vs. ) CASE NO. 92-3914
) UNIVERSITY OF SOUTH FLORIDA. )
Respondent. )
A hearing was held in this case in Tampa, Florida on November 18, 1992 before Arnold H. Pollock, a Hearing Officer with the Division of Administrative Hearings.
For the Respondent: Wendy J. Thompson, Esquire
University of South Florida Adm. 250, 4202 Fowler Avenue
The issue for consideration in this hearing is whether Respondent discriminated against Petitioner on the basis of her race and as retaliation for the filing of a grievance in failing to give her a promotion, and by giving her an inaccurate performance appraisal.
On March 18, 1991, Petitioner filed a Complaint of Discrimination against the University of South Florida alleging it had discriminated against her on the basis of her race and as retaliation for the filing of a grievance. On April 16, 1992, the Florida Commission on Human Relations entered it's Determination: No Cause, as to Petitioner's previously filed Complaint of Discrimination against the Respondent. Thereafter, on June 21, 1992, through her counsel, Petitioner filed a Petition for Relief with the Commission based on the same alleged discrimination, and on June 26, 1992, the matter was transmitted to the Division of Administrative Hearings for the appointment of a Hearing Officer.
This matter was originally assigned to Hearing Officer William R. Cave but the hearing was held before the undersigned to whom the case was transferred in the interim.
At the hearing, Petitioner testified in her own behalf and introduced Petitioner's Exhibits 1 through 13. Respondent presented the testimony of Clara
B. Allen, Director of Nursing Services at the University's Student Health Service; Sharon A. Berry, a registered nurse supervisor there; JoAnn V. Hansen, a registered nurse in the physician area of Student Health Services; and Roland
E. Carrington, Assistant Director of Personnel for the University. Respondent also introduced Respondent's Exhibits A through D.
A transcript was provided and subsequent to the hearing only Respondent submitted Proposed Findings of Fact which have been ruled upon in the Appendix to this Recommended Order.
At all times pertinent to the matter in issue herein, the Respondent, University of South Florida, (University), was an entity of the State of Florida located in Tampa, and operated, among other services, a Student Health Services at which physicians and nurses were employed to provide health services to members of the student body. The Petitioner, Olympia Malone, was hired by the University as a registered nurse at the Student Health Service in January, 1986.
At the time of her hiring, Ms. Malone had 3 years of college. She had received an Associate Degree from Hillsborough Community College, was licensed by the State of Florida as a registered nurse, and had been employed as such at St. Jospeh Hospital for 12 years.
Over the years of her employment with the University, Ms. Malone received several performance evaluations which covered the period from July 25, 1986 through January 23, 1990. Prior to receipt of the last report on January 26, 1990, she received a commendation letter in May, 1989 from Ms. Sharon A. Berry, her immediate supervisor, and had been asked to transfer over to the physician area. Petitioner claims to have been told there was some problem in getting nurses to work in that area and she was asked to go there to get it organized. She was told she had the skills needed at the new section. She agreed to do this because she enjoyed it and saw it as a chance to keep her nursing skills up since the work related to direct patient care. While there she learned new skills and made suggestions for some of which she was commended. However, when she asked for a raise she was told by Ms. Allen, the Director of Nursing Services, that she had been transferred there because of personality conflicts.
When a nursing supervisor position came open in the Student Health Service in 1989, Ms. Malone applied for it but the promotion was given to Ms. Hansen, another nurse, whom Petitioner feels was less qualified then she. Malone filed a grievance about this failure to select her for promotion but subsequently withdrew it because she felt she could not win and to carry it forward would polarize the work section.
Ms. Allen selected Ms. Hansen for the position of supervisor because she felt, from the records, Hansen was best qualified. Though Ms. Malone indicates she has had supervisory experience as preceptor for licensed practical nurses, nursing assistants and students at St. Joseph Hospital, her application makes no reference to any supervisory experience as did Ms. Hansen's. Ms. Allen's selection was based on who had the most supervisory experience. She went strictly by what was on the applications.
At no time prior to the rendering of the appraisal on January 26, 1990 was Ms. Malone given any indication there was any concern about her performance, nor was she counselled. Unknown to her, however, there were several memoranda concerning her performance, dating back to 1988 and 1989, which were being kept in a private file maintained by Ms. Allen. These memoranda, which were not being kept in Ms. Malone's official personnel record with the University, made repeated reference to personality conflicts involving her and other employees which were, apparently, causing some concern to the staff.
An Addendum to Annual Performance Review relating to Ms. Malone, dated January 28, 1991 and covering the period from January 24, 1990 to January 23, 1991, refers to a counselling session with her conducted on January 24, 1991, one day after the expiration of the reporting period. At this session, Ms. Malone's non-written evaluation was discussed but she disagreed with it and left the meeting before the discussion could be completed.
The use of a non-written evaluation was, at that time, a new, informal, fluid procedure whereby the rater, using the old rating form, discussed with the ratee that individual's strengths and weaknesses. The supervisor had the option of using the old formal form or the new discussion/memorandum format. Once the discussion was completed, the employee had the right to request a memorandum of the evaluation. In this case, the process did not get that far since Ms. Malone got upset and departed the room before it was completed. It is this evaluation which she now considers to be racial discrimination and retaliation for her prior grievance which forms the basis for this hearing.
