STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORA MAHER, )

)

Petitioner, )

)

vs. ) CASE NO. 84-3547

) BEACON-DONEGAN NURSING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

The hearing in this cause was held on February 18, 1985, in Ft. Myers, Florida, before Diane A. Grubbs, a Hearing Officer with the Division of Administrative Hearings.

age.

APPEARANCES

For Petitioner: Nora Maher, Esquire

50xx Bahia Court, Route 5 Ft. Myers, Florida 33908

For Respondent: Gary R. Kessler, Esquire

Jackson, Lewis, Schnitzler & Krupman

200 Peachtree Center - South Tower

225 Peachtree Street, Northeast Atlanta, Georgia 30303

ISSUE

Whether respondent discriminated against the petitioner on the basis of

BACKGROUND

On December 8, 1983, petitioner filed a Complaint of Discrimination with

the Commission on Human Relations alleging that the respondent had discriminated against her due to her age. Specifically, petitioner alleged that she had been terminated and was replaced by a younger nurse. On August 24, 1984, a determination was made that there was no reasonable cause to believe that an unlawful employment practice had occurred.

On September 4, 1984, petitioner filed a Petition for Relief from an Unlawful Employment Practice. In the petition she alleged that she was a permanent part-time employee of the respondent, that she was terminated, that a younger full-time nurse was hired, that the full-time nursing position should have been offered to petitioner but was not, and that the basis for respondent taking the foregoing action was petitioner's age. On October 9, 1984, the Commission referred the petition to the Division of Administrative Hearings for further proceedings.

At the hearing the petitioner testified on her own behalf and presented three exhibits that were admitted into evidence. Respondent presented the testimony of Patrick Michael Dray, the Regional Supervisor of Operations for Beverly Enterprises, and Annette Iskra, Personnel Secretary at Beacon-Donegan Nursing Home. Respondent's eight exhibits were admitted into evidence.

The respondent timely filed proposed findings of fact and conclusions of law; the petitioner did not. The respondent's proposed order has been carefully considered, and each proposed finding of fact has been addressed, directly or indirectly, in this recommended order except those proposed findings that are cumulative, immaterial, or unnecessary. A proposed finding has been specifically rejected if an inconsistent or contrary finding has been made.

FINDINGS OF FACT

1. The petitioner was born on April 14, 1910. When she was hired by Beacon-Donegan Nursing Home in 1981, she was 71 years of age. At the time she was terminated, petitioner was 73 years old.

   
   

2. Petitioner became a registered nurse (RN) in 1931 in Chicago. Petitioner always has been quite competent at her work, and respondent stipulated that petitioner performed her job well while working at Beacon- Donegan.

   
   

3. On September 1, 1981, shortly before she began working for Beacon- Donegan, petitioner filled out a form entitled "Availability Record". On the form she indicated that she desired to work part-time, that she was available to work any night from 10:30 p.m. to 7 a.m., and that she had to limit her income to $5,500 per year due to Social Security. The form contained the following statement:

   
   

   If your availability changes, it is your responsibility to come to the personnel office to fill in another "Availability Record" indicating the changes. Such changes will

   be effective, then, for any future employment.

   
   

   On February 7, 1982, petitioner submitted a form entitled "Special Request for Time" in which she stated that she did not want to work three (3) nights in succession except in an emergency. The petitioner never submitted another "Availability Record" nor did she indicate in any other way that she wished to increase or change her hours of work.

   
   

4. Petitioner was employed as a permanent part-time nurse working the 11

   p.m. to 7 a.m. shift in the Donegan wing. 1/ In July, 1983, the respondent had five part-time RNs working the 11 to 7 shift in the Donegan wing. They were Ms. Scheon, who was 66; Ms. Quayle, who was 67; Ms. Klackling, who was 64; Ms. Urbina, who was 27; and the petitioner. At that time the respondent decided that, from both an economic viewpoint and the viewpoint of improving patient care, it was undesirable to have so many part-time nurses caring for the patients. Respondent believed that continuity of care, especially for elderly patients, was very important. Elderly patients need familiar surroundings and people and may become confused and disoriented if they have to deal with too many different nurses and attendants. Thus, the respondent decided that it would be better for the patients and for the facility to have fewer RNs working longer hours, rather than more RNs working fewer hours.

5. As a result of the foregoing decision, the respondent hired Ms. Endo, a graduate nurse who was considerably younger than petitioner, on a full-time basis. 2/ By August 25, 1983, Ms. Schoen, Ms. Quayle, Ms. Urbina, and petitioner had been terminated as part-time employees and were reassigned to "PRN" or "on-call" status. Ms. Klacking continued to work as a part-time employee.

   
   

6. The petitioner's last day of work was August 2, 1983, and the respondent's Termination Action Form indicates that her termination date was August 2, 1983. The reason for termination stated on the form was "reduction of force." The termination form was not completed until November 10, 1983, because the petitioner had been in an "on call" status until that time. Because petitioner never returned to work, even though she had been called 3/, the termination form was finally completed to remove petitioner's name from the records, and the termination date was given as the last day petitioner worked. Although respondent contends that petitioner was not discharged from employment until November 10, 1983, the day the termination form was completed, the evidence supports a finding that petitioner was terminated from her employment on or about August 2, 1983, the date stated by respondent in its own records.

   An "on-call" employee has no job security, receives no employee benefits, and has no guarantee that he or she will ever be called to work. Therefore, when petitioner was terminated as a permanent part- time employee, she was, in effect, discharged from her employment despite being placed in an "on-call" status.

