STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOSEPHINE HAYES DAVIS,

Petitioner,

vs.

ARBORS OF TALLAHASSEE,

Respondent.

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) Case No. 00-2624

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RECOMMENDED ORDER

A formal hearing was conducted in this case on July 20, 2001, in Tallahassee, Florida, before the Division of Administrative hearings, by its Administrative Law Judge, William R. Pfeiffer.

APPEARANCES

For Petitioner: Josephine Hayes Davis, pro se

Route 4, Box 4699-M Monticello, Florida 32344

For Respondent: James Garrity, Esquire

McConnaughhay, Duffy, Coonrod, Pope & Weaver, P.A.

101 North Monroe Street Post Office Drawer 229

Tallahassee, Florida 32302-0229

STATEMENT OF THE ISSUE

The issue to be resolved in this matter is whether the Petitioner was terminated from employment with the Respondent because of her race.

PRELIMINARY STATEMENT

On June 20, 1996, Petitioner filed a Charge of Discrimination against the Arbors at Tallahassee with the Florida Commission on Human Relations (FCHR), alleging unlawful race discrimination. Petitioner's charge alleges that the date of discrimination was March 31, 1995, which is the date of her termination from employment. Her charge alleges that she believed she was discriminated against because of her race. The Charge of Discrimination was signed and notarized on June 18, 1996, and bears a stamp showing a filing date with the FCHR of June 20, 1996.

On May 10, 2000, the FCHR issued its Notice of Determination: No Cause. FCHR advised Petitioner that she had the right to request an administrative hearing within 35 days of the date of the Notice of Determination. On June 7, 2000, Petitioner filed her Petition for Relief with the FCHR, more specifically detailing her claim of race discrimination. By a formal Transmittal of Petition from the FCHR dated June 23, 2000, and received by the Division of Administrative Hearings June 28, 2000, the FCHR requested an administrative hearing on Petitioner's claim.

On July 11, 2000, Respondent served its Answer to Petition for Relief From Unlawful Employment Practice, denying the essential allegations of Petitioner's Petition, and asserting

several affirmative defenses, including the untimeliness of Petitioner's Charge of Discrimination. Respondent also simultaneously served its Motion to Dismiss Petition for Relief From Unlawful Employment Practice. That Motion asserts, as grounds for dismissal, the same arguments raised in Respondent's affirmative defenses in its Answer.

On July 13, 2000, the undersigned entered the Order Closing File, based on the Respondent's Motion to Dismiss.

Approximately nine months later, on May 22, 2001, the FCHR entered its Order Remanding Petition for Relief From an Unlawful Employment Practice. The Order remanded the case ". . . for further proceedings consistent with this Order."

On May 29, 2001, the undersigned entered an order rescinding the July 13, 2000, Order Closing File and reopening this case.

On June 1, 2001, a Notice of Hearing was issued setting this matter for hearing June 27, 2001. An Order of Pre-Hearing Instructions was issued the same date.

On June 27, 2001, the date of the hearing, it was determined that notice of the proceeding had been provided to the current owner of the Arbors at Tallahassee, not the prior owner who is responsible for defending the proceeding.

Consequently, the hearing was adjourned and an Order Granting

Continuance and Re-Scheduling Hearing was entered on that date. The Order reset the hearing for July 20, 2001.

On July 9, 2001, counsel for Respondent entered his appearance. On July 17, 2001, Respondent filed its Motion to Continue Hearing and Request for Status Conference, Order Establishing Discovery Procedure, and Directing Parties to Discuss Settlement. That motion was denied and the hearing proceeded as scheduled on July 20, 2001.

During the hearing, Petitioner testified on her own behalf.

She did not call any other witnesses, and did not offer any exhibits for submission into evidence.

Respondent presented the testimony of one witness, and offered eight exhibits that were accepted into evidence without objection.

The hearing concluded on July 20, 2001. The Transcript of the hearing was filed July 30, 2001.

FINDINGS OF FACT

1. Petitioner is a black female and is a member of a protected class. Respondent employed Petitioner at the time of the alleged discrimination.

2. Petitioner was employed by Respondent for approximately three and a half months, from her date of hire on December 17, 1994, through her date of termination on March 30, 1995. She was fired for insubordination.

3. Petitioner was employed by Respondent as a Certified Nursing Assistant (CNA). Her responsibilities as a CNA included taking care of patients and cleaning the facility. Her direct supervisor was Barbara Jean Gossett.

4. Petitioner claims she was fired because of her race, alleging disparate treatment. To support this allegation, Petitioner cited an example of a white female who was having problems with her baby, whom Petitioner testified was sick, and that the white employee would come in for work when she was ready. Petitioner alleges the employee often reported late for work. Petitioner does not know the name of the employee, does not know who the white female talked to about reporting to work, and was not involved in any decision about whether the white female could or could not report late as a result of her child's ailments. Petitioner presented no other evidence or documents to support this allegation.

