STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH REVELL-NICHOLSON, )

)

Petitioner, )

)

vs. ) CASE NO. 91-078

) PROVIDENT MEDICAL CORPORATION OF ) APALACHICOLA, d/b/a GEORGE E. WEEMS ) MEMORIAL HOSPITAL, a/k/a EMERALD COAST ) HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for formal proceeding before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Apalachicola, Florida.

APPEARANCES

For Petitioner: Deborah Revell-Nicholson, pro se

Route 3, Box 5626-2

Crawfordville, Florida 32327

For Respondent: Henry D. Shiver

Assistant Administrator Provident Medical Corporation

of Apalachicola Washington Square

Apalachicola, Florida 32320 STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding concerns whether the Petitioner, Deborah Revell-Nicholson ""Nicholson"), was discriminated against by termination from her employment on the basis of her sex (female/pregnancy), in violation of the Human Rights Act of 1977, as amended, specifically Section 760.10, Florida Statutes (1989).

PRELIMINARY STATEMENT

This cause arose upon the filing of a Petition for Relief by the above-named Petitioner in which she alleges that she was terminated from her position of employment with the above-named Respondent Hospital for discriminatory reasons. Specifically, the Petitioner maintains that she was terminated on account of her sex and pregnant condition and that a male was hired to replace her. She maintains that she was pregnant when she was hired and that her pregnancy would not prevent her from performing her job properly. She had an agreement or understanding with the supervisor, Mr. Potter, who hired her.

In spite of this, a later supervisor, Mr. Poe, discharged her, allegedly on account of her pregnancy. She also feels that she was terminated because of their hostile relationship, which she feels relates to a time in the past when Mr. Poe allegedly made sexual advances towards her, which she had refused.

The Respondent states, in essence, that the reason for the termination was, to the contrary, because of the Petitioner's unprofessional attitude and angry outbursts at nurses and other staff members, sometimes in the presence of families of patients. Because such conduct occurred on more than one occasion and because of the particular need for such employees to be emotionally stable because of the critical nature of their jobs when patients' lives are potentially at stake, and because she was still within her 90-day probationary employment period, the decision was made to terminate her for these reasons.

The cause came on for hearing as noticed. At the hearing, the Petitioner presented her own testimony and, at a continued hearing, the testimony of Kurt Valle, a former coworker of the Petitioner. The Petitioner presented four (4) exhibits, which were admitted into evidence. Petitioner's Exhibits 2 and 4 were admitted only to the extent that they might constitute corroborative, explanatory hearsay within the purview of Section 120.58, Florida Statutes.

The Respondent presented the testimony of Henry D. Shiver, Assistant Administrator of the Respondent Hospital, and Robbie Poe, the former supervisor of the Petitioner. The Respondent presented one exhibit, which was admitted into evidence only as corroborative or explanatory hearsay, pursuant to Section 120.58, Florida Statutes.

The parties were accorded the right to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. No such pleadings were ultimately filed, however. Although the agency had a court reporter to record the proceedings at the initial hearing, no court reporter was provided for the continued hearing. The Hearing Officer was forced to tape-record the testimony at that hearing, with the agreement of the parties, in order to avoid the expenses involved in postponing the hearing. Consequently, no transcript having been provided, this Recommended Order is entered based upon the Hearing Officer's observation of the testimony, candor and demeanor of the witnesses, the Hearing Officer's notes, the exhibits and the tape-recording of the second hearing testimony, which is included and forwarded to the agency with this Recommended Order.

FINDINGS OF FACT

1. The Petitioner, at times pertinent hereto, was employed as an emergency medical technician (EMT) with the Franklin County Emergency Medical Service. The Respondent, now known as Emerald Coast Hospital ("Hospital") operated the Franklin County Emergency Medical Service, including its ambulances ("EMS").

