vs. ) CASE NO. 87-2391
Respondent. )
Pursuant to notice, an administrative hearing was held before William R. Cave, Hearing Officer with the Division of Administrative Hearings, on July 23, 1987 in Macclenny, Florida. The issue for determination is whether the Respondent, Florida Department of Rehabilitative Services, discriminated against the Petitioner, Joann Postell, when Respondent terminated Petitioner vs employment.
For Petitioner: David A. West, Esquire
For Respondent: Carl G. Swanson, Esquire
In this proceeding, Petitioner is challenging Respondent's termination of her employment and alleges that Respondent discharged Petitioner from her position of employment because of Petitioner's race, to wit: Black.
In support of her position, Petitioner testified on her own behalf and presented the testimony of Leslie Clark, Claude Hunter, Charles Brown and Dan Gibbs. Petitioner's Composite Exhibit No. 2 was received into evidence.
Respondent presented the testimony of Stephen Beard, Geri Knowles and Clarence V. Stottler. Respondent's Composite Exhibit No. 1 was received into evidence.
The parties submitted post-hearing Proposed Findings of Fact and Conclusions of Law. A ruling on each proposed finding of fact has been made, as reflected in the Appendix to this Recommended Order.
Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found:
Petitioner, a black female, was hired by Respondent on May 2, 1978. Petitioner was employed as a psychiatric aide until June 12, 1981. From June 13, 1981 until Petitioner's dismissal by Respondent on October 17, 1985, her primary duties consisted of working with severely mentally ill patients as a Human Services Worker II at Northeast Florida State Hospital in Macclenny, Florida.
At all times material to this proceeding, Petitioner was a permanent employee of Respondent.
Petitioner's immediate supervisor at the time of the incident was Dan Gibbs, a black male.
On September 2, 1985, Petitioner volunteered to work a consecutive eight (8) hour shift from 11:00 p.m. on September 2, 1985 until 7:00 a.m. on September 3, 1925. Petitioner's primary duty was to observe A. G., a suicidal patient, on a one-on-one procedure throughout the entire shift.
The one-on-one procedure requires the observer to remain within arms reach of the assigned patient at all times without interruption.
At approximately 2:30 a.m. on September 3, 1985, Emma Jordan, a white female registered nurse and Geri Knowles, a white female security officer, found the Petitioner asleep in the T.V. Room of Ward Nine (9) with her feet propped up on a chair, a pillow behind her back and a cover over her. Petitioner's co- worker, Freddy Jones, a probationary employee, was also found sleeping and was subsequently terminated by Respondent for sleeping on the job.
Two patients, including A. G., were also asleep. A. G., the patient assigned to Petitioner for a one-on-one procedure, was no less than ten (10) feet from Petitioner. Ten (10) feet is more than arms length.
There was sufficient light from the nurses' station and the television for Jordan and Knowles to determine that Petitioner was asleep. Jordan and Knowles observed Petitioner sleeping for about two (2) minutes before she was awakened by Jordan.
After Petitioner was awakened, Jordan, whose duties included caring for patients on Ward Nine (9), questioned Petitioner about who was responsible for carrying out the one-on- one procedure and was informed by Petitioner that both she and Freddy Jones took turns. When Jordan attempted to explain the safety violation, Petitioner responded with "you ain't my supervisor, mother fucker." From this point, the exchange between Petitioner and Jordan escalated with Petitioner using more obscenities and making actual physical contact with Jordan. Additionally, Petitioner encouraged Jordan to "Fight like a woman, mother fucker." Both Dan Gibbs and Freddy Jones had to intercede and physically restrain Petitioner on two (2) occasions.
Petitioner had previously been suspended for three (3) days in August, 1982 for sleeping while on duty.
Prior to this incident, Petitioner was aware of Respondent's personnel policy concerning disciplinary action for sleeping on the job.
Respondent's disciplinary rule provides for a "written reprimand or up to thirty days suspension or dismissal" for sleeping on the job. With each subsequent occurrence of the same violation, the rule imposes a more severe discipline.
A predetermination hearing was held by Respondent on September 26, 1985 and Petitioner was subsequently discharged by Respondent on October 17, 1985 for sleeping on the job and malicious use of profane language.
The evidence in the record does not reflect a similar instance where an employee (black or white) had been accused and disciplined for sleeping on the job while observing a patient on a one-on-one basis and exhibiting conduct such as the Petitioner exhibited in this instance.
