STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RONALD WILSON,

Petitioner,

vs.

TALLAHASSEE MEMORIAL HEALTHCARE, INC.,

Respondent.

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) Case No. 03-2288

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RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case on December 16, 2003, in Tallahassee, Florida, before the Division of Administrative Hearings by its duly-designated Administrative Law Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Ronald Wilson, pro se

816 Cochran Drive

Tallahassee, Florida 32304

For Respondent: Brian A. Newman, Esquire

Pennington, Moore, Wilkinson, Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor Post Office Box 10095

Tallahassee, Florida 32302-2095 STATEMENT OF THE ISSUES

Whether Petitioner was discriminated against by the Respondent based on race, and/or retaliated against due to the

filing of a charge of discrimination with the Florida Commission on Human Relations.

PRELIMINARY STATEMENT

On June 27, 2001, Petitioner, Ronald Wilson, filed a charge of discrimination with the Florida Commission on Human Relations (FCHR), alleging that Respondent, Tallahassee Memorial Healthcare, Inc. (TMH), suspended him from work for two days because of his race. On May 19, 2003, FCHR entered a determination of no reasonable cause to believe that an unlawful employment practice had occurred. On June 20, 2003, Petitioner filed his Petition for Relief, which was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner called four witnesses to testify and offered five exhibits into evidence. Respondent did not call any witnesses to testify, but offered 25 exhibits into evidence. The record was held open until January 20, 2004, to allow Petitioner the opportunity to depose one additional fact witness who could not appear at the hearing. The deposition was not taken and the record was closed on January 20, 2004.

After the hearing, Respondent filed a Proposed Recommended Order on February 6, 2004. Petitioner did not file a proposed recommended order.

FINDINGS OF FACT

1. Petitioner, Ronald Wilson, is an African-American male.

2. Petitioner was employed with TMH on June 21, 1999, as an environmental services technician.

3. On January 19, 2001, Petitioner received a disciplinary corrective action for discourtesy to a hospital visitor who had complained about Petitioner’s rude and overbearing behavior towards her in a visitor’s waiting area. After admitting the essential facts, Petitioner was suspended for two days for this infraction.

4. On June 27, 2001, Petitioner filed a charge of discrimination with the FCHR, alleging he was wrongfully suspended because of his race.

5. On September 5, 2001, Petitioner was told that his loan application with TMH Federal Credit Union had been denied. Petitioner told a credit union employee, Grace Chambers, that “God doesn’t appreciate people being treated this way” and “Someone is going to have some bad luck,” or words to that effect, when she advised him that his application had been denied. Although Petitioner was speaking metaphysically and did not intend to threaten Ms. Chambers, Ms. Chambers was upset by Petitioner’s comment, perceived Petitioner's comment as a threat and reported it to her supervisor, Marion McCaskey, President of the TMH Credit Union. McCaskey and Chambers, in turn reported Petitioner's threat to Charles Garner, Director of Security at TMH. Ms. McCaskey also reported that Petitioner was known for

   being unduly persistent in obtaining approval for a loan to the point she had become uncomfortable, albeit not physically threatened, in dealing with Petitioner. Mr. Garner reported Petitioner's conduct to his supervisor, Ron Dorsey.

6. On September 6, 2001, Mr. Dorsey filled out a disciplinary action form recommending Petitioner's discharge because of his comment to Ms. Chambers. Because of Petitioner’s disciplinary history of insubordination and discourtesy, the recommendation was approved by TMH Human Resources, and Petitioner was given notice of his discharge on December 11, 2001.

7. TMH's policy prohibits discourtesy to visitors and other employees, and threats to co-workers. Both of these violations are grounds for discharge.

8. Petitioner produced no evidence that any other non- minority employee was charged with breaking these rules and was treated better. Without such evidence, Petitioner failed to establish any direct evidence that his suspension and discharge were racially motivated. Likewise, Petitioner failed to establish any circumstantial evidence of racial discrimination, since Petitioner’s statements to Ms. Chambers could arguably be considered a threat directed towards her, and there was no evidence that Ms. Chambers’ reaction was not genuine.