5. Petitioner, when asked for any other basis for her claim of discrimination, cited an example of a woman who she claims never did what she was required to do, although she said the woman was in charge. Petitioner presented no other evidence or documents to support this allegation.

6. Petitioner also alleges she was fired because of her race based on the way her supervisor, Barbara Jean Gossett,

   acted toward her. Petitioner also cited the varying way her supervisor verbalized instructions to the black and white staff.

7. During examination by Respondent's counsel, Petitioner acknowledged receipt of Respondent's employee handbook on her first day of employment. She acknowledged that the purpose of the handbook is to notify employees of the rules and expectations and also to provide notice of behaviors that would lead to discipline or termination. She admitted that, based on the handbook, she knew what kind of behaviors were appropriate and what were considered inappropriate. She admitted that in the setting of a nursing home, punctuality was important. Petitioner admitted that there was a progressive disciplinary schedule in place for tardiness. She further admitted that under the schedule in place during her employment, an employee who was late seven or more times in a 90-day period would be fired. The supervisor, whom Petitioner claims was racist, however, did not fire Petitioner as the policy permitted. In fact, that same supervisor recommended a discretionary merit increase for Petitioner.

8. Petitioner's performance evaluations show that as of March 14, 1995-approximately three months into her employment- she had been tardy nine times, absent three times, and had a performance rating below standard, which was the lowest rating permitted by the evaluation form.

9. On March 29, 1995, Petitioner refused to clean an assigned work area during her shift. The employee handbook Petitioner received lists refusing a job assignment as number one on the list of behaviors that can lead to immediate termination and for which there is no progressive disciplinary schedule (as there is for tardiness and certain other offenses). As noted, Petitioner was fired for this incident.

10. Finally, Petitioner admitted that she signed her Charge of Discrimination on June 18, 1996, and that it was filed June 20, 1996.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction in this matter pursuant to Section 120.57(3), Florida Statutes, and the parties to this proceeding have standing.

12. In order for Petitioner to make out a prima facie case of racial discrimination where the evidence of discrimination is circumstantial and not direct, under McDonnell Douglas Corp. v.

    Green, 411 U. S. 792, 93 S. Ct. 1817, 36 L.ED.2d 668 (1973),

    
    

    Petitioner must show that (1) she belongs to a racial minority;

    
    

    (2) she was subjected to adverse job action; (3) her employer treated similarly-situated employees outside her classification more favorably; and (4) she was qualified to do the job. Crapp v. City of Miami Beach, 242 F.3d 1017 (11th Cir. 2001);

    Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). Once a petitioner has made out a prima facie case of discrimination, the respondent-employer must articulate some legitimate, non- discriminatory reason for the employee's rejection or adverse treatment. Bass v. Board of County Com'rs, Orange County, Fla., 2001 WL 765620 (11th Cir. 2001); Wu v. Thomas, 847 F.2d 1480,

    1483-1484 (11th Cir. 1988). If the respondent-employer meets this burden of production, the petitioner-employee then must establish that each of the respondent's proffered reasons for the adverse job action is pretextual.

13. In this case, Petitioner satisfies the first two elements of her prima facie case, but fails to prove the last two. Petitioner did not present competent substantial evidence that Respondent treated similarly-situated employees outside her classification more favorably and did not demonstrate that she was qualified to do the job and/or that she performed her work in accordance with Respondent's established personnel policies.

14. Notwithstanding the fact that Petitioner failed to present a prima facie case, Respondent presented a legitimate, non-discriminatory reason for firing Petitioner, namely that Petitioner refused a job assignment. Petitioner was less than four months into her employment at the time of her termination and had already been counseled repeatedly about other violations of company policy.

15. Petitioner did not establish that Respondent's proffered reason for the adverse job action is pretextual.

RECOMMENDATION

Based on the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 11th day of October, 2001, in

Tallahassee, Leon County, Florida.

WILLIAM R. PFEIFFER

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 11th day of October, 2001.

COPIES FURNISHED:

Joann Annichianrico Tandem Healthcare, Inc.

Cherrington Corporate Center

200 Corporate Center Drive, Suite 360 Moon Township, Pennsylvania 15108

Josephine Hayes Davis Route 4, Box 4699-M Monticello, Florida 32344

James Garrity, Esquire McConnaughay, Duffy, Coonrod,

Pope & Weaver, P.A.

101 North Monroe Street Post Office Drawer 229

Tallahassee, Florida 32302-0229

Azizi M. Dixon, Agency Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Cecil Howard, 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: 00-002624

Orders for Case No: 00-002624