STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
PHYLLIS WILLIAMS, )
)
Petitioner, )
)
vs. ) Case No. 85-3007
)
CONKLIN CENTER, )
)
Respondent. )
)
RECOMMENDED ORDER
Pursuant to notice, the Division of Administrative Hearings, by its designated Hearing Officer, W. Matthew Stevenson, held a formal hearing in this cause on December 5, 1985, in Daytona Beach, Florida. The following appearances were entered:
APPEARANCES
For Petitioner: Rick Kolodinsky, Esquire
1055 North Dixie Freeway Suite 1
New Smyrna Beach, Florida 32069
For Respondent: David J. Linesch, Esquire
Post Office Box 40593 Jacksonville, Florida 32203
The issue for determination at the final hearing was whether the Respondent, Conklin Center, as employer of Petitioner, Phyllis Williams, committed an unlawful employment practice by discriminating against Petitioner on the basis of her race.
PROCEDURAL BACKGROUND
On July 18, 1983, the Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, alleging that Respondent committed an unlawful employment practice by terminating her employment on the basis of race. On
July 31, 1985, the Florida Commission on Human Relations rendered its proposed Notice of Determination that there was no reasonable cause to believe that an unlawful employment practice had occurred. By petition filed with the Division of Administrative Hearings on September 5, 1985, Petitioner requested a formal administrative hearing on her charge of race discrimination against Respondent, Conklin Center.
This cause came on for hearing on December 5, 1985.
Petitioner testified on her own behalf and called the following additional witnesses: Ray Bailey, a formal employee of the Conklin Center; Willie Highsmith, a former employee of the Conklin Center; Regina C. Williams, a former employee of the Conklin Center; Lutricia Weaver, a former employee of the Conklin Center; Alice Sessions, a former employee of the Conklin Center; Isabel Kerns, a current employee of the Conklin Center; Modestine Davis, a former employee of the Conklin Center; and Judy Shanteen, a former employee of the Conklin Center.
Petitioner's Exhibits 1-21 were duly offered and admitted into evidence. The Respondent offered the testimony of Edward McCoy, executive director of the Conklin Center; and, Steven Sanford, formerly employed at the Conklin Center as assistant to the executive director. In addition, Respondent's Exhibits 1-6, 8-
16 and 19-23 were duly offered and admitted into evidence. The parties have submitted post-hearing proposed findings of fact. A ruling has been made on each proposed finding of fact in the Appendix to this Recommended Order.
FINDINGS OF FACT
Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact:
Respondent, Conklin Center, is a private, non-profit boarding school specializing in the vocational training and education of blind individuals that have an additional handicap. Ed McCoy, a white male, serves as executive director of the Conklin Center.
The Petitioner, Phyllis Williams, is a black female and has been a licensed practical nurse for 11 years. Petitioner was hired by Respondent as Nurse and Resident Hall Supervisor in January, 1981. From then until her termination in June of 1983, Petitioner's duties included the supervision of all matters relating to student's physical health and medical needs, the ordering of supplies, the preparation of time records, evaluations of all dormitory staff members and the orientation and intake of new students.
During the first two years of her employment, the Petitioner received "highly effective" ratings from two different evaluators for the period" January, 1981, through January, 1982, and January, 1982, through January, 1983.
Petitioner's supervisors during this period were Mark Lear, (a white male), and Ed McCoy. During this period and throughout most of her tenure at the Conklin Center, Petitioner was held in high regard by most of her co-workers and was seen as an employee who went above the minimum call of duty.
There was a distinction drawn at the center between "professional" and "non-professional" employees. Petitioner was the only professional employee during her entire tenure who was black, except for a brief appearance by a black teacher.
On January 1, 1983, Mr. McCoy placed the Respondent under the supervision of Steve Sanford, Orientation and Mobility Supervisor and assistant to the executive director. Mr. McCoy had received uncorroborated remarks and reports indicating that the Petitioner's performance was slipping, that she was becoming inattentive to students' needs and was not being cooperative with other staff members. Thus, Mr. McCoy felt that the Petitioner needed more direct supervision than he, as executive director, had the ability to provide. Shortly after becoming Petitioner's supervisor, Steve Sanford received memos from two different employees which criticized Nurse Williams' performance of duty.
On February 7, 1983, Petitioner was verbally reprimanded by Steve Sanford for discontinuing a student's prescribed treatment for nose polyps. This treatment had been recommended by the student's personal physician. The student's mother, upon discovering that the medication was not being administered, called the Conklin Center several times to complain. The Petitioner did not provide the nose drops because she had spoken with the student's doctor, and was informed that the medication was really not necessary because the student required surgery to correct the problem.
Petitioner was issued a written counseling statement by Steve Sanford for an incident which occurred on February 15, 1983, involving an alleged breach of confidentiality. Mr. Sanford charged that the Petitioner breached her signed oath of confidentiality by telling one student about the sexual preference of another student. The Petitioner was charged with having asked a student to warn a new student "not to become involved" with the student who had reported lesbian tendencies. The Petitioner requested that the 2 day suspension proposed by Steve Sanford be reviewed by a panel of her peers.
