WILLIE F. MARSHALL, )
vs. ) CASE NO. 93-1257
Respondent. )
On June 10, 1993, a formal administrative hearing was held in this case in Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of Administrative Hearings.
For Petitioner: Willie F. Marshall
For Respondent: Wendolyn S. Busch, Esquire
The issue in this proceeding is whether the Respondent violated Pinellas County Ordinance 84-10, codified as Chapter 17.5 of the Pinellas County Code, by discriminating against the Petitioner with respect to employment in retaliation for his having filed charges of race discrimination.
This case was referred to the Division of Administrative Hearings on or about March 1, 1993, for assignment of a hearing officer to conduct a hearing on the Petitioner's charge of discrimination. The parties waived the right to have the hearing conducted within 30 days, and final hearing was scheduled for June 10, 1993, by Notice of Hearing issued on or about April 1, 1993.
At the final hearing, the Petitioner testified in his own behalf. The Respondent called two witnesses (one by deposition) and had Respondent's Exhibits 1 through 16 and 18 admitted in evidence.
Neither party ordered the preparation of a transcript of the final hearing, and the parties were given ten days in which to file proposed recommended orders. Only the Respondent filed one, and the proposed findings of fact contained in the Respondent's proposed recommended order are accepted and incorporated to the extent not subordinate or unnecessary.
The Petitioner, Willie F. Marshall ("Marshall"), is a black man who resides in Pinellas County, Florida.
Respondent, Oak Manor Nursing Home ("Oak Manor"), is a nursing home located in Pinellas County, Florida. Oak Manor has approximately 180 residents in the nursing home. The average age of the residents is 85 years, and the majority of them require acute care or other medical supervision. Oak Manor also operates a retirement apartment complex and a 70-bed adult congregate living facility. Oak Manor is entrusted with caring for and protecting the persons and property of these residents.
Patricia McCormack ("McCormack") was Oak Manor's administrator during Marshall's employment there.
Robert W. Bell ("Bell") was, and continues to be, the president of American Nursing Homes, Inc., a company which provides management services to Oak Manor. Bell functioned as Oak Manor's general manager during the period of Marshall's employment.
Marshall was employed at Oak Manor from June 18, 1991, until April 13, 1992, when he was terminated. Oak Manor paid Marshall a starting wage of $5.00 per hour.
Marshall was hired initially as a dietary aide, working in Oak Manor's kitchen. His duties included cleaning the kitchen and serving meals to the nursing home residents. During his employment, Marshall had regular and frequent contact with the nursing home residents.
At the time he was hired, Marshall disclosed that he had been convicted twice for sale and possession of cocaine, and he authorized Oak Manor to investigate his background with local law enforcement authorities, as Oak Manor does with all applicants for employment.
On or about the date that Marshall began working, Oak Manor sent a letter to the Pinellas County Sheriff's Office inquiring as to whether Marshall had any criminal record.
The Sheriff's report stated that Marshall had been arrested or convicted of more than a dozen offenses, including not only the cocaine possession charges Marshall had disclosed on his employment application but also charges for petit theft, battery, armed robbery (twice), strong-arm robbery, and battery on an inmate (twice).
Oak Manor's personnel director at the time, Susan Massa, presumably received the Sheriff's Office's report, but did not place it in Marshall's personnel file. Nor did she inform Oak Manor's top management personnel, Bell and McCormack, about Marshall's criminal background. Massa left Oak Manor's employment early in 1992.
The personnel director position at Oak Manor has never been a management level position. The personnel director has never had the authority to make hiring and firing decisions.
In September, 1991, Marshall received a wage increase of $.25 per hour.
In October, 1991, Oak Manor promoted Marshall from dietary aide to cook and increased his hourly wage again, to $6.00 per hour.
In January, 1992, Marshall requested that Oak Manor return him to his former position as dietary aide, stating that the cook's position was too stressful.
In February, 1992, a dietary aide position became available at Oak Manor, and Marshall accepted the position. Approximately two weeks later, Oak Manor reduced Marshall's hourly wage back to that of a dietary aide, but allowed him to keep the pay raise he had received as a cook.
In March, 1992, Marshall was referred to McCormack to find out why his pay had been reduced. McCormack told Marshall that Oak Manor would allow Marshall to keep two weeks' pay he already had received at the cook's rate but explained that, from then on, Oak Manor could not pay him more than other people doing the same job.
On or about April 17, 1992, Marshall filed a Charge of Discrimination, claiming that Oak Manor demoted him and reduced his pay based on his race. (He also complained that the person selected to replace him as cook was white.)
On or about February 23, 1993, the investigating agency issued a "no- cause" determination on Marshall's race discrimination charge.
When Oak Manor received the race discrimination charge, at Bell's direction, McCormack requested and reviewed Marshall's employee file so that she could assemble and forward relevant information to the investigator.
