STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOEANNE NELSON, )

)

Petitioner, )

)

vs. ) Case No. 00-2657

)

SUNRISE COMMUNITY, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

On October 6, 2000, final hearing was held in this case pursuant to notice by Stephen F. Dean, assigned Administrative Law of the Division of Administrative Hearings, in Tallahassee, Leon County, Florida.

APPEARANCES

For Petitioner: JoeAnne Nelson, pro se

Post Office Box 76 Crawfordville, Florida 32326

For Respondent: Steven M. Weinger, Esquire

Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue

Second Floor

Miami, Florida 33133 STATEMENT OF THE ISSUE

Did the Respondent engage in a discriminatory employment practice by suspending the Petitioner from work?

PRELIMINARY STATEMENT

This case arose when the Petitioner filed a complaint on May 8, 1997, of a discriminatory employment practice with the Florida Commission on Human Relations. The matter was investigated, and the Commission reached a determination of no cause on May 16, 2000. The Petitioner was noticed of the Commission’s findings and her right to an administrative hearing on May 16, 2000. The Petitioner elected to have a hearing, and the matter was forwarded to the Division by the Commission staff on June 28, 2000.

On August 28, 2000, this case was noticed for hearing on October 6, 2000. On October 5, 2000, the Petitioner moved for a continuance to permit her to obtain at attorney. The Petitioner’s motion was denied as untimely, and the hearing was held as noticed.

At hearing, the Petitioner testified by telephone, the Respondent having waived having the Petitioner sworn by a notary. The complaints she had filed were recognized and made part of the record. The Respondent called Cynthia Stringer and Dorothy Taylor to testify, and introduced the Petitioner's complaint dated May 8, 1997, into the record as Respondent's Exhibit No. 1.

Both parties filed proposed findings of fact that were read and considered. A transcript of the proceedings was not ordered or filed in the case.

FINDINGS OF FACT

1. The Petitioner, Joeann F. Nelson, is a Black female. In 1997, she was employed as an aide working with developmentally disabled persons at Sunrise Community, Inc.

2. The Respondent, Sunrise Community, Inc. (hereafter “Sunrise”) is an employer within the meaning of the Florida Civil Rights Act of 1992.

3. On or about April 24, 1997, the Petitioner was suspended from her employment for a number of days by Sunrise. The Petitioner filed a complaint with the Florida Commission on Human Relations (hereafter “the Commission”) on May 8, 1997, alleging that her suspension was racially motivated, and a violation of Chapter 760, Florida Statutes.

4. The staff of the Commission investigated the complaint, and issued its Determination of No Cause on May 16, 2000. At the same time, the Commission gave the Petitioner notice of her right to an administrative hearing on the Commission’s findings.

5. The Petitioner, while employed by the Respondent, was asked by her immediate supervisor to participate in taking residents of the facility to their group home. The Petitioner refused to take the residents complaining that another co-worker was scheduled to take the residents on the day in question. The supervisor told the Petitioner that the person who was scheduled to take the residents was too old to handle that job, and the Petitioner got into an argument about this matter.

6. As a result of this refusal to take the residents and the argument, the Petitioner was suspended for a number of days.

7. The refusal to follow the directions of her supervisor regarding her work and the confrontational argument with the supervisor over being asked to do a specific task that was within her job duties generally were sufficient cause for discipline.

8. The Petitioner did not show that she was singled out or treated differently because of her race, either in being asked to perform the task or in being suspended for refusing to do the task.

9. Subsequently, the Petitioner filed a second complaint with the Commission on June 30, 1997, and raised additional issues regarding her discharge when she asked for her formal hearing on the Commission’s determination of no cause on the original complaint. However, the only matter properly before the undersigned in these proceedings is her suspension.

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties in the case.

11. Petitioner has the burden of proof in this case to show that he was discriminated against on the basis of race. See McDonnell Douglas v. Green, 411 U.S. 792 (1973). Section 760.10(1)(a), Florida Statutes, provided that it is an unlawful employment practice to discharge any individual or otherwise discriminate against an individual with respect to compensation,

    terms, conditions, or privileges of employment on the basis of race.

12. The Petitioner filed a complaint with the Florida Commission on Human Relations in 1997. The investigation was not completed until 2000. Although the determination was not timely, the Respondent did not raise this issue.

13. There is only one determination before the undersigned at this time: Whether the suspension of the Petitioner was racially motivated?

14. The other matters raised by the Petitioner are not at issue because either they have not been complained about and investigated by the Commission, or they have been complained about, but the Commission has not yet rendered its decision on the matter.

15. Regarding the instant complaint, the Petitioner is a Black female. She was disciplined by being suspended from her job for a number of days. (The exact number of days was not established in the complaint or in the Petitioner’s testimony. However, everyone agrees she was suspended and that is sufficient to establish she suffered some detriment relating to her employment.)

16. The Respondent showed that the Petitioner refused to perform duties as directed by her supervisor which were in the scope of the Petitioner’s employment, and engaged in a argument with her supervisor over being asked to perform these duties.

This conduct was sufficient justification for suspending the Petitioner. The Petitioner did not offer any evidence to show that the motivation of the employer in suspending her was pretextual. The Petitioner failed to prove that her suspension was racially motivated.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final order dismissing the complaint upon a finding that there was no cause.

DONE AND ENTERED this 30th day of October, 2000, in Tallahassee, Leon County, Florida.

STEPHEN F. DEAN

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 30th day of October, 2000.

COPIES FURNISHED:

JoeAnne Nelson Post Office Box 76

Crawfordville, Florida 32326

Steven M. Weinger, Esquire

Kurzban, Kurzban, Weinger, Tetzeli, P.A. 2650 Southwest 27th Avenue

Second Floor

Miami, Florida 33133

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: 00-002657

Orders for Case No: 00-002657