STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAPHNE BROWN,

Petitioner,

vs.

DEPARTMENT OF CHILDREN AND FAMILY SERVICES,

Respondent.

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) Case No. 04-3271

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RECOMMENDED ORDER

A formal hearing was conducted in this case on January 19, 2005, in Fort Myers, Florida, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge with the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Michael C. Tice, Esquire

2248 First Street Post Office Box 1650

Fort Myers, Florida 33902

For Respondent: Anthony N. DeLuccia, Esquire

Sharon A. Kaskie, Esquire Department of Children and

Family Services 5820 Buckingham Road

Fort Myers, Florida 33905 STATEMENT OF THE ISSUE

The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes

(2004),1/ by discriminating against Petitioner based on her age, race, and/or national origin.

PRELIMINARY STATEMENT

On May 26, 2004, Petitioner Daphne Brown ("Petitioner") filed an Employment Charge of Discrimination against Respondent Department of Children and Family Services (the "Department"). Petitioner alleged that the Department had discriminated against her by terminating her employment based on her age (70 years old), race (black), and/or national origin (Jamaican).

On August 11, 2004, the Florida Commission on Human Relations ("FCHR") issued a Determination: No Cause, finding no reasonable cause to believe that an unlawful employment practice occurred. On September 15, 2004, Petitioner filed a Petition for Relief with FCHR.

On September 20, 2004, FCHR referred the case to the Division of Administrative Hearings. The hearing was initially scheduled to be held on December 14 and 15, 2004. The matter was continued once before being held on January 19, 2005.

At the outset of the hearing, the parties stipulated to the admission of Petitioner's Composite Exhibit 1 and the Department's Exhibits A through Z. The parties also stipulated that official notice be taken of the Department's Exhibits 1 through 16.

At the hearing, Petitioner testified on her own behalf and presented the testimony of Carmel Henry and Beverly Morgan. The Department presented the testimony of Laurie Whidden, Colette Fritts, and Caroline Johnson.

A Transcript of the hearing was filed on February 4, 2005. Petitioner filed for an extension of time to file her proposed recommended order, which was granted by Order dated March 18, 2005, allowing the parties until March 28, 2005, to file their proposed recommended orders. The Department filed its Proposed Recommended Order on March 28, 2005. Through inadvertence, Petitioner's proposed recommended order was not filed until April 29, 2005, though it was apparently served on the Department in a timely fashion. No objection having been raised to the late filing, Petitioner's Proposed Recommended Order has

been accepted.

FINDINGS OF FACT

1. The Department is an employer as that term is defined in Subsection 760.02(7), Florida Statutes.

2. Petitioner's race is black and her nation of origin is Jamaica. She was born on January 12, 1933.

3. Petitioner completed a State of Florida employment application on August 7, 2002, for the position of Human Services Worker II at the Department's Gulf Coast Center in Fort

   Myers. The state employment application does not require an applicant to list her age or date of birth.

4. All applicants for the Human Services Worker II position were required to sign a "willingness survey" indicating the applicant's willingness to work beyond the hours of a normal shift and/or willingness to work on an assigned day off, if such was required, in order for the facility to meet its minimum staffing requirements. Petitioner read and signed the willingness survey.

5. The Department hired Petitioner for the Human Services Worker II position on September 13, 2002. Her letter of appointment informed Petitioner that she was required to complete a 12-month probationary period before attaining permanent status. Petitioner is a certified nursing assistant ("CNA"), and the job for which she was hired involved the provision of direct care, supervision, and assistance to residents of the Gulf Coast Center.

6. Gulf Coast Center is a 24-hour licensed intermediate care facility for the developmentally disabled, primarily the mentally retarded. Gulf Coast Center's license requires that a minimum number of direct care staff be present and on duty

   24 hours per-day, every day of the year, for each residential unit. See 42 C.F.R. § 483.430(d)(3).

7. Petitioner was assigned to the second shift (2:30 p.m. to 11:00 p.m.), with Mondays and Tuesdays as her days off. She worked in the Madison Cottage, which houses 16 profoundly retarded adult females exhibiting a variety of extreme behaviors, including self-injury and aggression towards facility staff. The third shift in Madison Cottage began at 10:45 p.m. and ended at 6:45 a.m. The minimum staff required for the second shift was six persons. The minimum staff required for the third shift was three persons.

8. To ensure that the minimum staff requirements were met, Gulf Coast Center promulgated a "holdover policy," which was in effect at the time Petitioner was hired and throughout her employment. The policy provided that staff persons on one shift could not leave the facility until the next shift met the minimum staffing requirement.

