MARY E. JOHNSON, )
vs. ) CASE NO. 93-1556
) FCHR NO. 92-2189
Respondent. )
Pursuant to notice, the above matter was heard before the Division of Administrative Hearings by its duly designated Hearing Officer, Stephen F. Dean, on July 21, 1993, in Daytona Beach, Florida.
For Petitioner: Ms. Dorothy Johnson
For Respondent: Gary E. Thomas, Esquire
Whether Petitioner, Mary E. Johnson, was discriminated against by her discharge from her position as a Certified Nurse Assistant by Respondent, Ormond Beach Memorial Hospital (Hospital), on November 21, 1991, because of her handicap, clinical depression, in violation of Section 760.10, Florida Statutes.
Petitioner filed a complaint of discrimination with the Florida Commission on Human Relations (Commission) on April 13, 1992. She alleged that she was discriminated against on the basis of her perceived handicap, clinical depression, when she was discharged from her position as a Certified Nursing Assistant by Respondent on November 21, 1991. The Respondent filed a timely response to the complaint.
On November 23, 1992, Executive Director, Ronald M. McElrath, issued the Commission's determination finding that there was no reasonable cause to believe that an unlawful employment practice had occurred. Petitioner filed a request for redetermination on December 4, 1992, and the Executive Director again responded with a "no cause" finding.
On March 18, 1993, Petitioner filed her Petition for Relief. Respondent filed its Answer on April 12, 1993.
At the July 21, 1993 formal hearing of the merits of this case, Petitioner presented the following witnesses in support of her case: Mary E. Johnson; Johnette Vodenicker, Vice President of Nursing Services; Diane McCall, Director of Medical/Surgical Nursing (formerly Assistant Director of Nursing); Debbie Peterson, Registered Nurse at the Hospital; Barbara Burns, Nurse Manager of Six South at the Hospital; and Deanna Bowen, Registered Nurse at the Hospital.
Petitioner had several documents marked for identification, although none were entered into evidence.
Respondent called the following witnesses to testify in this matter: Johnette Vodenicker, Vice President of Nursing Services; Diane McCall, Director of Medical/Surgical Nursing (formerly Assistant Director of Nursing); and Paula Canelli, Registered Nurse at the Hospital. Respondent's Exhibits 1-18 were marked for identification and admitted into evidence.
The Hearing Officer also marked for identification, and entered into evidence as Hearing Officer's Exhibit 1, the charging document on which Petitioner was discharged by Respondent.
Respondent asserts that a transcript of the hearing was filed on August 2, 1993; however, the transcript was not filed with DOAH until September 1, 1993. The parties' posthearing Proposed Recommended Orders were due on August 12, 1993. Proposed findings were submitted by both parties which were read and considered. Appendix A states which of the parties' proposed findings were accepted, and which were rejected and why.
Petitioner worked as an on-call Nurse Assistant for Respondent. On call employees were guaranteed no certain amount of hours and no benefits were provided to them. On call employees were called to work when patient census was high, and were the first to be cancelled when the census was low. Vodenicker, Tr. 29 (1. 20-25) - 30 (1. 1-19); Johnson, Tr. 31 (1. 4-5).
On November 21, 1991, Respondent discharged Petitioner from her position as a Certified Nursing Assistant at the Hospital. Hearing Officer's Exhibit 1.
Petitioner had been hospitalized the majority of May 1991 for clinical depression. She returned to work at the Hospital following her hospitalization and was not hospitalized again prior to her discharge, although she did continue to have problems with depression. Johnson, Tr. 33 (1. 18-25) - 34 (1. 1-14).
Ms. Vodenicker, Vice President of Nursing Services, became aware that Petitioner had been hospitalized for clinical depression during a counseling session on August 20, 1991. Ms. Sally Cole, Nurse Manager of Six North, was also present during this meeting. Johnson, Tr. 53 (1. 23-24); Vodenicker, Tr. 120 (1. 8-16), Tr. 121 (1. 9-17), Tr. 133 (1. 8-11).
In early May, Diane McCall, Assistant Director of Nursing, was told by Dorothy Johnson, Petitioner's mother, that Petitioner was depressed and had been hospitalized.
McCall, Tr. 78 (1. 23-25) - 79 (1. 1-8).
Petitioner never discussed her clinical depression with Ms. McCall. McCall, Tr. 79 (1. 9-14); Johnson, Tr. 51 (1. 5-7).
Petitioner's psychiatrist, Dr. Oh, had no conversations with anyone at the Hospital regarding Petitioner's clinical depression. Johnson, Tr. 38 (1. 13-15). As a physician practicing in the area, the nurses and staff were familiar with his specialty, and some of the Petitioner's supervisor's knew Dr. Oh was treating the Petitioner.
