STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARTHUR C. RIVERS, )

)

Petitioner, )

)

vs. ) CASE NO. 90-6168

)

FLORIDA DEPARTMENT OF )

CORRECTIONS/SUMTER )

CORRECTIONAL INSTITUTION, )

)

Respondent. )

)

RECOMMENDED ORDER

A final hearing in this case was held pursuant to notice on February 20, 1991, in Ocala, Florida, by Stephen F. Dean, assigned Hearing Officer of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael McKinnon, Jr., Esquire

2011 South Martin Luther King Street Suite 204

Fort Pierce, Florida 34947-1997

For Respondent: Ernest L. Reddick, Esquire

2601 Blairstone Road

Tallahassee, Florida 32399-2500 STATEMENT OF THE ISSUES

Whether the Respondent engaged in racial discrimination in its employment of Petitioner.

PRELIMINARY STATEMENT

The Petitioner, a black male, had held a position as a Medical Unit Specialist, Pay Grade (PG) 15, employed by the Respondent. Respondent moved Petitioner into the position of a Medical Technician - Certified, PG 15. After he was removed from the position of Medical Unit Specialist, the position was upgraded to the position of Health Services Administrator, PG 20. Petitioner had been advised that he was in line for the promotion before he was moved into the Medical Technician position; however, following what he considered a demotion, he did not apply for the position of a Health Services Administrator.

Petitioner filed a timely complaint with the Human Relations Commission on April 13, 1989, which was investigated. A determination of no cause was made.

Petitioner made a timely request for formal administrative hearing and the case was referred to the Division of Administrative Hearings by the Human Relations Commission on September 27, 1990. The parties were requested to provide

information to assist in setting the case on October 4, 1990. A Notice of Hearing was sent out on November 2, 1990 for a hearing in February. Subsequent to the hearing, Petitioner's counsel requested an extension to file his proposed findings, which was granted. The Petitioner's proposed findings were filed on April 29, 1991, and the Respondent's proposed findings were filed on April 24, 1991, which were read and considered. The Appendix attached hereto and by reference incorporated herein states which findings were adopted and which were rejected and why.

FINDINGS OF FACT

1. Sumter Correctional Institution (SCI) is a prison operated by the Florida Department of Corrections. It is located near Bushnell, Florida, in Sumter County.

   
   

2. The Florida Department of Corrections is subject to the continuing jurisdiction and monitoring of the Federal Court as a result of a federal class action lawsuit commonly known as Costello. The court's order relates to many of the conditions of incarceration, including the delivery of health care to inmates.

   
   

3. As the result of the Federal Court's mandate, a quality management survey was developed by the Department to determine whether the health care at each institution was in compliance with the requirements of the Federal Court. A survey team was scheduled to inspect each institution. In January or February of 1988, copies of the items to be inspected were sent to each institution, to include SCI in order that the institutional personnel would know in advance what items would be checked by the survey team inspection.

   
   

4. SCI and other institutions were to use this information to perform a self-assessment prior to the Department survey team arriving. Each institution was to identify and correct problems prior to the Department's survey. Each Regional Health Services Director was to go to each of the facilities within his region and assess the conditions at each institution in accordance with the survey. Each institution was to return to the survey team their self-assessment prior to the visit scheduled by the survey team. These steps were taken at SCI.

   
   

5. In July of 1988, the departmental survey team went to SCI. The team checked to see if SCI was in compliance with approximately forty-five items addressed in the Costello consent order. In addition, the team inspected to see if SCI was in compliance with agency rules and regulations and the institution's own institutional operating procedures and protocols.

   
   

6. The team surveyed SCI for two full days. SCI was found to have the most severe problems of any of the institutions which the team had inspected up until that time. Approximately one-half of the problems found related to the administration of the medical department and one-half related to the delivery of health care to the inmates. The team found severe problems in the area of inmate medical records. These problems included records which were not filed properly, were not properly organized, and were not completed.

   
   

7. The problems reported by the survey team at SCI were so severe that the Federal Court required Dr. Schuman, the Assistant Secretary for Health Services of the Department of Corrections, to personally go to SCI to determine the progress being made to correct the problems and report his findings either weekly or biweekly to the court.

