STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JOHNNIE CALDWELL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-4850

)

BEVERLY ENTERPRISES, d/b/a ) HERITAGE HEALTH CARE CENTER- ) TALLAHASSEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice a formal hearing was held in this case before Larry J. Sartin, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 28, 1993, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Johnnie Caldwell, pro se

1305 Daniel Street

Tallahassee, Florida 32304

For Respondent: Alvin J. Taylor

Director of Associate Relations Beverly Enterprises

320 West Sabal Palm Place, Suite 200 Longwood, Florida 32779

STATEMENT OF THE ISSUE

Whether the Respondent, Beverly Enterprises, d/b/a Heritage Health Care Center-Tallahassee, discriminated against the Petitioner, Johnnie Caldwell, on the basis of his sex?

PRELIMINARY STATEMENT

On or about September 25, 1992, the Petitioner filed a Charge of Discrimination against the Respondent with the Florida Commission on Human Relations (hereinafter referred to as the "Commission"). The Commission determined that the Respondent had not committed a discriminatory employment practice by "Determination: No Cause" entered June 9, 1993.

The Petitioner failed to request reconsideration of the Commission's decision and on June 29, 1993, the Commission issued a "Notice of Dismissal." On August 19, 1993, the Commission entered a "Rescission of Notice of Dismissal" indicating that the Commission had dismissed the matter in error and directing that a Petition for Relief filed by the Petitioner be forwarded to the Division of Administrative Hearings.

On August 20, 1993, the Commission filed the Petition for Relief with the Division of Administrative Hearing and requested assignment of a Hearing Officer. The case was subsequently assigned to the undersigned.

The final hearing was scheduled for October 28, 1993, by a Notice of Hearing entered September 22, 1993.

At the final hearing the Petitioner testified on his own behalf. No exhibits were offered by the Petitioner.

The Respondent presented the testimony of Alvin J. Taylor. The Respondent presented 7 exhibits for identification. Respondent's exhibits 1 and 3-7 were accepted into evidence. Respondent's exhibit 2 was withdrawn.

No transcript of the final hearing was ordered or filed by the parties.

Although informed of their right to do so, neither party filed a proposed recommended order.

FINDINGS OF FACT

1. The Parties.

   
   

   1. The Petitioner, Johnnie Caldwell, is a male.

      
      

   2. The Respondent, Beverly Enterprises, d/b/a Heritage Health Care Center- Tallahassee, (hereinafter referred to as the "Beverly"), is a nursing home located in Tallahassee, Florida.

      
      

2. Mr. Caldwell's Employment by Beverly.

   
   

   1. In 1987 or 1988, Mr. Caldwell began employment with Beverly at its Heritage Health Care Center-Tallahassee (hereinafter referred to as "Heritage"), nursing home.

      
      

   2. Mr. Caldwell was employed as a "dietary associate" in the kitchen of Heritage.

      
      

   3. Mr. Caldwell was supervised by a "dietary manager", the person in charge of Heritage's kitchen.

      
      

   4. During the time that Mr. Caldwell was employed by Beverly he worked for at least three different dietary managers.

      
      

   5. All three dietary managers who supervised Mr. Caldwell were women.

      
      

3. Mr. Caldwell's Disciplinary Problems.

   
   

   1. By his own admission, Mr. Caldwell had problems with all three of the dietary managers he worked for. All three managers issued written reports concerning problems they experienced with Mr. Caldwell.

      
      

   2. The first dietary manager issued an oral warning to Mr. Caldwell on or about January 1, 1991, for failing to follow instructions.

   3. The second dietary manager issued an oral warning to Mr. Caldwell on or about December 20, 1991, for excessive tardiness. She also issued a written warning to Mr. Caldwell on or about January 8, 1992, for an altercation with another employee. Finally, she issued a second written warning to Mr. Caldwell on or about February 13, 1992, for excessive tardiness.

      
      

4. Mr. Caldwell's Termination from Employment.

   
   

   1. Sometime during 1992, the third dietary manager Mr. Caldwell was supervised by, Rhonda Herndon, was placed in charge of Heritage's kitchen. Ms. Herndon was located at Heritage from another Beverly nursing home because of difficulties with the staff of the kitchen at Heritage.

