ROBERT K. COLES,
vs.
Respondent.
) Case No. 05-0977
This cause came on for formal hearing before Harry L. Hooper, Administrative Law Judge with the Division of Administrative Hearing, on September 12, 2005, in Pensacola, Florida.
For Petitioner: Robert K. Coles, pro se
For Respondent: Erick M. Drlicka, Esquire
The issue is whether Petitioner was the subject of an unlawful employment action committed by Respondent.
On April 19, 2004, Petitioner Robert K. Coles (Mr. Coles) filed an Employment Charge of Discrimination with the Florida Commission on Human Relations (Commission), alleging discrimination by Respondent Sacred Heart Health Systems, Inc. (Sacred Heart) based on his race, black. He alleged that he was the victim of disparate treatment. On February 17, 2005, the Commission issued its "Notice of Determination: No Cause."
On March 9, 2005, Mr. Coles filed a Petition for Relief with the Commission. It was forwarded to the Division of Administrative Hearings, which filed it on March 16, 2005. The case was set for hearing on June 7, 2005. Pursuant to an unopposed Motion to Continue filed by Sacred Heart, the hearing was continued until July 5, 2005. Subsequently, on June 2, 2005, Sacred Heart again moved to continue. Mr. Coles opposed the Motion and Administrative Law Judge Cleavinger denied the Motion in an order filed June 22, 2005. However, in an Amended Notice of Hearing the case was ultimately set for September 12, 2005, and was heard on that date by the undersigned Administrative Law Judge.
At the hearing, Mr. Coles testified and offered Exhibit Nos. 1 through 6 into evidence. Of those, Exhibit Nos. 1, 2, 3, and 5 were admitted into evidence. Sacred Heart presented the
testimony of five witnesses and offered Exhibit Nos. 1 through
15 into evidence.
A Transcript was filed on September 26, 2005. After the hearing, Respondent timely filed its Proposed Findings of Fact and Conclusions of Law on September 30, 2005. Mr. Coles filed a document entitled "Written Exception" on October 11, 2005, which was in the nature of a proposed recommended order. It was not timely filed and not considered.
References to statutes are to Florida Statutes (2004) unless otherwise noted.
Mr. Coles is a person of the black race. He was first employed by Sacred Heart, in Pensacola, Florida, on April 29, 1999, as an environmental service worker. At the time of his discharge on May 7, 2004, he was employed as an operating room technician.
Sacred Heart operates a hospital in Pensacola, Florida, that employs more than 15 people.
Mr. Coles believes that he received written Disciplinary Actions that should not have issued. He believes that he was the subject of these Actions because he is black and because he objected to what he believed to be an illegal abortion performed on a 17-year-old girl without her consent.
He is of the opinion that blacks are disciplined unequally when compared to their white counterparts.
Mr. Coles also believes that he has been discriminated against because he is a minister. However, he did not list that occupation on the Employment Charge of Discrimination he filed.
Mr. Coles' supervisor during the period August 2001 through May 7, 2004, was Jim Jones (Mr. Jones). Mr. Jones is a nurse who has a bachelor of science degree in biology from the University of California at Riverside, a bachelor of science degree in nursing from Montana State University, and a master of education degree from George Washington University. He retired from the U. S. Navy at the rank of Commander and was employed by Sacred Heart in 1988.
Mr. Jones promoted Mr. Coles to his position as a technician in the operating room. Mr. Coles asserted that Mr. Jones was a racial bigot, but the only direct evidence produced tending to prove Mr. Coles' assertion of bias was a calendar owned by Mr. Jones upon which was a joke regarding "rednecks." This purported evidence that Mr. Jones was biased is not persuasive.
Mr. Coles testified with regard to a list of persons working for Mr. Jones who were disciplined by him. Despite his assertion that Mr. Jones disciplined black employees disproportionately, a statistical analysis of his list does not
support this. Disciplinary Action Reports signed by Mr. Jones were presented to 35 persons during the period January 2003 to March 2004. Of the 35 persons disciplined, 14 were black, 18 were white, two were Asian, and one was Hispanic.
Mr. Coles did not present evidence as to the racial or ethnic make-up of all persons working for Mr. Jones during this period. Based on the evidence in the record, it is found as a fact that blacks were not disproportionately disciplined by
Mr. Jones.
Mr. Coles was the recipient of many counseling sessions based on poor performance and was the recipient of numerous Disciplinary Action Reports.
Mr. Coles received a Disciplinary Action report on February 13, 2004, for failing to hold a patient's leg during presurgery preparation, after having been properly instructed to do so.
Mr. Coles received a Disciplinary Action Report on February 3, 2004, in the nature of a written warning, for failing to take personal responsibility and failing to support other employees. This involved his failure to provide a suitable wheelchair for a patient.
Mr. Coles received a Disciplinary Action Report in the nature of a formal counseling on February 17, 2003, for failure to follow proper grievance procedures.
On March 23, 2004, Mr. Coles received a Disciplinary Action Report in the form of a formal counseling due to a number of incidents over several weeks preceding March 23, 2004. The counseling addressed two incidents based on complaints by Nurse Angie Lee dated January 16, 2004, and February 26, 2004. Nurse Lee complained in the first incident that Mr. Coles refused to take specimens to the laboratory as it was his duty to do.
The second complaint addressed an encounter in which Mr. Coles raised his voice and made threatening gestures toward her. This occurred while Nurse Lee was pregnant and she feared for the safety of her child who was scheduled to be delivered by C-section shortly after the incident. She was sufficiently unnerved by this encounter that she asked Mr. Jones not to schedule Mr. Coles to work in the operating room on the day she was to deliver.
Another complaint addressed at the counseling session of March 23, 2004, was filed by Nurse Guthrie who cited Mr. Coles for failing to pick up trash, and failing to sweep, prior to departing his work site, contrary to the instructions properly given to him.