On March 1 and 2, 1983, the Staff Advisory Committee,
composed of both black and white employees, met to discuss the situation and voted 5-1 to uphold the suspension.
On April 16, 1983, a subordinate called Steve Sanford to inform him that she was sick and unable to work. According to the Conklin Center's policy, it was Petitioner's responsibility as dormitory supervisor to either find a replacement or work the shift herself. Mr. Sanford called Petitioner at home to find out who would be covering the shift and was informed by Petitioner that she would have to work the shift, and Petitioner became very upset and began voicing complaints about the center's operations. Towards the end of the conversation, Petitioner told Mr. Sanford that she would be unable to work the shift because she was upset and had a medical condition which was aggravated by being upset. Therefore, Mr. Sanford, worked the shift. The next day, Steve Sanford spoke to Petitioner about the incident and indicated that he was suspicious about her sudden illness claimed near the end of the conversation. The Petitioner did not receive a written reprimand for this incident.
On May 5, 1983, the Petitioner was given a written counseling statement by Steve Sanford. The counseling statement alleged that on the previous day the Petitioner refused to perform intake services for a new student that arrived at the center. The statement alleged that the Petitioner was informed that the expected new student had arrived and was waiting in the front office with his driver. The Petitioner refused to assist stating that it was her lunch hour. The student was blind, deaf, crippled and severely retarded. Although the Conklin Center's policy manual guarantees a duty-free lunch hour each day, the Petitioner was a "flex time" personnel and appropriate compensation could have been provided for her disrupted schedule, i.e. a later lunch hour. The Petitioner signed the written counseling statement and indicated that she did not wish to submit written comments of her own about the matter.
On May 17, 1983, the Petitioner was involved in a room search for a student's missing watch. During the search, the Petitioner went through another student's purse, and removed two non-prescription drugs. The student called her father complaining about the incident, and he threatened to take her out of the school. The student was, in fact, removed from the Conklin Center for one week. The Petitioner was issued a counseling statement and advised that any further incidents of misconduct would result in her termination.
On Friday, May 20, 1983, a student required medical attention at Halifax Medical Center resulting in a recommendation that she be seen at Shands Hospital in Gainesville. The attending physician told Petitioner that it was not imperative that the student go to Shands that day, but she should be taken no later than the following Monday. The student's condition worsened during the night, finally requiring transportation to Shands very early on the morning of May 21, 1983. The following day, the incident was reported to Steve Sanford. It was also reported to him that the student's medical records were incomplete and that this caused some difficulty after the student arrived at Shands for treatment. The Petitioner was not issued a counseling statement for this incident, however, Mr. Sanford discussed the incident with her.
On May 27, 1983, Petitioner was notified by the instructor assigned to the midnight to 8:00 A.M. shift that she was sick and unable to work. The Petitioner called Carolyn Leitch, Coordinator of Educational Services, to see if she would work the shift. The Petitioner was-verbally reprimanded by Steve Sanford as a result of this incident. Mr. Sanford alleged that if unable to work a shift herself, Conklin Center policy dictated that Petitioner call the designated pager (Ed McCoy) to handle the situation. The Petitioner, did in fact, work the shift.
On May 30, 1983, Petitioner was scheduled to be off work provided she picked up a student who was being discharged from the hospital on the same day. The Petitioner failed to go to the hospital and caused the student a lengthy wait. Mr. Sanford eventually went to the hospital after the student did not return to the Conklin Center at the scheduled time. When questioned about the incident, Petitioner stated that she had called the hospital and had been informed that the doctor had not yet made his rounds, and that the student therefore was not ready to be discharged. She stated that when she called again, the student had already been picked up. Steve Sanford considered this to be an example of malfeasance on the part of Petitioner.
On May 30, 1983, Steve Sanford sent a memo to Ed McCoy requesting that Phyllis Williams be terminated as Nurse and Resident Hall Supervisor. Mr. Sanford cited the preceding incidents and the accumulation of counseling statements as the basis for his request for termination.
On June 8, 1983, Ed McCoy called the Petitioner into
his office and presented her with Steve Sanford's memo requesting that she be terminated. McCoy asked the Petitioner whether she had anything to say and she replied that she had nothing to say. Therefore, the Petitioner was terminated.
The personnel manual for the Conklin Center contemplates a system of progressive discipline. The progressive discipline system generally consists of four steps: initial verbal reprimand; written counseling statement; suspension; and, finally, dismissal. After a counseling statement is written, the supervisor confronts the employee with the allegations. At that time, the supervisor upon hearing the employees' input, is free to destroy the counseling statement. However, if the counseling statement is not destroyed or withdrawn by the supervisor, the person may appeal a counseling statement to the staff advisory council.
Racial tensions between black and white employees at the Conklin Center were exceptionally high. The Petitioner, as dormitory supervisor, was told of racial problems encountered by her dormitory staff. The Petitioner usually responded by referring the complaint up the chain of command to her supervisor, Steve Sanford.
