STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BESSIE J. ARMSTRONG, )

)

Petitioner, )

)

vs. ) CASE NO. 87-4798

) JOHN KNOX VILLAGE OF CENTRAL ) FLORIDA, INC., a/k/a FLORIDA ) MED-CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter came on for hearing in Deland, Florida, before Robert T. Benton, II, Hearing Officer, of the Division of Administrative Hearings, on October 4, 1988. The parties filed proposed recommended orders on October 26 and 28, 1988. The attached appendix addresses proposed findings of fact by number.

The parties are represented by counsel:

For Petitioner: Brinly S. Carter, Esquire

Carter & Carter, P.A. Post Office Box 121 Debary, Florida 32713 and

Joseph Robert Clark, Esquire

208 West Howry Avenue Deland, Florida 32720

For Respondent: Nord L. Johnson, Esquire

Rano, Cauvel & Johnson, P.A.

233 East Rich Avenue Deland, Florida 32724

The complaint petitioner filed with the Florida Commission on Human Relations (FCHR) alleging that respondent had discriminated against her on account of her age in terminating her employment eventuated in a "DETERMINATION: NO CAUSE" dated August 10, 1987. Petitioner then filed a petition for relief from an unlawful employment practice, pursuant to what is now Rule 221-9.008(1), Florida Administrative Code, see Publix Supermarkets, Inc. vs. Florida Com'n on Human Relations, 470 So.2d 754 (Fla. 1st DCA 1985), which the FCHR transmitted to the Division of Administrative Hearings, in accordance with Section 120.57(1)(b)3., Florida Statutes (1987)

By amended petition for relief, petitioner claimed her dismissal was the result of discrimination based not only on her gender but also on her age and national origin.

ISSUE

Whether respondent terminated petitioner's employment on account of her age, sex or national origin, in violation of the Human Rights Act of 1977?

FINDINGS OF FACT

1. A registered nurse since 1949, petitioner Bessie J. Armstrong, who was born October 1, 1923, moved to Florida after she retired from the United States Air Force with the rank of captain. The record does not reveal her national origin.

   
   

2. Ms. Armstrong had worked as an emergency room nurse, a coronary care nurse, and a nursing supervisor in three large hospitals before she began working for respondent, John Knox Village of Central Florida, Inc., which operates a retirement community with 492 independent living units, 18 assisted living units and a 120-bed (up from 60 beds before 1986) skilled nursing facility, called the "Med-Center."

   
   

3. Ms. Armstrong worked the graveyard shift at the Med-Center from October

   11 or 12, 1981, until her termination. Andrea Naumovitz, who, as director of nursing at the Med-Center until January of 1986, supervised petitioner Armstrong, gave her consistently good evaluations, Petitioner's Exhibit No. 1, and spoke highly of her abilities and performance.

   
   

4. While employed at the Med-Center, Ms. Armstrong went in Thursday mornings as a volunteer to teach residents crafts, using materials she purchased with her own money. In fact, she was coloring Easter baskets during one such session when her husband suffered his fatal heart attack.

   
   

5. In September of 1986, Judith Osborne, who succeeded Ms. Naumovitz as director of nursing on January 9, 1986, received complaints, from nursing aides Ms. Armstrong supervised, to the effect that she left distribution of suppositories to them, that she had herself passed medicine out before the hour which residents' doctors had specified, that, on two occasions, she had fallen asleep at work, and that she had once banished a noisy resident to the shower room.

   
   

6. After summoning Ms. Armstrong and confronting her with these accusations, Ms. Osborne decided, rightly or wrongly, that at least some of the allegations against Ms. Armstrong were true. Nurse's notes for September 13, 1985, signed by petitioner, reported that a resident had been "[p]ut in shower room for the night." Respondent's Exhibit No. 1.

   
   

7. On September 24 or 25, 1986, she terminated Ms. Armstrong's employment. Although in theory, the nursing home administrator or respondent's executive director might have reversed the decision to terminate petitioner's employment, in practice the decision was Ms. Osborne's to make. As far as the evidence shows, neither respondent nor Ms. Osborne has any policy to terminate or harass employees on account of their age, sex or national origin.

   
   

8. Because of a critical shortage of nurses in the geographical area, sexagenarians not uncommonly work as floor nurses at the Med Center. The nursing staff is overwhelmingly, if not exclusively, female. Respondent's Exhibit Nos. 4 and 5. On July 29, 1987, eleven of respondent's approximately 240

   employees were older than petitioner. Respondent's Exhibit No. 5. On the same date, 54 employees had worked long enough to be eligible for three weeks' annual vacation.

