STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES M. BOWLES,

Petitioner,

vs.

JACKSON COUNTY HOSPITAL CORPORATION,

Respondent.

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) Case No. 05-0094

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RECOMMENDED ORDER

Administrative Law Judge Don W. Davis of the Division of Administrative Hearings (DOAH) held a formal hearing in this cause in Marianna, Florida, on July 21, 2005. The following appearances were entered:

For Petitioner: James M. Bowles, pro se

4193 Evelyn Street

Marianna, Florida 32446

For Respondent: Michael Mattimore, Esquire

Mark L. Bonfanti, Esquire 906 North Monroe Street Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, or sex in violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against Respondent with the Florida Commission on Human Relations (FCHR) on October 7, 2003, alleging his termination by Respondent was the result of discrimination on the basis of age, race, color, sex and age.

On or about December 7, 2004, the FCHR issued its determination: No Cause.

On or about January 10, 2005, Petitioner filed a Petition for Relief with the FCHR. Subsequently, on or about January 12, 2005, the case was forwarded to DOAH for formal proceedings.

During the final hearing, Petitioner testified in his own behalf. Respondent presented one witness and three exhibits.

A transcript of the final hearing was filed on August 10, 2005. By Order dated August 30, 2005, the parties were granted leave to file proposed recommended orders no later than September 6, 2005. Both parties were offered the opportunity to file proposed findings of facts and proposed conclusions of law. Both parties availed themselves of that opportunity. The Proposed Recommended Order of each party has been reviewed and considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent employed Petitioner, an African-American male, as a nursing assistant at the community healthcare

   facility known as Jackson Hospital in Marianna, Florida, at all times relevant to these proceedings. Petitioner obtained his designation as a Certified Nursing Assistant (CNA) subsequent to his employment by Respondent.

2. Petitioner entered into a conversation with a female co-worker and CNA at Jackson Hospital on or about June 12, 2003. In the course of the conversation, he made an unwelcome sexual request of the co-worker. Petitioner was not on duty at the time and had returned to the hospital for other reasons.

3. Subsequently, on June 12, 2003, the female co-worker filed a complaint with Respondent's human resource office at the hospital alleging unwelcome requests for sexual favors by Petitioner, inclusive of a request that the co-worker engage in sexual relations with Petitioner.

4. In the course of his employment with Respondent, Petitioner was made aware of the strict guidelines and "zero tolerance" policy of Respondent toward sexual harassment. Respondent's policy expressly prohibits sexual advances and requests for sexual favors by employees. Discipline for a violation of this policy ranges from reprimand to discharge from employment of the offending employee. Petitioner has received a copy of the policy previously and he knew that violation of that policy could result in dismissal of an erring employee.

   Violations of this policy resulted in dismissal of a non- minority employee in the past.

5. Corroboration of Petitioner’s policy violation resulted from interviews with other employees in the course of investigation by the hospital director of human resources. Further, in the course of being interviewed by the director, Petitioner admitted he had propositioned his co-worker for sexual favors.

6. As a result of this policy violation, Respondent terminated Petitioner’s employment on June 16, 2003.

7. At final hearing, Petitioner admitted the violation of Respondent's policy, but contended that termination of employment had not been effected for white employees for similar offenses in the past. This allegation was specifically rebutted through testimony of Respondent's hospital human resources director that a white male employee had been previously discharged for the same offense. Accordingly, allegations of Petitioner of dissimilar treatment of employees on a racial basis for violation of Respondent's policy are not credited.

   CONCLUSIONS OF LAW

   
   

8. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of these proceedings. §§ 120.56(9) and 120.57(1), Fla. Stat.

9. 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.

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

11. 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).

    
    

12. Also, provisions of Chapter 760, Florida Statutes, are analogous to those of Title VII of the Civil Rights Act of 1964,

    42 U.S.C. Sections 2000e, et seq. See Department of Corrections

    
    

    v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991). Petitioner must show that: (a) he belongs to a racial minority; (b) he was subjected to an adverse employment action; (c) he was qualified for his position; and (d) Respondent treated similarly situated employees outside the protected class more favorably. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997). Petitioner has

    not met his initial burden of proof and cannot show that Respondent's termination was a pretext for intentional discrimination because he did not show that Respondent treated "similarly situated" employees outside his protected class more favorably. See Abel v. Dubberly, 210 F.2d 1334, 1339 (11th Cir. 2000) where the court stated, "absent some other similarly situated but differently disciplined worker, there can be no disparate treatment."

13. While age and sex of Petitioner would likely not have been contested by the parties, at the final hearing Petitioner made no effort to establish his age. Notably, he offered no evidence of other factors considered by Respondent other than Petitioner’s sexually inappropriate comments in terminating Petitioner's employment. Further, Respondent identified a former similarly situated white employee who was the subject of alleged violation of Respondent's sexual harassment policy. That former employee's employment was also terminated following investigation of the complaint. Respondent's policy is applied in a consistent manner to all employees without regard to the employee's race.

14. The testimony and other evidence produced by Petitioner are not sufficient to establish that racial discrimination by supervisors of Respondent toward Petitioner occurred. Petitioner failed to show that Respondent’s basis for

    his termination, violation of Respondent's sexual harassment policy, was pre-textual in any way.

15. Petitioner violated Respondent's sexual harassment policy and suffered a termination of employment as a consequence of that violation. Petitioner's belief that his off-duty status relieved him from compliance with the policy while on hospital premises with employees who were on duty is not persuasive.

RECOMMENDATION

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

RECOMMENDED:

That a Final Order be entered dismissing the Petition for Relief.

DONE AND ORDERED this 13th day of September, 2005, in Tallahassee, Leon County, Florida.

S

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 13th day of September, 2005.

COPIES FURNISHED:

James M. Bowles 4193 Evelyn Street

Marianna, Florida 32446

H. Matthew Fuqua, Esquire Bondurant and Fuqua, P.A. Post Office Box 1508 Marianna, Florida 32447

Michael Mattimore, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303

Denise Crawford, Agency Clerk Florida Commission on Human

Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

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: 05-000094

Orders for Case No: 05-000094