STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MS. REBECCA RILEY, )

)

Petitioner, )

)

vs. ) CASE NO. 87-3625

) NASSAU GENERAL HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was conducted in this case on November

16 and 17, 1987, at Fernandina Beach, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented as follows at the final hearing:

For Petitioner: Calvin Moore, Esquire

610 South 10th Street Fernandina Beach, Florida 32034

and

Mr. Johnell Preliou, President National Association for Advancement of Colored People Nassau County Branch

Post Office Box 403

Fernandina Beach, Florida 32034-0403

For Respondent: Patrick D. Coleman, Esquire

James M. Craig, Esquire

Coffman, Coleman, Andrews & Grogan Post Office Box 40089 Jacksonville, Florida 32203

ISSUES AND INTRODUCTION

The basic issue in this case is whether the Respondent discriminated against the Petitioner on the basis of her race and thereby engaged in an unfair employment practice within the meaning of Section 760.10, Florida Statutes. The Petitioner asserts that she was discriminated against by the employer's failure to promote her. The Respondent denies any discrimination.

At the hearing, both parties presented the testimony of witnesses and offered documentary exhibits. Subsequent to the hearing a transcript of the proceedings was prepared and filed. Pursuant to agreement of the parties, their proposed recommended orders were originally due by no later than February 1, 1988. At the request of the Petitioner, for good cause shown, the filing date was twice extended. On March 21, 1988, both parties filed timely proposed recommended orders containing proposed findings of fact and conclusions of law. The Respondent also filed a supporting brief. The post-hearing submissions of

the parties have been carefully considered in the formulation of this recommended order. Specific rulings on all findings of fact submitted by all parties are contained in the Appendix which is attached to and incorporated into this recommended order.

FINDINGS OF FACT

Based on the stipulations of the parties, on the testimony of the witnesses, and on the exhibits received in evidence, I make the following findings of fact.

1. The Petitioner, Rebecca Riley, a black female, began work at Nassau General Hospital in 1971 as a dietary aide or "salad girl." Currently, the Petitioner is employed by the Respondent as a cook.

   
   

2. Petitioner's first supervisor was Ms. Hazel Adams. Ms. Adams was a white female. Ms. Adams was food service manager from the time the Petitioner was hired in 1971 until 1980. Ms. Adams became ill in 1975 and was eventually forced to leave her job at Nassau General in 1980 due to her failing health.

   
   

3. During the latter part of 1979, the Respondent entered into a management contract with Methodist Regional Hospital Systems to provide new management for the hospital. As part of the new management team, Mr. Ronald Rice was hired by Methodist Regional Hospital Systems to be the new hospital administrator. Mr. Rice served in that capacity from 1980 until 1985. Mr. Rice was well qualified for that position by formal education and prior experience. When Mr. Rice began his employment as administrator, the Respondent hospital had a large number of management and financial problems which it was hoped the new management could resolve.

   
   

4. When Ms. Adams left in 1980, Ms. Delia Boynt partially assumed the duties of food service manager. Ms. Boynt also had a severe health problem. Ms. Boynt was a white female.

   
   

5. In August of 1981, Ms. Barbara Fletcher became consulting dietician to the hospital. Ms. Fletcher initially worked 8 hours per week, but as Ms. Boynt became progressively more ill, Ms. Fletcher started assuming the duties of food service manager, including doing the kitchen-paperwork, ordering food, and evaluating employees. With the passage of time, Ms. Fletcher's hours increased from 8 to 20 hours per week. Ms. Boynt left the hospital in September of 1982. At that time, Ms. Fletcher was working 20 hours a week as food service manager. Ms. Fletcher was concerned that when she left work each day at noon, there was no one left to function in a supervisory capacity in the kitchen. Because of this concern, Ms. Fletcher approached Mr. Rice concerning the creation of a head cook position. The head cook position would be primarily responsible for taking care of any problems that came about during the time when Ms. Fletcher was not at work. Also, the head cook would be responsible for checking in food received from vendors, performing inventories each month, ordering food, and cooking. When Ms. Fletcher made the suggestion to Mr. Rice concerning the creation of the head cook position, she intended to continue to function as the food service manager.

