STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PRISCILLA M. YOUNG, )

)

Petitioner, )

)

vs ) Case No. 99-0518

) BAT MANAGEMENT FOUNDATION, INC., ) d/b/a ORLANDO HEALTH CARE CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

A hearing was held in this case by teleconference on April 26, 1999, before Arnold H. Pollock, an Administrative Law Judge with the Division of Administrative Hearings. The Administrative Law Judge participated from Tallahassee, Florida, and the other parties participated from Orlando, Florida.

APPEARANCES

For Petitioner: Priscilla M. Young, pro se

312 Lime Avenue Orlando, Florida 32805

For Respondent: Jefferson M. Braswell, Esquire

Scruggs & Carmichael, P.A. One Southeast First Avenue Post Office Box 21309 Gainesville, Florida 32602

STATEMENT OF THE ISSUE

The issue for consideration in this hearing is whether Petitioner was discriminated against in employment by Respondent

in retaliation for Petitioner's efforts in behalf of minority employees of Respondent.

PRELIMINARY MATTERS

On January 31, 1995, Petitioner herein, Priscilla M. Young, filed a Complaint of Discrimination form (EEOC Form 5), with the Florida Commission on Human Relations (Commission), alleging that her discharge from employment with Respondent was in retaliation for her speaking out on behalf of Respondent's minority employees who had been falsely accused of incompetence. The matter was investigated by the Commission which, on November 23, 1998, entered a Determination: No Cause. Thereafter, Petitioner filed a Petition for Relief with the Commission, in which the basic allegation of retaliation was reasserted and expanded, and a claim for back wages and expenses was included. By notice dated January 29, 1999, Respondent was officially notified of Petitioner’s Petition, and the same day the matter was forwarded to the Division of Administrative Hearings for appointment of an Administrative Law Judge and formal hearing.

The matter was initially assigned to Administrative Law Judge Mary W. Clark, who ruled on the admissibility of some depositions to be used in lieu of live testimony. At the hearing, Petitioner indicated her preference that Administrative Law Judge Clark preside at the hearing. The undersigned inquired as to whether Petitioner held any belief that the

undersigned could not provide a fair and impartial hearing of the matters in issue. Petitioner’s response was that she did not, but would just feel more comfortable with Administrative Law Judge Clark as presiding judge. Based on Petitioner’s failure to elucidate any valid basis for recusal, the undersigned denied the request that Administrative Law Judge Clark preside and the hearing proceeded as scheduled.

At the hearing, Petitioner testified in her own behalf, and presented the testimony of Gay Marie Stanley, at the time in issue a licensed practical nurse and unit manager for the north wing in Orlando Health Care Center (OHCC). Petitioner also introduced Petitioner’s Exhibits 1 through 4 and 6 and 7.

Petitioner’s Exhibit 5 for identification was offered but not admitted. Petitioner also offered the testimony by deposition of Ms. Sue O’Brien, which was received into evidence over objection by counsel for Respondent.

Respondent presented the testimony of Joan Renee’ Banton, at the time in issue, Assistant Director of Nursing at Respondent’s (OHCC). Respondent also presented the testimony by deposition of Leslie Motes, formerly corporate bookkeeper for Respondent at its Palatka, Florida corporate headquarters.

Respondent also introduced Respondent’s Exhibits A though G. Respondent’s Exhibit F was the deposition of Ms. Motes.

Respondent’s Exhibit E was a deposition of Petitioner taken on August 27, 1999.

A Transcript of the proceedings was furnished May 9, 2000, and after the receipt thereof, both parties submitted matters in writing which have been carefully considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to the issues herein, Petitioner, Priscilla M. Young, was a licensed practical nurse employed by Respondent, BAT Management Foundation, Inc. (BAT), at its Orlando Health Care Center (OHCC), as a floor nurse responsible for the care of approximately 60 residents during the 11 p.m. to 7 a.m. shift. Her immediate supervisor was Joan Renee’ Banton.

2. Petitioner began working at OHCC as an LPN in 1992. In 1987 she had been convicted of a felony, aggravated battery, in circuit court and sentenced to imprisonment for a term of 30 months. After serving 8 of the 30 months, she was released without probation. At that time, she went to nursing school and was subsequently licensed in Florida as a practical nurse. At no time did she ever conceal her conviction from either the nursing school or licensing authorities.

