STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAYNE E. GRIFFITH, )

)

Petitioner, )

)

vs. ) Case No. 97-0704

) FCHR NO. 95-1234

BEVERLY HEALTH AND ) REHABILITATION SERVICES, INC., ) d/b/a PARK LAKE NURSING AND ) REHABILITATION CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before the Division of Administrative Hearings by its duly designated Administrative Law Judge, Daniel M. Kilbride, on June 13, 1997, by video conference to Orlando, Florida. The following appearances were entered:

APPEARANCES

For Petitioner: Jayne E. Griffith, pro se

2018 Gairloch Street

Orlando, Florida 32817

For Respondent: Deborah Gibson, Esquire

Jackson Lewis

390 North Orange Avenue Suite 1285

Orlando, Florida 32801 STATEMENT OF THE ISSUES

Whether Petitioner was terminated from her position with the Respondent as a Certified Nurses Assistant (CNA) on or about

July 1, 1995, on the basis of her race (white), in violation of

Section 760.10(1)(a), Florida Statutes (1995).

PRELIMINARY STATEMENT

The Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR), charging the Respondent with employment discrimination. On or about

September 17, 1996, a determination was issued by the FCHR. In a letter dated September 27, 1996, the Petitioner requested a hearing and filed a Petition for Relief with the FCHR. This matter was subsequently referred by FCHR to the Division of Administrative Hearings for formal hearing de novo on February 10, 1997. Respondent filed a Position Statement. Petitioner filed a Petition for Relief which did not appear to relate to the allegation in her earlier charge. Petitioner alleged that she was physically threatened by an unidentified person who broke her back and neck. As relief, Petitioner stated that she wanted "to relieve [her] state record of ‘currently imprisoned for conviction of a felony’ [and] ‘to comply to a worker's compensation PA.’” Following discovery, a formal hearing was held.

At the hearing, Petitioner appeared pro se. The Administrative Law Judge ruled that the testimony at the hearing would be limited to issues related to Petitioner’s discharge and her allegation of discrimination. Petitioner testified in her own behalf. No exhibits were offered or received in evidence.

The Respondent presented the testimony of three witnesses, and

eight exhibits were received in evidence, plus the deposition testimony of Kay Vermette, taken June 9, 1997. A transcript was ordered and was filed on July 2, 1997. The parties were allowed ten days from the hearing in which to file proposed findings of fact and conclusions of law. Petitioner had not filed proposed findings as of the date of this order. Respondent filed proposed findings on July 14, 1997.

Based upon all of the evidence, the following findings of fact are determined:

FINDINGS OF FACT

1. The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992.

2. Petitioner was employed by Respondent as a CNA at Park Lake Nursing and Rehabilitation Center during the relevant period of time from April through July, 1995.

3. Petitioner is a white female and a licensed CNA.

   
   

4. Kay Vermette (“Vermette”), a white female, was the Director of Nursing at Park Lake and the department head over the entire nursing staff during Petitioner’s tenure.

5. Vermette hired Petitioner as a CNA on April 18, 1995.

   
   

6. Petitioner worked as a CNA at Park Lake for less than ninety (90) days when she was terminated by Vermette for verbal abuse of a resident on July 1, 1995.

7. Joyce Donahue (“Donahue”), Assistant Director of Nursing at Lake Park during Petitioner’s tenure, was the second in charge

   of the entire nursing staff. Donahue, a white female, has been a Registered Nurse (RN) since April, 1990.

8. On June 29, 1995, Mary Taylor (“Taylor”), a Licensed Practical Nurse, reported to Donahue she heard a loud voice and crying coming from the room of resident Matteye Samuels (“Samuels”). Taylor is black.

9. Samuels was a black female and an elderly resident at Park Lake who needed assistance to perform all normal activities of daily living (ADL) and could not walk without assistance.

10. As Donahue and Taylor approached Samuels’ room, they overheard a loud voice which they recognized as Petitioner’s and loud crying coming from another person.

11. When Donahue and Taylor entered the room, they heard the resident crying in the bathroom area, where she sat on the toilet with only a robe draped over her, crying and trembling.

12. Petitioner was very excited and pacing and was talking in a rapid, jarring, and incoherent fashion. Donahue and Taylor dressed Samuels and took her to the nurses’ station.

13. Petitioner told Donahue that Samuels had thrown her around the room.

14. Petitioner yelled at Samuels, “[y]ou are not a Nigger. I am not a Honky. Those aren’t really Jews. Those aren’t irate Indians,” while in Samuels’ room.