   
   

6. Ms. Fletcher suggested to Mr. Rice that the head cook position be offered to all three of the cooks. In September of 1982, the cooks in the kitchen at the respondent hospital were Eddie Melton, Elizabeth Fullwood, and the Petitioner. When Ms. Fletcher offered the head cook position to Ms. Melton,

   Ms. Melton declined the position. The Petitioner expressed an interest in the position, as did Ms. Fullwood, who had been working at the hospital since August of 1981.

   
   

7. Ms. Fletcher decided the best way to choose between the Petitioner and Ms. Fullwood would be to develop a test to determine which employee was more qualified. However, before Ms. Fletcher could develop the test, Ms. Fullwood approached her and informed her that she felt that the other employees in the kitchen would make a racial issue out of her pursuit of the job as head cook. Consequently, Ms. Fullwood withdrew her name from consideration for the head cook position. Ms. Fullwood is a white female. In 1982, all of the other nonsupervisory employees in the hospital kitchen were black.

   
   

8. Ms. Fletcher then offered the head cook job to the Petitioner, who accepted the job. The Petitioner served as the head cook for only a very few days. After working as head cook for just a very few days, the Petitioner informed Ms. Fletcher that she did not feel that the job was worth the money she was to be paid and that Ms. Fletcher could have the job back. Upon the Petitioner's relinquishment of the head cook position, Ms. Fletcher approached Ms. Fullwood, the only remaining cook who had expressed an interest in the head cook position, and offered her the job. Ms. Fullwood still had reservations about accepting the job and spoke to the Petitioner to ensure that there would be no "hard feelings" if Ms. Fullwood were to accept the job. Having determined that there would be no hard feelings, Ms. Fullwood accepted the position of head cook on or about October 1, 1982. At this time, Ms. Fletcher still intended to continue to function as the hospital's food service manager.

   
   

9. In mid-October of 1982, Ms. Fletcher experienced some domestic problems which resulted in her giving notice that she would be quitting her employment at the hospital. Her last day of employment was October 29, 1982. Because of Ms. Fletcher's notice that she would be leaving, it became incumbent upon Mr. Rice to hire a food service manager. The Florida Department of Health and Rehabilitative Services license standards for hospitals require a designated food service manager.

   
   

10. Mr. Rice initiated the process of selecting a new food service manager by informing Cathy Fox, Ms. Fletcher's replacement as consulting dietician, that the hospital was required to hire a food service manager. At the same time, Mr. Rice asked Ms. Fox to draft a new job description for the position of food service manager. Mr. Rice wanted to upgrade all the job descriptions at the hospital for purposes of satisfying the Joint Commission on Accreditation.

    Joann Robinson, personnel director at Nassau General at that time, also had input into the drafting of the job description.

    
    

11. The job description Ms. Fox developed required that the food service manager be:

    
    

    1. high school graduate with at least 2-3 years management experience in food service, or a 2 year food service technology course plus one year experience in food service management, or a 4 year college degree in Institutional Food Service Management.

12. Mr. Rice also contacted Danny Bellford at the Job Corps and asked Mr. Bellford to recommend local people for the job of food service manager. The Job Corps sent two candidates for the position of food service manager to the hospital. Ms. Fox interviewed these two individuals and determined that neither of them was qualified.

    
    

13. It was common knowledge throughout the hospital in mid-October 1982 that the position of food service manager was available. Ms. Fullwood, head cook at that time, approached Mr. Rice in his office and informed him that she was interested in the position. The Petitioner also expressed an interest in the position during a conversation held with Mr. Rice in the cafeteria.

    
    

14. Thus, the two candidates from whom a food service manager would be selected were Ms. Fullwood and the Petitioner. Ms. Fox made the recommendation that Ms. Fullwood receive the position of food service manger. Mr. Rice accepted Ms. Fox's recommendation of Ms. Fullwood based upon his review of both the Petitioner's and Mrs. Fullwood's applications and Ms. Fullwood's superior qualifications.

