STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOANN I. LEWIS, )

)

Petitioner, )

)

vs. ) CASE NO. 94-5423

) HILLSBOROUGH COUNTY HOSPITAL ) AUTHORITY d/b/a TAMPA GENERAL ) HEALTHCARE AND HEALTH PARK, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case in Tampa, Florida on June 13, 1995, before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Joanne I. Lewis, pro se

6702 North 33rd Street Tampa, Florida 33610-1518

For Respondent: Sandra L. Fanning, Esquire

E. John Dinkel, III Esquire

MacFarlane, Ausley, Ferguson & McMullen 2300 First Florida Tower

111 Madison Street

Post Office Box 1531 (Zip 33601)

Tampa, Florida 33602 STATEMENT OF THE ISSUES

The issue for consideration in this case is whether Petitioner was unlawfully discriminated against in employment by the Respondent because of her race.

PRELIMINARY MATTERS

By Charge of Discrimination dated November 9, 1993, Petitioner, Joann I. Lewis, alleged that the Hillsborough County Hospital Authority, doing business as the Genesis Program of Tampa General Hospital, unlawfully discriminated against her on the basis of her race by discharging her from her position as unit coordinator. Thereafter, the matter was referred to an investigator of the Florida Commission on Human Relations and after an investigation was completed, the Commission entered a Determination: No Cause on July 14, 1994. By Petition for Relief, received in the Commission's office on September 1, 1994, Ms. Lewis requested a formal hearing and this hearing ensued.

The Respondent's representatives and the Hearing Officer were present at the time and place set for the hearing. Petitioner did not appear until ten minutes after the hearing was scheduled to commence and offered no explanation for her lateness. Nonetheless, the hearing commenced upon her arrival.

At the hearing, Petitioner testified in her own behalf. She did not call any other witnesses or present any documentation. Respondent presented the testimony of Sharon G. Steinmetz, Team Leader at Genesis and the Petitioner's immediate supervisor; and Teresa L. O'Connor, the project Director of the Genesis program at the time Petitioner were discharged. Respondent also introduced Respondent's Exhibits A through Q.

A transcript was presented. Subsequent to the hearing, Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. The Petitioner herein, Joann I. Lewis, began working for the Respondent, Tampa General Healthcare and Health Park as a unit coordinator at its Genesis project located at 5802 N. 32nd Street in Tampa in December, 1979. Her duties were to perform general clerical work, to answer the phone, to prepare and copy medical records and reports, and other tasks of a similar nature. Her immediate supervisor was Sharon Steinmetz, who was her team leader.

   
   

2. On November 30, 1992, Ms. Steinmetz prepared a memorandum which was forwarded to Ms. Lewis outlining Lewis' unsatisfactory behavior. Specifically in issue was the question of her tardiness, and at subparagraph 5 of the listed reasons, Ms. Steinmetz indicated that from September 24, 1992 through October 19, 1992, Petitioner was tardy 16 times. Ms. Lewis refused to acknowledge receipt of this memorandum.

   
   

3. On January 20, 1993, a staff meeting was held at the Genesis office, called by Teresa O'Connor, the program director, for Ms. Steinmetz and all members of the staff. Staff meetings were considered mandatory. The purpose of this meeting was to discuss the company's new tardiness policy which went into effect the first of the year. A copy of the new policy was given to all attendees at this meeting. Petitioner's signature appears on the list of attendees, but she claims she was not given her copy at that time. She claims she received it somewhat later, but no reason was shown as to why she did not get hers when all other employees received theirs.

   
   

4. The new policy clearly states that when an employee accumulates 13 incidents within a 365 day period from the inception of the policy, progressive disciplinary action would be taken. All employees participated in the program, including the Petitioner, and though she claims not, her slate regarding tardiness was wiped clean effective January, 1993, as was that of all other employees. However, because Ms. Lewis had been placed in an employee enhancement program as a result of the memorandum and letter given her on November 20, 1992, she was not relieved of the strictures required by that program, with the exception that, as was stated above, her list of tardies and absences was wiped clean prior to January 1, 1993.

   
   

5. In May, 1993, Ms. Steinmetz met with the Petitioner about her attendance and at that time again gave her a copy of the tardiness policy and a listing which showed that Petitioner had been tardy six times since January 1, 1993.

6. On July 26, 1993, Ms. Steinmentz again met with Petitioner, this time in Ms. Steinmetz' office and at that time noted that Petitioner had been tardy twelve times since February 1, 1993. This was a written verbal warning, which is the initial disciplinary action under the new tardy policy. The corrective action required was that Petitioner cease further tardiness. Petitioner refused to sign this warning memorandum which had been discussed with Ms. O'Connor prior to its being presented to Petitioner.

   
   

7. On August 26, 1993, Ms. Steinmetz again called Petitioner to her office and presented her with a list of nine tardies and two unscheduled absences which occurred during the period between January 1, and August 20, 1993. One tardiness was for one minute; two were for two minutes; one was for fifteen minutes; one for twenty-four minutes,; one for twenty-eight minutes; one for thirty minutes; one for one hour; and one for three hours and thirty minutes.

   On this same date, Ms. Steinmetz gave Petitioner a written warning, which had previously been approved by Ms. O'Connor, and which Respondent refused to sign. In this written warning, Petitioner was notified that upon the next occurrence of tardiness, she would be given a three day suspension without pay.

   
   

8. Thereafter, Ms. Steinmetz met with Ms. O'Connor to see if there was any way they could help Petitioner with her tardiness. When Steinmetz subsequently spoke with Petitioner, Petitioner indicated there was nothing they could do.