Ms. Malone objected to the use of this new procedure because she felt it did not require the supervisor to identify specifics. In December, 1990, she had requested of Dr. Anderson, the Director of the Student Health Service, that
(1) she get an evaluation by an impartial rater, and (2) her evaluation be in writing. In response, Dr. Anderson advised Ms. Malone that her immediate supervisor, Ms. Hansen, had to render the evaluation and that she would be given "something in writing."
About a year before this latter evaluation, Ms. Malone, in January, 1990, received a written evaluation by Ms. Hansen which, though it reflected she achieved standards in every category, also reflected she had experienced some difficulty in working with others and with carrying out assigned additional responsibilities. On February 2, 1990, Ms. Malone filed a grievance because of that evaluation and in August, 1990, her supervisors and Mr. Carrington, the University's Assistant Personnel Director, met with her to discuss the areas of insubordination alleged by Ms. Hansen. Ms. Malone was told this meeting was not a counselling session. When she asked for permission to gather information on her own time to refute the allegations, it was granted and the information was thereafter sent to Mr. Carrington and Dr. Anderson, but she got no response.
Ms. Malone's attorney filed a complaint about this with the EEO office in the summer of 1990. This grievance got lost and was not responded to. Also that summer, Ms. Malone filed a grievance with the campus employment office based on what she felt was a negative performance appraisal. This matter was referred to an arbitration committee made up of two Black and one White member which determined that no evidence of discrimination or retaliation was indicated. In January, 1991, she then got the counselling session on which she walked out. Several days later, the written addendum, which she considered to be much worse than the original evaluation, was prepared.
In March, 1991, Ms. Malone, who is African American, filed the current EEO complaint but did not get a response for "quite a while." She claims that during all this time she was treated differently from the White nurses and harassed with acts of reprisal. For example, Dr. Kali Derasari called her to her office and told her to pull an appointment for a patient to refer to a nurse practitioner. When she advised the doctor of the requirements for record keeping, the doctor disagreed so she did what was asked of her. As a result, the nurse practitioner complained to Ms. Hansen who counselled Petitioner for not following proper procedure. When the doctor, at Ms. Malone's request, backed her up, she was still reprimanded.
On another occasion, according to Petitioner, she applied for leave two weeks in advance to attend a work shop she wanted and agreed to use annual leave, if necessary. She got approval from Ms. Hansen for administrative leave on March 27, 1991, 4 days later. She went to the workshop as approved, but 3 weeks later, was called in by Ms. Hansen, told she should not have had administrative leave for a workshop, and directed to change her time sheet which had already been approved. When Ms. Malone called someone at the Personnel office about it, she was told that office had not suggested the change - that her supervisor could approve administrative leave. When she told Ms. Hansen that, it was then agreed she could leave it as it was.
There were numerous unspecified other instances of harassment claimed by Petitioner. She recalls one occasion where Ms. Hansen physically provoked her by leaning over her and coming up close to her face, criticizing her about her work. This was ultimately made a part of her record. In addition, Ms. Malone is the only Black nurse in the section. The other nurse there is a White licensed practical nurse, yet Ms. Malone claims she has been instructed not to refer to herself as a registered nurse. She feels this deprecates her position in an attempt to curry favor with the White nurse who is of a lower professional status.
She also cites several occasions where she felt information she needed to do her job was kept from her though others were advised. When she reported all this to Ms. Allen, Ms. Hansen's supervisor, she got no response. However, she claims, whenever anyone complained about her, she was called in and counselled. She admits that management could have called and counselled those about whom she complained without her knowing about it. Ms. Malone also appears to disregard the fact that Ms. Allen, the overall supervisor, is Black.
In 1987 and 1988, Ms. Malone's supervisor was Sharon Berry. According to Ms. Allen, there was some mutual complaining between the two of them At first Ms. Allen was very protective of Petitioner because she had hired her and wanted her to succeed. However, when Petitioner did not improve as expected, Ms. Allen's attitude changed and when she had an altercation with Ms. Malone about where Malone's car was parked, she began to believe that maybe Malone had some problem with personal relationships. Contrary to what Ms. Malone related, the transfer into the physician's section in 1989 was the result of problems Ms. Malone was having with her supervisors and after the move, she appeared to be doing better. Ms. Malone was given the opportunity, along with other nurses, to work in other areas to get more experience, but she declined the opportunity unless she got more money.
Ms. Berry was Petitioner's immediate supervisor just after she was hired and initially they got along well. When problems first began to arise, she went to Ms. Allen who advised her to show Petitioner more understanding. This is consistent with Allen's testimony regarding her initial efforts to
protect Petitioner. Nonetheless, Petitioner's performance, monitored on a continuing basis, was "fine." She was a good nurse. Gradually, however, Petitioner's relationships with Ms. Berry and the other nurses began to deteriorate and her lateness began to be a problem.