3. Petitioner was hired at Winter Park Memorial Hospital after graduating from nursing school and becoming licensed. At

   that facility she worked for both Joan Renee’ Banton and Sue O’Brien. During this period, Ms. O’Brien left Winter Park Memorial to take a position with BAT at its OHCC facility.

   Somewhat later, Petitioner saw an advertisement by BAT in the newspaper and applied for employment there. She claims Ms.

   O’Brien, who was at that time director of nursing was happy to see her when she arrived to fill out the application.

4. Petitioner was interviewed for employment at OHCC by Ms. Stanley, who was the unit manager of the north wing at the facility. The employment application form contained a question which asked the applicant if she "had ever been convicted of a felony or, within the last five years of a misdemeanor, which resulted in imprisonment." Petitioner claims she was not sure how to interpret the verbiage and asked Ms. Stanley. Ms. Stanley also was not sure, so they discussed it with Ms. O’Brien. Based on their discussion, the determination was made that Petitioner did not have to list her felony conviction because it had occurred more than five years prior to the application. This was an incorrect decision because clearly the application requires listing a felony conviction regardless of when it happened, but requires listing of only those misdemeanor convictions which occurred within the last five years prior to application. Nonetheless, Petitioner was hired.

5. During the course of her employment with OHCC, Petitioner had no disciplinary problems. Both Ms. Stanley and Ms. Banton deny having had any problems with her or her work. Petitioner contends that at least twice during the term of her employment, however, she complained to Ms. Banton about Banton’s use of the term, "you people" in reference to the aides and orderlies who worked for her, all of whom were minority of some nature: African American, Hispanic, or Asian. Ms. Banton cannot recall Petitioner’s having ever complained to her about that, and she denies having ever used that term. She claims that if she ever did refer to the employees as a group, it would have been phrased more as "you guys," or something like that. Considering the evidence of record, however, it is found that Ms. Banton probably did use the term "you people" and that Petitioner did complain about that usage to Ms. Banton.

6. According to Ms. Banton, shortly after Petitioner was hired, all people who had knowledge of her conviction had left employment with OHCC. Ms. Stanley had taken employment elsewhere. Ms. Banton also left employment with OHCC in August 1994 because of rumors involving management problems with which she did not want to be involved.

7. Somewhere between two and three weeks after leaving OHCC, however, Ms. Banton received a call from Mr. Allen, the owner of the company, asking her to come back to OHCC as

   Director of Nursing to replace Ms. O’Brien whom he intended to discharge. She agreed, and when she assumed her new role, she quickly received a phone call from Mr. Allen.

8. In this telephone call, Mr. Allen asked if Petitioner was employed at OHCC. When Banton replied that she was, Allen reportedly revealed he had received a background check on Petitioner which indicated she had a felony conviction. According to Banton, Allen, who did not want any felons working in his nursing homes, directed Banton to check Petitioner’s background to see if the conviction had been noted on her application. She did, and when she reported to Allen that it had not been listed, he directed Banton by telephone to fire the Petitioner.

9. Ms. Banton did what she had been directed to do.

   
   

   Petitioner contends that Banton’s attitude at the time of discharge was cavalier. Ms. Banton admits that at the time she had the discussion with Mr. Allen, she knew that Petitioner had served time in prison, but did not know why. She also claims that she did not know that Petitioner had discussed the conviction with Stanley and O’Brien and had been advised not to list it.

10. Petitioner’s termination from employment with OHCC was based on her failure to disclose her felony conviction. Petitioner claims the termination was based on her speaking out

    for the other nursing assistants, all of whom were minority, when they were accused of incompetence. Ms. Banton, however, cites instances where when she would come in at night to check on how things were going, she would find pillows and chairs scattered around as if people were sleeping on their shift. She discussed this with Petitioner and admits the discussions were sometimes loud, but she never took any disciplinary action against Petitioner or wrote her up for this. Banton absolutely denies having ever disciplined any employee in public, always taking an employee to a private area to take corrective action.

11. Petitioner is adamant in her contention that the fundamental basis for her discharge from employment with OHCC is retaliation for her standing up for the minority nursing assistants who were accused of incompetence. She firmly believes that her failure to list her felony conviction was seized upon as a pretext upon which to support the unlawful basis for her discharge. She cites that both Banton and O’Brien knew of her conviction and the fact that she had served time, when they all were employed at Winter Park Memorial, and that though it was not listed on her application for employment with OHCC, O’Brien knew about it at the time of her hiring, and Banton knew about it when she, Banton, subsequently came to work at OHCC. Coincidentally, Petitioner claims to have been instrumental in Banton’s obtaining employment at OHCC.

