vs. ) Case No. 98-0716
Respondent. )
On May 4, 1998, a formal administrative hearing was held in this case in Tallahassee, Florida, before J. Lawrence Johnston, Administrative Law Judge, Division of Administrative Hearings.
The issue in this case is whether the Respondent, Respiratory Care of Florida (RCOF), discriminated and retaliated against the Petitioner, Veronica Johnson, on the basis of race, in violation of Section 760.10, Florida Statutes (1995).
The Petitioner filed a Charge of Discrimination against the Respondent on November 9, 1995. The Florida Commission on Human
Relations investigated and issued a "Notice of Determination: No Cause" on August 22, 1997.
A Petition for Relief was filed on September 25, 1997, but was not referred to the Division of Administrative Hearings (DOAH) until February 11, 1998. Final hearing in the case was set for May 4, 1998.
The Petitioner testified in her own behalf and had Petitioner's Exhibit 1 admitted in evidence. The Respondent called one witness and had Respondent's Exhibits 1 and 2 admitted in evidence.
Neither party ordered the preparation of a transcript of the final hearing. Only the Respondent filed a proposed recommended order.
The Petitioner, Veronica Johnson, was employed by the Respondent, Respiratory Care of Florida (RCOF), on April 7, 1995. (Clearwater Community Hospital no longer has any ownership interest in RCOF.) RCOF furnished respiratory therapy services, on a contract basis, to skilled nursing facilities throughout the State of Florida.
The Petitioner was hired by Debbie Stott (whose name is now Debbie Clark.) Stott, who was then the Assistant Manager of RCOF, hired the Petitioner to work as a Certified Respiratory Therapy Technician (CRTT). As a CRTT, the Petitioner's primary responsibility was to care for patients who have respiratory
problems.
The Petitioner was hired on a "PRN" basis. She was given job assignments only on an "as needed" basis. The Petitioner was not guaranteed any job assignments or any number of hours of work. There was no guarantee that she would ever be called to work at all.
On August 26, 1995, Stott assigned the Petitioner to work at the Arbors of Tallahassee ("Arbors") for the night shift. A patient under the Petitioner's care had acute respiratory problems, including apnea. At times, the patient could not breathe without assistance. He was connected with a Bipap ventilator machine with a "dialed in rate" that breathed for the patient. Although patients sometimes remove the ventilator on purpose to sound the automatic alarm (instead of using the patient call button), it was necessary to check this patient whenever the alarm sounded to be sure he was not in distress and to replace the ventilator apparatus.
After the Petitioner's shift on August 26, 1995, Stott received an Employee Counseling Form that had been filled out by the night-shift nurse supervisor at Arbor, Connie Waites, whom Stott knew and trusted. The Employee Counseling Form stated that the Petitioner spent the majority of the 7:00 p.m. to 7:00 a.m. shift asleep on a couch while the Bipap ventilator machine in room 400 "alarmed frequently." This Counseling Form also stated: "Patient needed to be checked often and was in distress on
several occasions. RT did not respond to alarm on several occasions." Stott also learned from Cathy Smith, a CRTT who was leaving her shift when the Petitioner was coming on, that the Petitioner had been talking about getting a pillow so she could sleep during her shift.
While the actual danger to this particular patient from the Petitioner's inattention to the Bipap ventilator was not clear, sleeping on-the-job clearly would expose the patient to a risk of danger and clearly was unacceptable.
On August 28, 1995, Stott filled out a Record of Employee Conference based on the information reported to her. She also telephoned the Petitioner to tell her that they would have to discuss the matter before the Petitioner could work again. The Petitioner's version of the telephone call that Stott told the Petitioner not to worry, that it was "no big deal" is rejected as improbable.
Stott could have terminated the Petitioner's employment on August 28, 1995, but did not primarily because she liked the Petitioner personally and needed her services at the time. Stott decided to give the Petitioner another chance.
Stott met with the Petitioner on September 11, 1995, before the Petitioner's next shift at Arbors. At the conference, the Petitioner denied the allegations against her and asked for a conference with her accusers. Stott agreed to support the
Petitioner's request for a conference but pointed out that it would have to be arranged with the appropriate personnel at Arbors. They contacted the nursing supervisor at Arbor to arrange a conference with Waites, but they never heard back, and no conference ever materialized.
