STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD H. DENTON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3912

) CARE HEALTH SERVICES, INC., ) a/k/a REDI-NURSE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal administrative hearing was held in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 8, 1992, in West Palm Beach, Florida.

APPEARANCES

For Petitioner: Richard Denton, pro se

729 N. Ridge Road, Apartment 6

Lantana, Florida 33461

For Respondent: Douglas L. Phipps, Esquire

McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603

250 Australian Avenue South West Palm Beach, Florida 33401

STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether the denial of an application for employment constitutes unlawful discrimination against Petitioner.

PRELIMINARY STATEMENT

At the formal hearing, Petitioner testified in his own behalf and submitted a composite exhibit for admission in evidence consisting of numerous letters of recommendation. Petitioner's composite exhibit was not admitted in evidence pursuant to Respondent's objection. Respondent cross examined Petitioner and presented no other evidence.

A transcript of the formal hearing was not filed with the undersigned.

Proposed findings of fact and conclusions of law were timely filed by Respondent on October 19, 1992. As of the date of this Recommended Order, Petitioner has not filed proposed findings of fact and conclusions of law. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is an employer for the purposes of this proceeding. Respondent's principal place of business is 1800 Forest Hill Boulevard, West Palm Beach, Florida, 33406.

   
   

2. Respondent employs approximately 167 employees. A substantial number of Respondent's employees are certified nursing assistants ("CNA").

   
   

3. Petitioner was denied employment as a CNA by Respondent on July 18, 1991. Petitioner was not denied employment due to his disability of alcohol addiction. Petitioner received an average rating on 11 of 12 interview categories. Petitioner received a below average rating on his personality evaluation. He displayed loud and inappropriate behavior during the interview. He gave his "business card" to two female employees and asked them to call him. A background investigation indicated that Petitioner had been arrested for driving while intoxicated and had a bad credit history.

   
   

4. Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's application for employment. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's application for employment was based upon Petitioner's failure to satisfy Respondent of Petitioner's competence to satisfy his job requirements.

   
   

   CONCLUSIONS OF LAW

   
   

5. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

   
   

6. The burden of proof in this proceeding is on Petitioner. Petitioner must establish by a preponderance of evidence that the denial of his application for licensure unlawfully discriminated against Petitioner. Department of Transportation v. J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

   
   

7. Petitioner must make a prima facie showing of discrimination. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). Petitioner must show that he was a member of a protected group, that an adverse employment action took place, that Petitioner and a similarly situated unprotected group received dissimilar treatment, and that sufficient direct or circumstantial evidence exists to infer a causal connection between Petitioner's group status and the disparate treatment. See Pugh v. Heinrich, 695 F.Supp. 533, 540 (M.D. Fla. 1988) affd. 933 F.2d 1020 (11th Cir. 1992).

   
   

8. If Petitioner satisfies the threshold requirement of a prima facie showing, then the employer has the burden of articulating a legitimate, nondiscriminatory reason for the action complained of. If the employer articulates such a reason, then Petitioner must prove by a preponderance of evidence that the reasons offered by the employer are a pretext for discrimination.

   
   

   If the plaintiff meets [the] initial burden, the burden shifts to the defendant employer to articulate some legitimate, non-discriminatory

   reason for rejecting the plaintiff. If the defendant carries this burden, the plaintiff must prove by preponderance the reasons offered by the employer were a pretext for discrimination by showing, for instance, discriminatory intent. The employer may rebut the pretext charge by proof of absence of discriminatory motive. See also Chalk v.

   Secretary of Labor, U.S. Dept. of Labor,

   565 F.2d 764, 766-67 (D.C. Cir. 1977), cert.

   den., 435 U.S. 945, 98 S.Ct. 1527, 55 L.Ed.2d

   542 (1978). When the burden shifts initially after plaintiff establishes a prima facie case, the employer need not prove that it was actually motivated by articulated

   non-discriminatory reasons or that the hired applicant was more qualified than plaintiff. Texas Dept. of Community Affairs v. Burdine,

   U.S. , 101 S. Ct. 1089, 67 L.Ed.2d

   207 (1981).

