Judges: ROBERT E. MEALE
Agency: Commissions
Latest Update: Jun. 26, 1989
Summary: The issue is whether Respondent is guilty of discrimination in employment on the basis of race.No race discrimination where petitioner fired due to poor job performance.
89-0875.PDFSTATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
ARTHUR DENNIS, )
)
Petitioner, )
)
vs. ) CASE NO. 89-0875
)
MEDI-DYN, INC. )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, final hearing in the above-styled case was held on May 4, 1989, in Palm Bay, Florida, before Robert E. Meale, Hearing Officer of the Division of Administrative Hearings.
APPEARANCES
The parties were represented as follows:
For Petitioner: Arthur Dennis, pro se
792 Cecilia Street
Palm Bay, Florida 32909
For Respondent: Lynn Dunning
Vice President, Operations Medi-Dyn, Inc.
8400 East Prentice Avenue, Suite 800
Englewood, Colorado 80111 STATEMENT OF THE ISSUES
The issue is whether Respondent is guilty of discrimination in employment on the basis of race.
PRELIMINARY STATEMENT
On July 12, 1988, Petitioner executed Charge of Discrimination against Respondent. Petitioner alleged that Respondent fired him on May 13, 1988, due to discrimination based on race.
On January 10, 1989, the Florida Commission on Human Relations entered a Notice of Determination: No Cause. On February 10, 1989, Petitioner filed a Petition for Relief. He alleged that Respondent had fired him because he was black.
At the hearing, Petitioner called four witnesses, including himself, and offered into evidence four exhibits. Respondent called two witnesses and offered into evidence 17 exhibits. All exhibits were admitted into evidence, except Petitioner's Exhibits 1, 3, and 4.
The transcript was filed on June 8, 1989. Neither party filed a proposed recommended order.
FINDINGS OF FACT
Petitioner, who is black, was hired by Respondent on September 28, 1987. Respondent is in the business of providing health care institutions with management personnel to supervise environmental-services employees of the institutions. The management personnel supplied by Respondent for the typical customer consist of an on-site director, assistant director, and several supervisors.
Respondent hired Petitioner as a supervisor for assignment to Holmes Regional Medical Center (Holmes). At the time, Respondent had six employees working at Holmes. The responsibilities of a supervisor typically include the management of 10-25 persons. The management responsibilities require, among other things: 1) "daily informal walk-through inspections of each area"; 2) "formal written inspections of each area or the job supervised with the employee at least every month"; 3) "aggressive[ness] in becoming acquainted with all key hospital personnel"; 4) the "develop[ment of] a good professional relationship with each [key hospital employee]"; and 5) the recruitment of personnel to be hired by the customer for assignment to the supervisor's department.
Petitioner had limited relevant experience before joining Respondent. Petitioner had operated his own janitorial business, but had limited experience in supervision. As was the case with all employees, Respondent provided Petitioner with a fairly extensive orientation and training process. Prior to assuming his supervisory responsibilities, Petitioner successfully completed the training program, although he showed signs of ignoring the Medi-Dyn way of doing things and adhering to the ways of his former janitorial business.
On December 28, 1987, Petitioner received his three-month evaluation, which employed a five-point rating. Petitioner averaged ratings of about "3," but received "marginal" ratings of "4" in areas such as initiative, planning, development of subordinates, training effectiveness, administrative ability, organization, and personnel management.
Petitioner was responsible for supervising various areas of Holmes, including certain outbuildings, primarily during the late-evening and early- morning shift. The condition of these areas did not improve following the three-month evaluation.
On January 25, 1988, a Holmes representative sent Respondent's director, Jeff Wahlen, a memorandum listing several complaints concerning the cleanliness of the diagnostic services area, for which Petitioner was responsible.
On February 4, 1988, a representative of a user of one of the outbuildings for which Petitioner was responsible sent Petitioner a letter expressing "deep concern and frustration over the highly unsatisfactory work by [Respondent] at our hospital."
On February 8, 1988, the supervisor of the health and fitness area at the hospital sent Mr. Wahlen a memorandum complaining that the cleanliness of the health and fitness area, for which Petitioner was responsible, was "getting worse."
On February 9, 1988, Mr. Wahlen sent a memorandum to Petitioner itemizing numerous ;operational concerns" and establishing deadlines for achieving corrections of the noted problems. All of these deadlines were within February.
On February 10, 1988, a representative of the bloodmobile/donor center sent a memorandum to Mr. Wahlen objecting to the uncleanliness of their work areas. Mr. Wahlen met with Petitioner that day and discussed cleaning problems in the bloodmobile/donor center areas.
