STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA F. JACKSON, )

)

Petitioner, )

)

vs. ) Case No. 00-1781

) HALIFAX MEDICAL CENTER, )

)

Respondent. )

_____________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on July 11, 2001, in Daytona Beach, Florida, before Donald R. Alexander, the assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Richard Jackson

828 White Court

Daytona Beach, Florida 32114

For Respondent: John W. Bencivenga, Esquire

Thompson, Sizemore & Gonzales Post Office Box 639

Tampa, Florida 33601-0639 STATEMENT OF THE ISSUE

The issue is whether Respondent violated the Florida Civil Rights Act, as amended, as alleged in Petitioner's Charge of Discrimination.

PRELIMINARY STATEMENT

This matter began on February 26, 1998, when Petitioner, Sandra F. Jackson, executed a Charge of Discrimination alleging that Respondent, Halifax Medical Center, had unlawfully discharged her from employment on April 6, 1996, on account of her race. On an undisclosed date, the Florida Commission on Human Relations advised Petitioner that because it had failed to complete its investigation in a timely manner, she could file a Petition for Relief "to proceed with an administrative hearing as provided for under . . . Section 760.11(4)(b) and (8)." On January 13, 1999, Petitioner opted to proceed with an administrative hearing.

On April 27, 2000, or some fifteen months later, the matter was referred by the agency to the Division of Administrative Hearings with a request that an Administrative Law Judge be assigned to conduct a hearing.

On May 16, 2000, Respondent filed a Motion to Dismiss Administrative Hearing on the ground that Petitioner had failed to file her request for a hearing within 35 days after the expiration of the 180-day-period in which the agency was to make a reasonable cause determination. The motion was granted, and a Recommended Order of Dismissal was entered on June 14, 2000. On February 12, 2001, the agency issued an Order of Remand and directed that further proceedings be held.

By Notice of Hearing dated February 23, 2001, a final hearing was scheduled on July 10 and 11, 2001, in Daytona Beach, Florida. The matter was later rescheduled to July 11 and 12, 2001, at the same location. Petitioner's request for a continuance presented at the outset of the final hearing was denied.

At the final hearing, Petitioner was represented by her husband, Richard Jackson. Petitioner testified in her own behalf and offered Petitioner's Exhibits 1 and 2, which were received in evidence. Respondent presented the testimony of the following employees of Hospice of Volusia/Flagler:

Deborah J. Harley, executive director; Cherrie Chester, a former patient coordinator; Kimberly B. Beck, a social worker; and Karen Grant (formerly Grimm) and Lillie Kathleen Moore, both psychosocial coordinators. Also, it offered Respondent's Exhibits 1-31, which were received in evidence.

The Transcript of the hearing (two volumes) was filed on July 28, 2001. By agreement of the parties, the time for filing proposed findings of fact and conclusions of law was extended to August 31, 2001. The same were timely filed by the parties, and they 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 discrimination case, Petitioner, Sandra Jackson, who is an African-American, has alleged that on April 8, 1996, she was unlawfully terminated from employment with Respondent, Halifax Medical Center, on account of her race. Although the record does not specifically address the issue of whether Respondent is an "employer," it can be

   reasonably inferred from the evidence that Respondent employed at least 15 employees for each working day in each of 20 or more calendar weeks in the current calendar year, and is thus subject to the jurisdiction of the Florida Commission on Human Relations (Commission).

2. Halifax Medical Center, located in Daytona Beach, is a part of the Halifax Community Health Systems network serving East and Central Florida. Petitioner was first hired by Halifax Medical Center on February 13, 1989, as a pharmacy technician. She remained in that position until April 16, 1990, when she transferred to a position of Social Worker I at the Hospice of Volusia/Flagler (Hospice), which performs hospice services for the Halifax network in Volusia and Flagler Counties. In that position, Petitioner's duties included assisting the various supervisors, taking care of

   patient requests, and filling out financial assistance forms for Medicaid or Medicare patients. She was also required to fill out memorial fund requests.