Ms. Berry supervised Petitioner until she transferred to the physician's area. Toward the end of their relationship, Berry claims, Petitioner became remote and withdrawn from other staff, indicating they were "5 faced" and "barracudas." Things got so bad between Berry and Petitioner that Petitioner would not speak to her unless spoken to and then would not make eye contact.
Ms. Hansen has been Petitioner's supervisor in the physician's area since 1989. Two of the 3 individuals she supervises are Black. She evaluates Petitioner's performance formally once a year and informally on a continuing, routine basis. She has found that Petitioner works without supervision most of the time. This is all right. However, at times Petitioner does not come to her as a resource person but goes to someone outside the section for answers to job questions and this is not all right.
She has observed that Petitioner often has some difficulty in her relationships with others. When it became clear Petitioner was having difficulty with another person in the section, Hansen investigated and initiated a new procedure. A part of the problem was Petitioner's attitude and often, even when she was technically correct, her abusive and abrasive approach to others diminished her effectiveness. She has had to reprimand Petitioner in the past.
When Ms. Hansen called Petitioner in for the January, 1991 evaluation, she showed Petitioner what she intended to say and Petitioner got angry and left. The matters which would have been discussed with Petitioner had she not walked out, were subsequently formalized.
When Ms. Malone complained to Ms. Allen she was told she was too loud, and that she acted like Whites expected her to act. Allen also reportedly alleged that Malone was hostile to her. Ms. Malone admits to being loud and believes her loud voice can cause people to think she is hostile. Nonetheless, Ms. Malone claims that because of all the above listed perceived discrimination and retaliation, she has developed unspecified physical and mental aliments and is taking medication for both even though in the last few months the pressure has let up somewhat. When she notified management of this, she was referred to the Employee Assistance Program.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this case. Section 120.57(1), Florida Statutes.
Section 760.10(1) and (7), Florida Statutes, make it an unlawful employment practice to:
... discharge or ... otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privilege of employment, because of such individual's race, color, ....
and
(7) ... discriminate against any person because that person has ... made a charge ... under this section.
Petitioner claims that the Respondent has discriminated against her by denying her the promotion to nurse supervisor given to Ms. Berry because of her race and has given her an evaluation worse than she believes she deserves in retaliation for a grievance she filed concerning that promotion denial in 1990.
Petitioner has the initial burden of proving a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). The Florida Commission on Human Relations has adopted this evidentiary model. Kilpatrick v. Howard Johnson Co., 7 FALR 5468, 5475 (FCHR 1985). Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for disparate treatment, but it is not the equivalent of a factual finding of discrimination.
Once the Petitioner has proven all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the employment decision and the test of that task is to establish some evidence to allow the trier of fact to conclude the employer's action had not been motivated by a discriminatory mind set. This employer evidence must only raise a genuine issue of fact as to whether it discriminated against the employee.
Here, Petitioner claimed that Ms. Allen's choice of Ms. Hansen over her for the position of nurse supervisor was motivated by race, and that the less than acceptable, (by Petitioner's standards), rating she was given in January, 1991 was motivated by retaliation for the grievance she filed, and later withdrew, as a result of the promotion action.
There is no demonstrable evidence that either allegation is accurate, however, To the contrary, the undisputed evidence of record indicates that Ms. Allen's selection of Ms. Hansen for the nurse supervisor position was based on a comparison of the applications submitted by both candidates and her selection of that applicant who possessed the most supervisory experience. Petitioner admits that her application for the job did not indicate the supervisory experience she claims to have had at St. Joseph Hospital and Ms. Allen cannot be faulted for having chosen Ms. Hansen whose application did show supervisory experience.
Further, the evaluation given Ms. Malone in January, 1991, showed her to be achieving standards in all areas evaluated. Her employment was in no way jeopardized by the rating, and an award of a higher rating would have not insured her any additional future benefits. Petitioner objects to some comments made regarding her apparent inability to work harmoniously with others. She claims that none of the difficulties she experienced were her fault, though she admits that she may be a bit loud and aggressive in her approach. The evidence of record shows, however, a continuing series of incidents where Petitioner's attitude was, if not actionable, at least objectionable. She has been shown to be loud, aggressive, hostile, argumentative, spiteful, and rude to her coworkers and superiors, and it is clearly this demonstrated conduct, not her race, upon which her rating was based.
Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing Olympia Malone's Petition for Relief from the unlawful employment practices of both racial discrimination and retaliation filed against the University of South Florida.
RECOMMENDED this 1st day of February, 1993, in Tallahassee, Florida.
ARNOLD H. POLLOCK
Filed with the Clerk of the Division of Administrative Hearings this 1st day of February, 1993.
APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3914
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.
None submitted.
1. & 2. Accepted and incorporated herein.
3. & 4. Accepted and incorporated herein.
Wendy J. Thompson, Esquire University of South Florida 4202 Fowler Avenue, Adm. 250
325 John Knox Road Building F. Suite 240 Tallahassee, FL 32303-4149
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 consult with the agency which will issue the Final Order in this case concerning its rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency which will issue the Final Order in this case.