   
   

2. The Petitioner was hired in September of 1989 by Mr. George Potter, then the director of the Franklin County EMS. The Petitioner was terminated by Mr. Shiver, the Assistant Administrator of the Hospital in November of 1989. When the Petitioner was hired by Mr. Potter, she was pregnant and

   informed Mr. Potter of that fact. She had a report or statement from her physician attesting to the fact that her pregnancy should not interfere with her duties as an emergency medical technician ("EMT"). Mr. Potter discussed the matter with her and told her that he would approve her hiring in her pregnant condition so long as she agreed not to hold the EMS liable for any injury which might occur to her baby through the performance of her duties with the EMS, and she agreed to this arrangement; and Mr. Potter thereupon hired her.

   
   

3. Mr. Potter left the employ of the EMS and the Hospital at some point during the Petitioner's tenure with EMS. Mr. Robbie Poe took his place as the Petitioner's supervisor. Both the Petitioner and the Petitioner's witness, Kurt Valle, indicated in their testimony that Mr. Poe had made a comment to Mr. Valle on some occasion that the Petitioner's pregnancy might be a "possible liability". The testimony of record does not reflect in what context Mr. Poe might have made such a

   statement. It cannot, thus, be determined whether he merely meant that her pregnant condition might prevent her from effectively performing her duties or whether he meant that he might consider it a reason to terminate her.

   
   

4. In any event, there were a number of instances during the brief tenure of her employment when the Petitioner engaged in unprofessional conduct by expressing her attitudes and opinions concerning EMS policies and practices loudly and angrily to co-workers or to her supervisor within the hearing of patients and their families, which was contrary to hospital and EMS policy. This is because the Hospital and the EMS of the Hospital wishes to insure that the public has confidence in its EMS because of the sensitivity of the duties performed by the EMS employees in terms of their responsibility for patients who are often in life-threatening situations and because of the sensitivity they should show for the feelings of the families of those patients, as well as the patients themselves.

   
   

5. Mr. Shiver, the Assistant Administrator of the Hospital and the ultimate supervisor of the EMS of the Hospital, which employed the Petitioner, became aware of a number of these instances where the Petitioner had public, verbal altercations with Mr. Poe or her co-workers. The Petitioner, for instance, had "had words" with Mr. Poe about her being required to drive an advanced-life-support-equipped vehicle on a true emergency, when she maintained that she had never done it before. This upset her, and she complained to Mr. Poe, although he never reprimanded her concerning that verbal altercation or her performance in that situation. These incidents led Mr. Poe and Mr. Shiver to have a concern about the Petitioner's capabilities as a member of the EMS in terms of her temperament or emotional stability under stressful situations involving patient emergencies.

   
   

6. The problem culminated in an episode where the Petitioner's ambulance and witness, Kurt Valle's ambulance, which itself was equipped with advanced life support equipment, answered a call concerning a patient with a cardiac emergency. The Petitioner's vehicle arrived on the scene of the emergency, where the stricken patient was located, where immediately thereafter or at about the same time, Mr. Valle's vehicle arrived. The patient was apparently loaded into the Petitioner's vehicle, which she had been driving or at least in which she arrived, on duty, at the scene. Because of this and the need for advanced life support equipment for this patient, the equipment on Mr. Valle's vehicle was transferred to the

   Petitioner's vehicle. Mr. Valle was assigned to drive the Petitioner's vehicle to the Hospital with the patient, who was undergoing advanced-life-support assistance. The Petitioner was then ordered to drive Mr. Valle's vehicle to the Hospital.

   
   

7. Upon arriving at the Hospital, where the patient was delivered to the emergency room in very critical condition, the Petitioner was observed to be in a very agitated state, leaving her vehicle and neglecting to turn off the lights and siren. She immediately thereafter engaged in a verbal altercation with

   Mr. Poe, her supervisor, concerning his decision that she should not drive the vehicle containing the patient and the advanced- life-support equipment and his relegation of her to drive the unused vehicle back to the Hospital. She initiated a hostile, heated argument with Mr. Poe inside the emergency room concerning this grievance; and at Mr. Poe's direction, they continued their discussion outside the emergency room. Much of this argument was conducted in front of the patient's family, contemporaneously with the patient's death, all of which understandably could be quite upsetting to the patient's family and constituted unprofessional conduct for an EMT.