      
      

   2. Ms. Herndon, who was experienced in operating other nursing home kitchens, began to actively supervise the Heritage kitchen. Mr. Caldwell, who had worked at Heritage for approximately five years, testified that he felt that he "knew what needed to be done without any supervision" and that he resented Ms. Herndon's efforts. Mr. Caldwell did not believe that Ms. Herndon knew what she was doing. Mr. Caldwell simply did not want to accept the fact that Ms. Herndon was in charge of the kitchen and all the employees of the kitchen, including him.

      
      

   3. Mr. Caldwell described Ms. Herndon as a "tough lady." The evidence, however, failed to prove that Ms. Herndon was doing anything other that performing her responsibilities and carrying out her duties.

      
      

   4. Because of Mr. Caldwell's attitude and lack of respect for Ms. Herndon's authority, he was placed on probation on or about June 16, 1992, as part of his annual evaluation.

      
      

   5. On or about July 7, 1992, Mr. Caldwell was discharged from employment by Beverly for insubordination while on probation. The insubordination took place when Mr. Caldwell was questioned by Ms. Herndon about why he was continuing to work in the kitchen beyond the end of his shift. When questioned about why he HAD yet clocked out, Mr. Caldwell became agitated, argued with Ms. Herndon and made comments to other employees as he left the kitchen.

      
      

   6. Ms. Herndon recommended to the manager of Heritage that Mr. Caldwell be discharged. Heritage's manager discussed the matter with Alvin Taylor, Director of Associate Relations for Beverly. Mr. Taylor approved Mr. Caldwell's discharge.

      
      

   7. Mr. Caldwell was terminated from employment due to the fact that he was not adequately performing his job. Mr. Caldwell failed to prove that Beverly's reason for terminating his employment was a pretext.

      
      

5. Mr. Caldwell's Charge of Discrimination.

   
   

   1. On or about September 25, 1992, Mr. Caldwell filed a Charge of Discrimination against Beverly with the Florida Commission on Human Relations. Mr. Caldwell alleged that he had been discriminated against on the basis of his sex.

      
      

   2. On June 9, 1993, the Commission issued a "Determination: No Cause" finding "no reasonable cause to believe that an unlawful employment practice has occurred "

   3. On June 29, 1993, the Commission issued a "Notice of Dismissal" based upon the failure of Mr. Caldwell to file a request for redetermination.

      
      

   4. On August 19, 1993, after Mr. Caldwell filed a Petition for Relief, the Commission issued a "Rescission of Notice of Dismissal" reinstating this matter.

      
      

   5. The Commission requested that the Division of Administrative Hearings assign a Hearing Officer to conduct the hearing requested by Mr. Caldwell.

      
      

6. Alleged Sex Discrimination.

1. Mr. Caldwell failed to prove that any action of Beverly was based upon Mr. Caldwell's sex: he was not held to any standard or requirement based upon his sex and he was not terminated because of his sex.

   
   

2. In support of his charge, Mr. Caldwell testified that he believed that Ms. Herndon "didn't like him or men." No factual basis for Mr. Caldwell's belief was offered.

   
   

3. Mr. Caldwell also testified that there was a "rumor" that Ms. Herndon had said that "men should not work in the kitchen" and that "she did not like working with men." No evidence to prove these rumors was offered.

   
   

4. Mr. Caldwell failed to prove that any Beverly policy or standard had a disparate impact on male employees.

   
   

5. Mr. Caldwell failed to prove that he was replaced by a female employee.

   
   

6. Mr. Caldwell failed to prove that Beverly discriminated against him on the basis of his sex, male.

   
   

   CONCLUSIONS OF LAW

   
   

   1. Jurisdiction.

      
      

7. The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1992 Supp.).

   
   

   1. Burden of Proof.

      
      

8. Section 760.10(1), Florida Statutes, makes it an unlawful employment practice to discriminate against a person because of, among other things, the person's sex. Chapter 760, Florida Statutes, is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e, et seq. (hereinafter referred to as "Title VII"). See Hargis v. School Board of Leon County, 400 So.2d 103, 108 n. 2 (Fla. 1st DCA 1981). Consequently, federal precedent construing provisions of Title VII are to be accorded great deference in interpreting Chapter 760, Florida Statutes. Pasco County School Board v. PERC,

   353 So.2d 108, 116 (Fla. 1st DCA 1979; and Wood v. K-Mart Corp., 10 FALR 6189 (Fla. Comm. on Human Relations 1985).

   
   

9. In McDonnell Douglas v. Green, 411 U.S. 792, 804 (1973), the Supreme Court explained the burden of proof in disparate treatment cases. The Supreme Court later clarified its opinion in Texas Department of Community Affairs v.