8. Paul Worthington had become the superintendent at SCI in July 1987, approximately a year before the survey in question. As superintendent, he was the highest ranking officer at the institution. The Assistant Superintendent for Programs at SCI was John Townsend. The Regional Health Services Director for Region III was Dr. Trumbo. SCI is one of six institutions in that region. Prior to the survey team's inspection of SCI, Dr. Trumbo told Mr. Worthington that SCI was in good shape and challenged the survey team to inspect SCI.

   
   

9. In 1988, the Petitioner, a black male, had been employed by the Florida Department of Corrections at SCI for approximately 10 years.

   
   

10. Initially, the Petitioner had been hired as a Medical Technician. Approximately five and one-half years later, he was promoted to Medical Unit Specialist. He supervised two clerical employees and assisted the chief health officer in the administration of health services at SCI. The Petitioner supervised the maintenance of medical records.

    
    

11. The Petitioner wrote numerous memos to his supervisors explaining the problems in his department. He pointed out repeatedly that there was a lack of adequate staffing which caused the department to constantly have problems and not perform properly. On two occasions, one additional person was provided for

    30 days to help out.

    
    

12. Soon after the findings of the survey team were reported, Mr. Worthington was called to a meeting to discuss the report with the Secretary of the Department of Corrections, the Assistant Secretary for Health Services of that agency, the Regional Director, and the Regional Health Services Director. Superintendent Worthington was instructed to correct the deficiencies immediately, or else.

    
    

13. For several weeks following the survey, additional personnel were assigned to work around the clock on correcting problems identified by the survey. Mr. Jimmy Brogden was one of the individuals appointed to inspect, correct, and recommend to the Superintendent internal changes in medical services.

    
    

14. At the direction of the Secretary of the Department of Corrections, many personnel changes were made. Dr. Trumbo was demoted from Regional Health Services Director to Chief Health Officer at SCI. Dr. Garnsey was demoted from Chief Health Officer at SCI to a physician position at that institution. John Townsend, the Assistant Superintendent for Programs, was involuntarily transferred to Glades Correctional Institution in Belle Glade, Florida. A Medical Records Specialist, Ms. Jones, was reassigned to a clerical position in the education department. Ms. Roselle was moved out of the medical department to a clerical position, one grade lower in the education department. The facility's pharmacist, Mr. Prestige, resigned after the report was made. All of the people mentioned above are white males or white females.

    
    

15. The Petitioner was approached by Mr. Jimmy Brogden and asked to change from this position to Medical Records Specialist. Although the latter position was in the same pay grade of his currently-held position, it had no supervisory responsibilities. The Petitioner refused Mr. Brogden because he knew his position was being upgraded to a PG 20, and he had been advised that he was under consideration for the appointment. Subsequently, the Petitioner was approached by Mr. Brogden and questioned again about whether he would take the lateral transfer. He again informed Mr. Brogden that he would not.

16. On October 30, 1988, the Petitioner was notified that he was being moved, effective November 4, 1988, to the position of Correctional Medical Technician-Certified, a PG 15. On or around October 31, 1988, he was moved from the position of Medical Unit Specialist to the position of Medical Technician- Certified. With the transfer, he became a probationary employee; however, his pay was unchanged.

    
    

17. Immediately thereafter, the position of Medical Unit Supervisor, PG 15, was upgraded to Health Services Administrator, PG 20. The Petitioner, had he remained in the position of Medical Unit Specialist, was qualified for the upgraded position.

    
    

18. Prior to his transfer, the Petitioner had only received "exceeds performance standards." Petitioner filed a Career Services Grievance challenging his reassignment to the position of Medical Technician-Certified. The position of Health Services Supervisor was advertised for the two weeks preceding November 23, 1988. The Petitioner did not apply for the position because he felt he had already been penalized or disciplined and would not be favorably considered for the upgraded position.

    
    

19. Mr. Worthington, Superintendent of SCI termed the Petitioner's reassignment a managerial decision.

    
    

20. The reassignment of an individual between two positions with the same pay grades is defined by the Career Services Rules of the Department of Administration as a "reassignment appointment."

    
    

21. Jimmy Brogden, a white male, who had been part of the team correcting conditions in the medical services area, applied for the position of Medical Unit Supervisor and was hired. Mr. Brogden, who had held various positions with the Department of Corrections, had been an Academic Specia1ist for approximately eight years at SCI.

    
    

22. The position of Health Services Administrator requires eight years of experience in the area of hospital, institution or health care administration. Mr. Brogden was deemed qualified for the position because of his experience in institutional administration as an Academic Specialist.

