vs. ) CASE NO. 89-4386
Respondent. )
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, Jane C. Hayman, held a formal hearing in the above- styled case on December 7, 1989 in West Palm Beach, Florida.
For Petitioner: Glen J. Torcivia, Esquire
For Respondent: Michael D. Malfitano, Esquire
P.O. Box 1531
The issue presented is whether Petitioner was discriminated against by Respondent on the basis of handicap within the meaning of the Human Rights Act of 1977 when Respondent failed to return Petitioner to the head nurse position of the I.V. therapy team subsequent to her medical leave of absence.
Petitioner filed a charge of discrimination with the Florida Commission on Human Relations on September 23, 1987, alleging that Respondent, Boca Raton Community Hospital, had discriminated against her because of her handicap.
Specifically, Petitioner alleged that Respondent unlawfully failed to return Petitioner to her former position as head nurse of the Hospital's I.V. therapy team within the nursing department after a nearly one year leave of absence for treatment of ovarian cancer.
A "Notice of Determination: No Cause" was served upon the parties on April 24, 1989 pursuant to Rules 22T-9.004(5) and (6), Florida Administrative Code.
Petitioner filed a request for redetermination, and the original determination was reviewed by the Commission. A redetermination affirming the no cause
finding was issued on June 30, 1989, and Petitioner filed a Petition for Relief. The Commission referred the matter to the Division of Administrative Hearings and requested the appointment of a Hearing Officer to conduct a formal hearing pursuant to Section 120.57(1), Florida Statutes (1987).
At the hearing, Petitioner presented the testimony of one witness and testified on her own behalf. Respondent presented the testimony of five witnesses and offered one exhibit which was received into evidence. Two additional exhibits were admitted into evidence as joint exhibits offered by the parties.
A transcript of the proceeding was filed on April 2, 1990, and both parties timely submitted proposed findings of fact. A ruling on each proposed finding of fact has been made and is reflected in the appendix to this recommended order.
At all times material hereto, Petitioner, Joyce Lovasz, was employed as a nurse by Respondent, Boca Raton Community Hospital (Hospital). In 1987, after a medical leave of absence, the Hospital decided not to place Petitioner in the position she held prior to her leave.
Petitioner was originally hired by the Respondent in 1970 as a staff nurse. She was promoted to a charge nurse position and then to supervisor of the home health unit. In 1974, she left the Hospital for a position at another hospital. Then, in 1979, Petitioner was asked to return to the Hospital by Tracy Reichert, then, the Director of Nursing Services Administration. Petitioner was selected as head nurse of the I.V. therapy team and began this service on February 12, 1979.
In the summer of 1983, Ms. Reichert became aware that there was a significant amount of dissension within the I.V. team and considerable unhappiness on the part of the employees working under Petitioner's supervision with respect to their management by Petitioner.
Also, beginning in the summer of 1983, members of the I.V. team met with Terrance Braun, the Hospital's Personnel Director, and discussed their problematic treatment by Petitioner. Their concerns continued, however.
Around the same time, some of the I.V. team's members consulted Donna Hearn, who was, then, in charge of the Hospital's Employee Assistance Program. The team members sought Ms. Hearn's counsel because of their concern for Petitioner's well-being, as well as a concern for themselves and their job security.
At the meeting with Ms. Hearn, the I.V. team members disclosed behavior of Petitioner which could be characterized as unprofessional. They also talked of Petitioner's favorable actions toward some members of the team. Petitioner's behavior was splitting the team and causing great dissension within it. Some of the Petitioner's actions which caused concern included Petitioner's tape recording of conversations with employees, maintaining a hidden tape recorder in her drawer, taking unexplained absences from the Hospital during scheduled work time, making abrupt scheduling changes, announcing changes in procedures in the middle of doing an I.V. application, and writing different memos to the favored
and disfavored factions of the I.V. team concerning the same subject, including constructive memos to the favored team and curt, nonconstructive memos to the disfavored group.
The problems persisted, and members of the I.V. team continued to seek counsel from Ms. Hearn throughout the remainder of 1983, and all of 1984 and 1985. Ms. Hearn, who was trained as a counselor, was convinced of the truthfulness of the reports she was receiving from the I.V. team members.