9. In practice, the holdover policy was most commonly invoked when an employee from an incoming shift called in sick. The supervisor of the outgoing shift would first invoke the "pull policy," contacting other cottages in Gulf Coast Center to ascertain whether they could pull an employee from their incoming shifts to fill the slot of the absent employee. If no one was available from another unit, the supervisor would then seek a volunteer from her own cottage to work the incoming shift. If no one volunteered, the supervisor was then required

   to "hold over" an employee from the current shift. Having signed the "willingness survey," this employee was required to work the extra shift, later receiving compensatory leave to ensure that she did not work more than 40 hours in a given week.

10. Employees were given the opportunity to choose which day of the week they would be available for holdover. If the employee failed to choose a day, then her supervisor would assign a day. Petitioner failed to choose a day and was assigned Wednesday as her holdover day. Prior to May 21, 2003, Petitioner had worked at least one holdover shift without incident.

11. On Wednesday, May 21, 2003, Laurie Whidden was the acting supervisor of Madison Cottage for the second shift. She was informed that a third-shift employee had called in sick. Ms. Whidden attempted to pull an employee from another cottage to cover the shortage, but no one was available. She asked for volunteers to work the third shift, but received no response. Ms. Whidden then informed Petitioner that she would be required to hold over and work the third shift.

12. Petitioner responded that she could not work the third shift, because she could not leave her sick husband at home alone for 16 hours. Petitioner's husband suffered from heart disease, and at that time, his condition was precarious. Petitioner testified that she frequently had to take her husband

    to the emergency room. However, Petitioner gave Gulf Coast Center no prior notice that she could no longer work a holdover shift, nor did she make any arrangements for the care of her husband on Wednesday, which she knew was her potential holdover day. On May 21, 2003, Petitioner made no effort to ask a fellow second-shift employee to cover for her that night. Petitioner simply went home at the end of the second shift.

13. There was some dispute as to whether Petitioner answered, "Hell, no," when Ms. Whidden asked her to hold over for the third shift. The weight of the evidence supports Petitioner's assertion that her statement was directed at another employee's remark that Petitioner could sue the state if she came home after working the third shift and found her husband dead on the floor. Petitioner was indicating to the other employee that she wanted her husband alive, not money from the state.

14. Petitioner and Beverly Morgan, another second-shift employee, testified that another employee was sent over from another cottage to work the third shift on May 21, 2003, meaning that Petitioner's refusal to stay had no real impact on the staffing of Madison Cottage. Ms. Whidden testified that no one came from another cottage to cover the shortage and that

    Ms. Whidden herself stayed to work the third shift. Ms. Whidden's testimony is credited on this point.

15. Ms. Whidden informed Colette Fritts, the residential services supervisor of Madison Cottage, that Petitioner refused to hold over for the third shift on May 21, 2003. Ms. Fritts forwarded the report to Gulf Coast Center's human resources division with a recommendation for disciplinary action against Petitioner. The superintendent of Gulf Coast Center terminated Petitioner's employment.

16. Petitioner produced no credible evidence that her age was a factor in the decision to terminate her employment.

    Ms. Morgan claimed that one night she overheard Ms. Whidden and Leoncia Trevino, another Human Services Worker II in Madison Cottage, discussing Petitioner's age, saying that if she was too old to hold over, she should quit. Given that Petitioner only once refused to hold over, on the night of May 21, 2003, this testimony is not credible. Further, the evidence established that in March and June 2003, probationary employees in their twenties were terminated for refusing to hold over at the end of their shifts.

17. Petitioner produced no credible evidence that her national origin played a role in the decision to terminate her employment. Petitioner, Ms. Morgan, and Carmel Henry, another Madison Cottage employee, all testified that Ms. Whidden, the acting supervisor, wanted to "get rid" of the Jamaican employees in Madison Cottage before the regular supervisor, Monica Franks,

    herself a Jamaican, returned from sick leave. However, none of them could point to any action by Ms. Whidden to put such a plan into effect or even any statement by Ms. Whidden that would indicate an animus toward Jamaicans. Ms. Whidden testified that at the time of the events at issue, she knew Petitioner was from an island, but didn't know which one.

18. The source of the rumors regarding Ms. Whidden's intention to get rid of the Jamaicans appears to have been Leoncia Trevino. The other workers in Madison Cottage believed that Ms. Trevino had the ear of management. Ms. Whidden credibly testified that she had no special friendship with

    Ms. Trevino, who was moved out of Madison Cottage on June 24, 2003, after a confrontation with Ms. Henry, and then resigned her employment at Gulf Coast Center the next day.