    
    

23. The Petitioner, as the incumbent of the position of Medical Unit Specialist, automatically would have been qualified. If the Petitioner had not performed the duties of the upgraded position, the position would not have been upgraded.

    
    

24. The Petitioner's reassignment was one of several personnel decisions motivated by the need to improve the provision of health care at SCI.

    
    

25. The Petitioner filed a timely Career Service grievance challenging his reassignment. However, within a month of being reassigned, the Petitioner left SCI to work for the Department of Health and Rehabilitative Services prior to the resolution of this grievance.

    
    

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of these proceedings. Section 120.57(1), Florida Statutes.

27. The Petitioner has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. If the Petitioner succeeds, the burden shifts to the Respondent to articulate some legitimate non- discriminatory reason for the action complained of. Should the Respondent carry this burden, Petitioner may then prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs v. Burden, 450 U.S. 248, 101 S. Ct. 1089 (1981).

    
    

28. The Petitioner's allegations are based upon the fact that he is black, was transferred from a position which was subsequently upgraded, and, afterward, a white man was selected to fill the position. In support of this theory, Petitioner points out that his performance evaluations were outstanding, the man who was promoted was in a position to make recommendations about Petitioner's transfer, and the man was not as well qualified as Petitioner.

    
    

29. The Department of Corrections argues that the "reassignment appointment" was not a demotion, and this action was taken as part of a general shake-up of the medical services department personnel following a deficient performance on a major inspection. Finally, the agency asserts that the Petitioner did not apply for the new position and, therefore, should not be heard to complain.

    
    

30. Although the Petitioner's treatment looks suspiciously like discriminatory treatment, when all the facts are considered, it supports the Department's contention. The Petitioner was transferred out of a position which was subsequently upgraded, and a white male was promoted into the position. The Petitioner transfer was part of a general personnel shake-up resulting from SCI's poor showing on a major inspection. Although the Petitioner had reported the deficiencies found by the inspection and had requested more resources to correct the deficiencies, he was transferred to a position in the same bay grade, but with less responsibility. This was "unfair"; however, the Department was under a Federal Court order to provide better medical care to inmates; the inspection determined noncompliance with the court's order; and as a result of the poor performance, the Assistant Secretary for Medical Services for the Department of Corrections was required to personally inspect and report weekly to the court. Obviously, this was not a career-enhancing situation for any of the personnel involved.

    
    

31. The Superintendent of the facility was called to a meeting with the Secretary of the Department, Assistant Secretary for Health, Regional Director, and Regional Director for Health Service. The Superintendent was told to correct the deficiencies immediately, make whatever changes were necessary, or else. Subsequently, the Department demoted the Regional Director for Health Services, involuntarily transferred the Assistant Superintendent for Programs, and demoted the Facility Chief Health Officer. The Assistant Secretary for Health was at the facility pursuant to court order directing and monitoring changes. The Superintendent was able to transfer the lower ranking personnel laterally, rather than demoting them with the exception of one white female for whom they could not find a job for which she qualified in her pay grade and who was demoted one pay grade.

    
    

32. The "reassignment appointment" was not technically a demotion, but there is little doubt that the Petitioner would not have been favorably considered for the promotion to the new position. However, this action was not the basis of racially motivated discrimination. It was part of the same broom which swept through the rest of the medical department as the result of poor

performance by the medical section of which the Petitioner was a key member and supervisor. The Petitioner's evidence did not overcome the proof presented by the Respondent that there were non-pretextual reasons for taking the action.

The Petitioner failed to carry his burden of proof.

RECOMMENDATIONS

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the Petition be dismissed.

DONE AND ENTERED this 15th day of May, 1991, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 1991.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 90-6168

Petitioner's Proposed Findings of Fact: 1-27. Adopted.

Respondent's Proposed Findings of Fact: 1-5. Adopted.

6. Rejected, as irrlevant.

7-19. Adopted.

COPIES FURNISHED:

Richard L. Dugger, Secretary Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Louis A. Vargas, Esq. General Counsel Department of Corrections 2601 Blairstone Road

Tallahassee, FL 32399-2500

Michael McKinnon, Jr., Esquire

2011 South Martin Luther King Street Suite 204

Fort Pierce, Florida 34947-1997

Ernest L. Reddick, Esquire 2601 Blairstone Road

Tallahassee, Florida 32399-2500

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 90-006168

Orders for Case No: 90-006168