vs.
Respondent.
) Case No. 04-1878
A formal hearing was conducted in this case on August 6, 2004, in Daytona Beach, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative
Hearings.
For Respondent: Erin G. Jackson, Esquire
Thomas M. Gonzalez, Esquire
The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner in violation of Section 760.10, Florida Statutes (2002).
On November 5, 2002, Petitioner Cecilia Brown (Petitioner) filed an Amended Employment Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent Volusia County School Board (Respondent) had discriminated against Petitioner based on her race.
Specifically, Petitioner alleged that Respondent subjected her to a hostile work environment, to disparate treatment, and to an unlawful discharge of employment.
On May 5, 2004, FCHR issued a Determination: No Cause. On May 21, 2004, Petitioner filed a Petition for Relief with FCHR. On May 26, 2004, FCHR referred the case to the Division of Administrative Hearings.
A Notice of Hearing dated June 15, 2004, scheduled the hearing for August 6, 2004. During the hearing, Petitioner testified on her own behalf and offered one exhibit (P1) that was accepted into the record as evidence. Respondent presented the testimony of eight witnesses and offered eight exhibits (R1 through R8), which were accepted as evidence.
A transcript of the proceeding was filed on September 14, 2004.
September 30, 2004. As of the date that this Recommended Order
was issued, Petitioner has not filed proposed findings of fact and conclusions of law.
unless otherwise stated.
Petitioner is an African-American female. She has worked for Respondent in several positions since January 2000.
Beginning on January 21, 2000, Petitioner worked as a student nutrition services assistant at Bonner Elementary School. She resigned on February 8, 2000, because she wished to seek an eight-hour per day position.
On February 24, 2000, Petitioner began working as a custodian at Mainland High School. Soon thereafter, Petitioner required light-duty employment due to medical restrictions. She resigned her position on March 17, 2000, because Respondent did not have a position available that would accommodate her
light-duty work requirements.
On June 27, 2000, Respondent rehired Petitioner as a custodian at Holly Hill Middle School. On August 4, 2000, Petitioner resigned for personal reasons. Thereafter, Petitioner worked for Respondent as a substitute teacher.
On April 18, 2002, Petitioner began working as a custodian at Silver Sands Middle School. She subsequently resigned the job due to a conflict with her supervisor.
Thereafter, Petitioner worked for Respondent as a substitute custodian at Campbell Middle School.
Petitioner never achieved permanent status in any of the above-referenced positions of employment. Instead, she resigned each of them while she was still on probationary status.
During the summer of 2002, Respondent assumed responsibility for employment of the health support technicians (HST) that worked in Respondent's school health clinics. Prior to that time, the Volusia County Health Department had been responsible for employing the HST.
When Respondent assumed responsibility for the employment of the HST, there were many vacancies in the school clinics. Catherine Ferguson, Respondent's Coordinator of Student Health Services, began interviewing applicants, conducting reference checks, and making hiring recommendations to Respondent's personnel department.
Because Petitioner is licensed as a certified nurse's assistant (CNA), she applied for a position as an HST. On or about August 16, 2002, Respondent hired Petitioner to fill one of the vacant HST positions.
Each school in the district, with the exception of alternative education sites, has some level of clinical medical or nursing staff. Staffing needs of the clinics are determined
by the needs of the student body in each school. The student population may warrant either a full-time or part-time employee.
An HST may be assigned to more than one school to fulfill the district's needs. If so, the HST will work three days per week in one school and two days per week in another school.
As an HST, Petitioner's primary responsibility was to administer first aid and to dispense medication in school clinics. Her initial assignment was to Samsula Elementary School and Port Orange Elementary School.
At all times relevant here, Don Olech was Principal of Samsula Elementary School. Because medication dispensing is an important issue, Mr. Olech took an active role in the clinic operations. He often took the time to personally care for the children, dispensing medicine and taking temperatures.
On or about September 13, 2002, Petitioner made inappropriate and unprofessional comments about her sex life in the office at Samsula Elementary School. Petitioner made the comments to a member of the office staff in an area open to parents and students.
At all times relevant here, Diane Hammond was Respondent's Nursing Supervisor. In a telephone call on September 13, 2002, Petitioner told Ms. Hammond that Petitioner did not feel welcome at Samsula Elementary School. Petitioner
complained that a child with head lice had been sent back to class instead of being sent home. Additionally, Petitioner stated that she was uncomfortable because Mr. Olech was checking on her in the clinic.
On September 19, 2002, Ms. Hammond met with Petitioner and Mr. Olech to discuss why Petitioner did not feel welcome at Samsula Elementary School. Petitioner explained that it bothered her for Mr. Olech to visit the clinic so often.
On or about September 19, 2002, Ms. Hammond advised Petitioner that she would be assigned to work in the clinics at Port Orange Elementary and New Smyrna Middle School.
Ms. Hammond explained that Petitioner was expected to assist in the clinics at other schools when requested to do so.
Petitioner accepted the re-assignment.
On September 24, 2002, Petitioner began working in the clinic at New Smyrna Middle School with another HST, Charlene Chastain. It was immediately apparent that Petitioner was not willing to do her share of the work. Petitioner was constantly eating or reading a book in the clinic.
One of the students at New Smyrna Middle School had recently undergone a hernia operation. When he visited the clinic, Petitioner laughed out loud and made comments in the student's presence about his "nuts." Petitioner's
unprofessional conduct in front of the student embarrassed Ms. Chastain.
On September 26, 2002, Ms. Hammond visited Petitioner in the clinic at New Smyrna Middle School. Ms. Hammond reviewed Petitioner's responsibilities in general, including professional standards, food in the workplace, and paperwork.