    CONCLUSIONS OF LAW

    
    

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

13. Section 760.10, Florida Statutes makes it an unlawful employment practice for an employer:

    1. To discharge or to fail or refuse to hire any individual, or otherwise discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.

       
       

14. Petitioner has the burden of proof to establish a prima facie case of unlawful discrimination. Once that prima facie case is shown, the burden shifts to the Respondent to articulate legitimate, non-discriminatory reasons for the alleged unlawful conduct. Once that is done, the burden shifts back to the Petitioner to establish that the articulated reasons for the employer’s actions are a mere pretext for intentional discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792

    (1973); Texas Department of Community Affairs v. Burdine, 540 US

    
    

    248 (1981). The State of Florida utilizes federal discrimination law as a guide when interpreting the provisions of the Florida Civil Rights Act of 1992.

15. However, accepting, arguendo, that Petitioner has

    
    

    established a prima facie case on racial discrimination, Respondent has, in response, clearly demonstrated that she was discharged not because of her race or in retaliation for her advocacy for minority employees, but because she failed to disclose her prior conviction on her employment application form.

16. Petitioner contends that she was discharged because of her advocacy on behalf of other minority employees. She presented evidence to indicate that Ms. Banton, her supervisor, used the term. "you people" in referring to minority employees, and that the term, as used, is a racial epithet which is discriminatory and painful to minorities. The undersigned officially recognized that the use of a collective term such as "you people" can be and often is objectionable. However, by itself, it cannot be said that Petitioner’s objection to Banton’s use of that term could be the basis for her discharge, notwithstanding Petitioner’s reference to a federal court decision implying that a discharge following Petitioner’s complaint can be considered retaliatory. By the same token, nothing discriminatory can be inferred from the fact that O’Brien was discharged and Banton placed in her position shortly after Petitioner’s complaint about Banton’s use of the term, "you people." On the other hand, Respondent produced evidence

    that on several occasions when Ms. O’Brien visited the facility unannounced, she found conditions to be less than satisfactory.

17. To be sure, the evidence is clear that Petitioner had verbally disclosed her conviction to Ms. Staley and Ms. O’Brien at the time she was interviewed for the position. It is also clear that Ms. Banton, who had worked with Respondent at another facility prior to their both coming to OHCC, also knew of the conviction. The subsequent failure to list the conviction on the application form cannot be said to justify her discharge, and the Unemployment Compensation Appeals Board of the Florida Department of Labor and Employment Security in essence so held. However, an unjustified discharge does not equate to racial or retaliatory discrimination.

18. While Banton and O’Brien may have known about Petitioner’s felony conviction, Mr. Allen, the owner of the facility, did not. When he heard about it, he verified it and determined that Petitioner had not properly disclosed it on the application form. Allen’s subsequent direction that Petitioner be discharged on the basis of the failure to disclose the felony conviction may not have been equitably justified, but Petitioner presents insufficient evidence, beyond inference and innuendo, that it was based on her race or in retaliation for her advocacy for minority employees.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order determining that Petitioner, Pricilla Young, was not subjected to racial discrimination or retaliation because of her advocacy on behalf of minority employees; that her discharge from employment with Respondent, BAT Management Foundation, Inc., d/b/a Orlando Health Care Center was based on a determination by Mr. Allen, the owner thereof, that her prior felony conviction disqualified her from employment at the facility; and that she is not entitled to back pay, expenses, or compensatory damages as a result thereof.

DONE AND ENTERED this 13th day of June, 2000, in Tallahassee, Leon County, Florida.

ARNOLD H. POLLOCK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6947 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 13th day of June, 2000

COPIES FURNISHED:

Priscilla M. Young

312 Lime Avenue Orlando, Florida 32805

Jefferson M. Braswell, Esquire Scruggs & Carmichael, P.A. One Southeast First Avenue Post Office Box 23109 Gainesville, Florida 32602

Sharon Moultry, Clerk Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana A. Baird, General Counsel Florida Commission on

Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days from the date of 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: 99-000518

Orders for Case No: 99-000518