Petitioner did not inform any members of the Hospital's nursing staff that she was suffering from clinical depression. Johnson, Tr. 50 (1. 19-22).
Ms. Burns, one of Petitioner's supervisors, was not aware that Petitioner suffered from clinical depression. Johnson, Tr. 51 (1. 14-16); Burns, Tr. 182 (1. 16-19).
Ms. Bowen, Nurse Manager of Six South, had no knowledge that Petitioner suffered from clinical depression. Johnson, Tr. 52 (1. 10-12); Bowen, Tr. 185 (1. 9-17).
In her capacity as Team Leader and/or Charge Nurse, Ms. Canelli had occasion to supervise Ms. Johnson's work. Ms. Canelli described Petitioner's performance as "erratically efficient" because sometimes Petitioner was "very good at her job and at other times she was less than adequate". Canelli, Tr. 83 (1. 4-15).
In early May 1991, Petitioner was counseled by Ms. Vodenicker regarding her personal interactions with a coworker, Brad Van Buren. Ms. Vodenicker cautioned Petitioner to keep her personal life separate from her business life at the Hospital. Johnson, Tr. 57 (1. 15-25) - 58 (1. 1-15).
On July 20th, Ms. Canelli counseled Petitioner regarding the deficient level of care she had provided to a "total-care patient" (i.e., a patient who cannot feed, bathe or move themselves in bed) on July 2nd. Ms. Canelli discovered the patient "lying in a puddle of stool," and located Petitioner sitting at the nurses station holding her pocketbook and waiting to leave for the day, even though there was still 20-25 minutes left until the end of the shift. Ms. Canelli instructed Petitioner to clean up the patient. About ten minutes later, Ms. Canelli went back into the patient's room and discovered that the patient had apparently been wiped off with a dry cloth but had not been bathed. This was evident because there was still stool on the patient's pillow, dressings, and leg. Ms. Canelli summoned another Nurse Assistant, and they cleaned up the patient. Ms. Canelli counseled Petitioner regarding this incident on the next available opportunity she had to work with her, and she also documented the incident. Canelli, Tr. 83 (1. 21-25) - 84 (1. 1-17) - 85 (1. 4-25) -86 (1. 1-23); Respondent's Exhibits 6 and 7.
On August 20th, Ms. Vodenicker had a second counseling session with Petitioner concerning Mr. Van Buren, following a complaint by Mr. Van Buren that Petitioner had been following him around in her car and that she had been seen in the Hospital parking lot watching him as he came on duty on the evening of August 19th. Vodenicker, Tr. 118 (1. 10-14).
On October 27th, Ms. Canelli counseled Petitioner about Petitioner's absence from her assigned floor when she could not be located by the nursing staff, even after she was paged over the Hospital paging system. Ms. Canelli documented the events surrounding this counseling session on October 28th, to include several prior instances in which the nursing staff had been unable to locate Petitioner on her assigned floor. Canelli, Tr. 88 (1. 2-25) - 89 (1. 1- 8) - 102 (1. 1-25) - 103 (1. 1-3); Respondent's Exhibit 8.
Ms. Vodenicker requested that Ms. Cole, Nurse Manager of Six North, escort Petitioner to Ms. Vodenicker's office in order to discuss the situation and to get Petitioner's side of the story. Ms. Cole sat in on the meeting as a witness.
Ms. Vodenicker reminded Petitioner of their previous discussion regarding Mr. Van Buren and told Petitioner to keep her business and personal lives separate. Ms. Vodenicker also took this opportunity to discuss other problems with Petitioner's job performance. Vodenicker, Tr. 119 (1. 15-25) - 120 (1. 1-7); Johnson, Tr. 58 (1. 18-25) - 59 (1. 1-10).
Because Petitioner's actions were in violation of the directives that Ms. Vodenicker had previously discussed with Petitioner in May, Ms. Vodenicker a wrote a disciplinary report. Johnson, Tr. 121 (1. 20-24).
On August 21st, Ms. McCall presented Petitioner with the disciplinary report in the presence of Ms. McCall. Petitioner refused to sign the document, and Ms. Vodenicker made a notation of this fact on the face of the document and forwarded the original to the Hospital's personnel department. Vodenicker, Tr. 121 (1. 25) - 122 (1. 1-23) - 146 (1. 10-25) - 147 (1. 1-3); McCall, Tr. 156 (1. 22-25) - 157 (1. 1-11); Johnson, Tr. 59 (1. 11-25) - 60 (1. 1-4); Respondent's Exhibit 3.