On February 18, 1988, Mr. Wahlen sent Petitioner a follow-up memorandum. Mr. Wahlen reminded Petitioner that the February 9 memorandum required that several objectives should already have been satisfied, but Mr. Wahlen had not received confirmation that these matters had been taken care of.
On February 29, 1988, the supervisor of the health and fitness center sent Petitioner a memorandum informing him that many items on checklists dating from the prior November had still not been addressed. She advised Petitioner that she was considering the termination of the center's contract with Respondent.
On March 10, 1988, Petitioner received a six-month evaluation in which his performance was rated as marginal, and he was placed on probation for 45 days. Petitioner received various tasks that he was to complete during the probationary period. He subsequently completed a large number of them.
From April 13-15, 1988, Alfred Tambolio, who is the national operations director for Respondent, conducted a hospital-wide audit of the Holmes facility. He found that the areas within Petitioner's responsibility were unclean and in unsatisfactory condition.
A week or two later, Mr. Tambolio returned to Holmes for a follow-up inspection. While examining the operating room, for which Petitioner was responsible, a physician told Mr. Tambolio and Petitioner that the area was "filthy." Leaving the operating room, with which Petitioner had displayed insufficient familiarity, Mr. Tambolio asked Petitioner to take him to the labor and delivery area, for which Petitioner was also responsible. Petitioner was unable even to find the area, and they had to ask a hospital employee for directions. Numerous other problems surfaced and many problems previously identified by Mr. Tambolio had not been corrected.
By memorandum dated May 13, 1988, Mr. Wahlen reviewed Mr. Tambolio's second visit and informed Petitioner that he was being terminated. Mr. Wahlen acknowledged that Petitioner had recently been recommended for a satisfactory evaluation, but that Mr. Wahlen had declined to approve the tentative evaluation. Mr. Wahlen explained that, in essence, Petitioner's realization of certain goals did not outweigh his failure to provide satisfactory service in many other respects.
Respondent replaced Petitioner with a person of Hispanic origin. As of May 1, 1988, Respondent employed a total of five blacks, one Hispanic, and one American Indian among its 27 employees serving as supervisors, assistant directors, and directors. Two of the eight directors were black.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter. Section 120.57(1), Florida Statutes.
It is an unlawful employment practice for an employer to discharge or otherwise discriminate against any individual with respect to employment because of such individual's race. Section 760.10(1)(a), Florida Statutes. It is an unlawful employment practice for an employer to limit, segregate, or classify employees in any way that would deprive any individual of employment opportunities or adversely affect his status as an employee because of his race. Section 760.10(1)(b), Florida Statutes.
The provisions of Chapter 760 are analogous to those of Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sections 2000e et seq. Cases interpreting Title VII are therefore applicable to Chapter 760. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981).
In a case involving allegations of disparate treatment, Petitioner must prove a prima facie case of employment discrimination. If he meets that burden, Respondent has the burden of going forward with the evidence to articulate some legitimate, nondiscriminatory reason for its action or failure to act. If Respondent produces such evidence, then Petitioner has the burden of going forward with the evidence to show that the proffered reasons are pretextual. See, e.g., Watson v. Fort Worth Bank and Trust, U.S. , 108 S.Ct. 2777 (1988).
Petitioner has failed to prove a prima facie case of discrimination based on race. He was fired because he was jeopardizing Respondent's relationship with an' important customer. Although at times he showed progress in attaining certain goals set by his Medi-Dyn supervisors, Petitioner failed satisfy the reasonable expectations of his customers. Petitioner was either unable or unwilling to satisfy their repeated, documented demands for better cleaning services. He was finally terminated because his failure to achieve customer satisfaction outweighed his achievement of some, but not all, internally generated goals.
Even if Petitioner had proven a prima facie case of employment discrimination, Respondent articulated legitimate, nondiscriminatory reasons for terminating Petitioner.
RECOMMENDATION
Based on the foregoing, it is hereby
RECOMMENDED that the Petition for Relief filed by Petitioner be dismissed.
ENTERED this 26th day of June, 1989, in Tallahassee, Florida.
ROBERT E. MEALE
Hearing Officer
Division of Administrative Hearings The DeSoto Building
1230 Apalachee Parkway
Tallahassee, Florida 32399-1550
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1989.
COPIES FURNISHED:
Donald A. Griffin Executive Director
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Dana Baird, Esquire General Counsel
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Margaret Agerton, Clerk
Florida Commission on Human Relations
325 John Knox Road Building F, Suite 240
Tallahassee, Florida 32399-1925
Arthur Dennis, pro se 792 Cecilia Street
Palm Bay, Florida 32909
Lynn Dunning
Vice President, Operations Medi-Dyn, Inc.
8400 East Prentice Avenue Suite 800
Englewood, Colorado 80111
Docket for Case No: 89-000875
Orders for Case No: 89-000875