   
   

8. This last incident was duly reported to Mr. Shiver, the Assistant Administrator of the Hospital and the ultimate supervisor of the EMS, with the result that he decided to terminate the Petitioner. Mr. Poe played no part in the decision to terminate the Petitioner. He merely informed the Petitioner of the termination decision, which was made by Mr. Shiver. When Mr. Shiver made the decision to terminate the Petitioner, he did not know that the Petitioner was pregnant and had never actually had any contact with the Petitioner before her termination. He did, however, offer to discuss and review the termination decision with the Petitioner when she later called him about it.

   
   

9. Mr. Poe, when he informed her of her discharge, indicated to the Petitioner that she had been a good worker and that she was being terminated because of budget problems and a necessary layoff of certain personnel. He made a statement to the effect that she was being laid off first because she had been the last hired. In fact, Mr. Poe played no part in that decision and that was not the reason for the decision. Thus, whether, as the Petitioner maintains, she was not actually the last hired, but that a Mr. Scott Simmons and one or two other personnel had been hired after her, is immaterial to the relevant facts and ultimate conclusion in this case because the

   Petitioner was actually terminated for her unprofessional conduct and attitude and not because of budgetary constraints.

   
   

10. In fact, a budgetary cutback and the necessity for layoffs had been announced by the County Commission, which could have resulted in layoffs in the EMS, including the Petitioner's position. However, on the same day that decision had been announced, the County government officials responsible countermanded it because it would have left insufficient emergency medical personnel on duty on both sides of the barrier of the Apalachicola River, which divides Franklin County. It was deemed to be an unwise decision and, therefore, rescinded. Budgetary constraints and resulting layoffs being putatively necessitated thereby actually played no part in the decision to terminate the Petitioner. Rather, her less-than-professional conduct was the cause of the decision to terminate her by Mr. Shiver, in which decision Mr. Poe had no role. Consequently, the Petitioner's testimony that she had known Mr. Poe ever since they had been in fire fighting school together, that he had tried to date her, which she refused; and her testimony that he had therefore made hostile comments concerning her being a liability because of her pregnancy, (even if Mr. Poe made the statements, which he denied), are immaterial in the context of the evidence and law pertaining to this proceeding, because Mr. Poe played no part in the termination decision. It was Mr. Shiver's decision, and he merely directed Mr. Poe to convey the decision to the Petitioner.

    
    

11. Moreover, the Petitioner was employed by the Hospital and by its Assistant Administrator, Mr. Shiver. The Hospital, in fact, has approximately 75% female employees. Many have been pregnant before and after employment. The Hospital has never had a policy or a practice of terminating female employees on account of pregnancy. The EMS is part of, and a department of the Hospital, under the direction and supervision of Mr. Shiver. Moreover, the male EMT, Mr. Simmons, whom the Petitioner maintains was hired immediately after her termination to replace her was not actually hired to replace her because he was hired only on a "PRN" or "as-needed" basis approximately a month after the decision was made to terminate the Petitioner. Further, a female employee, Alisa Alexander, was hired after the termination of the Petitioner, and Mr. Shiver currently had, at the time of hearing, two female employees in-the EMS who are currently driving ambulances.

    
    

12. In summary, because of the concerns about the above- mentioned incidents of unprofessional conduct, including the

    Petitioner's angry outbursts culminating in the incident in which the Petitioner berated her supervisor in the presence of the deceased patient's family concerning his decision not to let her drive the emergency vehicle and because of concerns expressed by her supervisor about her driving skills generally, Mr. Shiver elected to terminate the Petitioner. He did not do so because of the Petitioner's sex nor her pregnancy and, in fact, was not even aware of her pregnancy at the time he discharged her. Further, at the time of her termination and at the time of the incidents in question, the Petitioner was in a 90-day probationary status. All employees undergo such a probation immediately after hiring, during which an employee can be terminated without cause, provided in the employee's handbook of employment and job performance practices and policies. Mr.