9. Petitioner produced no evidence that Dorsey, Garner, Chambers, or McCaskey had notice or knowledge of his charge of discrimination when he was discharged. Therefore, Petitioner has failed to establish that he was discharged on September 11, 2001, in retaliation for filing the charge of discrimination on June 27, 2001.

10. Petitioner produced no evidence that he suffered any past or future wage loss as a result of his discharge from TMH.

    CONCLUSIONS OF LAW

    
    

11. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. § 120.57(1), Fla. Stat. (2003).

12. Under the provisions of Section 760.10(1), Florida Statutes, it is an unlawful employment practice for an employer:

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

       
       

    2. To discriminate against any person, because that person has opposed any practice, which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any matter in any investigation, proceeding, or hearing under this section.

13. Federal discrimination law is used as guidance when construing provisions of Section 760.10, Florida Statutes. Brand v. Florida Power Corporation, 633 So. 2d 504 (Florida 1st DCA 1994); Florida Department of Community Affairs v. Bryant,

    586 So. 2d 1205 (Florida 1st DCA 1991).

    
    

14. The Supreme Court of the United States established in McDonnell-Douglass Corporation v. Green, 411 U.S. 792 (1973), Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993) the analysis to be used in cases alleging discrimination under Title VII. Pursuant to this analysis, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, Respondent must articulate some legitimate, non-discriminatory reason for the action taken against Petitioner. Once this non-discriminatory reason is offered by Respondent, the burden shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination.

15. In Hicks, the court stated that even if the fact finder does not believe the proffered reason given by the employer, the burden remains with Petitioner to demonstrate a discriminatory motive for the adverse employment action. Id.

16. In this case, Petitioner has alleged race discrimination based on disparate treatment and retaliation for

    filing his charge of discrimination on June 27, 2001. In order to establish a prima facie case of disparate treatment based upon violation of work rules, Petitioner must establish:

    1. That he is a member of a protected class;

       
       

    2. That he was qualified for his position;

       
       

    3. That he suffered an adverse employment action; and

       
       

    4. That he was treated less favorably than similarly situated non-minority employees who were also charged with violating the same rules. Jones v. Bessemer Carroway Medical Center, 137 F. 3d 1306 (11th Cir. 1998).

    
    

17. It is undisputed that Petitioner is a member of a protected class (black), was qualified for his position, and suffered an adverse employment action (termination). However, Petitioner failed to offer any evidence that any other non- minority employees were charged with violation of the same work rules and treated better than Petitioner. Therefore, Petitioner has not established a prima facie case for disparate treatment.

18. Moreover, even if a prima facie case had been established, TMH articulated a legitimate non-discriminatory reason for the adverse employment action, namely discourtesy to visitors and threats to a co-worker. Petitioner presented no evidence indicating that TMH's explanations were pretextual in nature. Therefore, Petitioner did not prove by a preponderance

    of the evidence that he was the subject of an unlawful employment action. In order to establish a prima facie case of retaliation, Petitioner must show that:

    1. he engaged in statutorily protected activity;

       
       

    2. an adverse employment action occurred; and

       
       

    3. the adverse action was causally related to his protected activity. Little v. United Technologies, 103 F.3d 956 (11th Cir. 1997).

    
    

19. Petitioner must demonstrate that the decision-maker was aware of the protected activity at the time the adverse employment action was taken in order to establish the causal connection element. Rainy v. Vinson Guard Service, Inc., 120 F.3d 1192, (11th Cir. 1997).

20. Petitioner did not demonstrate that any of the individuals involved in the events leading to his discharge on September 11, 2001, had any notice or knowledge that he had filed a charge of discrimination. Therefore, Petitioner failed to establish that his discharge was causally related to his protected activity, and failed to establish a prima facie case of retaliation.

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 Petition for Relief.

DONE AND ENTERED this 12th day of March, 2004, in Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 12th day of March, 2004.

COPIES FURNISHED:

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Brian A. Newman, Esquire Pennington, Moore, Wilkinson,

Bell & Dunbar, P.A.

215 South Monroe Street, Second Floor Post Office Box 10095

Tallahassee, Florida 32302-2095

Ronald Wilson 816 Cochran Drive

Tallahassee, Florida 32304

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 03-002288

Orders for Case No: 03-002288