19. Petitioner produced no evidence that her race played any part in the decision to terminate her employment.

20. Petitioner was still a probationary employee at the time of her dismissal, meaning that she could be dismissed "at will." See Fla. Admin. Code R. 60L-36.005(3). At the time of her hiring, Petitioner received a copy of the Department's Employee Handbook, which informed her that she could be dismissed at will as a probationary employee.

21. Petitioner was aware of the holdover policy and consented to abide by that policy at the time of her employment.

    On May 21, 2003, Petitioner refused the lawful order of her duly-delegated supervisor to hold over. This refusal constituted insubordination, which would provide cause for dismissal even for a permanent career service employee. See Fla. Admin. Code R. 60L-36.005(3)(d). The evidence produced at hearing demonstrated that the sole reason for Petitioner's termination was her direct refusal to follow the lawful order of her supervisor.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57(1), Fla. Stat.

23. The Florida Civil Rights Act of 1992 (the Florida Civil Rights Act or the Act), Chapter 760, Florida Statutes, prohibits discrimination in the workplace. The Act, among other things, forbids the discriminatory firing of an employee.

24. Subsection 760.10(1)(a), Florida Statutes, states the following:

    1. It is an unlawful employment practice for an employer:

       
       

       1. To discharge or to fail 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.

25. Respondent is an "employer" as defined in Subsection 760.02(7), Florida Statutes, which provides the following:

    (7) "Employer" means any person[2/] employing

    15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.

    
    

26. Florida courts have determined that federal case law applies to claims arising under the Florida's Civil Rights Act, and as such, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), applies to claims arising under Section 760.10, Florida Statutes. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).

27. Under the McDonnell analysis, in employment discrimination cases, Petitioner has the burden of establishing by a preponderance of evidence a prima facie case of unlawful discrimination. If the prima facie case is established, the burden shifts to the Department, as the employer, to rebut this preliminary showing by producing evidence that the adverse action was taken for some legitimate, non-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of evidence that Respondent's offered reasons for its adverse employment decision

    were pretextual. See Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).

28. In order to prove a prima facie case of unlawful employment discrimination under Chapter 760, Florida Statutes, Petitioner must establish that: (1) she is a member of the protected group; (2) she was subject to adverse employment action; (3) she was qualified to do the job; and (4) her employer treated similarly-situated employees who were younger and/or of other races and national origins, more favorably. See Williams v. Vitro Services Corporation, 144 F.3d 1438, 1441 (11th Cir. 1998)(age discrimination); McKenzie v. EAP Management Corp., 40 F. Supp. 2d 1369, 1374-75 (S.D. Fla. 1999)(race discrimination).

29. Petitioner has failed to prove a prima facie case of unlawful employment discrimination.

30. Petitioner established that she is a member of the protected groups, in that she is over 40 years of age, she is black, and she is of Jamaican origin. Petitioner also established that she was subject to adverse employment action in that she was terminated from her job. Finally, Petitioner established that she was qualified to do the work expected of the Human Services Worker II position.

31. However, Petitioner presented no evidence that her age, race, or national origin played any role in her

    termination. No other similarly-situated employee; i.e., a probationary employee who refused an order to hold over at the end of her shift, was treated any differently by management of Gulf Coast Center. Having failed to establish this element, Petitioner has not established a prima facie case of employment discrimination.

32. Even if Petitioner had met the burden, Respondent presented evidence of legitimate, non-discriminatory reasons for terminating Petitioner, thereby, rebutting any presumption of age, race, or national origin discrimination. The evidence presented by Respondent established that Petitioner was terminated for insubordination, the direct refusal to follow the legal order of her duly-designated supervisor.

33. Petitioner failed to prove that Respondent's reasons for firing her were pretextual.

RECOMMENDATION

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

RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Department of Children and Family Services did not commit any unlawful employment practice and dismissing the Petition for Relief.

DONE AND ENTERED this 12th day of May, 2005, in Tallahassee, Leon County, Florida.

S

LAWRENCE P. STEVENSON

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 12th day of May, 2005.

ENDNOTES

1/ Citations, hereinafter, shall be to Florida Statutes (2004) unless otherwise specified.

2/ "Person" includes "any governmental entity or agency."

§ 760.02(6), Fla. Stat.

COPIES FURNISHED:

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

Tallahassee, Florida 32301

Anthony N. DeLuccia, Esquire Sharon A. Kaskie, Esquire Department of Children and

Family Services 5820 Buckingham Road

Fort Myers, Florida 33905

Michael C. Tice, Esquire 2248 First Street

Post Office Box 1650

Fort Myers, Florida 33902

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: 04-003271

Orders for Case No: 04-003271