On October 1, 1995, the Petitioner worked a 12:00 p.m. to 5:00 p.m. shift at the Arbors. There, she noticed that her name was not written on the work log for October and telephoned Stott, who in another office doing the end of month billing, to point this out and question its significance. Stott told her that the omission was insignificant and that the Petitioner should just write her name in on the work log. The Petitioner then questioned Stott as to why the Petitioner had not been called in to work since September 11, 1995, and complained that Stott was being partial to other respiratory therapists with whom Stott was alleged to have supposedly improper personal relationships. Stott ended the telephone call at that point.
The Petitioner did not prove that there was any basis in fact for the allegation regarding Stott's personal relationships with other respiratory therapists. Some of them were longer-standing, full-time employees who naturally received more hours than the Petitioner.
Later during the Petitioner's shift on October 1, 1995, the therapist on the next shift failed to show up for work. When the Petitioner telephoned Stott to tell her, Stott asked the
Petitioner if she would stay beyond the end of her shift to help out since they were short-staffed. In fact, the only other respiratory therapist on duty was licensed but had not yet passed her credentialing examination and could not be allowed to work except with a credentialed respiratory therapist. Stott explained this situation to the Petitioner and explained that this was the Petitioner's opportunity to "clean the slate" from her previous counseling and show that she was a team player. The Petitioner declined, citing not only her personal needs as a single parent but also "things going on" that she did not like and made her uncomfortable and her insistence on another conference before she would work again.
In Stott's view, the Petitioner had let her down again. Based not only on the Petitioner's refusal to work extra hours for Stott on October 1, 1995, but also on the incident on
August 26, 1995, and a seasonal decrease in census at Arbors, Stott decided not to use the Petitioner's services any longer. The Petitioner had been on the schedule to work on October 4, 1995, but Stott called on October 3, 1995, to cancel.
The Petitioner testified that Stott agreed to discuss the Petitioner's status on October 11, 1995, when the Petitioner was next scheduled to work. But while the Petitioner may have informed Stott of the Petitioner's intention to have such a discussion and may have thought Stott agreed, it is found that Stott made no such agreement, as Stott already had decided to
cancel the Petitioner again on October 11 and not to use her again.
Inconsistent with the Petitioner's testimony that Stott agreed to discuss the Petitioner's status on October 11, 1995, the Petitioner consulted an attorney, Mark Zilberberg, on October 10, 1995, for assistance in requiring Stott to put the Petitioner on the work schedule. In the Petitioner's presence, Zilberberg telephoned Stott at approximately 12:15 p.m. on October 10, 1995, to request that the Petitioner be put back on the work schedule. Stott hung up on him and did not take his
call back. At 12:33 p.m., Stott telephoned the Petitioner's home and left a message on the Petitioner's answering machine that Stott was canceling the Petitioner for October 11, 1995, and that RCOF would not be having any further need for the Petitioner's services.
The Petitioner interpreted these events to signify that Stott was terminating the Petitioner in retaliation for the Petitioner's consulting an attorney and having the attorney intervene. But Stott's testimony to the contrary is accepted-- the decision not to use the Petitioner any more already had been made after the Petitioner refused to work extra hours for Stott on October 1, 1995.
During the time period from August through October 1995, Stott's PRN pool included four African-American PRN therapists: the Petitioner; Artesa; Shana; and Shawana.
CONCLUSIONS OF LAW
Section 760.10, Florida Statutes (1997), prohibited employment discriminated on the basis of race.
In order to show a prima facie case of race discrimination, the Petitioner must show that the Respondent acted with discriminatory purpose. Nix v. WLCY Radio/Rahall Communications, 738 F.2d 1181 (11th Cir. 1981). The Eleventh Circuit has adopted the three-step procedure first developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Id. at 1184. Under this procedure, the Petitioner must create an inference of discrimination by establishing a prima facie case. If she does this, RCOF must articulate some legitimate, nondiscriminatory reason for the employment action. Id. The Petitioner may then "attempt to show that these reasons are pretextual or may present other evidence to show that discriminatory intent was more likely the cause of the employer's actions." Id. This framework is only a tool, as the real question is "whether the defendant intentionally discriminated against the Respondent." Id.