    Shiver established that the Petitioner had signed a statement to the effect that she had read the handbook, including the terms concerning the three-month probationary period, upon being employed.

    
    

    CONCLUSIONS OF LAW

    
    

13. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes (1989).

    
    

14. In an employment discrimination action, the Petitioner has the ultimate burden of proving discrimination by a preponderance of the evidence. In McDonnell-Douglas Corporation v. Green, 411 U.S. 792 (1973), the U.S. Supreme Court set forth the order of proof in discrimination cases where disparate treatment is alleged:

    
    

    1. The employee must establish a prima facie case;

       
       

    2. The employer can attempt to rebut the prima facie showing by articulating legitimate, rational, nondiscriminatory reasons for the employment action in question; and

       
       

    3. The employee can then attempt to show that the employer's proffered explanation of the action taken is merely pretextual and that discriminatory intent was actually involved in the employment action at issue.

15. In order to establish a prima facie case, the Petitioner must establish (1) that she is a member of the protected group or class; (2) that an adverse employment action was taken against her, e.g., her discharge; (3) that she was subjected to disparate treatment in relation to other employees similarly situated, as for instance, that she was terminated when other non-female, nonpregnant employees, who were similarly situated, by being EMT employees of the Hospital's EMS, and who had committed similar infractions of the Hospital and the EMS operational and performance rules and policies, were not terminated. Alternatively, she could show that she had committed no infractions of her employer's rules and policies but was simply terminated, when other non-female or nonpregnant employees were not, and that she was then replaced in her employment position by a non-female or nonpregnant employee. See, Carter v. City of Miami, 870 F.2d at 582, citing Castle v. Sangamo Weston, 837 F.2d 1550, 1558 (llth Cir. 1988); and Goldstein v. Manhattan Industries, Inc., 750 F.2d 1435 (llth Cir.), cert. denied, 474 U.S. 1005, 106 S.Ct. 525 (1985); and cases quoted therein (by analogy).

    
    

16. The Petitioner has established that she was a member of a protected group or class, that is, she was female and pregnant. She has likewise met the second part of her test for a prima facie showing establishing that an adverse employment action was taken against her, e.g., her termination.

    
    

17. The Petitioner, however, failed to prove by preponderant evidence that she was terminated as a result of disparate treatment by her employer. Although the Petitioner testified and her witness, Kurt Valle, to some extent, testified that there was some sort of hostile relationship with Mr. Poe in the past or during her employment and that he may have made comments suggesting that her pregnancy was a "liability", it was not established that Mr. Poe's personal feelings concerning the Petitioner had any part to play in the decision to terminate the Petitioner. It was not shown that she was terminated while other non-female or non-pregnant employees were retained or were hired to replace her. Rather, the evidence, established that her termination, resulted from the various episodes of unprofessional, argumentative conduct engaged in by the Petitioner in front of co-workers, patients and patients' families, especially with regard to the relatively serious incident concerning the dying cardiac patient, described with more particularity in the above Findings of Fact. Because of the highly responsible, sensitive nature of the EMT's position in caring for patients who are potentially in life-threatening

    situations and in dealing with their understandably emotionally upset families, such unstable emotional conduct cannot be tolerated by the EMS and the Hospital.

    
    

18. However, even before one reaches the point in this analysis where a legitimate business reason can be discerned for the employment action called into question, the conclusion must be reached, based upon the above Findings of Fact and the preponderant evidence of record, that no disparate treatment was proven because the Petitioner did not establish that other non- female or non-pregnant employees, who were similarly situated, were treated any differently. That is, she did not show that any male or non-pregnant employees were not terminated after having engaged in this similar type of unprofessional conduct censured by her employer. She did not show, even if the question of improper employee conduct or performance is disregarded, that she was terminated as a female or as a pregnant female while non-females or nonpregnant females were not terminated under the same circumstances, nor that she was actually replaced by a male or non-pregnant female. Thus, she did not establish the third element of her prima facie case.

