LINDA G. BAKER, )
vs. ) CASE NO. 88-3865
Respondent. )
This matter came on for formal administrative hearing, pursuant to notice, on November 15, 1988, in Blountstown, Florida, before William F. Quattlebaum, Hearing Officer, Division of Administrative Hearings.
For Petitioner: Linda G. Baker, pro se
For Respondent: Ronald W. Brooks, Esquire
BROOKS & LEBOEUF, P.A.
In May, 1987, Linda G. Baker filed a complaint (FCHR Case No. 87-3619) with the Florida Commission on Human Relations, alleging that her employer, the Apalachee Center for Human Services, Inc., had discriminated against her based upon her race. In December, 1987, Ms. Baker filed a second complaint (FCHR Case No. 88-1288) with the Florida Commission on Human Relations, alleging that Apalachee Center had further discriminated against her in retaliation for her earlier complaint.
On June 28, 1988 (FCHR Case No. 87-3619) and on June 30, 1988, (FCHR Case No. 88-1228) the Commission rendered notices of determination stating there was no cause to believe that Ms. Baker had been the victim of unlawful employment practices. Ms. Baker requested formal administrative hearings in both cases.
The Commission forwarded the cases to this Division. 1/ The cases were consolidated by Order dated August 12, 1988.
At the hearing, the Petitioner presented the testimony of Karen Solomon Dudley, and testified on her own behalf. Petitioner's exhibits 1 - 3 were offered and admitted into evidence. The Respondent presented the testimony of Shirley Moon, Dr. William Perry, Laura Harris, Janey Hall, and Mary Reed.
Respondent's exhibits 1 - 5 were offered and admitted into evidence.
No transcript was filed. Both parties filed proposed recommended orders which were considered in the preparation of this Recommended Order. The proposed findings of fact are ruled upon in the Appendix which is attached and hereby made a part of this Recommended Order.
The issues presented for consideration are whether the Respondent discriminated against the Petitioner based upon her race or in retaliation for her filing of the complain with the Human Relations Commission.
In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida.
On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly.
At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected.
In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable."
Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory.
By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that
Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities.
The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice.
Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987.
On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician.
The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry.
Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize.
As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry.
On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m.
There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts.
Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective
action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary.
During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN.
On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it.
On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987.
On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner.
On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987.
At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused.
The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of
her position as Mental Health Technician was in retaliation for the filing of her earlier complaint.
There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint.
Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and subject matter of this proceeding. Section 120.57(1), Florida Statutes.
It is an unlawful employment practice for an employer to discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race. Section 760.10(1)(a), Florida Statutes. Further, it is an unlawful employment practice for an employer to discriminate against any person because of that person has filed a charge of an unlawful employment practice. Section 760.10(7), Florida Statutes.
Chapter 760, Florida Statutes, the Human Rights Act of 1977, is comparable to the provisions of Title VII of the Civil Rights Act of 1964, 42
U.S.C. Sections 2000e et seq. Therefore, cases interpreting Title VII are applicable to Chapter 760. School Board of Leon County v. Hargis, 400 So.2d 103 (Fla. 1st DCA 1981)
The Petitioner has the burden of proving, by a preponderance of the evidence, her allegations. Initially, the Petitioner must establish a prima facie case of discrimination. If the Petitioner meets this burden, the Respondent must articulate a legitimate and nondiscriminatory reason for its action. Should Respondent meet this burden, the Petitioner must establish that the Respondent's legitimate reasons were not the true basis of, but merely a pretext for, the discrimination. Texas Department of Community Affairs v. Burdine, 412 U.S. 248 (1981). A prima facie case of discrimination is established by presenting evidence 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.
To establish a prima facie case of racial discrimination, the Petitioner must prove, that: (1) she is a member of a protected class; (2) she was discharged or removed from a job for which she was qualified; and (3) she was treated differently from similarly situated employees outside the protected class. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
In this case, the Petitioner's allegation of racial discrimination is based on the Respondent's denial of her request for employment during relatively unsupervised working hours. The Respondent's decision was based upon the
Petitioner's poor job performance and need for close supervision. Accordingly, it is appropriate to conclude that the Petitioner was not qualified for employment during her requested hours.
However, even if one were to assume the establishment of the Petitioner's prima facie case, the Respondent has articulated legitimate and substantial reasons, specifically the Petitioner's substandard performance, for its action. Accordingly, the accusation of racial discrimination is not supported by the evidence.
To establish a prima facie case of retaliation, the Petitioner must prove that: (1) she engaged in a protected activity, herein the filing of the earlier discrimination complaint; (2) she was the subject of an adverse employment decision; and (3) there is a causal connection between the first two. Smith v. Georgia, 684 F.2d 729 (11th Circuit, 1982).
In this case, the alleged retaliatory act was the elimination of the Petitioner's Mental Health Technician position in retaliation for the earlier complaint. There is no evidence which would indicate that there was retaliation on the Respondent's part. A causal connection may be shown if an employer treats an employee differently after learning that the employee has engaged in a protected activity. There is no evidence which would indicate such different treatment occurred, accordingly, the charge of retaliatory treatment must fail.
The preponderance of the evidence indicates that the Respondent attempted to promote and improve the Petitioner's skills as a Mental Health Technician and that the Petitioner responded to her supervisors and coworkers with hostility. The Petitioner presented the testimony of one witnesses who stated that she had not observed such behavior on the part of the Petitioner. However, the witness and the Petitioner worked on different shifts, hence the witness would have had no basis from which to testify.
Further, the evidence indicates that when the Respondent determined it was in the best interest of the Bristol GRTS clients to replace the Petitioner with an LPN, the Respondent made every effort to provide suitable employment for the Petitioner, which she rejected. Her claim that she could not accept the regularly scheduled Cook's job because the Cook's position could have required her to leave her children without appropriate supervision does not comport with her desire to work unscheduled, "on-call", OPS hours or 11:00 p.m. to 7:00 a.m. hours, both of which could have presented the same obstacle.
Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED:
That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288.
DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida.
WILLIAM F. QUATTLEBAUM
Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988.
1/ FCHR Case No. 87-3619 is the subject of DOAH Case No. 88-3865. FCHR Case No. 88-1228 is the subject of DOAH Case No. 88-3866.
The following constitute rulings on the proposed findings of fact submitted by the parties.
The Petitioner's proposed findings of fact consist of unnumbered statements accusing the Respondent of perjury, falsification of documents, etc. and are rejected as not supported by evidence.
The Respondent's proposed findings of fact are accepted as modified in the Recommended Order except for the following:
2. The date is 1986, not 1987.
4. Rejected, immaterial.
Linda G. Baker
Ronald W. Brooks, Esquire BROOKS & LEBOEUF, P.A.
Donald A. Griffin Executive Director Florida Commission on