On April 5, 2004, Mr. Coles received a Disciplinary Action Report in the nature of a written warning addressing his rude behavior and his failure to appear at his work-site on March 22, 2004. He was informed that if further incidences
occurred that additional administrative action would ensue, up to and including discharge.
On April 5, 2004, Mr. Coles was also presented with a "performance plan." The performance plan cited a written warning and four formal counseling sessions dating from June 12, 2002, and the written warning received on the same day. He was given a 90-day probationary period in which to accomplish specific goals. He was instructed to adhere to the Service Standards, Core Commitments, and Core Values of Sacred Heart, which are embodied in "The Core Commitments," which apply to, and are provided to, all Sacred Heart employees, and which were specifically provided to Mr. Coles.
The performance plan also required Mr. Coles to adhere to the Mutual Respect Policy promulgated by Sacred Heart, which specifically forbids retaliatory conduct toward other employees. The performance plan further required Mr. Coles to carry and respond to his pager, and to adhere to the Time and Attendance Policy, and the Call-in Policy.
He was required to read again the policies corresponding with the performance plan and was informed that he would be evaluated on the basis of his success in meeting the goals.
On May 7, 2004, Mr. Coles received a Disciplinary Action Report which resulted in his suspension. The basis for
the Disciplinary Action Report was a verbal threat to harm Mr. Jones. After further investigation, Mr. Coles was terminated. Under the circumstances, the termination was appropriate.
Mr. Coles was not terminated as a result of discrimination. He was terminated because he would not or could not adhere to the Sacred Heart policies applicable to employees.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. §§ 120.569, 120.57(1), and 760.11, Fla. Stat.
Sections 760.01-760.11 and 509.092, comprise the Florida Civil Rights Act. § 760.01, Fla. Stat.
Sacred Heart is subject to Section 760.10, because it employs, "15 or more employees for each working day in each of
20 or more calendar weeks in the current or preceding calendar year. . . ." § 760.02(7). Fla. Stat.
Race is class a protected by the Florida Civil Rights
Act.
There is no dispute that Mr. Coles is of the black
race. § 760.10 Fla. Stat.
It is an unlawful employment practice for an employer to discharge a person based on his race.
Mr. Coles has the burden of proving by the preponderance of the evidence that Respondent committed an unlawful employment practice. Florida Department of Transportation vs. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).
Section 760.10, Florida Statutes, provides as follows:
It is an unlawful employment practice for an employer:
To discharge or to fail to 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.
To limit, segregate, or classify employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities, or adversely affect any individual's status as an employee, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
The Commission and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10. See Brand vs. Florida Power Corp, 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs vs. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
Mr. Coles had the opportunity to provide either direct or circumstantial evidence of discrimination. If he had offered direct evidence of discrimination, and if the trier-of-fact had accepted that evidence, then Mr. Coles would have proven discrimination. Civil Rights Act of 1964, § 701 et seq., 42
U.S.C.A. § 2000e, et seq. Mr. Coles produced no competent direct evidence of discrimination. Accordingly, proof of discrimination, if discrimination can be proved, must be accomplished using circumstantial evidence.
The Supreme Court of the United States established, in McDonnell-Douglas Corporation vs. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs vs. Burdine, 450 U.S.
248 (1981), the analysis to be used in cases alleging discrimination which might be persuasive in cases such as the one at bar. This analysis was reiterated and refined in St. Mary's Honor Center vs. Hicks, 509 U.S. 502 (1993).
Pursuant to this analysis, Mr. Coles has the burden of establishing a prima facie case of unlawful discrimination by a preponderance of the evidence. If a prima facie case is established, Sacred Heart must articulate some legitimate,
non-discriminatory reason for the action taken against
Mr. Coles. Once this non-discriminatory reason is offered by Sacred Heart, the burden then shifts back to Mr. Coles to demonstrate that the offered reason is merely a pretext for
discrimination. As the Supreme Court stated in Hicks, before finding discrimination, "[t]he fact finder must believe the plaintiff's explanation of intentional discrimination." 509
U.S. at 519.
Under the McDonnell-Douglas scheme applicable to Title VII discriminatory treatment cases, Mr. Coles must first establish by a preponderance of the evidence a "prima facie" case of racial discrimination, thus creating the presumption that Sacred Heart unlawfully discriminated against him. Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e-2(a)(1).
In order for Mr. Coles to establish a prima facie case, he must demonstrate that: (1) he belongs to a protected class; (2) Sacred Heart treated similarly situated employees outside of his classification differently or more favorably, or he was replaced by a person outside his protected class; (3) he was qualified for the position of nurse technician; (4) and he was terminated from that position. Maynard vs. Board of Regents of Division of Universities of the Florida Department of
Education, 342 F.3d 1281 (11th Cir. 2003).
Mr. Coles proved that he belonged to a protected class and that he was qualified for the position of nurse technician. However, he failed to prove that Sacred Heart treated similarly situated employees outside of his classification differently. Thus he failed to prove a prima facie case.
However, if he had proved a prima facie case, the second McDonnell-Douglas factor would have required Sacred Heart to provide a legitimate, non-discriminatory reason for its adverse employment action, and Sacred Heart did this. It is clear that the reason for its employment action was the continuing misbehavior of Mr. Coles and the consequence of his failure to abide by Sacred Heart's policies. He was continually warned that a severe adverse employment action would occur if he did not improve his work habits.
Mr. Coles did not demonstrate that the reasons given by Sacred Heart for its adverse employment action, were pretextual.
RECOMMENDED that the Petition be dismissed.
Tallahassee, Leon County, Florida.
HARRY L. HOOPER
Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2005.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Robert K. Coles
Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