   
   

9. Petitioner was again tardy in September 1993 and on September 22, 1993, she was given a three day suspension without pay. At that time both Ms. Steinmetz and Ms. O'Connor discussed the reasons for the suspension with the Petitioner and Petitioner agreed and signed the notice of suspension. The dates of the suspension were chosen to accommodate the Petitioner's needs. Apparently her son, who was away at college, had been shot, and she needed to go see him. Therefore, the days of the suspension were imposed consistent with her need to make this trip. Nonetheless, the first day back to work, after the suspension, Petitioner was again tardy.

   
   

10. As a result, on October 19, 1993, Ms. Steinmetz and Ms. O'Connor met with the Petitioner, advised her of the fact that she was to be terminated and the reasons therefor. Petitioner refused to sign or take with her a copy of the termination notice, and it was thereafter mailed to her that same day.

    
    

11. Petitioner requested a pre-disciplinary hearing on the issue of her termination and claims she was to be advised by the Respondent as to when the hearing would be held. She also claims that she was not advised prior to the hearing and received notice thereof two days after it was held. When Petitioner called Respondent's office about that, she was told she would be notified as to what could be done, but she claims she never heard from Respondent again.

    
    

12. Ms. Steinmetz' comments regarding Petitioner's record of tardies and absences is confirmed by the testimony of Ms. O'Connor. The Respondent's policy on tardiness is that any period of lateness is considered a tardy, and at the thirteenth incident of tardiness, progressive discipline will be initiated.

    
    

13. Ms. O'Connor claims to have discussed all discipline taken against Petitioner with Ms. Steinmetz before it was imposed, but she did not necessarily sign all actions that were taken. For example, she did not sign any of the records of counseling, but any written disciplinary action which was imposed on Petitioner was signed by her. Both the verbal and written warning were approved

    by Ms. O'Connor and both, she insists, are consistent with the company's tardiness policy.

    
    

14. Ms. O'Connor claims, as does Ms. Steinmetz, that both tried to consider various ways to help Petitioner with ways to overcome her tendency toward tardiness. They suggested some changes to Petitioner who rejected them. These included different work hours or a different work load, but as Petitioner claimed at hearing, these were not "feasible" alternatives.

    
    

15. Ms. O'Connor made the decision to terminate Petitioner's employment with the Respondent, and she discussed this with Ms. Steinmetz before the action was taken. This dismissal action was based solely on the Petitioner's continuing series of excessive tardiness, and in no way was based on her race.

    
    

16. In that regard, Petitioner, while claiming her dismissal was based on race, admits that many other individuals who had extended periods of tardiness were not discharged and that most of those individuals were black, as is she.

    In fact, the majority of the employees at the Genesis project are black, but she sees no way that her dismissal could have been based on anything other than her race notwithstanding the fact that she was ten minutes late for the hearing she requested in this instance.

    
    

17. Petitioner also notes that subsequent to her dismissal, she filed for unemployment compensation which was denied because, according to the examiner, she was discharged for tardiness and not at the fault of the employer. She also filed the initial equal opportunity complaint with the Commission on Human Relations which was denied. She claims in that regard, however, that the Commission did not contact any of the five witnesses she listed on her complaint form.

    
    

    CONCLUSIONS OF LAW

    
    

18. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter in this case. Section 120.57(1), Florida Statutes.

    
    

19. Section 760.10(1)(a), Florida Statutes, makes it an unlawful employment practice for an employer to discriminate against any person because of such person's race, color, religion, sex, national origin, age, handicap or marital status. In this case, Petitioner claims Respondent discriminated against her because of her race.

    
    

20. Petitioner has the initial burden of proving a prima facie case of discrimination, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Florida Commission on Human Relations has adopted this evidentiary model, Kirkpatrick v. Howard Johnson Co., 7 FALR 5468 (FCHR).

    
    

21. Petitioner claims that her employer, the Hillsborough County Hospital Authority, discriminated against her on the basis of her race by discharging her from her position as unit coordinator with the Genesis program of Tampa General Hospital. She offered no evidence in support of her position other than her own testimony that her tardiness was always the result of some personal problem, and she can see no basis for her having been discharged other than her race.

    
    

22. Petitioner completely overlooks her extensive record of tardiness for which she was repeatedly counseled and disciplined prior to discharge, the fact

    that the majority of her coworkers are black, and the fact that tardiness seems to be a completely acceptable way of working for her, witness her tardiness for the hearing convened at her request and for which she offered neither explanation nor apology.

    
    

23. To be sure, the Respondent presented ample evidence other than Petitioner's race for her discharge which was, clearly, the last step in a sequence of progressive disciplinary actions designed to correct her behavior if at all possible. The evidence is clear that Respondent offered Petitioner not only personal assistance and accommodation but also understanding and forbearance. The discharge action, far from being based on Petitioner's race, was clearly based on her unsatisfactory history of tardiness, and was appropriate.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore:

RECOMMENDED that the Petition for relief filed in this matter by Joann I. Lewis against the Hillsborough County Hospital Authority be dismissed.

RECOMMENDED this 9th day of August, 1995, in Tallahassee, Florida.

ARNOLD H. POLLOCK, 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 9th day of August, 1995.

COPIES FURNISHED:

Joann I. Lewis

6702 North 33rd Street Tampa, Florida 33610-1518

Sandra L. Fanning, Esquire

E. John Dinkel, III, Esquire MacFarlane Ausley Ferguson & McMullen 2300 First Florida Tower

111 Madison Street

P.O. Box 1531 (Zip 33601) Tampa, Florida 33602

Sharon Moultry Clerk

Commission on Human Relations

325 John Knox Road Suite 240, Building F

Tallahassee, Florida 32303-4149

Dana Baird General Counsel

Commission on Human Relations Suite 240, Building F

325 John Knox Road

Tallahassee, Florida 32303-4149

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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.

Docket for Case No: 94-005423

Orders for Case No: 94-005423