STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was conducted in this case on March 4, 2005, in Gainesville, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Noreen Abrar, pro se

309 Southwest 16th Avenue, No. 157 Gainesville, Florida 32601

For Respondent: Kimnie Bennett, Qualified Representative The Manor At Gainesville, Inc.

1000 Southwest 16th Avenue Gainesville, Florida 32601

STATEMENT OF THE ISSUE

Whether the named Respondent is guilty of an unlawful employment practice to wit: race, religion, national origin, and retaliation.

PRELIMINARY STATEMENT

On or about May 28, 2004, Petitioner filed a Charge of Discrimination against "The Manor at Gainesville formerly Alachua Nursing & Rehabilitation," for discrimination against her on the basis of race, religion, national origin, and by retaliation discrimination. On or about November 16, 2004, the Florida Commission on Human Relations entered a Determination: No Jurisdiction, because the Commission concluded that "The Manor at Gainesville" is not the correctly identified Respondent.

Petitioner timely filed a Petition for Relief and the cause was referred to the Division of Administrative Hearings on or about December 14, 2004.

On January 3, 2005, an Order was entered granting Respondent 20 days in which to move to dismiss for lack of jurisdiction or to show cause why the Division is without jurisdiction to consider this case, and to simultaneously submit the applicable Allocation Agreement, upon which the Commission based its Determination: No Cause. Respondent filed nothing in response to the Order.

At the commencement of hearing on March 4, 2005,

Kimnie Bennett appeared on behalf of Respondent. Ms. Bennett is neither an attorney nor a principal officer of the Respondent corporation, The Manor at Gainesville, Inc. Ms. Bennett is its

interim administrator. Petitioner did not oppose the representation, and after inquiring, pursuant to Florida Administrative Rule 28.106.105, the undersigned agreed to permit Ms. Bennett to represent Respondent, provided a corporate resolution or letter of authority was filed within 10 days of the hearing. On March 15, 2005, a letter of authority purportedly signed by the Director of The Manor at Gainesville was filed.

Petitioner testified on her own behalf and offered six exhibits. Petitioner's Exhibits 1 and 2 were admitted in evidence. Petitioner's Exhibit 3 was a confidential Florida Protective Services Report. Rather than admitting an unredacted report, which neither Petitioner, Respondent, nor the undersigned was authorized to see under the circumstances of this case, Petitioner stipulated that she would be satisfied if the undersigned took official recognition that the Department of Children and Family Services had found no indicators that she was guilty of abuse. Accordingly, that official recognition was taken, and P-3 was returned to Petitioner. Petitioner's Exhibits 3-6 were not admitted in evidence.

Respondent presented the testimony of Kimnie Bennett and had one exhibit admitted in evidence.

No transcript was provided. Only Petitioner filed a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner is a Pakistani citizen, female, and a practicing Muslim.

2. Petitioner came to the United States in July 2003, and was employed by Alachua Nursing and Rehabilitation Center, a nursing home.

3. As a practicing Muslim, Petitioner wore her traditional Pakistani robes to work on Fridays so that she could go to her mosque in her off-duty hours.

4. At some point, Carl Young, a white male American, was hired as administrator of the facility.

5. Petitioner's unrefuted testimony was that, at various times, Mr. Young said to her, "Oh, I hope you're not a terrorist"; "I'll kill you"; and "Shut up." On one occasion, Mr. Young told her about her robes, "You look like a terrorist. You have to stop wearing that."

6. In March 2004, Steve Strawn, whom Petitioner believed to be one of the people buying the nursing home, told Petitioner she should make an application for employment to the purchasing entity or she could not stay employed after May 1, 2004.

7. Petitioner claims Steve Strawn and Shelby Parker, whom Petitioner also believed to be buying the nursing home, took over the nursing home on February 1, 2004, but she had no solid information to corroborate that belief.

8. The after-filed authorization for Ms. Bennett's representation of Respondent in this proceeding shows Ms. Shelby Parker as the "Director" of "The Manor at Gainesville."

9. Petitioner claimed to have made her new employment application before May 1, 2004, but she had no copy of her application to put in evidence, and it is not clear to what corporate entity she applied.

10. On or about March 29, 2004, Petitioner filed an internal grievance against Mr. Young. At Mr. Strawn's instruction, Petitioner was interviewed by third parties concerning her complaint. (See Finding of Fact 11.)

11. On April 6, 2004, Integrity Health Care Systems, Inc., wrote Global Compliance Services concerning its investigation of Petitioner's foregoing allegations against Mr. Young. There is no competent evidence to explain the relationship of either of these entities to the Alachua Nursing and Rehabilitation Center or to The Manor at Gainesville. It appears that Petitioner did not provide the page of this exhibit (P-1), giving a final conclusion of the Integrity Health Care investigators, but most of their report points to Mr. Young's "shut up" incident being the only allegation of Petitioner against Mr. Young corroborated by the investigators.

12. At some point, Mr. Young told Petitioner that there had been a complaint of abuse against her by three patients and

    he was putting her on leave. The Department of Children and Family Services investigated this complaint and returned a report that no indicators of abuse by Petitioner could be found.