There were several meetings in late 1982 at the Conklin Center at which racial problems were discussed. Several staff members, including Steve Sanford and Ed McCoy, were present at these meetings. At the staff meetings, black employees voiced their opinions that black staff members were treated unfairly, and their feeling that the administrators were generally tougher on blacks than on whites. In particular, Steve Sanford was pointed out as being racially prejudiced by black employees and at least one white employee. The meetings did little to ease the racial tensions that existed at the Conklin Center.
Ed McCoy used the term "nigger" at a staff meeting where no blacks were in attendance. McCoy used the term sarcastically and did not direct it towards any particular individual.
Steve Sanford had some prior experience in the military where he worked in an equal opportunity billet. Sanford was notably curt with his employees and was not very popular with white nor black employees.
Ray Bailey, a white supervisor, had a physical
altercation with one of the students. The student pushed Mr. Bailey and then Bailey grabbed the student by the collar and intended to take him outside to "teach him some manners", however, another staff member intervened and a fist-fight was avoided. Under the circumstances, and in view of Mr. McCoy's previous knowledge of the particular student involved, no disciplinary action was taken against Mr. Bailey.
Jeff Modica, a white male previously employed at the Conklin Center as a recreation supervisor, was the source of much racial discord and was perceived by many to be racially prejudiced. Jeff Modica was ultimately terminated from the Conklin Center because of repeated poor work performance.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 120.57(1), Florida Statutes (1983).
In a discrimination case the Petitioner has the initial burden of proving a prima facie case of discrimination by a preponderance of the evidence. If the Petitioner succeeds in establishing the prima facie case, the burden shifts to the Respondent to articulate some legitimate non-discriminatory reason for the actions complained of. Should the Respondent carry this burden, Petitioner must then have the opportunity to prove, by a preponderance of the evidence, that the legitimate reasons offered by the Respondent were not its true reasons, but were a pretext for discrimination. Texas Department of Community Affairs vs. Burdine, 450 U.S. 248, 101 S.Ct. 1089 L. Ed. 2nd 207 (1981). To establish the prima facie case, the Petitioner must present facts which "raises an inference of discrimination only because we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors." Id. at 450 U.S. 254. It is at this point that a Petitioner's burden of proving pretext and his ultimate burden of persuasion merge, requiring that the complainant establish the existence of intentional discrimination.
The Petitioner has failed to meet her burden of establishing that the Respondent discriminated against her on the basis of race. While the Petitioner did establish a prima facie case, the Respondent articulated legitimate, non- discriminatory reasons for the actions complained of. Thereafter, the Petitioner failed to show that the articulated,
non-discrlminatory reasons were merely pre-textual.
The Petitioner's presentation of a prima facie case was clear, unequivocal, and further embellished by the overwhelming evidence of racial discord at the Conklin Center. The evidence established that management took only minimal steps in eradicating this deplorable situation and in fact, exacerbated the situation by its cavalier response to the claims of discrimination by its black employees. The executive director further fueled the fires of discord by using a racial slur during a time when racial tensions were already high.
Nevertheless, with regard to the Petitioner's termination, the Conklin Center articulated legitimate, non- discriminatory reasons for discharging her and it became incumbent on Petitioner to show, by a preponderance of the evidence, that the articulated reasons were a mere pretext for unlawful discrimination. The Petitioner failed to show that she was treated differently than similarly situated white employees. There was no substantial evidence that the Conklin Center treated similarly situated white employees who violated the same rules that Petitioner did, differently. Because the Petitioner enjoyed high regard and quality evaluations while supervised by Ed McCoy, it becomes necessary to analyze the Petitioner's decline under Steve Sanford. The evidence shows that Petitioner, by her actions or inactions, violated certain policies of the Conklin Center. While it appears that some of the alleged violations were merely technical and unsubstantiated or unsubstantial, there was a factual basis for all of the allegations. While some of the disciplinary actions taken by Steve Sanford were unduly harsh and only minimally meeting the Conklin Center's personnel policy of progressive discipline, the Petitioner has not shown the crucial element that she must -- discriminatory intent. In an employment discrimination case, whether or not the employer has good cause to terminate an employee is not necessarily determinative of the issue. Unless the complainant proves that he was treated differently on account of his race from other employees with the same work history, committing the same type infractions, the employer is not guilty of racial discrimination even if the employee is discharged unnecessarily or in error. See, Turner v. Texas Instruments, Inc., 555 F.2d 1251 (5th Cir. 1977). Of course, the existence or non-existence of reasonable, objective grounds for the challenged action may be probative on the issue of discriminatory intent.
The "Human Rights Act of 1977" is markedly similar to, and patterned after the federal civil rights act. Thus, federal cases construing the federal act are persuasive and offer guidance in interpreting the state act:
If a Florida Statute is patterned after a federal law, on the same subject, it will take the same construction in the Florida courts as its prototype has been given in the federal courts insofar as such construction is harmonious with the spirit and policy of the federal legislature on the subject. Pasco County School Board v. Fla. PERC, 353 So. 2d 108, 116 (Fla. 1st DCA
1977).