As a result of her meetings with the I.V. team, Ms. Hearn discussed the Petitioner's behavior towards I.V. team members with Mr. Braun and Ms. Reichert. Ms. Reichert disclosed to Ms. Hearn that she had concerns about Petitioner's management style and that she would talk to Petitioner.
During this period, Ms. Reichert began a dialogue with Petitioner about her management style and problems in supervising the I.V. team. At Ms. Reichert's encouragement, Petitioner visited with Ms. Hearn but was not willing to discuss topics that related to her management of the team. Ms. Reichert had numerous other discussions with Petitioner concerning their difference of opinion on Petitioner's management of her employees and the continuing dissension within the I.V. team. Petitioner grew increasingly critical of Ms. Reichert in front of I.V. team members and was frequently critical of nursing administration in general.
In the summer of 1985, Ms. Reichert and Petitioner engaged in a lengthy conversation relating to Petitioner's management of her team. Petitioner asked Reichert if she wanted her to vacate the I.V. head nurse position. Reichert declined on the condition that Petitioner change her management style of supervising the unit. As a result of this meeting, Ms. Reichert decided to assign Ann Capron, Assistant Director of Nursing, to be the immediate supervisor of Petitioner to see if she could influence Petitioner to change her management style and alleviate the problems in the I.V. team. At that point, Ms. Reichert decided to give Ms. Capron six months to work with Petitioner closely and if the problems did not resolve, Ms. Reichert would recommend the termination of Petitioner.
The problems continued, however. Ms. Reichert communicated her decision to terminate Petitioner to Normand Guilbault, then Vice President of the Hospital, Mr. Braun and Ms. Capron. However, before action could be taken to implement her decision to terminate Petitioner, Petitioner was diagnosed with ovarian cancer, and in February, 1986, she went on a medical leave of absence which was to last for nearly one year.
During her leave of absence, Petitioner was replaced by Trish Hawkins, who had been her unofficial assistant. Under Ms. Hawkins's supervision, the problems which had persisted in the I.V. team for several years disappeared.
Ms. Reichert determined that this was due to the absence of Petitioner and to the leadership of Hawkins.
Petitioner was eligible for the Hospital's "30, 90, 365 day" leave of absence policy which provided that an employee is guaranteed the same job during the first 30 days of a leave of absence. After the first 30 days and prior to
90 days of a leave of absence, an employee is guaranteed a position with the Hospital at the same rate of pay. If an employee has been employed by the Hospital more than three years, the employee is eligible for long term
disability benefits. These benefits guarantee the employee a position with the Hospital even after 90 days of leave of absence up to one year after the start of the leave but not necessarily at the same rate of pay.
The Hospital's policy manual contains a second policy which relates to leaves of absence and which supplements the "30, 90, 365 day" policy and which Petitioner argues is somewhat inconsistent. The second policy states that the Hospital reserves the right to fill a vacancy created by a leave of absence but will make every effort to place an employee in a same or comparable position when he or she is able to return to work.
The Hospital's experience in applying these policies to employees in comparable supervisory or management positions to Petitioner has been uniformly to bring those comparable employees, including Petitioner, back to a position in the Hospital other than the one they held prior to a leave of absence. Of the supervisory employees who have been on a leave of absence of more than 90 days, none has returned to the same position. This policy has been applied to employees with nonmedical leaves of absences as well as medical leaves.
The Hospital has had numerous employees other than Petitioner take medical leaves of absence due to cancer conditions and return successfully from those leaves of absence to a position with the Hospital. At least one such person left the Hospital and came back to a higher position after a bout with cancer.
Around January, 1987 and prior to the end of 365 days after her leave of absence began, Petitioner informed Ms. Reichert that she was released by her doctor, recovered from her cancer condition, was healthy and ready to return to work.
However, the previous November, after consultation with Mr. Braun, Ms. Reichert had decided not to return Petitioner to the head nurse position of the
I.V. team because of Petitioner's lack of success in managing the team. Instead, she decided to retain Ms. Hawkins on a permanent basis. Ms. Reichert did not make Ms. Hawkins appointment permanent until after Petitioner returned from her leave nor did Ms. Reichert tell Petitioner about her decision. Ms. Reichert felt that the announcement might cause a set back in Petitioner's recuperation. Ms. Reichert did tell Mr. Braun and Mr. Guilbault, however.