The report from the Pinellas County Sheriff's Office listing Marshall's arrests and/or convictions was in Marshall's employee file at the time McCormack reviewed it. It is unknown who placed it in the file, but it probably was filed by Massa's replacement as personnel director, who assumed her duties in approximately late February, 1992.
While examining Marshall's file to respond to the race discrimination charge McCormack learned, for the first time, of the full extent of Marshall's criminal record.
McCormack immediately put Marshall on paid suspension until she had an opportunity to advise Bell of this information. Based upon Marshall's criminal record, Bell decided to terminate Marshall's employment immediately.
Bell and McCormack became aware of Marshall's criminal background only in the course of preparing to respond to the race discrimination charge that Marshall filed.
If Bell or McCormack had known about Marshall's arrests or convictions previously, Oak Manor would not have hired him in the first place. Both Bell and McCormack testified that the previously filed race discrimination charge did not in any manner motivate the decision to terminate Marshall.
Marshall felt that, in terminating him, Oak Manor was discriminating against him on the basis of race, or retaliating against him for having filed a race discrimination charge, for several reasons.
First, he testified that he had told other employees about his criminal record and that he did not understand why the issue was not raised sooner. But he did not call any witnesses to corroborate his testimony.
Moreover, the employees to whom he was referring were not members of Oak Manor's management, and there is no evidence that they relayed the alleged information to Oak Manor's management (McCormack and Bell, in particular).
Second, Marshall testified that three other employees with criminal records as bad or worse than his were still working at Oak Manor. But, again, he did not call any witnesses to corroborate his testimony, and he was unable to prove the criminal records of the three individuals to whom he made reference.
Moreover, he was unable to prove that Oak Manor (McCormack and Bell, in particular) were aware of the criminal records of the three individuals to whom he made reference.
Meanwhile, Oak Manor presented evidence suggesting that it terminated several white employees soon after Oak Manor's management became aware of a Sheriff's report showing a criminal arrest and conviction record similar to Marshall's. (Since the evidence did not establish the date on which the Sheriff's reports were received, it could not be ascertained how soon Oak Manor acted after the report was received.)
Marshall also was suspicious that, to his understanding, he was initially told that he was fired for falsifying his job application, not because his arrest and conviction record posed an unacceptable risk of harm to the Oak Manor patient population. But it is found that Marshall misunderstood Bell and McCormack when they told him that his job application did not disclose all of the arrests and convictions on the basis of which Bell had decided to terminate him.
The evidence also reflects that Oak Manor did not react to arrests or convictions for simple sale and possession of drugs as severely as they did against crimes like robbery, battery and thefts. It appears that convicts of the latter crimes were considered to create a more serious risk to the Oak Manor patient population.
CONCLUSIONS OF LAW
Section 2-17.5-3, Pinellas County Code, prohibits an employer from discriminating against an employee on the basis of race. Section 2-17.5-8, Pinellas County Code, prohibits retaliation against an employee for having filed a charge of race discrimination.
Oak Manor Nursing Home does business in Pinellas County, Florida. Ordinance 84-10 applies to all territory within the legal boundaries of Pinellas County, including all unincorporated and incorporated areas. Section 2-17.5-12, Pinellas County Code.
Pinellas County Ordinance 84-10 defines "employer" as "a person who employs five (5) or more employees for each working day in each of thirteen (13) or more calendar weeks in the current or preceding calendar year and any agent of such a person. . . ." Section 2-17.5-2 (H), Pinellas County Code.
Oak Manor employs five or more employees and is subject to Pinellas County Ordinance 84-10 as an "employer."
Pinellas County Ordinance 84-10, codified as Chapter 17.5 in the Pinellas County Code, provides in pertinent part:
The general purposes of this ordinance [chapter] are:
To provide for execution within Pinellas County of the policies embodied in the Federal Civil Rights Act of 1964, as amended to January 15, 1979, and title VIII of the Federal Civil Rights Act of 1968, as amended to January 15, 1979; and
To secure for all individuals within Pinellas County the freedom from discrimination because of race
. . ..
Section 2-17.5-1, Pinellas County Code.
Marshall bears the burden of establishing a prima facie case that Oak Manor discharged him in retaliation for his filing the race discrimination charge. Morgan v. City of Jasper, 959 F.2d 1542 (11th Cir. 1992). To establish a prima facie case, Marshall must show, by a preponderance of the evidence: (1) that he participated in a Title VII proceeding; (2) that, at the same time or thereafter, Oak Manor took adverse employment action against him; and (3) that the adverse action was caused by Marshall's participation in the Title VII proceeding. Id.
Marshall established a prima facie case of retaliatory discharge.