   Burdine, 450 U.S. 248 (1981). The Commission has adopted the burden of proof standard established by the Supreme Court. Irby v. Allstate Insurance Co., 12

   F.A.L.R. 2034, 2037 (Fla. Comm. on Human Relations 1989); and Martin v. Monsanto Co., 10 F.A.L.R. 3886, 3896 (Fla. Comm. on Human Relations 1988).

   
   

10. McDonnell Douglas places the initial burden of proving a prima facie case of discrimination on the employee. Discriminatory motive or intent may be proved by direct evidence or statistical evidence. Additionally, since discriminatory motive or intent is seldom capable of proof by direct evidence, the Supreme Court has established a multi-step analytical model which allows a court to infer discriminatory motive or intent on the basis of circumstantial evidence. Perryman v. Johnson, 698 F.2d 1138, 1141 (11th Cir. 1983), citing McDonnell Douglas, 411 U.S. at 802-804. See also, Texas Department of Community Affairs, 450 U.S. at 252-256.

    
    

11. If the employee presents a prima facie case of discrimination, the employer must adequately rebut the presumption of discrimination by articulating a legitimate, nondiscriminatory reason for its actions. The employee must then prove that the employer's articulated reason for its actions was merely a pretext.

    
    

12. Based upon the foregoing, the burden of proof in this proceeding was on Mr. Caldwell.

    
    

    1. Mr. Caldwell Failed to Meet His Burden of Proof.

    
    

13. In determining whether discrimination has occurred, the Commission requires proof of the following elements, adopted from the federal courts, in order for an employee to prove a prima facie case of discriminatory conduct:

    (a) that the employee belongs to a group protected by the statute; (b) that the employee was qualified for the job; (c) that the employee was subjected to an adverse employment action; and (d) that, in the case of discharge, after the employee's termination, the employer hired a person not in the employee's protected class or retained those having comparable or lessor qualifications, not in the protected class. See McDonnell Douglas; Trumbull v. Health Care & Retirement Corporation of America, 756 F. Supp. 532 (M.D. Fla. 1991), aff'd, 949 F.2d 1162; Florida Department of Community Affairs v. Bryant, 586 So.2d 1205 (Fla. 1st DCA 1991); and National Industries v. Commission on Human Relations, 527 So.2d 894 (Fla. 5th DCA 1988).

    
    

14. Mr. Caldwell proved that he was a male, that he was qualified for his position and that he was terminated from employment. He failed to prove, however, that he was replaced by a person that was not in his protected class (a female). Therefore, Mr. Caldwell failed to prove by a preponderance of the evidence, a prima facia case of discrimination based upon his sex.

    
    

15. Even if Mr. Caldwell had met his burden of proving a prima facia case of discrimination (which he has not), Beverly has met its burden of articulating some legitimate, nondiscriminatory reason for terminating his employment at Heritage. See McDonnell Douglas.

    
    

16. Beverly proved that Mr. Caldwell had problems with all three of his supervisors. Mr. Caldwell had difficulty accepting direction from Ms. Herndon and felt that he knew his job better than she did.

    
    

17. Mr. Caldwell failed to prove that he was treated differently from other kitchen employees not within his protected class of sex.

18. Beverly proved that Mr. Caldwell was unable to satisfactorily perform his job and that he was consequently terminated. Mr. Caldwell's termination was not, therefore, an unlawful employment practice of discrimination. See Solomon

    v. Department of Transportation, 541 So.2d 691 (Fla. 1st DCA 1989): and Housing Authority v. Billingslea, 464 So.2d 1221 (Fla. 5th DCA 1985).

    
    

19. Finally, Mr. Caldwell failed to prove that Beverly's legitimate, nondiscriminatory reasons for the actions it took with regard to him were merely a pretext.

RECOMMENDED ORDER

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final

Order dismissing Johnnie Caldwell's Petition for Relief.

DONE AND ENTERED this 18th day of November, 1993, in Tallahassee, Florida.

LARRY J. SARTIN

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1993.

COPIES FURNISHED:

Johnnie Caldwell 1305 Daniel Street

Tallahassee, Florida 32304

Alvin J. Taylor

Director of Associate Relations Beverly Enterprises

Heritage Health Care Center-Tallahassee

320 West Sabal Palm Place, Suite 200 Longwood, Florida 32779

Sharon Moultry, Clerk

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Dana Baird, Esquire

Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

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: 93-004850

Orders for Case No: 93-004850