15. When Donahue entered, Petitioner was pacing back and forth by the bed saying, “Nigger, Honky, Jews . . . this is

    enough of this.”

    
    

16. Donahue told Petitioner to leave the room and wait in the employee break room.

17. Donahue reported this incident to her superior, Vermette.

18. Due to the severe nature of the incident, it was investigated immediately. Petitioner was placed on administrative leave, pending the investigation’s outcome.

    During the investigation, several witnesses came forward with information confirming the verbal abuse. Each witness provided a statement concerning her recollection.

19. As an eyewitness to the verbal abuse of Samuels by Petitioner, Taylor and Sterling Brown, CNA, provided a written statement detailing her knowledge of the events.

20. Donahue reported her findings to her supervisor, Vermette, both verbally and in writing. Vermette prepared a three-page, hand-written report which included the findings of her investigation, all of which confirmed the verbal abuse of Samuels by Petitioner.

21. Verbal harassment of a resident is a Category I violation of Respondent’s disciplinary code. It subjects an employee to immediate suspension, followed by investigation. When an investigation confirms that a Beverly employee commits a Category I offense, the employee is subject to immediate termination.

22. Petitioner received and signed the June 29, 1995, Associate Memorandum, which reflects that she was suspended while Respondent investigated the verbal abuse claims.

23. The allegations of verbal abuse were investigated by Donahue, a white female, among others. The findings of the investigation and the proposed discipline (termination) were approved by Malley, the white female administrator. Petitioner was terminated by Vermette, a white female, who was the person who had, in fact, hired her.

24. The three individuals who investigated the allegations of verbal abuse are white, as Petitioner.

25. Petitioner’s statement regarding her treatment prior to the incident on June 29, 1995, and her version of the events that occurred on June 29, 1995, are not credible.

    CONCLUSIONS OF LAW

    
    

26. The Division of Administrative Hearings has jurisdiction over the subject matter of this proceeding, and the parties thereto, pursuant to subsections 120.569 and 120.57(1), Florida Statutes, and Rule 60Y-4.016(1), Florida Administrative Code.

27. The State of Florida, under the legislative scheme contained in Chapter 760, Florida Statutes, incorporates and adopts the legal principles and precedents established in the federal anti-discrimination laws specifically set forth under Title VII of the Civil Rights Act of 1964, as amended. 42 USC

    Section 2000e et seq. The Florida law prohibiting unlawful employment practices is found in Section 760.10, Florida Statutes. This section prohibits discharge or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race. (Sec. 760.10(1)(a), F.S.) The Florida Commission on Human Relations and the Florida courts interpreting the provisions of the Florida Civil Rights Act of 1992 have determined that federal discrimination law should be used as guidance when construing provisions of the Act. See Brand vs.

    Florida Power Corp. 633 So. 2d 504,509 (Fla. 1st DCA 1994); Florida Department of Community Affairs vs. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper vs. Lakeland Regional Medical Center, 16 FALR 567, 574 (FCHR 1993).

28. The Supreme Court established, and later clarified, the burden of proof in disparate treatment cases in McDonnell Douglas Corp. vs. Green, 411 U.S. 792 (1973) and Texas Department of Community Affairs vs. Burdine, 450 U.S. 248 (1981) and again in the recent case of St. Mary's Honor Center vs. Hicks, 509 U.S.

    ,113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary model. Kilpatrick vs. Howard Johnson Co., 7 FALR 5468,5475 (FCHR 1985). McDonnell Douglas places upon the Petitioner the initial burden of proving a prima facie case of racial discrimination.

    See also Laroche vs. Department of Labor and Employment Security,

    
    

    13 FALR 4121 (FCHR 1991); Davis vs. Humana of Florida, Inc., 15

    FALR 231 (FCHR 1992).

    
    

29. Judicial authorities have established the burden of proof for establishing a prima facie case of discriminatory treatment. Petitioner must show that:

    1. The Petitioner is a member of a protected group;

    2. The employee is qualified for the position;

       and

       
       

    3. The employee was subject to an adverse

       employment decision (Petitioner was terminated);

    4. The position was filled by a person of another race or that she was treated less favorably than similarly-situated persons outside the protected class:

    5. There must be shown by the evidence that there is a causal connection between a and c. Canino vs. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983); Smith vs. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir. 1982); Lee vs. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).

30. Proving a prima facie case serves to eliminate the most common nondiscriminatory reasons for the Plaintiff's disparate treatment. See Teamsters vs. U.S., 431 U.S. 324, 358 and n. 44 (1977). It is not, however, the equivalent of a factual finding of discrimination. It is simply proof of actions taken by the employer from which discriminatory animus is inferred because experience has proved that, in the absence of any other explanation, it is more likely than not that those actions were bottomed on impermissible considerations. The presumption is that more often than not people do not act in a totally arbitrary manner, without any underlying reason, in a business setting. Furnco Construction Corp. vs. Waters, 438 U.S. 567, 576 (1978).

