STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JERRYLENE BARR, )

)

Petitioner, )

)

vs. ) Case No. 98-2813

)

COLUMBIA OCALA REGIONAL )

MEDICAL CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on March 2, 1999, in Ocala, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerrylene Barr, pro se

Post Office Box 289 Reddick, Florida 32686

For Respondent: Kip P. Roth, Esquire

2501 Park Plaza

Nashville, Tennessee 37203 STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner in May 1998.

PRELIMINARY STATEMENT

This matter began on April 19, 1995, when Petitioner,

Jerrylene Barr, filed a Charge of Discrimination with the Florida Commission on Human Relations alleging that Respondent, Columbia Ocala Regional Medical Center, had violated Chapter 760, Florida Statutes, by discharging her from employment as a registered nurse on account of her race. On April 27, 1998, or approximately three years later, the agency issued its Notice of Determination: No Cause. Thereafter, Petitioner filed her Petition for Relief with the agency on May 28, 1998. The case was then referred by the agency to the Division of Administrative Hearings on June 22, 1998, with a request that an Administrative Law Judge conduct a formal hearing.

By Notice of Hearing dated July 10, 1998, a final hearing was scheduled on October 13, 1998, in Ocala, Florida. At Petitioner's request, the case was rescheduled to January 28, 1999, and then again to March 2, 1999, at the same location.

At final hearing, Petitioner testified on her own behalf. Also, she offered Petitioner’s Composite Exhibit 1, which was received in evidence. Respondent presented the testimony of Wayne Nielsen, director of human resources; Carla Tardy, administrative nursing supervisor at night; and Petitioner.

Also, it offered Respondent's Exhibits 1-26. All exhibits were received in evidence.

A transcript of hearing was filed on March 22, 1999.

Proposed findings of fact and conclusions of law were filed by Respondent on April 9, 1999. On March 16, 1999, Petitioner filed

a paper entitled "Opposition of Facts." Both filings have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon all of the evidence, the following findings of fact are determined:

1. In this proceeding, Petitioner, Jerrylene Barr, who is an African-American, contends that in May 1994, Respondent, Columbia Ocala Regional Medical Center (Respondent), unlawfully terminated her from employment as a registered nurse on account of her race. Respondent has denied the charges and contends instead that Petitioner was terminated after she negligently overmedicated a patient, in addition to her prior performance of medication errors over a two-year period. After a preliminary investigation was conducted by the Commission on Human Relations (Commission), which took some three years to complete, the Commission issued a Notice of Determination: No Cause on

   April 27, 1998.

   
   

2. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law.

3. Petitioner began working for Respondent as a nurse in January 1992. Between September 1992 and May 1994, a period of seventeen months, Petitioner had twelve documented errors in giving medications to patients under her supervision. This was more than any other employee at Respondent's facility.

4. During Petitioner's tenure at Respondent's facility, Respondent had a Medication Error Policy in effect. This policy outlined the procedures and penalties for medication errors. For each error, points were assigned according to the severity and frequency of errors. The policy provided, however, that management had the right to terminate an employee at any time for a serious medication error regardless of whether the employee had accumulated any points under the policy. Petitioner was aware of, and understood, this policy.

5. On May 2, 1994, Petitioner was working the night shift at Respondent's facility and was in charge of six patients on the third floor. One of her patients was a 78-year-old male who was scheduled to have surgery for a life-threatening abdominal aortic aneurysm. The attending physician had written on his orders that day that the patient was to be given "Halcion 0.125 milligrams PO noon." This meant that he was to receive one-half of a .25 milligrams tablet of Halcion, a narcotic-type drug, by mouth at noon on May 3, the following day. The order was attached to the patient's chart.

6. Around 6:30 p.m. on May 2, 1994, Petitioner mistakenly gave the patient five Halcion 0.25 milligrams tablets by mouth, or ten times the prescribed dosage. Although Petitioner did not initially disclose this fact to other personnel, she eventually conceded that she had made an error.

