STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ARDEL HANNAH, )

)

Petitioner, )

)

vs. ) Case No. 08-2131

) PARKLAND REHABILITATION AND ) NURSING CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter was heard before the Division of Administrative Hearings by its assigned Administrative Law Judge, Donald R. Alexander, on October 1, 2008, in Gainesville, Florida.

APPEARANCES

For Petitioner: Ardel Hannah, pro se

996 Southwest 16th Avenue, Apartment 904

Gainesville, Florida 32601-8483

For Respondent: Lauren M. Levy, Esquire

Levy & Levy, LLC

4230 South MacDill Avenue, Suite 230

Tampa, Florida 33611-1901 STATEMENT OF THE ISSUES

The issues are whether Respondent, Parkland Rehabilitation and Nursing Center (Parkland), committed an unlawful employment practice contrary to Section 760.10, Florida Statutes, when it

terminated the employment of Petitioner, Ardel Hannah, and whether it subjected Petitioner to disparate treatment on the basis of his national origin.

PRELIMINARY STATEMENT

On October 3, 2007, Petitioner filed a Charge of Discrimination (Charge) against Parkland with the Florida Commission on Human Relations (Commission) alleging that Parkland had discriminated against him by terminating his employment and subjecting him to disparate treatment based on his national origin (American). No charge of racial discrimination was made.

After investigating the Charge, on March 19, 2008, the Commission issued a Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice occurred. On April 23, 2008, Petitioner filed a Petition for Relief (Petition) with the Commission. The Petition alleged that Parkland "provided different terms & conditions of employment" for Petitioner than for other employees of another national origin; that Parkland "selectively prohibit[ed] [Petitioner] from participating in the more favorable job assignments than individuals of another national origin;" that Parkland had assigned Petitioner "to work outside of his designated job;" and that Parkland heard "one side of story" and

"[took] it as fact." The Petition went on to allege that Petitioner was subjected to "pervasive disparate treatment based on national origin."

On April 29, 2008, the Commission referred the case to the Division of Administrative Hearings. By Notice of Hearing dated May 16, 2008, the matter was scheduled for final hearing on August 19, 2008, in Gainesville, Florida. Respondent's unopposed Motion to Reschedule Hearing was granted and the matter was rescheduled to October 1, 2008, at the same location.

On September 25, 2008, the case was transferred from Administrative Law Judge P. Michael Ruff to the undersigned.

At the final hearing, Petitioner testified on his own behalf and presented the testimony of Arthur S. Ellesten, his former supervisor at Parkland. Also, he offered Petitioner's Exhibits 1 and 2, which were received in evidence. Exhibit 1 included the affidavit of Vichaun Palmer, which was treated as hearsay evidence. Respondent presented the testimony of Arthur Ellesten, Director of Maintenance, and Michael Rau, the Administrator. Also, it offered Respondent's Exhibit 1, which was received in evidence.

There is no transcript of the hearing. The parties agreed to file proposed recommended orders by October 13, 2008, and Respondent timely filed its Proposed Recommended Order that

date. On October 17, 2008, Petitioner filed a two-page letter, which has been treated as a proposed recommended order. Both filing 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. Parkland is a rehabilitation and nursing center located at 1000 Southwest 16th Avenue, Gainesville, Florida. It is an employer as that term is defined in Section 760.02(7), Florida Statutes.

2. Petitioner is a black male of American national origin.

   
   

   Although his actual date of employment is not of record, the evidence reflects that Petitioner had been employed by Parkland's maintenance department for more than ninety days when he was suspended on August 24, 2007, and then formally terminated by letter dated September 7, 2007. His primary job assignment was to repaint residents' rooms at the facility after the rooms were vacated.

3. Petitioner's supervisor was Arthur Ellesten, Director of Maintenance, who is originally from Jamaica but is now a United States citizen. Although Mr. Ellesten has authority to hire employees in that department, he does not have authority to

   terminate employees. Two other workers on the maintenance staff, including Vichaun Palmer, were of Jamaican national origin. Michael Rau was the Administrator of the facility and its most senior employee. Mr. Rau has the authority to hire and terminate employees. He is of American national origin.