31. Once the Plaintiff has succeeded in proving all the elements necessary to establish a prima facie case, the employer must then articulate some legitimate, nondiscriminatory reason for the challenged employment decision. The employer is required only "to produce admissible evidence which would allow the trier of fact to conclude that the employment decision had not been motivated by discriminatory animus." Texas Department of Community Affairs vs. Burdine, at 257. The employer "need not persuade the court that it was actually motivated by the proffered reasons . . . it is sufficient if the [employer's] evidence raises a genuine issue of fact as to whether it discriminated against the Plaintiff." Id. at 254-255. This burden is characterized as "exceedingly light." Perryman vs. Johnson Products Co., Inc., 698 F.2d 1138 (11th Cir. 1983).

32. Once the employer articulates a legitimate reason for the action taken, the evidentiary burden shifts back to the Petitioner who must prove that the reason offered by the employer for its decision is not the true reason, but is merely a pretext. The employer need not prove that it was actually motivated by the articulated nondiscriminatory reasons or that the replacement was more qualified than the Petitioner. Texas Department of Community Affairs vs. Burdine, at 257-8.

33. In Burdine, the Supreme Court emphasized that the ultimate burden of persuading the trier of fact that the Respondent intentionally discriminated against the Petitioner

    remains at all times with the Petitioner. Texas Department of Community Affairs vs. Burdine, at 253. The Court confirmed this principle again in St. Mary's Honor Center vs. Hicks, 509 U.S 502,113 S.Ct. 2742 (1993).

34. In the case sub judice, the Petitioner has failed to establish that she is a member of a protected class. However, she has established that she was qualified for the position, at the time she was hired. The Petitioner has also established that she was subjected to an adverse employment decision when she was terminated. However, Petitioner has failed to come forward with credible evidence that there is a causal connected between her race and her termination. Petitioner has failed to show that similarly-situated non-whites received more favorable treatment under similar circumstances. Petitioner was hired and fired by Vermette, a white female, while still on probation. Therefore, there can be no inference of discrimination. Pound vs. Stone, 945 F.2d 796 (4th Cir.1991). "Whatever the employer's decision- making process, a disparate treatment claim cannot succeed unless the employee's protected trait actually played a role in that process and had a determinative influence on the outcome." Hazen Paper Co. vs. Biggins, 505 U.S. 604, 113 S.Ct. 1701, 1706 (1993). This standard requires Petitioner to establish that but for her protected class and the employer's intent to discriminate she would not have been terminated. Therefore, the Petitioner has failed to came forward with sufficient evidence to meet her

    initial burden of proof on the issue of racial discrimination.

    
    

35. Assuming arguendo that the Petitioner had met her initial burden, the sequence of presentation of evidence then required the Respondent to come forward and articulate valid, nondiscriminatory reasons for the resulting termination decision. The Respondent has done so. It established by credible evidence that the Petitioner's bizarre and incoherent behavior was a danger to the residents of the nursing home and that Respondent verbally abused a resident of the facility. Respondent could properly consider this when making employment decisions. See generally Hale vs. Cuyahoga County Welfare Dept., F.2d , 51 FEP 1264 (6th Cir. 1989).

36. Petitioner has failed to produce any evidence to demonstrate that the Respondent's articulated reasons for its actions in June and July, 1995, were "pretextual."

37. From the testimony and the exhibits, the Petitioner has failed to carry the burden required by law to establish discriminatory conduct. There was no credible testimony by any of the witnesses that the reason for Petitioner's termination was because of her race, white. Petitioner may not rely on a mere refutal of the employer's stated reason to establish pretence. Petitioner must establish that (i) that reason was false and(ii) discrimination was the motivating factor for the employment action taken. St Mary's Honor Center vs. Hicks, supra.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief.

DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida.

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

COPIES FURNISHED:

Jayne E. Griffith, pro se 2018 Gairloch Street

Orlando, Florida 32817

Deborah Gibson, Esquire Jackson Lewis

390 North Orange Avenue Suite 1285

Orlando, Florida 32801

Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997.

Sharon Moultry, Clerk Commission on Human Relations

325 John Knox Road Building F, Suite 249

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel Commission on Human Relations

325 John Knox Road Building F, Suite 249

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15 days of 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: 97-000704

Orders for Case No: 97-000704