3. Because of a change in the federal law in 1992, which required that all Hospice social workers have a master's degree, Petitioner was no longer qualified to work as a social worker since she held only a bachelor's degree. In order to allow Petitioner (and several other affected social workers) to remain with the organization, the Hospice created the position of Resource Specialist. Petitioner transferred to that position on November 1, 1992. Petitioner's contention that her transfer was actually a demotion and confirms that she was treated differently from other employees has been rejected. This is because the evidence clearly shows that her transfer, and that of several similarly situated employees, was caused by a change in the federal law, and not by discriminatory animus on the part of her employer.

4. Although the duties of a Resource Specialist were similar to that of a Social Worker I, and included providing assistance to other Social Workers, a Resource Specialist was not allowed to perform patient assessments or give supportive counseling. However, Petitioner's paperwork duties remained the same.

5. From 1992 until 1994, Karen Grimm was Petitioner's supervisor. Grimm served as the Hospice's Psychosocial Bereavement Coordinator. When Grimm's position was split in two on January 17, 1994, Kathleen Moore became Petitioner's new supervisor. Both Grimm and Moore were required to prepare performance evaluations for all employees under their supervision, including Petitioner.

6. Grimm's first evaluation of Petitioner was made on April 16, 1993. On that evaluation, Petitioner scored a 7.2 out of a possible 10 points, or an average evaluation. However, the evaluation noted that Petitioner needed to improve in following through on assignments and having an increased awareness of resources. These criticisms were based on complaints Grimm had received from other employees that Petitioner would not finish jobs she was required to do.

   Grimm discussed these criticisms with Petitioner after the evaluation was prepared.

7. In August 1993, Pamela Toal, a nurse at Halifax Medical Hospital, met with Petitioner and Grimm regarding Petitioner's care of certain patients. In one case, Petitioner had taken two weeks to get a patient a pill box, which would have assisted the patient in ensuring that he took his prescribed medicine on time. In another case, Petitioner had been asked to assist a patient in signing up for Community

   Medicaid. However, she signed him up for Hospice Medicaid twice, a program in which he was already enrolled. These events were documented by Grimm.

8. In January 1994, or shortly before her position was split, and she would no longer be Petitioner's supervisor, Grimm met with Petitioner to discuss complaints Grimm had received from a patient care coordinator (Cherrie Chester) regarding how difficult it was to find Petitioner when she was needed. Petitioner was instructed to meet with Chester to resolve the difficulty.

9. On April 7, 1994, Kathleen Moore, Petitioner's new supervisor, met with Petitioner regarding Petitioner's work performance. At that time, Petitioner agreed to a number of performance-related changes in her work habits, which are formalized in Respondent's Exhibit 8. That document notes that "[i]f there is no improvement by the time for review [mid-May 1994], you will then be placed on a probationary period for an additional month."

10. On her next evaluation prepared by Moore on May 22, 1994, Petitioner scored a 7.6 out of 10 points, which is considered an average evaluation. In the job responsibility category, however, she received a score of 5, which is below average.

11. The next evaluation was prepared by Moore on

    
    

    April 22, 1995. Petitioner's average score was only 6.35, and her job responsibility score dropped from a 5 to a 4, indicating that she was performing her job below expectations. During this period, a number of complaints were made about Petitioner's job performance by co-workers, supervisors, families, and patients. Based on this continuing pattern of poor performance, Petitioner was placed on written notice by the Hospice Executive Director that she needed to make "immediate improvement in some areas of her work." Moore and Petitioner discussed a performance improvement plan, and Moore requested another review of Petitioner in three months to see if she had improved.

12. In June 1995, a social worker who worked with Petitioner documented a number of incidents in which Petitioner failed to perform necessary responsibilities for patients. This required the social worker to follow up and perform the tasks that should have been completed by Petitioner.

13. Moore conducted a follow-up evaluation of Petitioner on September 4, 1995. Her score dropped to 5.725, and her job responsibility rating dropped to a 3, which is unsatisfactory. This latter decline in rating was caused primarily because Petitioner had not been meeting in person with other social

    workers and counselors with whom she worked, as required by her job position. The evaluation noted that Petitioner was not improving in other areas and was still having problems filling out financial forms.

14. In response to Petitioner's poor performance, Moore drafted a "Corrective Action Counseling Memo" on September 5, 1995. The memorandum addressed each of Petitioner's deficiencies and required certain corrective action. In addition, it warned her that any "future complaints or violations will result in termination."