Then, on January 19, 1987, Petitioner met with Ms. Reichert at the Hospital. They chatted for a while about the changes at the Hospital, but Ms. Reichert did not tell Petitioner about her decision not to return her to the
I.V. team. She told Petitioner to show up ready for work in her lab coat on January 22, 1987, which Petitioner did. Ms. Reichert was convinced that Petitioner had fully recovered from her condition and was not suffering from a disability of any kind. Petitioner herself was convinced that she was fully recovered from her condition and was not suffering from any disability.
On January 22, 1987, Ms. Reichert told Petitioner that she decided to replace her as head nurse because of her poor performance as manager which they had discussed on numerous occasions before Petitioner went out on her leave of absence. Instead, Ms. Reichert, being aware of the hospital's policy, offered Petitioner a staff nurse job at the same rate of pay as the head nurse position. Although a staff nurse is essential to patient care, appointment to a staff nurse position after having held a head nurse position was considered a demotion by Mr. Braun.
Petitioner refused the position and met with Mr. Braun, who reviewed with her potential positions which the Petitioner was qualified to fill. Mr. Braun located three potential positions. Although the first two positions did not work out because of budget problems, Mr. Braun was acting in good faith in attempting to find a position for Petitioner. The third of the three options proposed by Mr. Braun, a home health I.V. position, showed more promise to Petitioner. Petitioner was asked to do a feasibility study on I.V. therapy as part of the home health agency. She began the study sometime in February, 1987 and worked on it for approximately two and one-half months until April, 1987. Numerous problems arose during the course of this feasibility study. In April, 1987, the Hospital determined that a home health I.V. therapy function was not economically feasible and decided not to pursue that matter further.
At that point, the Hospital's top administrative staff and Mr. Braun met and made good faith review of all potential available positions for Petitioner. They were unable to locate a position for which the Petitioner was qualified other than a staff nurse position, for which there were numerous openings. Petitioner was re-offered a staff nurse position at her head nurse salary, even though under the Hospital policy, the Hospital was not required to continue to pay Petitioner her head nurse salary since she had been absent more than 90 days. Petitioner was also offered an orientation period and training to reacquaint her with floor nursing since she had been an administrative nurse for several years.
Petitioner was unhappy with this offer. For the first time since she had been back to work, she complained of tingling and numbness in her hands as an excuse not to take the staff nurse position. Mr. Braun asked Petitioner for a doctor's report that she was capable of coming to work full-time, which she had obtained without any difficulty. Also, at the time that Ms. Reichert hired Petitioner in 1979, she was aware that Petitioner had suffered with back problems and had undergone one or more Pap smears. However, the proof failed to demonstrate any connection between these suggestions of problematic health and the employment decisions made by the Hospital concerning Petitioner.
Consequently, the offer of a staff nurse position was renewed. The Petitioner declined the offer and declined to report to work on instructions from her attorney. Petitioner voluntarily left her employment at the Hospital.
During the first years of her employment, Petitioner had received satisfactory to exemplary performance evaluations. Then, during her final full year, the year prior to her leave of absence, Petitioner received a less than satisfactory evaluation. However, the evaluation system at the hospital had changed during that time. The Hospital's evaluation system had undergone criticism because the assessments were too high and did not properly reflect an employee's performance. A new system was implemented. The system became more criteria based and resulted in lower evaluations throughout the Hospital. It was under this new system that Ms. Capron assessed Petitioner's performance during 1985, her last full year of employment. Unfortunately, due to Petitioner's illness and leave of absence, her evaluation for 1985 was not delivered to her or formalized until she returned from her illness in 1987.
No credible evidence was offered at the hearing which suggested that Petitioner suffered from a handicap at the time the Hospital made the decision not to return her to the head nurse position in the I.V. therapy team. In fact, the decision was based on Petitioner's poor performance as a manager of the I.V. team.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes (1987).
Petitioner has the burden of proof in this proceeding. Petitioner must prove by a preponderance of the evidence that Respondent violated the Human Rights Act of 1977, as amended. Retton v. Department of Corrections, 9 FALR 2423 (December 15, 1986). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).
Section 760.10(1)(a), Florida Statutes, (1987), makes it an unlawful employment practice for an employer to discriminate against a person with respect to terms and conditions of employment because of such individual's handicap.