Ms. Burns counseled Petitioner after the Petitioner failed to answer a page and could not be found when Ms. Burns undertook a personal search for Petitioner. Petitioner later stated that she had taken a patient to x-ray; however, when Ms. Burns called the x-ray department, no one remembered seeing Petitioner in that area. Ms. Burns counseled Petitioner regarding leaving her assigned floor without notifying proper personnel and documented the incident. Burns, Tr. 176 (1. 4-23) - 177 (1. 22-25) - 178 (1. 1-17) - 179 (1. 3-25) - 180 (1. 1-10) - 181 (1. 14-16) - 182 (1. 9-15).
On October 26, 1991, Petitioner was working under Ms. Peterson's supervision. Ms. Peterson observed that, while on a supposed 15-minute break at 8:15 a.m., Petitioner did not return until nearly 9:15 a.m. Ms. Peterson documented the incident after consulting with her supervisor. No one at the Hospital had instructed Ms. Peterson to keep an eye on Petitioner. Peterson, Tr. 172 (1. 12-23) - 173 (1. 18-25) - 174 (1. 1-6) - 175 (1. 1-3); Respondent's Exhibit 17.
On November 2, 1991, Ms. McCall counseled Petitioner regarding being absent from her assigned floor, and limiting her breaks to 15 minutes and lunch breaks to one-half hour. Ms. McCall instructed Petitioner not to leave the floor unless directed to do so by the Charge Nurse or Team Leader. Ms. McCall documented her counseling Petitioner in her personnel file. McCall, Tr. 149 (1. 19-25) - 150 (1. 1-18); Respondent's Exhibit 14.
On November 10, 1991, Petitioner was assigned to assist patient Joan Cummings. Patient Cummings was an "NPO" patient, meaning that she could not receive any of her fluids and medications by mouth. Petitioner forgot to measure the patient's urine output prior to emptying her bedpan. Canelli, Tr. 92 (1. 18-25). Johnson, Tr. 40 (1. 2-8) - 66 (1. 23-25) - 67 (1. 1-5).
After forgetting to measure patient Cummings' urine, Petitioner asked the patient how many times she had urinated. The patient informed her that she had voided three (3) times, and Petitioner multiplied that number by 200 cc's to arrive at a figure of 600 cc's. Petitioner recorded 600 cc's as patient output on the intake/output slip, and which was ultimately recorded on the patient's daily log form located on a clipboard outside the patient's door. The information was later transcribed onto the patient's chart. Johnson, Tr. 40 (1. 10-25) - 42 (1. 4-25) - 43 (1. 1-12).
The Nurse Assistant assigned to the patient is responsible for an accurate intake and output measurement as recorded on the patient's intake/output slips and daily log sheets. The information recorded on these Hospital documents are relied upon as accurate by the entire nursing staff. The information is transferred onto the patient's graphic charts by the nurse, or nursing assistant or nursing team leader, depending on who has time. Canelli, Tr. 112 (1. 8-25) - 113 (1. 1-3); Bowen, Tr. 184 (1. 3-8).
By substituting 200 cc's in the place of the BRP designation, Petitioner failed to follow the procedures as described to her by Ms. Canelli. Petitioner had never been instructed by anyone at the Hospital to substitute 200 cc's for actual measurement. Johnson, Tr. 44 (1. 21-25) - 45 (1. 1) - 47 (1.
15-25) - 48 (1. 1-19) - 49 (1. 1-6); Canelli, Tr. 99 (1. 2-8).
It would not be proper for a nurse or nurse assistant to multiply the number of times a patient had voided by 200 cc's, and use that number as an accurate representation of the amount of urine output by the patient. Canelli, Tr. 91 (1. 9-14).
Petitioner's "Nursing Skill Evaluation" form reveals that she received training on the use of intake/output sheets, including the accurate measuring of cleaning of these items, although she cannot recall what instructions she received. Johnson, Tr. 64 (1. 7-25) - 65 (1. 1), (1. 14-17); Respondent's Exhibit 4.
An accompanying self-evaluation form also reveals that Petitioner indicated that she felt comfortable with charting elimination of bedpan fluids and with the accurate measuring and cleaning of the graduated pitcher. Johnson, Tr. 67 (1. 12-25) - 68 (1. 1-12); Respondent's Exhibit 5.
Ms. Canelli instructed her Nurse Assistants to inform the Team Leader, whenever they had forgotten to measure a patient's urine output and to let their Team Leader know the number of times the patient had voided so that the staff would have some idea that the patient had voided and chart that the urine had not measured. Canelli, Tr. 91 (1. 17-25).
