. She left there because of a second pregnancy and decided to stay home and raise her children. Her three children are now ages 5, 3 and 8 months. She has never been fired from any employment other than with Shands.

    
    

16. Petitioner contends there are many RN positions available at Shands where her handicap would not interfere with her duties and she is convinced she could satisfactorily fill any of them. Lists of vacant positions at Shands in the nursing career field for the period February 17, 1984 through September 10, 1984, reveal numerous staff nurse positions available in various departments throughout the hospital. However, Petitioner has failed to show that she is capable of performing duties safely in any of the numerous Staff Nurse I positions. Her unsupported allegations that she can perform many nursing positions which do not require good eyesight is insufficient to establish that she is qualified for any of the listed positions. Notwithstanding, her license is currently in good standing and current and she has completed all educational and other requirements necessary to keep her license current.

    
    

17. In 1984, Petitioner again applied for employment with Respondent but was not given an interview. She was advised in writing that her application would be kept on file but that there

    was no job available for her at that time. A phone call to Mr. Malsbury revealed she was not hired because of her termination in 1980. It is because of this 1984 failure of Shands to hire her that Petitioner filed the complaint with the CHR.

    
    

18. Shand's Policy C, as outlined in Memorandum PM-218, dated January 5, 1984 states that former employees terminated because of unsatisfactory performance, job abandonment, or misconduct, will not be considered for rehire. Since Petitioner had been terminated in 1980 because of unsatisfactory performance, consistent with that policy she was not eligible for rehire in 1984.

    
    

19. Notwithstanding the fact that Ms. Hitchcock and Mrs. Wyman, along with several of the other nurses with whom Petitioner worked considered her performance to be unsatisfactory, others, all of whom are either RN's or LPN's who worked with her at various times when she was a Staff Nurse I in the newborn nursery, and who had the opportunity to observe her on a repeated basis, felt certain that she did her job in a satisfactory fashion. Petitioner made it known what duties she could not do and in all cases, when confronted with a situation where she felt it was improper for her to attempt to render patient care, she got assistance from someone else to do that particular job. None of them ever observed any deficiencies in Petitioner's nursing performance or her educational background which resulted in poor patient care. No one ever saw her injure any child under her care either intentionally or negligently. Most of these witnesses, who have been active in nursery nursing for a period of time, have concluded that babies do, in fact, scratch themselves due to long fingernails and there is no evidence that Petitioner was directly responsible for the injury to any patient under her care. It is also the opinion of one of her associates who complained about Petitioner, that she tended to over-react. Within the nursing community at Shands in the nursery, there was some difference of opinion as to the appropriateness of Petitioner's discharge in the first place.

20. While it is obvious that Petitioner may not have been responsible for substandard care (though her license was suspended for a period) and her discharge may have been more the result of internal ward factionalism rather than ineptitude, there is no evidence that it was the result of unlawful discrimination.

    
    

    CONCLUSIONS OF LAW

    
    

21. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of these proceedings.

22. Under the provisions of Section 23.167(1)(a), Florida Statutes, it is an unlawful employment practice for an employer:

    
    

    To discharge or to fail or to refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

23. When an individual alleges he or she is subject to disparate treatment in employment because of his or her handicap, he has the initial burden of establishing, prima facie, a case of discrimination by a preponderance of the evidence. Once a complainant has done so, the burden then shifts to the employer to demonstrate a legitimate, non-discriminatory reason for the action complained of. Texas Department of Commonwealth Affairs v. Burdine, 101 S.Ct. 1089 (1981).

    
    

24. Petitioner here established that her employment was terminated by the hospital and that the way in which it was done was far less than appropriate. She was given no reason or warning at the time of her alleged improper performance that she was not performing up to standards and had it not been for the fact that she went into the personnel office to fill out some insurance forms relating to her recent delivery, she most probably would not have been told she would not be welcome back until she reported to work and was told she was not employed. The evidence also established that Petitioner was discharged because of dissatisfaction with her work by her supervisors but it also appears that this dissatisfaction was not necessarily

    related to her performance, at least due to her handicap. If her handicap were a problem, surely it would have been noted officially more than the two times, both within an hour of each other, as appears on the record. Indeed, there was more to this discharge than performance deficiencies, regardless of origin, even though that was used as the basis for refusing to rehire her several years later. Further, the action of the Board of Nursing disciplining her license, based on the complaint of one of her supervisors, carries little weight in this determination because there was no evidentiary showing of the basis for the action.

25. Be the above as it may, however, before any of these factors can come into play, Petitioner must carry her burden of proof to show that the refusal to rehire her was handicap motivated. The fact that she was refused employment and the fact that she is shown to have a handicap which did impact on her

duties in the past, does not, nonetheless, establish the essential showing of impropriety so as to shift the burden of proof to the Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that Omerea Herring's Petition for Relief from Unlawful Employment Practice be denied.

RECOMMENDED in Tallahassee, Florida this 29th day of April, 1986.

ARNOLD H. POLLOCK, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 29th day of April, 1986.

COPIES FURNISHED:

Phil S. Whiteka, Esquire 537-3 N.E. 1st Street Gainesville, Florida 32601

Thomas M. Gonzales, Esquire

P. O. Box 639

Tampa, Florida 33601

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Betsy Howard, Clerk

Florida Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303

Docket for Case No: 85-002619

Orders for Case No: 85-002619