13. Petitioner testified, without refutation, that

    
    

    Mr. Young allowed her to return to work, and when she returned to work, on April 13, 2004, he fired her because she had complained against him to management.

14. Petitioner certainly has not worked at the nursing home since May 1, 2004 and probably not since April 13, 2004.

15. Alachua Nursing and Rehabilitation Center was renamed The Manor at Gainesville, effective May 1, 2004.

16. Ms. Bennett did not know what corporate entity initially appointed Carl Young administrator or what corporate entity he worked for from February to May 2004. She did not know if he had been appointed under a Bankruptcy Court Order. She was unsure whether Mr. Young had worked for The Manor at Gainesville after May 1, 2004.

17. Respondent offered Exhibit R-1, an Allocation Agreement, to which Petitioner objected. The exhibit is clearly hearsay (an out-of-court statement offered for the truth of its contents). It was considered here only pursuant to Section 120.57(1)(c), Florida Statutes, to explain or supplement other evidence.

18. The Allocation Agreement was entered in facilitation of a transfer of property on or about May 1, 2004, between Healthcare Properties, Inc., a Florida S-corporation (Purchaser), The Manor at Gainesville, Inc., a Florida S Corporation (Lessee), and Marshall Preston Sweeney, an individual as court-appointed receiver. It states:

    Effective as of the Transfer Date, Lessee, at its sole discretion, may hire any or none of the former Nursing Home employees ("Employees") who complete a job application. Neither Purchaser nor Lessee shall be responsible for the Employees' accrued wages, salaries, sick leave, vacation time, and other benefits that have accrued and are due to the Employees as of 11:59 p.m. on the day immediately preceding the Transfer Date. Neither Purchaser nor Lessee shall be responsible for any claims, liabilities, losses, damages, demands, causes of action, suits (whether actual, pending, threatened, or suspected) or liability costs or expenses of any kind relating to any and all Employees and/or employment matters including, without limitation, Employee claims, employment discrimination, harassment, back pay, accrued time off, qui-tam issues, garnishments, and COBRA issues, or any other Employee or employment issues (herein referred to as "Employment Issues") that occurred or accrued prior to the Transfer Date. Neither Purchaser nor Lessee shall have any responsibility for any Employment Issues arising for such Employment Issues occurring on or after the Transfer Date for its own employees. Receiver shall identify all actual, pending, threatened, or suspected Employment Issues in the attached Schedule 2.

19. No pending threatened or suspected employment issues are identified in the document.

20. The document recites that due to failure to meet debts, a foreclosure resulted in the Purchaser tendering the highest and best bid on the Alachua Nursing and Rehabilitation Center nursing home property, and that the Purchaser will take title to the real property, lease the nursing home, and hold the state nursing home license.

21. The Allocation Agreement was signed by Steve Strawn, as President of Healthcare Properties, Inc., Purchaser.

    Mr. Strawn also signed as President of the Lessee, The Manor at Gainesville, Inc. Marshall Preston Sweeney, the receiver, also signed the Allocation Agreement.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Chapter 760 and Section 120.57(1), Florida Statutes.

23. Respondent is an "employer" and Petitioner is an "aggrieved person" as each of those terms is defined under Section 760.02, Florida Statutes.

24. Petitioner established that Carl Young discriminated against her due to her religion and national origin and by retaliation for an internal grievance.

25. However, the evidence does not establish with any certainty whether Petitioner was employed by The Manor at Gainesville at the time of Mr. Young's discriminatory act against Petitioner. It likewise is not clear whether Mr. Young was employed by The Manor at Gainesville at the critical times.

26. The unrefuted evidence that the president of purchaser renamed the facility as "the Manor at Gainesville" launched an investigation of Petitioner's initial charges pre-April 13, 2004, suggests that entity was already in charge of the facility.

27. However, it appears that if the control and responsibility for the facility did not legally pass to The Manor at Gainesville until May 1, 2004, Petitioner has named the wrong employer.

28. Petitioners' termination on April 13, 2004, means that she was not employed on May 1, 2004, by The Manor at Gainesville. The Manor at Gainesville did not expressly succeed in interest to the employment-related liabilities of the Alachua Rehabilitation and Nursing Center and did expressly exclude itself from such liabilities by the Allocation Agreement approved by the State Receiver. Petitioner may have a cause of action against The Manor at Gainesville's predecessor, but not the Manor itself, which is a separate legal entity.

29. Accordingly, Petitioner has charged the wrong legal entity, and the case should be dismissed.

RECOMMENDATION

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

RECOMMENDED: that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Charge of Discrimination and Petition for Relief.

DONE AND ENTERED this 10th day of May, 2005, in Tallahassee, Leon County, Florida.

ELLA JANE P. 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 10th day of May, 2005.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Noreen Abrar

309 Southwest 16th Avenue, No. 157 Gainesville, Florida 32601

Angi R. Hill Kimnie Bennett

The Manor At Gainesville, Inc. 1000 Southwest 16th Avenue Gainesville, Florida 32601

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: 04-004451

Orders for Case No: 04-004451