STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LAURA J. BAILEY, )

)

Petitioner, )

)

vs. )

) CENTENNIAL EMPLOYEE MANAGEMENT ) CORPORATION, )

)

Respondent. )

Case No. 01-2080

)

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Don W. Davis of the Division of Administrative Hearings held a formal hearing in this cause in Blountstown, Florida, on October 23, 2001.

APPEARANCES

The following appearances were entered:

For Petitioner: J. Ann Cowles, Esquire

Post Office Box 604 Carrabelle, Florida 32322

For Respondent: Edward A. Smith, Esquire

Centennial Employee Management Corporation

400 Perimeter Center Terrace Suite 650

Atlanta, Georgia 30346

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was discharged from her employment by Respondent because of

Petitioner’s handicap (pregnancy) in violation of Section 760.10(11), Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against Respondent with the Florida Commission on Human Relations (FCHR) on September 15, 1999, alleging discrimination on the basis of handicap.

On April 11, 2001, Petitioner requested a formal administrative hearing from FCHR in the absence of a determination of cause by that agency.

Subsequently, on or about May 24, 2001, the case was forwarded to the Division of Administrative Hearings for formal proceedings.

During the final hearing, Petitioner presented 14 exhibits and the testimony of seven witnesses. Respondent presented the testimony of three witnesses and three exhibits. No transcript of the proceedings was provided.

The parties requested and were granted leave to file proposed recommended orders more than ten days from conclusion of the final hearing. Both Petitioner and Respondent filed Proposed Recommended Orders, which have been reviewed and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. At all times pertinent to these matters, Respondent operated a hospital (Calhoun Liberty Hospital) in Blountstown, Florida. As part of that operation, Respondent employed a number of Emergency Medical Technicians (EMT). Petitioner was employed by Respondent as an EMT from June 1, 1995, to the time of her discharge on October 1, 1998.

2. On September 15, 1999, Petitioner filed a Charge of Discrimination with FCHR alleging that Respondent discriminated against Petitioner in violation of the Florida Civil Rights Act of 1992, Sections 760.01-760.11, Florida Statutes (1999). Allegedly, the discrimination was based on Petitioner's pregnancy. Petitioner claimed that Respondent terminated Petitioner’s employment because she was pregnant. On April 11, 2001, Petitioner requested a formal administrative hearing from FCHR in the absence of a determination of cause.

3. Stipulation of the parties establishes that Petitioner’s supervisor, Respondent’s Director of Emergency Medical Services (EMS), knew Petitioner was pregnant in June of 1998. Further, as an accommodation to Petitioner, her supervisor assigned Petitioner to a work assignment in which she would not be required to perform the more strenuous and demanding duties of her job.

4. On October 1, 1998, Petitioner’s supervisor, who reported to the hospital administrator (administrator), received a telephone call at her home from Respondent’s business office manager. The supervisor was informed that a report had been received from the Florida Highway Patrol (FHP) that one of the hospital’s two ambulances had been observed traveling at an excessive rate of speed and that the administrator wanted Petitioner’s supervisor to come into the hospital and discuss the matter.

5. The supervisor immediately went to the hospital. The supervisor was unaware of the identity of the team (a driver and an assistant) in charge of the errant ambulance. She was told by the administrator to find out the identity of the driver of the ambulance, which was the subject of the FHP report. Then, the administrator instructed the supervisor that she was to terminate the driver of the ambulance and suspend the other employee travelling with the driver. Despite the supervisor’s attempts to persuade the administrator to permit a mere suspension of the driver, she was unsuccessful in changing the administrator’s directive. Later, upon learning that Petitioner was the ambulance driver, the supervisor terminated Petitioner’s employment.

6. On October 1, 1998, Petitioner drove one of Respondent’s ambulances to Panama City, Florida, to pick up a

   patient. When she arrived in Panama City, she received a radio call from that city’s EMS telling her that she should "slow down." She did not challenge the caller’s admonition to slow down.

7. Two other instances of speeding ambulance drivers, one incident before Petitioner’s termination and one incident after that action, did not result in termination of employment, but there is no evidence establishing that either incident had been brought to the attention of the ultimate authority, the hospital administrator.

8. Testimony of the hospital administrator established that he has the authority to direct the hiring and firing of Respondent’s EMS employees, inclusive of Petitioner. When he learned of the excessive speeding of the subject ambulance around a school zone while on a normal transfer trip, the administrator determined that the driver of the ambulance would be terminated from employment and the assistant on the ambulance would be suspended without pay. At the time he made this decision, the administrator did not know the driver’s identity and did not know of Petitioner’s pregnancy. His decision was based upon his concern that the ambulance driver endangered the driver’s life, the co-worker’s life, and lives of members of the community.

   CONCLUSIONS OF LAW

   
   

9. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

10. Chapter 760, Florida Statutes, the "Florida Civil Rights Act of 1992," provides security from discrimination based upon race, color, religion, sex, national origin, age, handicap, or marital status.

11. The adverse effectuation of an employee’s compensation, conditions, and privileges of employment on the basis of handicap is an unlawful employment practice.

12. The burden of proof rests with Petitioner to show a prima facie case of employment discrimination. After such a showing by Petitioner, the burden shifts to Respondent to articulate a nondiscriminatory reason for the adverse action. If Respondent is successful and provides such a reason, the burden shifts again to Petitioner to show that the proffered reason for adverse action is pre-textual. School Board of Leon County v. Hargis, 400 So. 2d 103 (Fla. 1st DCA 1981).

13. Respondent has articulated such a nondiscriminatory reason for Petitioner’s termination in view of the ambulance driver’s dangerous conduct. Further, Respondent’s administrator did not know Petitioner was pregnant or even that she was the driver of the speeding ambulance at the time of his decision to terminate Petitioner’s employment.

14. Petitioner has failed to offer any credible evidence that she was terminated from her employment as a result of her

handicap.

RECOMMENDATIONS

Based on the foregoing Findings of Fact and Conclusions of Law it is

RECOMMENDED:

That a final order be entered dismissing Petitioner’s Charge of Discrimination.

DONE AND ENTERED this 19th day of November, 2001, in Tallahassee, Leon County, Florida.

DON W. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 19th day of November, 2001.

COPIES FURNISHED:

J. Ann Cowles, Esquire Post Office Box 604 Carrabelle, Florida 32322

Denise Crawford, Agency Clerk Florida Commission on Human Relations

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32303-4149

Edward A. Smith, Esquire Centennial Employee Management

Corporation

400 Perimeter Center Terrace Suite 650

Atlanta, Georgia 30346

Cecil Howard, General Counsel 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 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.

Docket for Case No: 01-002080

Orders for Case No: 01-002080