STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANA I. RIVERA,

Petitioner,

vs.

FAIR HAVENS CENTER, L.L.C.,

Respondent.

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) Case No. 02-2742

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RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing before Administrative Law Judge Claude B. Arrington at Miami, Florida, on September 12, 2002.

APPEARANCES

For Petitioner: Brian D. Albert, Esquire

2450 Northeast Miami Gardens Drive Miami, Florida 33180

For Respondent: Theodore E. Mack, Esquire

Powell and Mack

803 North Calhoun Street Tallahassee, Florida 32303

STATEMENT OF THE ISSUES

Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et seq., Florida Statutes, as set forth in Petitioner's Charge of Discrimination dated September 4, 2001, and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Petitioner alleged that Respondent discriminated against her based on her age and disability when it terminated her employment during May 2001. After the United States Equal Employment Opportunity Commission issued a "Notice of Right to Sue" letter, Petitioner requested an administrative hearing before the Florida Commission on Human Relations, pursuant to the Florida Civil Rights Act (Sections 760.01-760.11, Florida Statutes). On June 27, 2002, the matter was referred to the Division of Administrative Hearings, and this proceeding followed.

At the final hearing, Petitioner presented the testimony of Cathy Abello (Respondent's Director of Nursing), Barbara Fernandez (Respondent's Assistant Director of Nursing and a nursing supervisor), and Maria Cruz (Respondent's Human Resources Director). Petitioner offered one composite exhibit consisting of formal evaluations of Petitioner’s job performance for various years. The composite exhibit was rejected because Petitioner’s job performance was not relevant to any material issue. Respondent presented additional testimony from

Ms. Abello, but it presented no other witnesses and no exhibits.

A transcript of the proceeding was filed September 30, 2002. The parties timely filed Proposed Recommended Orders,

which have been considered by the undersigned in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is a nursing home located in Miami Springs, Florida.

2. At the times pertinent to this proceeding, Cathy Abello was Respondent's Director of Nursing (DON), and Barbara Fernandez was Respondent's Assistant Director of Nursing (ADON).

3. The DON is responsible for the performance of the nursing staff and has primary responsibility for personnel decisions pertaining to the nursing staff. The ADON also has supervisory authority over the nursing staff and can hire or fire nursing personnel.

4. At the times pertinent to this proceeding, Respondent employed between 50 and 55 registered nurses, six of whom have supervisory responsibilities. Respondent used three shifts of approximately eight hours each to provide 24 hour per day nursing coverage for its residents. The first shift began at 7:00 a.m. and ended at 3:00 p.m. The second shift began at 3:00 p.m. and ended at 11:00 p.m. The third shift began at

   11:00 p.m. and ended at 7:00 a.m. The starting and ending times are approximate because there was usually an overlap between shifts to permit nurses coming on duty to coordinate patient

   care with the nurses going off duty. It was not uncommon for nurses to work more than one shift each day.

5. In addition to the DON and the ADON, Respondent had a nursing supervisor for each shift. A nursing supervisor's duties include supervising the nurses and support staff during a shift, finding personnel to fill in for absences, and responding to emergencies. A nursing supervisor works under the supervision of the DON and the ADON.

6. Petitioner is a registered nurse and had worked for Respondent for several years prior to May 2001. At the times pertinent to this proceeding, Respondent employed Petitioner as a nursing supervisor for the first shift.

7. Respondent stipulated that Petitioner was qualified to do her job and performed her duties adequately with no disciplinary record.

8. Petitioner failed to present evidence as to her date of birth. While her exact age was not established, the testimony of the witnesses who had known her and had worked with her for several years established that Petitioner was in her late fifties or early sixties at the times pertinent to this proceeding.

9. In April 2001, Petitioner required a total knee replacement. Prior to her surgery, Petitioner was capable of performing her job.

10. When she learned she required knee surgery, Petitioner requested and was granted medical leave. She began her medical leave in April 2001. It is inferred that Petitioner was incapable of performing her work for a period of time following her surgery. However, the duration of her incapacity and the extent of her recovery were not established by the evidence presented at the final hearing.

11. When Petitioner went on medical leave in April 2001, Ms. Fernandez worked as ADON during the first shift and also worked the second shift. To accommodate Petitioner’s absence, Ms. Abello asked Ms. Fernandez to continue to perform her duties as ADON during the first shift and to assume Petitioner’s duties as nursing supervisor for the first shift. From the time Petitioner went on medical leave to the time of the final hearing, Ms. Fernandez discharged her duties as the ADON on the first shift and served as nursing supervisor for the first shift. Ms. Fernandez also continued to perform duties on the second shift. At the time of the final hearing, Ms. Fernandez was the nursing supervisor for the second shift.