4. On August 21, 2007, Mr. Ellesten verbally counseled Petitioner based on his unsatisfactory job performance. Petitioner became hostile towards Mr. Ellesten during this counseling session and swore at Mr. Ellesten. Petitioner was informed that he would be formally written up if his performance did not improve.

5. Prior to August 24, 2007, Mr. Rau verbally counseled Petitioner on at least two occasions for his poor job performance, based on his slow progress at assigned tasks and fraternizing with female staff members for long periods of time during regular working hours.

6. An incident occurred on August 24, 2007, which, when coupled with his prior unsatisfactory job performance, culminated in Petitioner's suspension and termination. Although the testimony regarding the incident is conflicting in many respects, the following facts are found to be the most credible. On that date, Petitioner arrived at work around 8:00 a.m. and confronted Mr. Ellesten in the courtyard of the facility.

   Petitioner requested Paid Time Off (PTO) for that day, which is paid leave accrued by full-time employees. Petitioner was told that he would have to request a form from Mr. Rau. Believing that Mr. Ellesten had provided PTO forms to the other Jamaican maintenance workers, Petitioner became angry and began swearing at his supervisor.

7. Seeking to avoid a physical confrontation, Mr. Ellesten left the courtyard to return to his office on the second floor. Petitioner followed Mr. Ellesten up the stairs to the office where Petitioner verbally threatened to kill him. After Petitioner refused to leave the office, Mr. Ellesten called security, who telephoned the police department. Mr. Ellesten then departed his office, and as he was walking down the stairs, Petitioner pushed him. However, he was not injured. Petitioner left the premises a few minutes later and returned to an apartment complex where he lived.

8. After security contacted the police department, Officer Moore was dispatched to Parkland. Mr. Ellesten requested that Officer Moore not file criminal charges against Petitioner but only give him a trespass warning. Officer Moore then went to Petitioner's apartment and issued a verbal trespass warning. This is evidenced by an Incident/Investigation Report prepared by Officer Moore.

9. Petitioner later returned to Parkland the same day where he met with Mr. Rau to discuss the incident. During their conversation, Petitioner alleged that Mr. Ellesten had physically attacked him that morning. After Officer Moore arrived a few minutes later and joined the two, Petitioner did not repeat the allegation. Pending a further investigation of the matter, Mr. Rau suspended Petitioner.

10. Petitioner never filed a complaint with the police department against Mr. Ellesten, and he never filed a complaint or grievance with anyone at Parkland alleging that Mr. Ellesten had attacked him, as alleged in his Petition for Relief. Also, he never informed Mr. Rau that he was treated different or unfairly by Mr. Ellesten, other members of the maintenance department, or other employees of Parkland. Finally, he never complained that the other two workers in the maintenance department were treated more favorably than he.

11. Violence against a co-worker or supervisor is considered unacceptable conduct and by itself is a basis for termination by Mr. Rau and Parkland.

12. As a part of his investigation, Mr. Rau questioned Mr. Ellesten about the events on August 24, 2007, obtained a written statement from Mr. Ellesten, spoke with Petitioner on

    August 24, 2007, and reviewed the Incident/Investigation Report prepared by Officer Moore.

13. On September 7, 2007, Mr. Rau sent Petitioner a letter formally terminating his employment with Parkland based on the August 24, 2007, incident and "past issues related to [his] performance and conduct." There is no evidence, direct or circumstantial, that national origin was considered at any point during Petitioner's employment or that national origin played a part in his termination. Further, no credible evidence, direct or circumstantial, was submitted to show that he was otherwise subjected to disparate treatment because he was an American.

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties hereto pursuant to Sections 120.569 and 120.57(1), Florida Statutes.

15. The Florida Civil Rights Act of 1992, as amended, which is codified in Chapter 760, Florida Statutes, prohibits discrimination in the workplace. Among other things, it forbids the discriminatory firing of an employee.

16. Subsection 760.10(1)(a), Florida Statutes, provides in relevant part that

    (1) It is an unlawful employment practice for an employer:

    (a) To discharge or to fail or refuse to hire any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's . . . national origin . . . .