Respondent's hospital had, prior to September 3, 1985, suspended both black and white employees for sleeping on duty and subsequent to this incident dismissed a white male employee for sleeping on duty while assigned to a one-on- one supervision of a patient.
There was no evidence to support Petitioner's contention that her termination was "retaliation" by Respondent because she had successfully challenged an earlier termination by Respondent for abandonment of position. The evidence clearly established that Respondent reinstated Petitioner after receiving additional information from Petitioner without the matter going to hearing.
The evidence clearly establishes that Petitioner was discharged because she was found sleeping on the job while assigned to a suicidal patient on a one-on-one basis and for use of malicious profane language.
The evidence clearly establishes that Respondent's actions were not inconsistent with previous disciplinary actions taken against other employees, both black and white, with similar offenses. There was insufficient evidence to show that Respondent's actions taken in discharging Petitioner were motivated by impermissible racial consideration.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, this proceeding. Section 120.57(1), Florida Statutes (1985).
Section 760.10(1)(a), Florida Statutes (1985), makes it an unlawful employment practice to discharge or otherwise discriminate against any individual because of such individual's race.
In a discrimination case, the Petitioner has the initial burden of establishing a prima facie case of discrimination. If Petitioner succeeds in proving the prima facie case, the burden shifts to the Respondent to articulate some legitimate nondiscriminatory reason for the action complained of. Should the Respondent carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence that the legitimate reasons offered by the Respondent were not its true reason, but were a pretext for discrimination. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089,
67 L Ed. 207 (1981). To establish the prima facie case, Petitioner must present facts which raise "an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254.
In order to present a prima facie case of discrimination, the Petitioner must show: (1) she is a member of a protected class; (2) she was capable of performing her job satisfactorily; and (3) she was discharged. Johnson v. Yellow Freight Systems, Inc. 734 F. 2d 1304 (8th Cir. 1984). The dispute centers not on Petitioner's capabilities, but on her actual job performance and use of malicious use of profane language. Considering the evidence here presented in the light most favorable to Petitioner, it shows that Petitioner was capable of satisfactory performance on the job but failed to perform her assigned duties satisfactorily. The Petitioner established a prima facie case of discriminatory discharge.
There is substantial competent evidence in the record to show that Petitioner was sleeping on the job and not performing her job satisfactorily and that she used profane language which is a sufficient basis for termination under the Respondent's disciplinary rules. It is apparent from the record that Respondent has articulated a sufficient reason for Petitioner's discharge and thereby rebutted Petitioner's prima facie case.
Petitioner argues that Respondent's stated reasons for her discharge are merely a pretext for unlawful discrimination. In attempting to establish pretext, Petitioner claims that other employees, specifically, white employees were found sleeping on the job and unlike Petitioner were only suspended rather than discharged. Although the evidence clearly establishes that employees (both black and white) found sleeping on the job prior to this instance were only suspended by Respondent, the evidence was equally clear that in those instances the employee was charged with only sleeping on the job, not sleeping on the job while assigned to a patient on a one-on-one procedure or for using malicious profane language when questioned about the violation. The Respondent, subsequent to this incident, applied the same policy to a white employee for sleeping on the job, while assigned to a patient on a one-on-one basis, and there was no evidence to suggest that Respondent was acting in any other manner than following its policy to discharge an employee under these circumstances. Petitioner has failed to show that Respondent's basis for discharging her was racially motivated. Therefore, Petitioner has failed to meet her burden to show the reasons offered by Respondent for her discharge were pretextual and that the intent behind the discharge was actually discriminatory.
RECOMMENDATION
Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, it is, therefore,
RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that the Petitioner, Joann Postell has failed to establish that she was discharged due to her race in violation of Section 760.10, Florida Statutes (1985), and that the Petition for Relief be dismissed.
Respectfully submitted and entered this 12th day of August, 1987, in Tallahassee, Leon County, Florida.
WILLIAM R. CAVE
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 12th day of August, 1987.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2391
The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
1.(a)(b) That Petitioner was employed by Respondent and terminated for sleeping on the job is adopted in Findings of Fact 1 and 13. The balance of the introductory sentence is rejected as not being a finding of fact but that Petitioner's argument that her dismissal was discriminatory.
Rejected as not stating a fact but only why Petitioner denied being asleep.
Adopted in substance in Finding of Fact 15.
2. Rejected as being argument rather than a finding of fact.
Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard
David A. West, Esquire Legal Counsel
Carl G. Swanson, Esquire
Donald A. Griffin Executive Director