15. On September 12, 1995, Moore and Petitioner met concerning Petitioner's inability to meet the job standards. Petitioner was also put on notice that she must start looking for a different position in the Halifax Community Health Systems network as her employment as a Resource Specialist at the Hospice would end in three months. Two days later, Petitioner told Moore that it was Moore's responsibility to find her a new job. In an effort to assist Petitioner, Moore advised her to contact all of the entities under the Halifax umbrella.

16. On September 1995, Petitioner continued to have performance problems, including a failure to report to work until noon one day, filling out incomplete and incorrect billing status forms, and failing to provide documentation to

    Moore in a timely manner. She also failed to timely meet with other Hospice social workers, as instructed by Moore on September 12.

17. Although Petitioner was told in September that she had three months to find another position, she was allowed to remain in her Hospice job for several additional months because of her lack of success in finding a new job. Finally, on January 8, 1996, Petitioner was told her last day would be April 8, 1996. A Termination Voucher prepared on April 8 lists unsatisfactory ratings in the areas of job knowledge, quantity of work, and quality of work. It also relies upon "extensive notes in Personnel files" as a basis for discharge. There was no discriminatory animus on the part of Respondent in the termination decision, and it was based wholly on Petitioner's poor job performance.

18. Notwithstanding the above, Petitioner points out that she received overall "satisfactory" job evaluations in the October 1990, April 1991, April 1992, and June 1993. While this may be true, beginning at least in April 1993, Petitioner's evaluations contained deficiencies, which persisted for several years until her termination.

19. Petitioner also contends that beginning in 1994, when Moore became her supervisor, she suffered racial abuse in the workplace through comments made by other workers, and that

    she was assigned "dirty jobs" that other white employees were not required to do. Aside from the lack of corroborating evidence from any other witness to support these contentions, Petitioner never complained about the comments until the hearing. Moreover, none of the alleged statements were made by supervisors or managers who were decisionmakers at the Hospice.

20. Petitioner also asserted that she was treated differently from other Resource Specialists when she was terminated. Besides Petitioner, Moore supervised only one other Resource Specialist, Carole Pope, a white employee, at the time of termination. During Moore's tenure as supervisor, Pope and Petitioner had the same responsibilities, and their assignments were divided by geographic area, not racial lines. Both Resource Specialist positions were apparently eliminated through a corporate "restructuring" in the spring of 1996, with Pope being transferred to a financial position in the psychosocial department and Petitioner being terminated for cause. However, there was no evidence that Pope suffered from the same job deficiencies as did Petitioner, or that Pope was given preferential treatment over Petitioner.

21. A contention that other unnamed "white employees received favorable evaluations" during this same time period so that they would be placed in "related job openings" lacks

    credible evidentiary support. Another assertion that Petitioner's poor evaluations were attributable solely to Moore is not accurate. The record shows that even when Grimm was supervisor, Petitioner's performance was criticized by Grimm in several respects.

22. The date on which the original complaint was filed is a source of confusion. In an amended letter of transmittal of the case to the Division of Administrative Hearings (DOAH) dated April 26, 2000, the then Commission Agency Clerk indicated that "[o]n April 14, 1996, Petitioner filed a Charged [sic] of Discrimination with the Commission[,]" and that the complaint had been assigned a 1997 case number (97- 0063). However, the Charge of Discrimination referred to DOAH was executed by Petitioner on February 26, 1998, or almost two years after she was discharged from employment, and Petitioner testified that this was the only paper she filed with the Commission. She also acknowledges this fact in her Proposed Recommended Order. Whether Petitioner filed a similar charge of discrimination with the United States Equal Employment Opportunity Commission (EEOC) within 365 days after the alleged discriminatory act, and if so, intended that filing to be a "dual filing" with the Commission, is not of record. It is also unknown whether the Commission and EEOC had a work- sharing agreement in 1996 and 1997.

    CONCLUSIONS OF LAW

    
    

23. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.57 and 120.569, Florida Statutes (2000).