The courts have held that a complaining party need not prove that race played the only part or even the controlling one in the challenged action. Thus, where a Petitioner can show that the consideration of race played some part in the challenged actions, the complaining party will have satisfied the legal requirements of proof of his disparate treatment case. See, McDonald v. Sante Fe Trail, supra.
Furthermore, the nearly impossible burden of showing existence of identical circumstances is not required in order to establish similarity between the Petitioner's situation and that of other employees. The standard applicable in instances of disparate treatment requires that the alleged acts must be of comparable seriousness. The Petitioner has failed to establish the requisite comparative similarity and/or comparative seriousness of the infractions of white employees that may have been treated more leniently. The infractions alleged against the Petitioner must also be viewed within the context of their repeated and consistent nature. The Petitioner has failed to show that any white employee maintained a similar track record of alleged infractions. It is important to note that the Petitioner was discharged for a series of infractions and not because of any one incident.
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 complaint and the petition
for relief filed by Ms. Phyllis Williams.
DONE and ORDERED this 5th day of January, 1986 in Tallahassee, Leon County, Florida.
W. MATTHEW STEVENSON Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1986.
COPIES FURNISHED:
Rick Kolodinsky, Esquire 1055 North Dixie Freeway Suite 1
New Smyrna Beach, Florida 32069
David J. Linesch, Esquire Post Office Box 40593 Jacksonville, Florida 32203
Donald A. Griffin Executive Director Florida Commission on
Human Relations
325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
Dana Baird, Esquire General Counsel Florida Commission on
Human Relations
325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303
APPENDIX
The following constitutes my specific rulings pursuant to Section 120.59(2) Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case.
Rulings on Proposed Findings of Fact Submitted by the Petitioner
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 3.
Adopted in Finding of Fact 3.
Accepted in Finding of Fact 4. Matters not contained therein are rejected as subordinate.
Partially accepted in Findings of Fact 18 and 19. Matters not contained therein are rejected as not supported by substantial competent evidence.
Partially accepted in Findings of Fact 18, 19, 20 and 21. Matters not contained therein are rejected as subordinate.
Partially accepted in Findings of Fact 5 and 21. Matters not contained therein are rejected as subordinate.
Rejected as a recitation of testimony and argument.
10.
Partially accepted in Findings of Fact 8 and 13. Matters not included therein are rejected as subordinate. The finding that "when Sanford did not follow paging policy, no disciplinary action resulted" is re- rejected as misleading and not supported by the evidence.
Partially accepted in Finding of Fact 7. The finding that "other employees did precisely that and were not disciplined" is rejected as misleading and not supported by the evidence.
Partially accepted in Finding of Fact 6. Matters not contained therein are rejected
as misleading and not supported by the evidence.
Partially accepted in Finding of Fact 10. Matters not included therein are rejected as subordinate. The finding that "white staff who refused to work during "on duty" time were not disciplined" is rejected as misleading and not supported by the evidence.
Partially adopted in Finding of Fact 11. Findings not contained therein are rejected as not supported by substantial competent evidence.
Partially adopted in Finding of Fact 12. Matters not contained therein are rejected as not supported by substantial competent evidence.
Rejected as legal argument.
Rejected as not supported by substantial evidence.-
Sentence 1 is rejected as not supported by substantial competent evidence: see Finding of Fact 17. Sentence 2 is rejected as legal argument.
Rejected as not supported by substantial competent evidence.
Accepted, but not included because unnecessary.
Accepted, but not included because unnecessary.
Rulings on Proposed Findings of Fact Submitted by the Respondent
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 1.
Adopted in Finding of Fact 2.
Adopted in Finding of Fact 3.
Adopted in Findings of Fact 3, and 5.
Adopted in Finding of Fact 5.
Adopted in Finding of Fact 6.
Partially adopted in Finding of Fact 7. The finding that "Petitioner violated her signed oath of confidentiality" is rejected as argument. Other matters not included are rejected as subordinate.
Partially adopted in Finding of Fact 9. Matters not included therein are rejected as unnecessary and immaterial.
Adopted in Finding of Fact 10.
Adopted in Finding of Fact 11.
Partially adopted in Finding of Fact 12. Findings not included therein are rejected as misleading.
Adopted in Finding of Fact 13.
Partially adopted in Finding of Fact 14. Matters not included therein are rejected as subordinate.
Adopted in Finding of Fact 15.
Covered in background.
Rejected as legal argument.
Partially adopted in Findings of Fact 7, 8 and 17. Matters not included therein are rejected as subordinate.
Rejected as legal argument.
Partially adopted in Finding of Fact 22. Matters not included therein are rejected as argument.
Adopted in Finding of Fact 23.
Rejected as misleading. The Petitioner was replaced by a white nurse, however, when her replacement left, the position was offered to a black nurse.
Rejected as subordinate and misleading. Although the Conklin Center has always employed between 23 and 39 percent
black employees, the majority of these employees were kitchen or maintenance personnel, the lowest rung of the Conklin Center hierarchy.