    
    

15. Upon comparing Ms. Fullwood's qualifications to the Petitioner's qualifications, it was obvious that Ms. Fullwood was clearly the better qualified candidate. Ms. Fullwood met all of the requirements in the job description. The Petitioner did not meet all of those requirements because the Petitioner did not have a high school diploma and did not have any management experience in food service. Ms. Fullwood had a GED certificate, had five years of experience as an assistant manager supervising three employees in a school food service position, and had successfully completed numerous courses regarding food service and food service management. At most, the Petitioner completed only one course related to her job, even though given opportunities to take other courses.

    
    

16. In light of the superior qualifications of Ms. Fullwood, Mr. Rice approved Ms. Fox's recommendation of Ms. Fullwood for the position of food service manager. Mr. Rice did not consider the Petitioner's race at any time in his decision to select Ms. Fullwood for the food service manager position.

    There is no persuasive evidence of any improper motivation in the selection of Ms. Fullwood rather than the Petitioner.

    
    

17. Since the selection of Ms. Fullwood for the position of food service manager, the Petitioner has made no effort to obtain other employment in a supervisory position in any type of institutional food service facility.

    
    

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

18. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding. Sec. 120.57(1), Fla. Stat. (1985)

    
    

19. The Respondent, Nassau General Hospital, is an employer within the definition of the Florida Human Rights Act of 1977 ("the Act"), as amended, Sections 760.01-760.10, Florida Statutes.

    
    

20. Because of the similarity between the Act and Title VII of the Civil Rights Act of 1964 ("Title VII") , as amended 42 U.S.C. ss. 2000e-2000e-17, the

    burden of proof in Title VII cases applies to cases brought under the Florida Human Rights Act. School Board of Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981).

    
    

21. To demonstrate a discriminatory failure to promote under Title VII, the petitioner must show the following:

    
    

    1. Petitioner was a member of a protected minority;

       
       

    2. Petitioner was qualified and applied for the promotion;

       
       

    3. Petitioner was rejected despite these qualifications; and

       
       

    4. Other employees with equal or lesser qualification who were not members of the protected category were promoted.

    
    

    Perryman v. Johnson Products Company, Inc., 698 F.2d 1138, 1141 (11th Cir. 1983).

    
    

22. If petitioner successfully presents these four elements, the respondent employer may rebut by articulating a legitimate, nondiscriminatory reason for denying the promotion to petitioner. Perryman, 698 F.2d at 1142.

    
    

23. Once a respondent employer has rebutted the petitioner's assertions by articulating the legitimate nondiscriminatory reason, the petitioner must show by a preponderance of evidence that discriminatory intent motivated the employer's action. Id., citing, McDonald Douglas v. Green, 411 U.S. 792, 804 (1973). One method by which a plaintiff may prove discriminatory intent is by showing that the employer's given explanation is pretextual. Perryman, 698 F.2d at 1142, citing, Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).

    
    

24. Petitioner has failed to present a prima facie case as she was not even minimally qualified for the position of food service manager as specified in the job description for that position.

    
    

25. Even if Petitioner had successfully carried her primary burden, the Respondent has articulated a legitimate business reason for not promoting Petitioner because the candidate selected for promotion was fully qualified for the position and was clearly the better qualified of the two candidates for promotion. There is no evidence in the record in the instant case of any discriminatory intent on the part of the Respondent, and thus the Petitioner cannot show that Respondent's proffered reason for not promoting Petitioner is pretextual.

RECOMMENDATION

For all of the foregoing reasons, it is recommended that the Petition in this case be dismissed and that the relief sought by the Petitioner be denied.

DONE AND ENTERED this 11th day of May, 1988, at Tallahassee, Florida.

MICHAEL M. PARRISH, 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 11th day of May, 1988.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3625

The following are my specific rulings on all findings of fact proposed by all of the parties.