24. Section 760.11(1), Florida Statutes (1995), provides in relevant part that "[a]ny person aggrieved by a violation of ss. 760.01-760.10 may file a complaint with the commission within 365 days of the alleged violation." Because the Charge of Discrimination was not even executed until February 26, 1998, or almost two years after she was discharged, Respondent contends that the filing was untimely and should be dismissed. Even if the complaint was initially filed with another entity, Respondent contends it was still untimely under the holding in Blount v. Sterling Healthcare Group, Inc., 934 F. Supp. 1365, 1370 (S.D. Fla. 1996), which held that the employee must file the charge directly with the Commission in order to be entitled to receive relief.

25. The Blount case in not directly on point and its holding is therefore of minimal value. In Blount, the claimant (Blount) had filed a complaint in the United States District Court alleging sexual harassment claims under both Title VII of the federal Civil Rights Act of 1991, and Chapter 760, Florida Statutes. In dismissing the claim for relief

    under Chapter 760, the Court noted that Blount had not alleged that she had filed a complaint with the Commission and that a reasonable cause determination had been issued. Thus, it concluded that if Blount "neglected to file such a complaint [with the Commission], she is unable to bring a claim in this Court under the Act." Id. at 760.

26. More directly on point is the recent case of Wells Fargo Guard Services, Inc. of Fla. v. Lehman, 26 Fla.L. Weekly D1918 (Fla. 3d DCA, Aug. 8, 2001), where the record before the Court disclosed the existence in September 1995 of a work- sharing agreement between the Commission and EEOC, which provided for dual filing of discrimination claims. At that time, when a claim was initially filed with the EEOC, the complainant had to check a box on the form requesting that the claim be dual filed with the Commission. Under the agreement, "the EEOC and the [Commission] each designate the other as its agent for the purpose of receiving and drafting charges." Id. at D1919. Thus, "the date of filing with the EEOC shall also be considered the date of filing with the [Commission]." Id. Here, however, there is no indication in the record whether a claim was even filed with the EEOC, and if so, was timely, or whether Petitioner intended to dually file her claim with the Commission. Further, there is no evidence that the Commission and EEOC had a "work-sharing agreement" during the time period

    when a complaint had to be filed (April 1996 - April 1997). Under these circumstances, the Charge of Discrimination must be considered untimely.

27. Notwithstanding the foregoing deficiency, the merits of the charge will be considered. In her charging document, Petitioner alleges that she has been "discriminated against because of [her] race." If proven to be true, this arguably constitutes an unlawful employment practice under Section 760.11(1)(a), Florida Statutes (1995).

28. In order to establish a prima facie case of discrimination, Petitioner must show that she was a member of a protected class, she was subjected to an adverse employment decision, the employer treated similar situated employees of a different class more favorably, and she was qualified for the position. McDonnell-Douglas v. Green, 411 U.S. 792, 810 (1993).

29. As an African-American, Petitioner is a member of a protected class and therefore satisfies the first element of proof. She was terminated from employment in April 1996 and therefore satisfies the second element. She also demonstrated that she met the qualifications for a Resource Specialist. There is, however, no evidence that Respondent treated other similar situated employees of a different class more

    favorably. Therefore, Petitioner has failed to make out a prima facie case.

30. Even assuming arguendo that Petitioner established a prima facie case of discrimination, Respondent has shown a legitimate, non-discriminatory reasons for her termination, namely, Petitioner's substandard performance of duties. Despite having received repeated oral and written notices that her performance was not satisfactory in several respects, performance improvement plans, and numerous counseling sessions, Petitioner's job performance continued to decline. This showing was not credibly contested by Petitioner.

31. In summary, it is concluded that Petitioner's claim was untimely and should be dismissed on that ground. Even if the filing can be considered timely, the more persuasive evidence shows that she was not terminated from her position because of her race, as alleged in the Charge of Discrimination. This being so, the charging document should be dismissed, with prejudice.

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 dismissing the Charge of Discrimination, with prejudice.

DONE AND ENTERED this 28th day of September, 2001, in Tallahassee, Leon County, Florida.

___________________________________ DONALD R. ALEXANDER

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) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 2001.

COPIES FURNISHED:

Azizi Dixon, Agency 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

Sandra F. Jackson 828 White Court

Daytona Beach, Florida 32114

John W. Bencivenga, Esquire Thompson, Sizemore & Gonzales, P.A. Post Office Box 639

Tampa, Florida 33601-0639

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will enter a final order in this case.

Docket for Case No: 00-001781

Orders for Case No: 00-001781