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AGENCY FINAL ORDER
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STATE OF FLORIDA COMMISSION ON HUMAN RELATIONS
PHYLLIS D. WILLIAMS, EEOC Case No. 046833821 FCHR Case No. 83-2294
Petitioner, DOAH Case No. 85-3007
FCHR Order No. 86-038
CONKLIN CENTER,
Respondent.
/
ORDER PARTIALLY DENYING PETITION AND PARTIALLY GRANTING PETITION
Panel of Commissioners
The following three Commissioners participated in the disposition of this matter:
Commissioner Robert L. Billingslea, Panel Chairperson;
Commissioner Elena Flom; and Commissioner Ronald P. Townsend.
Appearances For Petitioner Phyllis D. Williams:
Rick Kolodinsky, Esquire
1055 North Dixie Freeway, Suite 1 New Smyrna Beach, Florida 32069
For Respondent Conklin Center:
David J. Linesch, Esquire Post Office Box 40593 Jacksonville, Florida 32203
Preliminary Matters
Phyllis D. Williams, Petitioner herein, filed a complaint of discrimination with this Commission pursuant to the Human Rights Act of 1977, as amended, Sections 760.01-760.10, Florida Statutes (1985),1 alleging that Conklin Center, Respondent herein, unlawfully discriminated against Petitioner on the basis of race (black).
In accordance with the Commission's rules, the allegations of discrimination set forth in the complaint of discrimination were investigated and a report of said investigation was submitted to the Executive Director. On August 2, 1985, the Executive Director issued his Determination finding no reasonable cause to believe that an unlawful employment practice occurred.
On September 3, 1985, the Petitioner filed a Petition for
1
Relief from an Unlawful Employment Practice. The petition was referred to the Division of Administrative Hearings {DOAH) for the conduct of a formal proceeding pursuant to Rule 22T-8.16(1). The formal proceeding was held on December 5, 1985, in Daytona Beach, Florida, before W. Matthew Stevenson, DOAH Hearing Officer. The Hearing Officer entered a Recommended Order in this matter on January 5, 1986.
Petitioner filed exceptions to the Recommended Order.
Respondent filed a responsive pleading to Petitioner's exceptions and Petitioner filed a motion to strike Respondent's reply on the grounds that it was untimely. Respondent then entered a motion in opposition to Petitioner's motion to strike.
Pursuant to notice, oral argument was held on August 29, 1986, in Orlando, Florida, before the aforementioned Panel of Commissioners. After oral argument was presented, the Panel conducted its deliberation in this matter and determined the action to be taken upon the petition.
Petitioner's Exceptions to the Recommended Order
Petitioner filed "Petitioner's Objections to Recommended Order" objecting that the Hearing Officer:
Failed to rule on ail of Petitioner's proposed findings of fact; and
Rejected certain proposed findings which are uncontroverted in the record, specifically, that Petitioner was treated more harshly than whites committing comparable or more serious infractions and that Petitioner was given written reprimands without prior opportunity to explain.
Rulings on Exceptions
Section 120.59(2), Florida Statutes, requires that if a party submits proposed findings of fact, the final order must include a ruling upon each proposed finding and a brief statement regarding the grounds for their rejection. This does not require the agency and/or hearing officer to quote verbatim and address each proposed finding word for word. Rather, it is sufficient that the order contain a "written foundation upon which the reviewing court may assure that all proposed findings of fact have been considered and ruled upon and not overlooked or concealed." Schomer v. Department of Professional Regulation, 417 So.2d 1089, 1090 (Fla. 3rd DCA 1982). Accord
Health Care Management, Inc v. Department of Health and Rehabilitative Services, 479 So.2d 193 (Fla. 1st DCA 1986), where the court states section 120.59(2) only requires specific rulings on such proposed findings that are pertinent and which are not subordinate, immaterial, or unnecessary."
Here, the Hearing Officer considered and ruled on each paragraph of Petitioner's proposed findings. Appendix to Recommended Order, pages 13-14. As such, the Hearing Officer has fulfilled his statutory duty and his findings should not be disturbed. Petitioner's first exception is, therefore, denied.
The Panel also denies Petitioner's second exception in that the record reveals that Petitioner's examples of disparate disciplinary treatment are clearly not uncontroverted. First, Petitioner states that there is no evidence in the record to support the Hearing Officer's finding that Petitioner searched a student's purse and removed the student's medication.
Petitioner further states that she was disciplined for this incident, whereas a similarly situated white employee was not disciplined.
While Petitioner was disciplined for this incident, there is evidence in the record which explains Respondent's action. The student's parents called Respondent, specifically identified Petitioner as the violator, threatened to remove the student from the center2 and report Respondent to the home counseling referral agency for improper practices (Transcript page 341, cited hereafter as T- ). Petitioner herself admits to removing the medication although she states that it was located in the student's night stand, not her purse (Petitioner's Deposition page 21, cited hereafter as PD- ). No evidence was presented to show that under similar circumstances a white employee would have received more lenient treatment.