Upon the showing of a prima facie case, the burden shifts to Oak Manor to articulate a legitimate, nondiscriminatory reason for Marshall's termination. Oak Manor is not required to persuade the factfinder that its articulated reason actually motivated Marshall's discharge, but simply to raise a genuine issue of fact as to whether it unlawfully retaliated against Marshall. Morgan, supra, 959 F.2d at 1547-48.
Oak Manor presented a legitimate, nondiscriminatory reason for terminating Marshall--the fact that he had been arrested or convicted of more than a dozen offenses, including strong armed robbery and battery on an inmate. In Oak Manor's view, because of these arrests or convictions, Marshall posed a threat to the safety and well-being of the elderly Oak Manor residents.
Once Oak Manor rebuts the prima facie case, Marshall is required to prove, again by a preponderance of the evidence, that Oak Manor's stated reason for terminating him was pretextual, or that a discriminatory reason more likely motivated his discharge. Morgan, supra, 959 F.2d at 1547-48.
Marshall failed to prove that Oak Manor's articulated reason for discharging him was pretextual.
Marshall's own, uncorroborated testimony that Oak Manor fired him in retaliation for his filing a discrimination charge is insufficient evidence of pretext. Conclusory allegations that an employer retaliated against a claimant in violation of Title VII do not show pretext. See Grigsby v. Reynold Metals Co., 821 F.2d 590 (11th Cir. 1987); Houser v. Sears, Roebuck & Co., 627 F.2d 756, 759 (5th Cir. 1980).
The fact that Oak Manor terminated Marshall shortly after he filed a charge of race discrimination was merely a coincidence in timing which will not support a finding of pretext. See Chojar v. Levitt, 773 F.Supp. 645 (S.D.N.Y. 1991). See also Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir. 1989); Caleshu v. Merrill Lynch, Etc., 737 F.Supp. 1070, 1085 (E.D. Mo. 1990); Devlin v. Federal Reserve Bank of St. Louis, 634 F.Supp. 389 (E.D. Mo. 1986); Peterson v. King Tree Center, Inc., 722 E. Supp. 360, 364 (S.D. Ohio 1989); Johnson v. Fulton Sylphon Div., 439 F.Supp. 658, 670 (E.D. Tenn. 1977).
Oak Manor reasonably and legitimately concluded that, based upon Marshall's series of arrests or convictions, he posed a threat to the safety of the elderly residents at Oak Manor and, therefore, should not be retained. See Foster v. Board of School Commissioners, Etc., 872 F.2d 1563, 1569 (11th Cir. 1989); Osborne v. Cleland, 620 F.2d 195 (8th Cir. 1980); E.E.O.C. v. Carolina Freight Carriers Corp., 723 F.Supp. 734, 752-3 (S.D. Fla. 1989); Chojar, supra.
An employer retains the right to make employment decisions, unmotivated by unlawful intent, even if they may appear harsh to others. As the Eleventh Circuit Court of Appeals has recognized, the "employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts or for no reason at all, as long as its action is not for a discriminatory reason." Nix v. WLCY Radio, 738 F.2d 1181, 1187 (11th Cir. 1984).
Oak Manor applies its policy of terminating employees due to arrests or convictions of serious offenses equally to white and black employees. See Drayton v. City of St. Petersburg, 477 F.Supp. 846, 855-57 (M.D. Fla. 1979).
Marshall's discharge was not related to or motivated by the fact that he previously filed a discrimination charge against Oak Manor. Oak Manor terminated Marshall solely on the basis of his lengthy and serious criminal record. Marshall has failed to present sufficient evidence to prove that he was fired in retaliation for his having filed a race discrimination charge.
The Pinellas County Board of County Commissioners is authorized to contract with official bodies to administer the Ordinance. Sections 2-17.5-1(C) and 2-17.5-2(B), Pinellas County Code. The Commission has entered into such a contract with the City of Clearwater Community Relations Board.
Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the City of Clearwater Community Relations Board, acting as the commission that administers Pinellas County Ordinance 84-10, codified under Chapter 17.5 of the Pinellas County Code, enter a final order: (1) finding the Respondent, Oak Manor Nursing Home, not guilty of race discrimination or of retaliating against the Petitioner for his having filed a race discrimination charge against the Respondent; and (2) dismissing the Petitioner's complaint.
RECOMMENDED this 23rd day of July, 1993, in Tallahassee, Florida.
J. LAWRENCE JOHNSTON Hearing Officer
Filed with the Clerk of the Division of Administrative Hearings this 23rd day of July, 1993.
Willie F. Marshall
Wendolyn S. Busch, Esquire Trenam, Simmons, Kemker, Scharf Barkin, Frye & O'Neill
P.O. Box 1102
Sally A. Ruby
P.O. Box 4748
All parties have the right to submit to the Community Relations Board written exceptions to this Recommended Order. The Board must allow each party at least ten days in which to submit written exceptions. You should consult with the Community Relations Board concerning its rules on the deadline for filing exceptions to this Recommended Order.