Findings proposed by the Petitioner

(The paragraphs of the Petitioner's proposed findings are not numbered.

The ordinal numbers below correspond to the order of the paragraphs, with each indentation of the text of the proposals being treated as a new paragraph. For convenience, page numbers are also included.)

First paragraph (page 1): First sentence rejected as statement of position rather than proposed finding of fact. Second, third, and fourth sentences rejected as subordinate and unnecessary details. Fifth sentence accepted. Sixth and seventh sentences rejected as subordinate and unnecessary details. Eighth and ninth sentences rejected as not supported by competent substantial evidence or contrary to the greater weight of the evidence.

Second paragraph (page 1) : First three sentences accepted. Last sentence rejected as not supported by competent substantial evidence and, as in any event, irrelevant to the issues in this case.

Third paragraph (pages 1-2): First sentence accepted in substance. Second sentence rejected as contrary to the greater weight of the evidence. Third sentence accepted in substance. Fourth sentence rejected as not supported by competent substantial evidence and as, in any event, irrelevant to the issues in this case.

Fourth paragraph (page 2): Accepted.

Fifth paragraph (page 2): Accepted in substance, with clarifying details added and editorial comments omitted.

Sixth paragraph (page 2): Accepted in substance. Seventh paragraph (page 2): Accepted.

Eighth paragraph (page 2): Accepted in substance.

Ninth paragraph (page 3): First two sentences accepted in substance.

Third sentence rejected as irrelevant because this was a "head cook" position, not a food service manager position. Last sentence rejected as unnecessary editorial comment.

Tenth paragraph (page 3): First sentence rejected as contrary to the greater weight of the evidence. The remainder of this paragraph is rejected as irrelevant.

Eleventh paragraph (page 3): First sentence accepted in substance. Second sentence rejected as contrary to the greater weight of the evidence.

Parenthetical sentence accepted in substance. Last sentence rejected as not supported by persuasive competent substantial evidence.

Twelfth paragraph (page 3): Rejected as unnecessary argument or editorial comment rather than proposed findings. To the extent it constitutes proposed findings of fact, it is cumulative and unnecessary.

Thirteenth paragraph (page 3): Rejected as irrelevant to the issues in this case.

Fourteenth paragraph (page 4): First sentence accepted, but in context with additional information about Fullwood's employment history. Second sentence rejected because it contains details contrary to the greater weight of the evidence.

Fifteenth paragraph (page 4): First sentence rejected because it contains details contrary to the greater weight of the evidence. Second sentence rejected as irrelevant. Third sentence rejected as not supported by competent substantial evidence. Last four sentences rejected as procedural details.

Findings proposed by Respondent Paragraphs 1 and 2: Accepted.

Paragraph 3: Accepted in substance, with numerous unnecessary details

omitted.

Paragraph 4: Rejected as irrelevant to disposition of the issues in this case.

Paragraphs 5, 6, 7, 8, 9, 10, and 11: Accepted. Paragraph 12: Rejected as unnecessary details. Paragraphs 13, 14, 15, 16, 17, 18, and 19: Accepted.

Paragraphs 20, 21, 22, and 23: Accepted in substance, with numerous subordinate details omitted.

Paragraph 24: Accepted.

Paragraph 25: Rejected as subordinate and unnecessary details. Paragraph 26: Accepted.

COPIES FURNISHED:

Calvin Moore, Esquire 619 South 10th Street

Fernandina Beach, Florida 32034

Mr. Johnell Preliou, President National Association for Advancement of Colored People Nassau County Branch

Post Office Box 403

Fernandina Beach, Florida 32034-0403

Patrick D. Coleman, Esquire James M. Craig, Esquire Coffman, Coleman, Andrews & Grogan

Post Office Box 40089 Jacksonville, Florida 32203

Dana Baird, General Counsel

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Donald A. Griffin, Executive Director Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1925

Docket for Case No: 87-003625

Orders for Case No: 87-003625