   
   

7. On October 23, 1983, respondent advertised in the Fort Myers News-Press for part-time RNs. However, petitioner did not apply for the jobs or otherwise inquire about it, and respondent did not contact the petitioner to determine if she wished to return to work. However, because respondent had been informed that petitioner had no desire to work any station other than the Donegan wing, there was no reason for respondent to contact petitioner. Further, there was no evidence presented that the part-time positions were for the same shift that petitioner had been working, which was the only time that petitioner was available.

   
   

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

9. Section 760.10, Florida Statutes, provides, inter alia:

   
   

   1. It is an unlawful employment practice for an employer:

      1. To discharge or to fail or refuse to hire any individual, or otherwise to discri- minate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap or marital status.

      2. To limit, segregate, or classify em- ployees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities,

         or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

         
         

         Florida's employment discrimination statute, Section 760.10, is patterned after Title VII of the Civil Rights Act of 1964 (42 U.S.C. 2000e et seq.). School Board of Leon County v. Hargis, 400 So.2d 103; 108, n. 2 (Fla. 1st DCA 1981).

         In McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the Supreme Court established the burden of proof that must be met by a Title VII plaintiff alleging discrimination in hiring.

         
         

         The complainant in a Title VII trial must carry the initial burden under the statute of establishing a prima facie case of discrimina- tion. This may be done by showing (i) that he belongs to a [protected class]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected;

         and (iv) that, after his rejection, the posi- tion remained open and the employer continued

         to seek applicants from persons of complainant's qualifications.

         411 U.S. at 802

         
         

         If the complainant proves a prima facie case, the burden then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the employee's rejection. If the employer carries this burdens the complainant must prove that the reason given by the employer is merely a pretext for discrimination.

         
         

10. In McDonnell, the Court recognized that the elements required to prove a prima facie case, as set forth in McDonnell, would not be applicable in every respect in every case because of differing factual situations. In Lee v. Russell County Board of Education, 684 F.2d 769, 773 (11th Cir. 1982), the court, adapting the elements of a prima facie case as set forth in McDonnell, stated that a prima facie case of discrimination in a termination case is established when "the plaintiff proves by a preponderance of the evidence that he or she is a member of a protected class, was qualified for the position held, and was replaced by a person outside of the protected class or was discharged while a person outside the class with equal or lesser qualifications was retained."

    
    

11. In the instant case, the petitioner established a prima facie case of age discrimination in termination by establishing that she was a member of a protected class due to her advanced age, that she was qualified for the job, and that a person outside the class, i.e. a substantially younger person, took over her duties. However, the respondent articulated legitimate and non- discriminatory reasons for petitioner's termination as a permanent part-time employee. Specifically, respondent asserted that petitioner was terminated, or placed on an "on-call status", because respondent believed it was in the best interests of the patients and the facility to have one full-time nurse rather than four part-time nurses. The substitution of one full-time nurse for the part-time nurses would promote the quality of health care given to the respondent's residents by providing continuity of care, and it would be beneficial to respondent's economic interests. Petitioner failed to present any

    evidence that the reasons articulated by the respondent were a pretext for age discrimination. Indeed, the evidence shows that one of the four nurses discharged was under 30 years old, whereas the one part- time nurse retained was over 60 years old.

    
    

12. Petitioner failed to present a prima facie case as to her claim that she was discriminated against due to age because she was not offered the full- time position. On her "Availability Record" petitioner indicated that she was available for part-time work only. She later informed respondent that she did not want to work three nights in a row. Petitioner never changed her "Availability Record" form to indicate that she was available for a full-time position even though the respondent informed the petitioner, by the language on the form, that a changed "Availability Record" would "be effective, then, for any future employment." Respondent was entitled to rely on the "Availability Record" in making employment decisions, and respondent was entitled to rely on the petitioner's statements that she was only interested in part-time employment and did not want to work more than two nights in a row. If petitioner wished to be considered for full-time employment, she should have made application for such employment by changing her "Availability Record". Because petitioner not only failed to apply for the full-time position but specifically indicated her desire not to work full-timed she has failed to present a prima facie case of discrimination in hiring or promotion.

    
    

13. The petitioner has the "ultimate burden of establishing by a preponderence of the evidence that a discriminatory intent motivated the employer's action." Perryman v. Johnson Products Co., 698 F.2d 1138, 1142 (11th Cir. 1983). The evidence presented fails to establish that petitioner was terminated due to her age or that she was not offered the full-time position due to her age.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered dismissing the petition for

relief filed by the petitioner.

DONE and ENTERED this 13th day of September, 1985, in Tallahassee, Leon County, Florida.

DIANE A. GRUBBS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 13th day of September, 1985.

ENDNOTES

1/ There were three nurses stations at the nursing home. One station was in the Donegan wing, and two stations, A and B, were located in the Beacon wing.

2/ Ms. Endo had recently graduated from nursing school, and as a graduate nurse could perform the duties of an RN with supervision, pending state licensing.

3/ Petitioner had been called at least once, but indicated that she would not work a different station than that she had previously worked.

COPIES FURNISHED:

Gary R. Kessler, Esquire

700 Peachtree Center - South Tower

225 Peachtree Street, N.E. Atlanta, Georgia 30303

Ms. Nora Maher

50XX Bahia Court, Route 5 Ft. Myers, Florida 33908

Beacon-Donegan Nursing Home c/o Mr. George Putnam Director of Human Relations Post Office Box 2120 Rockville, Maryland 20852

Ms. Suzanne Oltman Clerk of the Commission

Florida Commission on Human Rights

325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303

Mr. Patrick M. Dray Regional Supervisor Beverly Enterprises 1815 Ginger Drive

Tallahassee, Florida 32308

Donald A. Griffin Executive Secretary

325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303

Aurelio Durana General Counsel

325 John Knox Road Building F - Suite 240 Tallahassee, Florida 32303

Docket for Case No: 84-003547

Orders for Case No: 84-003547