Petitioner's substitution of her estimate of urine output was contrary to acceptable charting practice.
Petitioner had been instructed by Ms. Canelli, who regularly performed Team Leader and Charge Nurse duties, to document instances in which she had forgotten to measure a patient's output by writing the number of times the patient had voided beside the designation "BRP" (bathroom privileges). Johnson, Tr. 43 (1. 25) - 44 (1. 1-20).
On November 10, 1991, patient Cummings reported to Ms. Canelli that Petitioner had dumped her bedpan without measuring the urine output after the Petitioner had left at the end of her shift. Ms. Canelli documented the facts related to her by the patient in a report to her team leader, Ms. Bowen. Canelli, Tr. 94 (1. 22-25) - 95 (1. 1-3); Respondent's Exhibit 9.
Petitioner admits that the nurses rely on the information recorded on the intake/output slips and daily logs as being accurate representations of the actual amount of fluids measured by the Nurse Assistants. Johnson, Tr. 43 (1. 13-15).
Nurse Bowen was the Team Leader on Six North on November 10, 1991.
Ms. Bowen spoke with Ms. Cummings, who advised her that Petitioner had failed to measure her urine output before emptying the bedpan. Ms. Bowen also documented the patient's complaint in a report. Bowen, Tr. 184 (1. 9-19).
Nurse McCall was advised of the Cummings incident when she returned to work after the weekend.
Ms. McCall brought the incident involving patient Cummings to the attention of Ms. Vodenicker. In reviewing patient Cummings' medical file, Ms. Vodenicker was very concerned about Petitioner's inaccurate recording of patient information. Ms. Vodenicker opined that it was very important that the Hospital be able to trust what its health-care employees tell them and have confidence that the employees have done what they say they have done. Vodenicker, Tr. 123 (1. 9-20) - 124 (1. 7-16).
Ms. Vodenicker was already aware of Petitioner's performance, as well as the prior written corrective action which she had given Petitioner. She reviewed Petitioner's personnel file, performance appraisals, and met with Nurse McCall, Petitioner's immediate supervisor, in order to analyze this matter further. Ms. Vodenicker decided in view of the decline in Petitioner's performance, the verbal and written counseling she had received from the supervisory staff, the prior corrective action which had been issued, and the recent incident involving patient Cummings that a decision was required regarding Petitioner's further employment. Vodenicker, Tr. 124 (1. 20-25) - 125 (1. 1-3).
Ms. Vodenicker discussed the matter with Nurse McCall and asked that she provide her with a recommendation. Nurse McCall recommended Petitioner's discharge based upon the incident involving patient Cummings and Petitioner's declining work performance. Vodenicker, Tr. 125 (1. 8-18); McCall, Tr. 153 (1. 10-25) - 154 (1. 1-11) - 157 (1. 24-25) - 158 (1. 1); Respondent's Exhibit 13.
Petitioner's annual performance evaluation reflected that there had been a demonstrable demise in her overall performance over the course of her first year of employment. McCall, Tr. 155 (1. 4-21).
The decision to discharge Petitioner was not communicated to Petitioner until November 21st, mainly because of the time that it took Ms. Vodenicker to conduct her review of the situation and discuss the proposed disciplinary action with her superiors. Petitioner was not called to work due to low patient census on November 15, 18, and 20, 1991. Vodenicker, Tr. 125 (1. 23-25) - 126 (1. 1-18) - 144 (1. 1-6).
On November 21, 1991, Ms. Vodenicker met with the Petitioner and reviewed the incident involving patient Cummings with Petitioner. Petitioner admitted to Ms. Vodenicker that she had forgotten to measure the patient's urine output and had documented the output as 600 cc's.
Ms. Vodenicker expressed her concern over Petitioner's failure to properly chart patient information, and Petitioner's declining work performance. Ms. Vodenicker then terminated the Petitioner. Vodenicker, Tr. 126 (1. 19-25)
- 127 (1. 1-8); Johnson, Tr. 189 (1. 22-25) - 190 (1. 1-19); Hearing Officer
Exhibit 1.
Petitioner states she does not wish to return to the Hospital as a Nurse Assistant at this time for health reasons. Johnson, Tr. 50 (1. 3-13).
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.
Section 760.10(1), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against a person because of that person's handicap. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000(e), et seq., ("Title VII"). Hargis v. School Board of Leon County, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981). Federal precedent construing the similar provisions of Title VII are accorded great deference. Pasco County School Board v. Perc, 353 So.2d 108, 116 (Fla. 1st DCA 1979); Wood v. K-Mart Corp., 10 FALR 6189 (FCHR 1985).
