vs.
Respondent.
) Case No. 05-1919
This cause came on for formal hearing before Robert S. Cohen, Administrative Law Judge with the Division of Administrative Hearings, on July 12, 2005, in Tallahassee, Florida.
For Respondent: Rhonda S. Bennett, Esquire
Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A.
The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on her race in violation of Section 760.10(1), Florida Statutes.
On November 4, 2004, Petitioner, Millie Miller (Petitioner) filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The charge alleged that Respondent, Apalachee Center, Inc., violated Section 760.10, Florida Statutes, by discriminating against her based on her race (African-American).
On April 18, 2005, FCHR issued a Determination: No Cause, finding that there was no reasonable cause to believe that an unlawful employment practice had occurred. A Notice of Determination: No Cause, issued that same day, advised Petitioner that she had 35 days to request an administrative hearing by filing a Petition for Relief.
On May 18, 2005, Petitioner filed a Petition for Relief. The Petition alleged that Respondent discriminated against her based on her race by terminating her employment.
FCHR referred the Petition for Relief to the Division of Administrative Hearings on May 25, 2005.
A Notice of Hearing dated May 31, 2005, scheduled the hearing for July 12, 2005.
At the hearing, Petitioner testified on her own behalf and offered Composite Exhibit No. 1, which was admitted into evidence. Respondent presented the testimony of Janice Drawdy
Agner and Leah Candice Landry and offered Exhibit Nos. 1 through
9 into evidence, all of which were admitted without objection.
A Transcript of the proceeding was filed on July 26, 2005. Petitioner and Respondent filed Proposed Findings of Fact and Conclusions of Law on July 25, 2005, and July 27, 2005, respectively.
All citations are to Florida Statutes (2004) unless otherwise indicated.
Petitioner is an African-American female who was employed as an Adult Case Manager in Respondent’s Madison County Clinic from December 18, 2003 to October 11, 2004.
Petitioner did not have an employment contract with the Respondent.
As part of her job duties, Petitioner was required to prepare client progress notes for each service, contact or session with a client. In accordance with Respondent’s Outpatient & Rehabilitation Services Online Client Record
Handbook, “an individualized PROGRESS NOTE is required for each service, contact, or session. The notes must be individualized; ‘Generic’ notes, ‘Xerox’ copies, or word processing duplicate notes are not permitted.”
Respondent is a Medicaid provider. Medicaid is billed for services rendered by Respondent’s case managers based upon
each case manager’s progress notes and how much time the case manager records he or she spent on client services.
If case managers do not properly complete their case management reports or if they don’t properly calculate the time spent on services, Respondent has to repay Medicaid for funds improperly received. If the reports and/or times recorded appear fraudulent, Respondent could lose its Medicaid provider status.
Jan Agner, Petitioner’s supervisor, testified that Petitioner received extensive training during her employment orientation regarding the proper preparation of case management progress notes. Ms. Agner also testified that as part of her training, Petitioner was provided with a copy of the Respondent’s Outpatient & Rehabilitation Services Online Client
Record Handbook.
On September 2, 2004, September 3, 2004, and
September 14, 2004, Petitioner acknowledged that she completed a client progress note for one client and then "Xeroxed" that note for her remaining clients adding one or two sentences to each note. Petitioner billed from 20 minutes to 1 hour and 15 minutes for services provided to each client.
While auditing files in the Madison County Clinic, Petitioner’s Supervisor, Jan Agner, reviewed Petitioner’s client progress notes and became concerned that the notes were an abuse
of the Medicaid system and constituted fraud. Petitioner’s questionable billings were removed from the computer and were not submitted to Medicaid for payment.
Jan Agner contacted Candy Landry, Respondent’s Human Resources Coordinator, to report her concerns about Petitioner’s excessive billings. Ms. Landry asked Ms. Agner to put her concerns in writing in the form of a memorandum to Dr. Michael McGee, the Clinical Program Director, and to furnish a copy to Human Resources for review.