7. When the patient was found in a comatose state a few

   hours later, three physicians were called to check on his condition, including his primary physician, a critical care physician, and a neurologist. Not knowing that Petitioner had overmedicated the patient, the primary physician initially believed the patient had suffered a stroke. The patient was admitted to the intensive care unit (ICU), a catheter was inserted, and he was placed on a respirator. After reading the medication record, the ICU nurses discovered that the patient had been overmedicated. The patient eventually recovered, but his surgery had to be postponed, which might have resulted in a burst aorta. His family later sued the hospital for Petitioner's negligence.

8. Because of the serious nature of the error, and given Petitioner's past history of medication errors, Respondent terminated Petitioner on May 3, 1994. The employment decision was not based on Petitioner's race, but rather was based on "her poor work performance overall." There is no evidence as to whom, if anyone, was hired to replace Petitioner. The termination was wholly consistent with Respondent's Medication Error Policy.

9. At hearing, Petitioner contended that the hospital did not terminate other nurses for similar offenses. However, during the same period of time that Petitioner was employed by Respondent, another nurse, M. C., a Caucasian female, was also terminated for making a serious medication error with a narcotic- type drug. Although M. C. had an otherwise "very good" record at

   the hospital, and did not have a history of medication errors, Respondent nonetheless terminated her since her conduct, like that of Petitioner, constituted a "life-threatening nurse practice error."

10. Petitioner also contended that another nurse on duty that evening assisted her in calculating the Halcion dosage and this should relieve her of any responsibility. Although there was no independent testimony to corroborate this claim, even if true, the patient was under the direct supervision of Petitioner, and it would not diminish Petitioner's responsibility for placing the patient in a life-threatening situation.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57, Florida Statutes.

12. In her Charge of Discrimination dated April 19, 1995, Petitioner has alleged that she "was discharged from [her] position as a Registered Nurse, after experiencing disparate treatment . . . because of [her] race." If this charge is true, it would arguably constitute a violation of Section 760.10(1)(a), Florida Statutes (1993), which provides in relevant part as follows:

    1. It is an unlawful employment practice for an employer:

       1. To discharge . . . any individual . . . because of such individual's . . . handicap.

          
          

13. Under Commission precedent, to make out a prima facie

    case of race discrimination in a termination context under Section 760.10(1)(a), Petitioner must show that she is a member of a protected class; that she was fully qualified for the job to which she was assigned; and that she was replaced by a person outside her protected class, or that a person outside her protected class with equal or lesser qualifications was not discharged. See, e.g., Johnson v. General Parcel Service of Fla., Inc., 14 F.A.L.R. 561, 562 (Fla. Comm'n Human Relations, August 26, 1991); Lee v. Russell Cty Bd. of Educ., 684 F.2d 769,

    773 (11th Cir. 1982).

    
    

14. Here, Petitioner has failed to meet her burden of proving a prima facie case. The evidence shows that while she is a member of a protected class, and was arguably qualified for the position of registered nurse, she failed to show that she was replaced by a person outside her protected class with equal or lesser qualifications, or that a person outside the protected class with equal or lesser qualifications was not discharged. This being so, her charge of discrimination must necessarily fail.

15. Assuming arguendo that Petitioner made out a prima facie case, Respondent has articulated a nondiscriminatory reason for its employment decision. The evidence shows clearly that Petitioner was terminated for gross negligence in caring for a 78-year-old patient on May 2, 1994, and a history of making medication errors over the prior two years. There was no

rebuttal evidence that Respondent's offered explanation for termination was a mere pretext. Accordingly, the Petition for Relief must fail.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief.

DONE AND ENTERED this 14th day of April, 1999, in Tallahassee, Leon County, Florida.

DONALD R. ALEXANDER

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(850) 488-9675, SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1999.

COPIES FURNISHED:

Jerrylene Barr

Post Office Box 289 Reddick, Florida 32686

Kip P. Roth, Esquire 2501 Park Plaza

Nashville, Tennessee 37203

Sharon Moultry, Clerk

Florida Commission on Human Relations Building F, Suite 240

325 John Knox Road

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240

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 within fifteen days. Any exceptions to this Recommended Order should be filed with the Florida Commission on

Human Relations.

Docket for Case No: 98-002813

Orders for Case No: 98-002813