Secondly, Petitioner asserts that she was disciplined for a breach of confidentiality in discussing the sexual preferences of one student with another student. Petitioner further asserts that other staff had previously breached the confidentiality requirements but were not so disciplined. Evidence in the record, however, does not support a finding that any other incident was comparable to that involving Petitioner. The incident involving the dormitory supervisor did not involve a student. In that instance, a dormitory instructor advised her supervisor that a lesbian student had made sexual advances
2
towards another student (T-263; PD-27-31 ).
Third, Petitioner states that she was disciplined for not working on her lunch hour, whereas a white employee who refused to do so received no discipline. The record shows that it was the nurse's duty to perform intake and that her flex-time lunch schedule would be adjusted accordingly if she was requested to work during this time (T-288-289; 338-340). Further, the record citations contained in Petitioner's objections do not reveal an instance where another employee, either white or black, was requested to render assistance and refused to do so (Petitioner's Objections to Recommended Order, page 3).
Next, Petitioner lists insubstantial infractions for which she received discipline. The Hearing Officer found that while some of the alleged violations committed by Petitioner were "merely technical, unsubstantiated or unsubstantial," there was evidence which provided a factual basis for all of the allegations expressed and discipline taken towards her by Respondent (Recommended Order page 10, hereafter cited as RO-
).
Petitioner then states that there is substantial uncontroverted evidence in the record that Petitioner was "disciplined more harshly than white employees committing the same, comparable, or more serious infractions." The Hearing Officer found:
The standard applicable in instances of disparate treatment requires that the alleged acts must be of comparable seriousness. The Petitioner has failed to establish the requisite comparative similarity and/or comparative seriousness of the infractions of white employees that may have been treated more leniently. The infractions alleged against the Petitioner must also be viewed within the context of their repeated and consistent nature. The Petitioner has failed to show that any white employee maintained a similar tract record of alleged infractions. It is important to note that the Petitioner was discharged for a series of infractions and not because of any one incident.
RO-11. Moreover, when asked if she knew of any white employees
who had not been reprimanded for engaging in similar misconduct as that for which she was disciplined and/or terminated, Petitioner stated "no" (PD-15).
Finally, Petitioner cites the record to support its argument that white employees were afforded an opportunity to be heard prior to the issuance of a counseling statement. A review of the record, however, reveals that it contains competent, substantial evidence to find that none of the offenses were comparable to the misconduct engaged in by Petitioner and that the incidents cited do not demonstrate a practice by Respondent of counseling white employees, but not black employees, prior to the issuance of counseling statements. Additionally, the Hearing Officer found that on at least one occasion, Petitioner was verbally counseled regarding an infraction for which a written statement was never issued {RO-5).
It is the hearing officer's function to consider all of the evidence presented and reach ultimate conclusions of fact based upon competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two controverted findings, it is the hearing officer's role to decide between them. Heifetz v. Department of Business Regulation, 475 So.2d 1277 (Fla. 1st DCA 1985); De Groot v.
Sheffield, 95 So.2d 912 (Fla. 1957). As the record contains at least some competent substantial evidence supportive of the Hearing Officer's factual findings as to the disputed facts, such will not be disturbed by this Panel. Brevard County Sheriff's Department v. FCHR, 429 So.2d 1235 (Fla. 5th DCA 1983); City of Umatilla v. PERC, 422 So.2d 905 (Fla. 5th DCA 1982).
Findings of Fact
Having considered the Hearing Officer's findings of fact, and being particularly mindful of the record in this cause, the Panel finds that the Hearing Officer's Findings of Fact are supported by competent substantial evidence and will not be disturbed. The Hearing Officer's findings of fact are hereby adopted.
Analysis and Discussion
In his findings of fact, the Hearing Officer stated:
Racial tensions between black and white employees at the Conklin Center were exceptionally high. The Petitioner, as dormitory supervisor, was told of racial problems encountered by her dormitory staff. The Petitioner usually responded by referring the complaint up the chain of command to her supervisor, Steve Sanford.
RO-7.
There were several meetings in late 1982 at the Conklin Center at which racial problems were discussed. Several staff members, including Steve Sanford and Ed McCoy, were present at these meetings. At the staff meetings, black employees voiced their opinions that black staff members were treated unfairly, and their feeling that the administrators were generally tougher on blacks than whites. In particular, Steve Sanford was pointed out as being racially prejudiced by black employees and at least one white employee. The meetings did little to ease the racial tensions that existed at the Conklin Center. Ed McCoy used the term "nigger" at a staff meeting where no blacks were in attendance. McCoy used the term sarcastically and did not direct it towards any particular individual (emphasis supplied).
Based upon these findings, the Hearing Officer concluded:
RO-9.
The Petitioner's presentation of a prima facie case was clear, unequivocal, and further embellished by the overwhelming evidence of racial discord at the Conklin Center. The evidence established that management took only minimal steps in eradicating this deplorable situation and in fact, exacerbated the situation by its cavalier response to the claims of discrimination by its black employees. The executive director further fueled the fires of discord by using a racial slur during a time when racial tensions were already high (emphasis supplied).