The Supreme Court established and later clarified the burden of proof in disparate treatment cases in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The FCHR has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). McDonnell Douglas places upon the plaintiff the initial burden of proving a prima facie case of discrimination. Where a discriminatory discharge is claimed, the plaintiff must prove (1) the plaintiff is qualified for the position; (2) she was discharged; and (3) she was replaced by a person outside the protected class. Lee v. Russell County Board of Education, 684 F.2d 769 (11th Cir. 1982); Maggio v. Martin Marietta Aerospace, 9 FALR 2168 (FCHR 1986).
Proving a prima facie is not, however, the equivalent of a factual finding of discrimination. See Teamsters v. U.S., 431 U.S. 324, 358 and n.44 (1977). Discriminatory animus is inferred because experience has proved in the absence of any other explanation is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. v. Waters, 438 U.S. 567, 576 (1978).
Once the plaintiff has succeeded in proving all of the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment had not been motivated by discriminatory animus". Burdine, 450 U.S. at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff". Id. at 254, 255. This burden is characterized as "exceedingly light". Perryman v. Johnson Products, Inc., 698 F.2d 1138 (11th Cir. 1983).
Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the plaintiff who must prove that the reason offered by the employer for its decision is not the true reason but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons. Burdine, 450 U.S. at 257-58. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Id. at 253. The court confirmed this principle in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989).
In Price Waterhouse, the court examined the parties' respective burdens of persuasion where the plaintiff has proven with direct evidence that the employer was actually motivated by discriminatory animus. A plurality of the court held that in such a case, the employer must prove by a preponderance of the evidence that it would have made the same decision even if the discriminatory animus had not been a motivating part of its decision. The court cautions, however, that the holding does not alter the Burdine burden of proof allocation. An employer only bears the burden of persuasion after the plaintiff has proven discriminatory motivation. In a concurring opinion, Justice O'Connor explained that the application of this rule is limited to mixed-motive cases, that is, where the employer has created substantial uncertainty as to the causation by knowingly giving substantial weight to an impermissible criterion.
In the instant case, Petitioner failed to show she was replaced by someone outside the class; however, even if it is assumed that Petitioner has carried her burden of proof in establishing a prima facie case of improperly motivated discharge, the Respondent introduced evidence that it had other legitimate, nondiscriminatory reasons to discharge the Petitioner.
In summary, the record contains ample evidence of Respondent's legitimate, nondiscriminatory reasons for terminating Petitioner's employment. See also Ross v. Beaumont Hospital, 1 A.D. Cases 1296, 1299 (E.D. Mich. 1988).
In the present case, Petitioner's personnel file was contained numerous instances of performance deficiencies. The testimony independently confirmed the matters which were contained in Petitioner's personnel file regarding her deficiencies in patient care, missing from her assigned floor, taking extended breaks, and the incident involving patient Cummings. The performance-related incidents were not rebutted by Petitioner.
Petitioner failed to present any proof of pretext with respect to her discharge. She does not deny the incident involving patient Cummings. It was this incident which precipitated Petitioner's discharge. Medical charting is very important, because of the employer's necessity to rely on its employees to chart properly.
Petitioner has presented no evidence which casts doubt upon the Hospital's legitimate, nondiscriminatory basis for termination.
In summary, Respondent's legitimate, nondiscriminatory reasons for its employment decisions remain unrebutted by Petitioner. Petitioner's attempt to show that the concerns of Respondent were either unjustified or pretext for discriminating against Petitioner has no support in the record. Pretext cannot be inferred from the record. Petitioner has failed to prove that Respondent's decision-making was motivated by her handicap.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations issue a Final Order
finding that Petitioner has failed to prove a violation of Section 760.10, Florida Statutes.
DONE AND ENTERED this 17th day of September, 1993, in Tallahassee, Florida.
STEPHEN F. DEAN
Filed with the Clerk of the Division of Administrative Hearings this 17th day of September, 1993
APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1556
The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF).
1-7 Adopted.
8-9 Irrelevant.
10-17 Adopted.
18-19 Irrelevant.
20-27 Adopted.
28 Irrelevant.
29-32 Adopted.
33 Rejected as contrary to the best evidence. 34-42 Adopted.
43-44 Subsumed in 24 and other paragraphs. 45-50 Adopted.
51-56 Subsumed in 41.
57 Adopted.
1-End Rejected and contrary to the best evidence.
Ms. Mary E. Johnson
c/o Ms. Dorothy Johnson 1807 Golfview Boulevard
Gary E. Thomas, Esquire FISHER & PHILLIPS
All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten 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.