Petitioner has the initial burden of establishing a prima facie case of handicap discrimination. If she establishes a prima facie case, Respondent is required to articulate some legitimate nondiscriminatory reason for its acts. At that point, Petitioner could only prevail if she could prove by a preponderance of the evidence that the reasons offered by Respondent were a pretext for discrimination. Texas Department of Community Affairs v. Burdine,
450 U.S. at 253; Stewart v. Wackenhut Corporation, 10 FALR 4624 (June 30, 1988), Retton, 10 FALR at 2433-34.
To state a prima facie case of handicap discrimination Petitioner must prove that (1) she is handicapped within the meaning of Section 760.10, Florida Statutes (1987); (2) she is otherwise qualified for the position; and (3) she suffered an adverse employment action under circumstances which give rise to an inference that the employment action was based solely on her handicap. Cabany
Hollywood Memorial Hospital, FCHR NO. 90-001, DOAH NO. 89-237 (January 11, 1990). See Pushkin v. Regents of University of Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981).
Here, by her own admission Petitioner was not handicapped at the time Respondent refused to reinstate her in her position as head nurse of the I.V. team nor was she handicapped within the meaning of Section 760.10.
Section 760.10 contains no direct definition of the term "handicap." Therefore, decisions of the Florida Human Relations Commission must be consulted to ascertain the meaning that has been give to this term. In Thomas v. Floridin Company, 8 FALR 5457, 5458 (September 10, 1986), the Commission defined "handicap" as follows:
In interpreting the term handicap from the Human Rights Act of 1977, the Commission has consistently chosen to give handicap a meaning in accordance with common usage.
Generally, handicap connotes a condition that prevents normal functioning in some way: A person with a handicap does not enjoy, in some measure, the full and normal use of his sensory, mental, or physical faculties.
The record is void of any competent substantial evidence that Petitioner failed, in any manner, to enjoy the full and normal use of her sensory, mental or physical faculties at the time of the alleged discrimination. Albeit, during the time she remained on her leave of absence, her illness may have prevented her from functioning to her full capacity. However, no evidence was presented, absent a vague reference to a problem with Petitioner's hands, that Petitioner's normal functioning was significantly impaired at the time of the alleged discrimination. In fact, Petitioner admitted that she was fully recovered and prepared to resume her position when she reported to Ms. Reichert. Accordingly, Petitioner has failed to establish the first and critical element of her discrimination claim and is unsuccessful in demonstrating herself to be a statutorily covered, handicapped, employee.
Since Petitioner has not demonstrated herself to be within a class that Chapter 760, Florida Statutes is designed to protect, it is not necessary to address the remaining elements of the test set out above. Despite the Petitioner's failure to prove her prima facie case of handicap discrimination, the proof did demonstrate that a legitimate, nondiscriminatory reason for Respondent's action did exist. Although Petitioner's performance evaluations were outstanding for the first years of her employment, competent substantial testimony was presented which successfully questioned the validity of the evaluation instruments. The evaluation for her for the year prior to her leave of absence was not as superlative as the prior evaluations due to the implementation of a criteria based evaluation technique which more accurately addressed Petitioner's performance. In addition, competent substantial testimony supported the fact that discord existed within the I.V. unit under Petitioner's management and that Petitioner was counseled about the need to improve her management skills and alleviate the disharmony among the members of the team. Prior to her leave of absence, Petitioner had failed to show improvement. The team did demonstrate improvement and cohesiveness under the direction of Ms. Hawkins while Petitioner was on leave. Each of these facts support the determination that it was Petitioner's deficient management skills which led to Respondent's decision not to reinstate her as head nurse. Therefore, Respondent's reasons for not reinstating Petitioner as head nurse were not merely pretexts for the purpose of camouflaging discrimination against those employees who had suffered from cancer, be Respondent's disease a handicap or not.
Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Human Rights Commission issue a Final Order that
the basis of handicap in violation of the Human Rights Act of 1977, as amended.
DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of April, 1990.
JANE C. HAYMAN
Filed with the Clerk of the Division of Administrative Hearings this 27th day of April, 1990.
APPENDIX TO RECOMMENDED ORDER, IN CASE NO. 89-4386
The following represents the rulings of the undersigned on the proposed findings of fact submitted by the parties. The rulings are listed by paragraph within the proposed findings of fact.
Glen J. Torcivia, Esquire
Michael D. Malfitano, Esquire MacFarlane, Ferguson, Allison Kelly
P.O. Box 1531
Donald A. Griffin Executive Director