The Human Rights Act of 1977, Section 760.10(a), Florida statutes, makes it an unlawful employment practice for an employer to discriminate against any individual with respect to "terms, conditions, or privileges of employment, because of such individual's race."
In Pettigrew v. Regency Towers Owners Association, Inc., FALR 1 307-A g (FCHR November 17, 1982), rev'd on other grounds,
436 So.2d 266 (Fla. 1st DCA 1983), this Commission held that it is a violation of the a terms, conditions, or privileges" clause for an employer to create or condone "a substantially discriminatory work environment, regardless of whether the complaining employee [looses] any tangible job benefits as a result of the discrimination." Here, the Commission adopted the Fifth Circuit Court of Appeals construction of the clause in a case brought under Title VII:3
the phrase "terms, conditions, or privileges of employment" . . . is an expansive concept which sweeps within its protective ambit the practice of creating a work environment heavily charged with . discrimination.
One can readily envision working environments so heavily polluted with discrimination as to destroy completely the emotional and psychological stability of minority group workers. . .
3
3 FALR 1390-A; Rogers v. Equa1 Employment Opportunity Commission, 454F. 2d234 (5th Cir. 1971), cert. denied, 406 U.S. 957 (1972). Accord Walker v. Ford Motor Company, 684 F.2d 1355, 1358 (11th Cir. 1982); Henson v. City of Dundee, 682 F.2d 897, 901 (11th Cir. 1982).
The Commission's analysis is consistent with federal case law dealing with instances of racially abusive working environments. Federal courts generally hold that two conditions must be met before a violation may be found: (1) More than a few isolated incidents of harassment must have occurred; and (2) The employer, who was aware or should have been aware of the racial harassment, failed to take reasonable steps to eradicate the Situation. Hunter v. Allis-Chalmers Corp., 797 F.2d 1417, (7th Cir. 1986) EEOC v. Murphy Motor Freightlines, Inc., 488 F.Supp. 381 (D.Minn. 1980); Croker v. Boeing Co., 437 F.Supp.
1138 (E.D.Pa. 1977).
The record evidence, as well as the Hearing Officer's own specific factual findings and conclusions, clearly demonstrates that racial tensions at the Conklin Center were pervasive, that Respondent took minimal steps in eradicating this situation which the Hearing Officer referred to as deplorable and in fact exacerbated the situation by its own cavalier response to the claims of discrimination by its black employees. The situation was further exacerbated by the Executive Director using a racial slur during a time when racial tensions were already high. See George v. Sims Crane Service, Inc., Order No. 85-0034, slip op. at (FCHR September 27, 1985)(Joyce, C., dissenting):
In my opinion, Mr. Sims' reference to Petitioner as the "only nigger" working for him constituted an unlawful employment practice. Recognizing that the mere utterance of an ethnic or racial epithet which engenders offensive feelings in an employee may not rise to a Human Rights Act violation in every circumstance, I would find that an unlawful employment practice occurs whenever the employer's highest ranking managers and officials make such statements. In such circumstance, the statements are filtered down to and absorbed by Respondent's work force and the atmosphere becomes charged with racist overtones sufficient to taint the terms,
conditions or privileges of employment.
Here Mr. Sims was "the Chairman of the Board of Directors and apparent top manager of Sim's Crane Service."
Accordingly, Respondent violated section 760.10(1)(a), Florida Statutes, by creating or condoning a substantially discriminatory work environment.
Petitioner in this cause, however, failed to meet her burden of proving that Respondent discriminated against her with respect to her separation from employment. While Petitioner established a prima facie case of discrimination regarding her termination, she thereafter failed to demonstrate that Respondent's articulated nondiscriminatory reasons for the termination action were pretextual. There is a lack of nexus between the discriminatory work environment which existed at the Conklin Center and Petitioner's substandard performance which caused the termination action to conclude that Petitioner's termination was racially premised. Texas Department of Community Affairs v. Burdine, 450 U.S. 248(1981); McDonnell Douglas Corporation v. Green, 411 U.S. 792 (1973).
At the deliberation, Respondent asserted that it did not receive adequate notice of the racially discriminatory work environment issue before the administrative hearing and was, therefore, not able to prepare a defense to such charge.
Although not concisely articulated, adequate notice of the issues to be tried was provided in Petitioner's Petition for Relief, the DOAH NOTICE OF HEARING4 and the NOTICE OF COMMISSION DELIBERATION.5
Petitioner stated in her Petition for Relief that:
Respondent has violated the Human Rights Act of 1977, as amended in the manner specifically described below:
"I was discriminated against because of my race (black). I was terminated from my position as nurse/dormitory supervisor on June 8, 1983, where I had been employed for two years and four months.
4
5
During my tenure at the Conklin Center, I had consistently been given meritorious evaluations; until Steve Sanford became my Supervisor, even though Ed McCoy was aware of his racial feelings and actions towards me and other black employees and also students."