One method to establish a prima facie case is to establish that one is qualified for the job but was terminated and replaced by someone not in the protected class. Id. at 1185. In this case, the Petitioner did not show that she was replaced by anyone, let alone someone outside the protected class.
The second method to establish a prima facie case is to
establish that one's services were no longer utilized while others not in her protected class having comparable or lesser qualifications were utilized. Id. The Petitioner did not offer any evidence of the qualifications of others and did not establish a prima facie case under this method.
The third method that could be utilized to establish a prima facie case is the one which should be used where an employee is fired for misconduct. Id. This method is the best fit for the Petitioner's allegations. Under this method, the Petitioner had to establish that she is a member of a protected class, that she was qualified for the job from which she was fired, and that the misconduct for which she was discharged was nearly identical to that engaged in by an employee outside the protected class whom the employer retained. Id. The Petitioner did not offer any evidence that others slept on the job and were
treated any differently or that people who refused to work late were treated better.
Even if the Petitioner had established a prima facie case of discrimination, RCOF successfully rebutted any inference of discrimination by offering evidence of a legitimate, nondiscriminatory reason for its actions. Stott reasonably relied on a report from the nursing supervisor of the host facility, whom Stott knew and trusted, that the Petitioner slept on the job. Stott could have terminated her for this offense.
Instead, she gave her another chance. However, when the Petitioner refused to help Stott in a difficult situation, Stott chose to no longer utilize the Petitioner's services, especially when census was decreasing.
The Petitioner offered no evidence that RCOF's articulated reasons were pretextual. The Petitioner offered no credible evidence that race was a factor in RCOF's decision. She did not allege there were any racial slurs. She did not say that anyone said she was not being used because of her race. The only evidence of pretext offered by the Petitioner was her testimony that other African-Americans were not hired as therapists until after the Petitioner filed a charge of discrimination. However, her own exhibit of the schedules for the therapists indicates that there were other African-American therapists hired well before she filed a charge of discrimination and well before her attorney called Stott asking that the Petitioner be placed on the schedule. Also, it would make no sense for Stott to hire the
Petitioner only to turn around and deny her work based on race. As the Fourth Circuit observed:
Claims that employer animus exists in termination but not in hiring seem irrational. From the standpoint of the putative discriminator, it hardly makes sense to hire workers from a group one dislikes only to fire them once they are on the job.
Proud v. Stone, 945 F.2d 796, 797 (4th Cir. 1991) (citations omitted).
The Petitioner also claims that she was retaliated against. In order to prevail on this claim she must establish as her prima facie case: (1) that she was engaged in protected opposition to Title VII discrimination; (2) that she was terminated simultaneously with or subsequent to such opposition; and (3) that there was a casual link between the protected opposition and the termination. Tipton v. Canadian Imperial Bank of Commerce, 872 F.2d 1491, 1494 (11th Cir. 1989). If the Petitioner meets this burden, the Respondent can rebut by showing some legitimate, nondiscriminatory reason for the discharge. If the Respondent does so, the Petitioner must demonstrate that the employer's reason is pretextual. Id. At 1495.
The Petitioner failed to establish her prima facie case relative to either of her claims for retaliation. Her claim that she was retaliated against because she refused to work overtime has no legal significance. In order to be protected by Title VII, she must allege that she opposed some employment practice or decision which is covered by Title VII. Refusing to work late does not meet this criterion. The Petitioner's claim that she was retaliated against because her lawyer called and asked that she be placed back on the schedule fails because evidence indicates that Stott decided to no longer use the Petitioner's services as of October 1, 1995, which was before the Petitioner's attorney called Stott. There was no evidence of causation as to either of the Petitioner's retaliation claims.
Even if the Petitioner had established a prima facie case for retaliation, RCOF articulated a legitimate, business reason for its decision, and the Petitioner failed to establish pretext, for the reasons previously discussed.
RECOMMENDED that the Florida Commission on Human Relations enter a final order denying the Petition for Relief.
DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida.
J. LAWRENCE JOHNSTON Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998.
All parties have the right to submit written exceptions within 15 days from the date 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.