12. Ms. Abello was pleased with the manner in which

    
    

    Ms. Fernandez performed her dual responsibilities as ADON and as nursing supervisor for the first shift. Ms. Abello made a business decision to consolidate the positions of ADON and first shift nursing supervisor. Ms. Abello also decided to have

    Ms. Fernandez perform those consolidated responsibilities. Ms. Abello made the employment decision to make the nursing staffing more efficient and to reduce Respondent's overhead. Ms. Abello's articulated reason for the challenged employment decision is found to be legitimate and non-discriminatory.

    There was insufficient evidence to establish that the articulated reason for the challenged employment decision was a pretext for unlawful discrimination.

13. At the time of the final hearing, Ms. Abello had worked with Ms. Fernandez for almost 14 years and had worked with Petitioner for approximately five years. Ms. Abello considered Ms. Fernandez’s professional qualifications to be superior to Petitioner’s.

14. Ms. Fernandez and Petitioner are approximately the same age. 1/ Petitioner failed to establish that age was a factor in Ms. Abello’s decision to have Ms. Fernandez perform in the consolidated positions instead of having Petitioner perform those duties. The greater weight of the credible evidence established that age was not a factor in Ms. Abello’s decision.

15. Petitioner was still on medical leave when Ms. Abello decided to have Petitioner’s responsibilities consolidated with Ms. Fernandez’s ADON responsibilities. Maria Cruz, acting on instructions from Ms. Abello, informed Petitioner by telephone that as of the end of May 2001, her position as nursing

    supervisor for the first shift would be eliminated and that her employment would be terminated. During that telephone conversation, Ms. Cruz told Petitioner that there was an open position as a nursing supervisor on the weekends and asked Petitioner to call her if she was interested. Petitioner never called Ms. Cruz about that or any other position Respondent might have open.

16. The fact that Petitioner was still on medical leave when she was informed of Ms. Abello's employment decision arguably creates an inference that Petitioner had not recovered from her surgery. Assuming, arguendo, that Petitioner was disabled when Respondent terminated her employment, Respondent clearly established that it had a legitimate, non-discriminatory business reason for the challenged employment decision. The greater weight of the credible evidence established that any disability Petitioner might have suffered from her total knee replacement, whether temporary or permanent, was not a factor in the challenged employment decision.

    CONCLUSIONS OF LAW

    
    

17. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. See Sections 120.57(1) and 760.11, Florida Statutes.

18. Section 760.10, Florida Statutes, provides that it is an unlawful employment practice for an employer:

    (1)(a) To discharge or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

    
    

19. Petitioner has the burden of establishing by preponderance of the evidence a prima facie case of discrimination. See Section 760.34(5), Florida Statutes. If that prima facie case is established, the defending Respondent must articulate a legitimate, non-discriminatory reason for the action taken against Petitioner. The burden then shifts back to Petitioner to go forward with evidence to demonstrate that the articulated reason is merely a pretext for unlawful discrimination. See McDonnell-Douglas Corporation v. Green, 411

    U.S. 792 (1973); Texas Department of Community Affairs v.

    
    

    Burdine, 450 U.S. 248 (1981); and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993).

20. Petitioner presented no credible evidence that the challenged employment decision resulted from age discrimination.

21. For the reasons set forth in the findings of fact, it is concluded that while Petitioner arguably established a prima

facie showing of discrimination based on a disability,

Respondent established that it had a legitimate, non- discriminatory reason for the challenged employment decision. Petitioner failed to establish that Respondent's articulated reason for its employment decision was a pretext for unlawful discrimination. Consequently, Petitioner's Charge of Discrimination should be dismissed.

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 dismissing Petitioner’s Charge of Discrimination.

DONE AND ENTERED this 6th day of November, 2002, in Tallahassee, Leon County, Florida.

CLAUDE B. ARRINGTON

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 6th day of November, 2002.

ENDNOTE

1/ Ms. Fernandez “celebrated” her 57th birthday by attending the final hearing in this proceeding.

COPIES FURNISHED:

Brian D. Albert, Esquire

2450 Northeast Miami Gardens Drive Miami, Florida 33180

Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Theodore E. Mack, Esquire Powell and Mack

803 North Calhoun Street Tallahassee, Florida 32303

Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 02-002742

Orders for Case No: 02-002742