In an October 7, 2004, memorandum to Dr. McGee, Ms. Agner outlined her concerns regarding Petitioner’s case progress notes and stated that she believed the majority of Petitioner’s billings for the three dates in question constituted fraud. Ms. Agner recommended that Petitioner receive a written reprimand; that she rewrite the case
management portion of the notes in question; that she be placed on conditional probation for three months; and that Ms. Agner take the responsibility of reviewing all of Petitioner’s progress notes.
Respondent has a policy that all supervisors are to contact Human Resources prior to issuing a written reprimand or any type of disciplinary action so that the proposed disciplinary action may be discussed and all documentation
reviewed. This policy helps to prevent discriminatory actions from occurring by individual supervisors.
Candy Landry, together with John Convertino, Respondent’s Chief Administrative Officer, reviewed the information from Ms. Agner and submitted a written recommendation to Chris Gosen, the Chief Operations Officer, that Petitioner be terminated for falsification of records and inflation of her time.
Mr. Gosen approved the recommendation for termination and prepared a letter to Petitioner stating that she was terminated from her position for falsification of records due to billing excessive amounts of time for minimal case management services provided.
Respondent’s Personnel Manual provides that over- billing or falsification of records shall subject employees to reprimand or termination. Ms. Landry testified that Respondent takes Medicaid fraud very seriously and that in every case where falsification of records is proven, termination will be recommended.
Petitioner testified that she believed that she had been discriminated against by Respondent based upon a white secretary’s statement referring to "these people" getting public assistance and then wanting help with lights, water, and gas. This secretary, Janice Croft, performed no supervisory role over
Petitioner. Petitioner testified that she reported this incident to her supervisor, Jan Agner, and that the secretary immediately apologized for her inappropriate comments.
Petitioner did not notify Human Resources of her concerns regarding the secretary’s comment.
Petitioner’s only other proffered evidence of discrimination was that a white case manager, Catherine Cruse, had submitted a note with a copy of a client’s signature, but that she had not been terminated.
Jan Agner and Candy Landry testified that on one isolated occasion in 2002, Catherine Cruce had a Client Service Plan (CSP) with a “Xeroxed” signature from a previous CSP. This was discovered when Ms. Agner performed an audit of files. An investigation was conducted and Ms. Cruce denied that she had submitted a false signature. Additionally, Ms. Cruce thereafter produced the form with her original signature which she had mistakenly put in a drawer at her desk. Because Respondent could not prove that Ms. Cruce had personally submitted a false signature, Ms. Cruce was placed on a one-week leave without pay.
Unlike Catherine Cruce who denied copying a client’s signature on one isolated occasion, Petitioner acknowledged that she had submitted "Xeroxed" client progress notes on
September 2, 3 and 14, 2004.
Candy Landry testified that in 2004, prior to the date of Petitioner’s termination, two white employees, one male and one female, had been terminated for falsifying records. A third white employee was fired in 2005 for a similar offense.
In 2004, there were 24 total employees in the Respondent’s Madison County Clinic, 11 of whom were African- American. Ms. Agner has hired three African American case managers in the Madison County Clinic since Petitioner’s termination on October 11, 2004.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding pursuant to Sections 120.569, 120.57(1), and 760.11, Florida Statutes.
Pursuant to Section 760.10(1), Florida Statutes, it is unlawful for an employer to discharge or otherwise discriminate against an employee with respect to compensation, terms, conditions, or privileges of employment, based on the employee’s race, gender, or national origin.
Federal discrimination law may properly be used for guidance in evaluating the merits of claims arising under Section 760.10, Florida Statutes. See Brand v. Florida Power
Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Dept. of
Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1973), the Supreme Court articulated a burden of proof scheme for cases involving allegations of discrimination under Title VII, where the plaintiff relies upon circumstantial evidence. The McDonnell Douglas decision is persuasive in this case, as is St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506- 07 (1993), in which the Court reiterated and refined the McDonnell Douglas analysis.