   
   

9. Reversing the determination of the claims adjudicator dated October 24, 1986, Appeals Referee Mildred C. Anderson concluded in a decision dated November 26, 1986, that Ms. Armstrong had not been guilty of "misconduct connected with work" within the contemplation of the unemployment compensation law. Docket No. 86-25342U.

   
   

   CONCLUSIONS OF LAW

   
   

10. Florida law forbids any employer, defined as any corporation or other "person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year," Section 760.02(6), Florida Statutes (1987) to discharge an employee because of her age, gender or national origin. Section 760.10(1)(a), Florida Statutes (1987). Respondent is an "employer" within the meaning of the statute.

    
    

11. Ever since the decision in School Board of Leon County vs. Harqis, 400 So.2d 103 (Fla. 1st DCA 1981), federal cases have been looked to for guidance in this area. See Anderson vs. Lykes Pasco Packing Co., 503 So.2d 1269 (Fla. 2d DCA 1986). Petitioner Armstrong, like plaintiffs in Title VII actions, must bear the burden of persuasion on the ultimate fact of discrimination." Walker vs. Ford Motor Co., 684 F.2d 1355, 1359 (11th Cir. 1982).

    
    

12. Petitioner also has the initial burden to prove a prima facie case of unlawful discrimination. Texas Department of Community Affairs vs. Burdine, 450

    U.S. 248 (1981). Furnco Construction Corp. vs. Waters, 438 U.S. 567 (1978); McDonnell Douglas Corp. vs. Green, 411 U.S. 792 (1973). Only then must respondent articulate a legitimate, nondiscriminatory reason for terminating her employment in order to place on her the additional burden of proving the asserted reason pretextual. National Industries, Inc. vs. Com'n on Human Relations, 523 So.2d 894 (Fla. 5th DCA 1988)

    
    

13. Here, petitioner made out a prima facie case, and respondent met it with "evidence of a legitimate reason for firing . . . and lack of discriminatory intent sufficient to rebut her case of age discrimination." Howard Johnson Co. vs. Kilpatrick, 501 So.2d 59 (Fla. 1st DCA 1987). Even if the director of nursing erred in crediting petitioner's accusers, no error was shown to be the product of unlawful discrimination. A good faith effort to maintain acceptable standards of nursing care does not make respondent guilty of discrimination on account of age, sex or national origin. Respondent "presented a legitimate nondiscriminatory reason for terminating her employment." Arnold vs. Burger Queen Systems, 509 So.2d 958, 959 (Fla. 2nd DCA 1987).

It is, accordingly, RECOMMENDED:

That the Florida Commission on Human Relations deny the petition for relief from an unlawful employment practice.

DONE and ENTERED this 11th day of January, 1989, in Tallahassee, Florida.

ROBERT T. BENTON, II

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

FILED with the Clerk of the Division of Administrative Hearings this 11th day of January, 1989.

APPENDIX

With respect to petitioner's proposed finding of fact No. 1, she was employed less than five years.

Petitioner's proposed finding of fact No. 2 has been adopted, in substance, insofar as material.

With respect to petitioner's proposed finding of fact NO. 3, neither statistical evidence nor any other tended to show discrimination against employees over 40 or in any other age group.

With respect to petitioner's proposed finding of fact Nos. 4 and 5, hearsay is insufficient in itself to support a finding of fact, and the commission investigator's report was not offered in evidence, in any event.

With respect to petitioner's proposed finding of fact No. 6, complaints did originate with subordinates and the evidence did not establish that they were given unreasonable weight.

Respondent's proposed findings of fact Nos. 1 through 5 have been adopted, in substance, insofar as material.

COPIES FURNISHED:

Brinly Carter, Esquire Carter & Carter, P.A.

P. O. Box 121 DeBary, FL 32713

Joseph Robert Clark, Esquire

208 West Howry Avenue Deland, FL 32720

Nord L. Johnson, Esquire Pano, Couvel & Johnson, P.A.

233 East Rich Avenue Deland, FL 32724

Margaret Agerton, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1925

Dana Baird General Counsel

Commission on Human Relations

325 John Knox Road Tallahassee, FL 32399-1925

Docket for Case No: 87-004798

Orders for Case No: 87-004798