    
    

17. Florida's courts have determined that federal case law applies to claims arising under the Florida Civil Rights Act, and as such, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1073), applies to claims arising under Section 760.10, Florida Statutes. See, e.g., Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

18. Under the McDonnell analysis, in employment discrimination cases, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If the prima facie case is established, the burden shifts to Respondent, as the employer, to rebut this preliminary showing by producing evidence that the adverse action was taken for some legitimate, non-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that Respondent offered reasons for its adverse employment decision were pretextual. See, e.g., Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

19. Petitioner contends that he was terminated and subjected to disparate treatment as a result of his national origin (American). There were no allegations of racial discrimination.

20. Both Chapter 760, Florida Statutes, and the federal Civil Rights Act of 1964, as amended, extend protection against discrimination on the basis of national origin to both minority as well as nonminority employees. See Scholz v. RDV Sports, Inc. et al., 710 So. 2d 618, 623 (Fla. 5th DCA 1998). Petitioner's claim amounts to a charge that he was subjected to reverse discrimination, that is, that Parkland discriminated against him because he was a nonminority (American).

21. Where alleging reverse discrimination, a claimant "must prove that he or she (1) belongs to a class; (2) was qualified for the job; (3) was terminated from the job; and (4) was replaced by a minority group member." Id. at 623.

22. In Scholz, supra, the court explained in detail the process for establishing a discrimination claim:

    A prima facie case of unlawful . . . discrimination can be established by direct or circumstantial evidence. . . . In order to establish a prima facie case for wrongful discrimination by direct evidence, a plaintiff must present evidence that the employer acted with a discriminatory motive. This evidence "must not only speak directly to the issue of discriminatory intent, it must also relate to the specific employment

    decision in question." If there is direct evidence of discrimination, the burden shifts to the defendant to show by a preponderance of the evidence that the plaintiff would have been discharged even absent the discriminatory motive . . . .

    
    

    Under McDonnell Douglas, a plaintiff [relying on circumstantial evidence] is first required to create an inference of discriminatory intent by establishing a prima facie case of [national origin] discrimination. If he cannot do so, then the defendant need not present any reason for its action and the court must determine if the plaintiff has met his ultimate burden. But if the plaintiff does present a prima facie case, the defendant may counter the inference of discrimination by articulating some legitimate, nondiscriminatory reason for rejecting the employee. If the defendant responds by adequately explaining its rationale, the plaintiff, in order to prevail, must present evidence that defendant's proffered reasons are merely pretexts for discrimination. The burden to establish pretext merges with plaintiff's ultimate burden of proof of intentional discrimination.

    
    

    By shifting inferences, the court can easily assess the validity of the articulated rationale for an employee's dismissal, eliminating the most common, nondiscriminatory reasons. The court assumes that employers act for some reason. If all valid reasons are rejected as pretextual, then it is likely that discrimination was the true reason.

    
    

    Scholz at 624 (citations omitted).

    
    

23. Here, Petitioner failed to establish a prima facie case of intentional discrimination on the basis of national

    origin by either direct or circumstantial evidence. Therefore, Parkland had no burden of presenting evidence of a nondiscriminatory basis for its conduct. Even if he had satisfied this burden, Parkland presented credible evidence that Petitioner was terminated as a result of his attack on his supervisor, which is a legal basis by itself for termination, in addition to his prior poor job performance.

24. Petitioner failed to present any credible evidence tending to prove that Parkland's basis for terminating him was "pretextual." He also failed to present any credible evidence tending to show that he was subjected to any other type of disparate treatment by Parkland based on national origin. Therefore, his Petition for Relief should be dismissed.

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 finding that Parkland did not commit any unlawful employment practices and dismissing the Petition for Relief.

DONE AND ENTERED this 22nd day of October, 2008, in Tallahassee, Leon County, Florida.

S

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 22nd day of October, 2008.

COPIES FURNISHED:

Denise Crawford, Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 200

Tallahassee, Florida 32399-4857

Ardel Hannah

996 Southwest 16th Avenue Apartment 904

Gainesville, Florida 32601-8483

Lauren M. Levy, Esquire Levy & Levy, LLC

4230 South MacDill Avenue, Suite 230

Tampa, Florida 33611-1901

Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway

Tallahassee, Florida 32399-4857

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will render a final order in this matter.

Docket for Case No: 08-002131

Orders for Case No: 08-002131