Additionally, Respondent addressed this issue in its Proposed Order and in its Reply to Petitioner's Objections to the Recommended Order, as follows:
Finally, Petitioner failed to provide evidence of the existence of a racially discriminatory working environment.
Although testimony indicated that some employees experienced a feeling of racial animus, Petitioner has presented no evidence that management encouraged or participated in this animus, nor has she presented evidence that such animus, if actually made, had any nexus with her discharge. Gillard v. Sears, Roebuck & Co., 32 FEP Cases 1275 (E.D.Penn. 1903). As stated in Ellison v.
Best Foods, 36 FEP Cases 643 (E.D. Ark. 1984), "The critical fact is that there was little evidence that management was directly involved in any of this or that it any way condoned or tolerated such behavior." In this case, the evidence shows that the Center was actively working to create racial harmony among its employees. This is evidenced by the meetings that the Center held to clear up any feelings of racial animus among its employees.
Proposed Order, pages 23 & 24; Respondent's Reply to Petitioner's Objections to Recommended Order, pages 14 & 15.
Therefore, not only was Respondent aware of the racially discriminatory work environment issue, but apparently felt that it was of such significance to warrant research for inclusion in its Proposed Order to the Hearing Officer.
Based on the above, the Panel rejects Respondent's
assertion that it lacked adequate notice of the issues in controversy. Here, Respondent was given sufficient notice of the issues not only by the previously mentioned documents, but also by the evidence presented at the DOAH hearing. This conclusion is supported by the discussion of the racially discriminatory work environment issue contained within Respondent's own documents filed with the Hearing Officer and this Commission.
Conclusions of Law
Except as modified above, the Hearing Officer's conclusions of law are hereby adopted.
Remedy
In accordance with the above, the Panel finds that Phyllis
Williams did not show that Conklin Center committed an unlawful employment practice by terminating her from its employment based on race (black). The evidence shows, however, that Respondent did, in fact, commit an unlawful employment practice by creating a racially discriminatory working environment at the Conklin Center.
It is therefore ORDERED:
That Respondent cease and desist from again engaging in such unlawful employment practice;
That Respondent pay that portion of Petitioner's attorney's fees attributable to the work performed regarding the discriminatory work environment issue; and,
That Respondent notify the Commission in writing within
20 calendar days of the date of filing of this Order of the steps that have been taken to comply with this Order.
The Commission reserves jurisdiction over the amount of attorney's fees. If the parties have reached a proposed settlement regarding the amount of attorney's fees to be awarded within 30 calendar days from the date of filing of this Order, the parties shall prepare and submit a Joint Stipulation of Settlement for Amount of Attorney's Fees for consideration by the Commission. If the parties are unable to reach an agreement regarding the amount to be awarded within 30 calendar days from the date of this Order, the parties shall file a Notice of Failure of Settlement for Amount of Attorney's Fees with the
Clerk of the Commission.
The parties are advised of their right to petition the Florida District Court of Appeal for review of this Order within
30 days of the date that this Order is filed with the Clerk of the Commission. Section 120.68, Fla. Stat.; Fla. R. App. P. 9.110(b).
It is so ORDERED.
DATED this 6th day of November, 1986.
FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS:
BY:
Commissioner Robert L. Billingslea, Panel Chairperson;
Commissioner Elena Flom; and Commissioner Ronald P. Townsend.
FILED this 12th day of November, 1986, in Tallahassee, Florida.
Betsy Howard
Clerk of the Commission
ENDNOTES
1/ Unless otherwise indicated, all statutory references are to Florida Statutes (1985), and all rule references are to Florida Administrative Code.
2/ The student was subsequently removed for one week.
3/ The Human Rights Act of 1977 is patterned after the Civil Rights Act of 1964; 29 U.S.C. Section 2000-e. Therefore, cases construing Title VII offer interpretative guidance for the state act. School Board of Leon County v. Hargis, 400 So.2d 1235 (Fla. 5th DCA 1983).
4/ The DOAH NOTICE OF HEARING of October 17, 1985, advised Respondent that the issue to be considered at hearing would be "Whether Respondent is guilty of an unlawful employment practice specifically, discrimination on the basis of race."
5/ This Commission listed as one of the issues to be determined in its NOTICE OF COMMISSION DELIBERATION: "Has an unlawful employment practice occurred?"
COPIES FURNISHED:
Rick Kolodinsky, Attorney for Petitioner David J. Linesch, Attorney for Respondent
Danica W. Parker, Legal Advisor for Commission Panel
Paulette H. Simms, Administrator of Employment Investigations
W. Matthew Stevenson, DOAH Hearing Qfficer
| Issue Date | Proceedings |
|---|---|
| Jan. 05, 1986 | Recommended Order (hearing held , 2013). CASE CLOSED. |
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 12, 1986 | Agency Final Order | |
| Jan. 05, 1986 | Recommended Order | Complaint dismissed because Petitioner failed to prove that discriminatory intent was a factor in her dismissal. |