    
    

19. In any event, as discussed above, the preponderant evidence of record culminating in the above Findings of Fact establishes a good, rational, nondiscriminatory reason for the Petitioner's termination. In view of the sensitive nature of her employment and the great responsibility she had in terms of protecting patients in potentially or actual life-threatening situations and in being sensitive to the feelings of such patients' families and loved ones, the emotional outburst and other indicia of insufficient stability of judgment established by the Respondent's evidence, cannot be tolerated by the Hospital in an employee occupying a position of such great responsibility with such potential great risk to patients occasioned by the lack of good, stable judgment. Such reasons, established by preponderant evidence by the Respondent, are a good, sufficient, nondiscriminatory articulation of a basis for the Petitioner's termination. Thus, the Respondent's burden to produce a legitimate, nondiscriminatory reason for its employment decision at issue herein is satisfied, even were it assumed arguendo that the Petitioner had established a prima facie case of discrimination, which she did not.

    
    

20. The U.S. Supreme Court in Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094-95 (1981), held that the defendant to a charge of discrimination must only meet a burden of production, rather

    than persuasion, to rebut the plaintiff's prima facie case. Here, the employer clearly established that the employee's conduct, occurring repetitively, under the circumstances of her position of employment and her responsibilities attendant thereto, constituted a good and sufficient, rational, nondiscriminatory reason for the termination. The Petitioner did not establish that other non-female or non-pregnant employees had committed such infractions without having been terminated.

    
    

21. Moreover, discriminatory acts or statements by individuals who are not involved in the employment decision at issue in a case cannot serve as evidence of the employer's discriminatory motives or that the employment decision, e.g., termination, was a discriminatory decision. See, Mira v. Monroe County School Board, 687 F.Supp. 1538 (S.D. Fla. 1988); Adams v. United Airlines, 578 F.Supp. 26 (N.D. Ill. 1983). Thus, any discriminatory statements or actions by Mr. Poe, even if they occurred, cannot serve as a basis for finding a discriminatory motive on the part of the Petitioner's employer, the Hospital, which employs all EMS personnel, because the evidence unequivocally established that the hiring decision at issue was made by Mr. Shiver and not by Mr. Poe. Even if Mr. Poe knew of and derided the decision to originally hire the Petitioner because of her pregnancy or to retain her as an employee because of her pregnancy, the man who made the decision, Mr. Shiver, was shown not to have even been aware of her pregnancy at the time he decided to terminate the Petitioner. Any such conduct, verbal or otherwise, by Mr. Poe, even if it occurred, cannot be imputed to the Respondent employer so as to ascribe a discriminatory motive to the employment decision at issue.

    
    

22. Accordingly, it must be concluded that the Petitioner failed to establish a case of discrimination by direct or circumstantial evidence. The Respondent has established by unrefuted evidence that it followed its policies, rules and practices in a consistent, nondiscriminatory manner in electing to terminate the Petitioner for the conduct established by the preponderant evidence and described in the above Findings of Fact.

RECOMMENDATION

Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is therefore,

RECOMMENDED that the Petition of Deborah RevellNicholson be dismissed in its entirety.

DONE AND ENTERED this 2nd day of March, 1992, in Tallahassee, Leon County, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1992.

COPIES FURNISHED:

Margaret Jones, Clerk Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113

Dana Baird, Esq.

General Counsel

Human Relations Commission

325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113

Deborah Revell-Nicholson Route 3, Box 5626-2

Crawfordville, FL 32327

Henry D. Shiver Assistant Administrator

Provident Medical Corporation of Apalachicola

Washington Square Apalachicola, FL 32320

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 91-000078

Orders for Case No: 91-000078