   
   

   School Board of Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981); See also, Department of Corrections v. Chandler, 582 So.2d 1183, 1185- 1186 (Fla. 1st DCA 1991); School Board of Leon County v. Weaver, 556 So.2d 443,

   444 (Fla. 1st DCA 1990).

   
   

9. Petitioner failed to satisfy the threshold requirement of a prima facie showing of discrimination. Petitioner's testimony failed to establish that an adverse employment action took place, that Petitioner and a similarly situated unprotected group received dissimilar treatment, and that sufficient direct or circumstantial evidence exists to infer a causal connection between Petitioner's group status and the disparate treatment.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of

unlawful discrimination.

DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida.

DANIEL S. MANRY

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 14th day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021

Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact

COPIES FURNISHED:

Douglas L. Phipps, Esquire McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603

250 Australian Avenue South West Palm Beach, Florida 33401

Margaret A. Jones, Clerk Commission On Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Richard Denton

729 N. Ridge Road, Apt. 6

Lantana, Florida 33461

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.

================================================================= AGENCY REMAND

=================================================================

STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS

RICHARD H. DENTON, )

)

Petitioner, ) EEOC Case No. n/a

) FCHR Case No. 91-7094

1. )

   ) DOAH Case No. 92-3912 CARE HEALTH SERVICES, INC., ) FCHR ORDER No. 93-027 d/b/a REDI-NURSE, )

   )

   Respondent. )

   )

   
   

   ORDER AUTHORIZING SECTION 120.57(1) FORMAL PROCEEDING

   
   

   1. Panel of Commissioners

      
      

      The following three Commissioners participated in the disposition of this matter:

      
      

      Commissioner Geraldine Thompson, Panel Chairperson;

      Commissioner Judith Kavanaugh; and Commissioner James Mallue.

      
      

   2. Appearances For Petitioner Richard H. Denton:

      Richard H. Denton, pro se 729 North Ridge Road Apartment #6

      Lantana, Florida 33462

      For Respondent Care Health Services, Inc., d/b/a Redi-Nurse: Douglas L. Phipps, Esquire

      McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603

      250 Australian Avenue South West Palm Beach, Florida 33401

      
      

   3. Preliminary Matters

      
      

      Richard H. Denton, Petitioner herein, timely filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1991), alleging that Care

      Health Services, Inc., d/b/a Redi-Nurse (Redi-Nurse), Respondent herein, unlawfully discriminated against him on the basis of handicap.

      
      

      In accordance with the Commission's rules, the allegations of discrimination were investigated and an Investigatory Report was submitted to the Executive Director who issued his determination finding no reasonable cause to believe that an unlawful employment practice occurred.

      
      

      Petitioner filed a Petition for Relief from an Unlawful Employment Practice and the case was transferred to the Division of Administrative Hearings (DOAH) for the conduct of a formal proceeding.

      
      

      At the hearing before the DOAH hearing officer, neither party provided sworn testimony or other admissible evidence. There is no evidentiary record to support any factual findings.

      
      

      Pursuant to notice, public deliberations were held in Orlando, Florida, before the aforementioned panel of Commissioners, at which deliberations the Panel determined the action to be taken upon the Petition for Relief.

      
      

   4. Findings of Facts

      
      

      In that there is no evidentiary record to support the factual findings, we reject the hearing officer's findings of fact. See Scott v. Department of Professional Regulation, 603 So.2d 519 (Fla. 1st DCA 1992).

      
      

   5. Conclusions of Law

      
      

      Without findings of fact, the hearing officer's conclusions of law must be rejected also. It is our conclusion instead that Petitioner Denton, who has the burden of proof in this matter, must be given the opportunity to present evidence to establish his case.

      
      

   6. Remand for Hearing

The Petition for Relief From an Unlawful Employment Practice and the Complaint of Discrimination are REMANDED. It is respectfully requested that DOAH conduct all necessary proceedings in accordance with law and submit a Recommended Order to the Commission.

FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:

BY:

Commissioner Geraldine Thompson, Panel Chairperson;

Commissioner Judith Kavanaugh; and Commissioner James Mallue.

FILED this 10th day of November 1993, in Tallahassee, Florida.

SHARON MOULTZ

Clerk of the Commission

COPIES FURNISHED:

Richard H. Denton, pro se 729 North Ridge Road Apartment #6

Lantana, Florida 33462

Douglas L. Phipps, Esquire McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603

250 Australian Avenue

West Palm Beach, Florida 33401 Daniel Manry, DOAH Hearing Officer Harden King, FCHR Legal Advisor

=================================================================

ORDER DENYING REMAND

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD H. DENTON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3912

) CARE HEALTH SERVICES, INC., ) d/b/a REDI-NURSE, )

)

Respondent. )

)

ORDER DENYING REMAND

THIS CAUSE came on for consideration upon the Order Authorizing Section 120.57(1) Formal Proceeding issued on November 10, 1993. Having reviewed the record of this cause, and being advised in the premises, it is

ORDERED that

The Division of Administrative Proceedings respectfully declines to accept the remand of this proceeding. Petitioner testified under oath and was cross examined. Petitioner's sworn testimony provides the evidentiary record upon which the findings of fact in the Recommended Order were based. The fact that no transcript was ordered by either party does not mean that there is no evidentiary record upon which to base findings of fact.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of December, 1993.

DANIEL MANRY

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 7th day of December, 1993.

COPIES FURNISHED:

Douglas L. Phipps, Esquire McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603

250 Australian Avenue, South West Palm Beach, Florida 33401

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Richard Denton

729 N. Ridge Road, Apt. 6

Lantana, Florida 33461

=================================================================

ORDER REOPENING FILE

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD H. DENTON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3912

)

CARE HEALTH SERVICES, INC., )

a/k/a REDI-NURSE, )

)

Respondent. )

)

ORDER REOPENING FILE

On December 7, 1993, the undersigned entered an order denying remand in the above-styled case. However, since that date, the Florida Commission on Human Relations has filed a copy of the transcript which was the basis for its remand.

The transcript reflects that, contrary to the hearing officer's notes and the Recommended Order, Petitioner was never sworn before testifying. For that reason, remand for appropriate further proceedings is accepted and the Division of Administrative Hearings file is reopened.

On or before January 10, 1994, the parties shall confer and file a joint report stating when they will be available for the formal evidentiary hearing and an estimate of the time required for the hearing.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of December, 1993.

DANIEL MANRY

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 17th day of December, 1993.

COPIES FURNISHED:

Douglas L. Phipps, Esquire McKeown, Gamot & Phipps, P.A. One Clearlake Centre, Suite 1603

250 Australian Avenue, South West Palm Beach, Florida 33401

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Agency Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Richard Denton, pro se 729 N. Ridge Road, Apt. 6

Lantana, Florida 33461

=================================================================

ORDER CLOSING FILE

=================================================================

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD H. DENTON, )

)

Petitioner, )

)

vs. ) CASE NO. 92-3912

)

CARE HEALTH SERVICES, INC., )

a/k/a REDI-NURSE, )

)

Respondent. )

)

ORDER CLOSING FILE

On January 11, 1995, the parties filed a stipulation voluntarily dismissing with prejudice this matter. It is therefore,

ORDERED that:

1. The file of the Division of Administrative Hearings is CLOSED.

2. This matter is returned to the referring agency.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 17th day of January, 1995.

EARL H. POWELL

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 17th day of January, 1995.

COPIES FURNISHED:

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Sharon Moultry, Agency Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Richard Denton, pro se 729 N. Ridge Road, Apt. 6

Lantana, Florida 33461

Care Health Services, Inc.

2328 South Congress Avenue, Suite 1-E West Palm Beach, Florida 33406

Docket for Case No: 92-003912

Orders for Case No: 92-003912