On September 27, 2002, Ms. Hammond visited the clinic at Port Orange Elementary School while Petitioner was on sick leave. Ms. Hammond confirmed complaints from Assistant Principal Cindy Fisher regarding the clinic's medication administration record (MAR). For example, there was no emergency care plan for a student with a peanut allergy.
Ms. Hammond left a list of record corrections that Petitioner needed to make on the MAR.
Petitioner was in the clinic at Port Orange Elementary School on September 30, 2002. During a telephone call to
Ms. Hammond, Petitioner agreed to make the changes on the MAR.
In the meantime, Principal Gary Marks informed
Ms. Ferguson that he did not want Petitioner to return to New Smyrna Middle School due to her unprofessional conduct. Based on Mr. Mark's request and a need for an HST at Osceola Elementary School and Ortona Elementary School, Ms. Ferguson decided to assign Petitioner to work three days a week at Port
Orange Elementary School, one day per week at Osceola Elementary School, and one day per week at Ortona Elementary School.
On October 14, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner to counsel her on her performance. During the meeting, Ms. Ferguson advised Petitioner regarding appropriate discussions in the workplace, the need to limit telephone use to work-related business, and the prohibition against reading personal literature in the clinic.
On October 15, 2002, Ms. Hammond checked the MAR at Port Orange Elementary School. Petitioner had not corrected all of the medication records. There were some remaining omissions in the MAR. Additionally, Petitioner had signed some records which required Ms. Hammond's signature as school nurse.
During the visit to Port Orange Elementary School on October 15, 2002, Ms. Hammond noted that Petitioner had posted a lot of religious material on the walls of her desk area.
Ms. Hammond left Petitioner a list of things she needed to correct in the clinic.
On October 15, 2002, Petitioner worked at Osceola Elementary School for at least one half of a day. She refused to check a class for head lice because she was so busy making personal telephone calls. Additionally, Petitioner failed to properly sign-in medication and sent a student back to class after he vomited instead of sending him home.
On October 18, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner again. They explained that Petitioner was being terminated for unsuccessful completion of her probationary period. Since the meeting on October 14, 2002, Ms. Ferguson had received complaints about Petitioner using the phone at Osceola Elementary School for personal business. As Ms. Ferguson continued to advise Petitioner about the reasons for her termination, Petitioner abruptly ended the meeting, using profane and/or vulgar language as she slammed the door on her way out.
Respondent approved the recommendation for termination of Petitioner's employment on November 12, 2002.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes (2004).
Petitioner has the burden of proving by a preponderance of the evidence that Respondent committed an unlawful employment practice. See Florida Department of Transportation v. J.W.C. Company, Inc. 396 So. 2d 778 (Fla. 1st DCA 1981).
Sections 509.092 and 760.01 through 760.11, Florida Statutes, the Florida Civil Rights Act of 1992 (FCRA), as
amended, are analogous to the provisions of 42 U.S.C. Section 2000e, et seq., Title VII of the Civil Rights Act of 1964, as amended (Title VII). Therefore, cases interpreting Title VII are applicable to FCRA. See School Board of Leon County v.
Hargis, 400 So. 2d 103 (Fla. 1st DCA).
The appropriate framework in which to evaluate claims of disparate treatment when only circumstantial evidence is involved is the familiar burden shifting paradigm set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine 450 U.S. 248 (1981). Under this analysis, the employee bears the initial burden of establishing a prima facie case. See McDonnell Douglas, 411
U.S. at 802.
To meet the burden of demonstrating a prima facie
case, an employee must show the following: (a) he or she is a member of a protected class; (b) he or she was subjected to an adverse employment action; (c) the employer treated similarly situated employees, who were not members of the protected class, more favorably; and (d) he or she was qualified to do the job.
See Mannicia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999).
If an employee is able to meet the initial burden, the employer must articulate a legitimate, non-discriminatory reason for the adverse employment action. See McDonnell Douglas, 411
U.S. at 802. Once the employer does so, an employer must then
show that the proffered reason was merely a pretext for the employer's action. See Burdine, 450 U.S. at 253. At all times, the employee bears the ultimate burden of persuading the trier of fact that the employer intentionally discriminated. See Burdine, 450 U.S. at 253.
Petitioner is a member of a protected class, i.e.
African-American. She suffered an adverse employment action when Respondent terminated her employment. However, Petitioner did not present credible evidence that she was qualified to be an HST or that similarly-situated HSTs, who were not members of a protected class, were treated more favorably. In fact, Petitioner presented no evidence regarding Respondent's treatment of other HSTs, favorable or otherwise.
As to Respondent's qualifications, she may have been technically qualified because she was a CNA. However, the greater weight of the evidence indicates that Petitioner lacked sufficient training and experience to know how to conduct herself appropriately and professionally as an HST in a public school clinic. During a two-month period, three out of five schools complained that Petitioner's behavior and performance was unacceptable. Respondent's staff attempted to counsel Petitioner in this regard to no avail.
To the extent that Petitioner proved a prima facie
case, Respondent presented persuasive evidence of the following
legitimate, non-discriminatory reasons for terminating Petitioner's employment: (a) Petitioner used inappropriate language in the workplace; (b) Petitioner refused to check students for head lice; (c) Petitioner sent a child back to class after he vomited; (d) Petitioner read personal literature when she should have been working; (e) Petitioner used the telephone for personal conversations; (f) Petitioner was eating when she should have been working; (g) Petitioner laughed at a child with a hernia; and (h) Petitioner's MAR was incomplete after being instructed to correct it.
Petitioner did not establish that Respondent's reasons for terminating her employment were a pretext for discrimination. Respondent fired Petitioner based on Petitioner's inappropriate conduct and unsatisfactory performance. Respondent did not discriminate against Petitioner.
That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 12th day of October, 2004, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2004.
Erin G. Jackson, Esquire Thomas M. Gonzalez, Esquire
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.