Pursuant to this analysis, the plaintiff (Petitioner herein) has the initial burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. Failure to establish a prima facie case of discrimination ends the inquiry. See Ratliff v. State, 666 So. 2d 1008, 1012 n. 6 (Fla. 1st DCA), aff’d, 679 So. 2d 1183 (1996) (citing Arnold v. Burger Queen Systems, 509 So. 2d 958 (Fla. 2d DCA 1987)).
If, however, the plaintiff succeeds in making a prima facie case, then the burden shifts to the defendant (Respondent herein) to articulate some legitimate, nondiscriminatory reason for its complained-of conduct. If the defendant carries this burden of rebutting the plaintiff’s prima facie case, then the plaintiff must demonstrate that the proffered reason was not the
true reason but merely a pretext for discrimination. McDonnell Douglas, 411 U.S. at 802-03; Hicks, 509 U.S. at 506-07.
In Hicks, the Court stressed that even if the trier- of-fact were to reject as incredible the reason put forward by the defendant in justification for its actions, the burden nevertheless would remain with the plaintiff to prove the ultimate question of whether the defendant intentionally had discriminated against him. Hicks, 509 U.S. at 511. “It is not enough, in other words, to disbelieve the employer; the fact finder must believe the plaintiff’s explanation of intentional discrimination.” Id. at 519.
Petitioner complains that her termination was motivated by her race. This is a disparate treatment claim. To present a prima facie case of disparate treatment using the indirect, burden-shifting method just described, Petitioner needed to prove, by a preponderance of the evidence, that
“(1) [she] belongs to a racial minority; (2) [she] was subjected to adverse job action; (3) [her] employer treated similarly situated employees outside [her] classification more favorably; and (4) [she] was qualified to do the job.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997).
Petitioner failed to establish a prima facie case of unlawful discrimination using circumstantial evidence. She produced no credible evidence that similarly situated employees
of a different classification (either non-African-Americans specifically or non-minorities generally) were treated more favorably than she, as was her burden under McDonnell Douglas. See Campbell v. Dominick’s Finer Foods, Inc., 85 F. Supp. 2d 866, 872 (N.D. Ill. 2000) (“To establish this element, [the claimant] must point to similarly situated non-[minority] employees who engaged in similar conduct, but were neither disciplined nor terminated.”). For this reason alone, Petitioner’s claim cannot succeed.
Petitioner likewise offered no persuasive direct evidence sufficient to demonstrate that Respondent had fired her with a discriminatory intent. See Denney v. The City of Albany, 247 F.3d 1172, 1182 (11th Cir. 2001); Holifield, 115 F.3d at 1563.
In view of Petitioner’s testimony that she did not falsify records, it should be noted, before concluding, that Petitioner’s belief that she, herself, was blameless is irrelevant to the instant discrimination claim. See Webb v. R&B
Holding Co., Inc., 992 F. Supp. 1382, 1387 (S.D. Fla. 1998).
What matters is “'the perception of the decision maker.'” Id. (quoting Smith v. Flax, 618 F.2d 1062, 1067 (4th Cir. 1980)).
The most persuasive evidence indicates that Respondent had legitimate, non-discriminatory reasons for terminating the Petitioner. Petitioner admitted that she photocopied client
notes in violation of the Respondent’s Outpatient & Rehabilitation Services Online Client Record Handbook. In accordance with its policy of terminating any employee where proof of falsification is present, Respondent’s management acted in accordance with its stated policies and procedures and well within legal boundaries in terminating Petitioner.
Petitioner made no attempt to show that Respondent’s reasons for firing her were pretextual. See Issenbergh v. Knight-Ridder Newspaper Sales, Inc., 97 F.3d 436, 444 (11th Cir. 1996)(“Conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination where [a defendant] has offered extensive evidence of legitimate, non-discriminatory reasons for its actions.”)(quoting Young v. General Food Corp., 840 F.2d 825, 830 (11th Cir. 1988)(“Once a legitimate, non-discriminatory reason for dismissal is put forth by the employer, the burden returns to the plaintiff to prove by significant probative evidence that the proffered reason is a pretext for discrimination.”)
Moreover, it is not the role of the courts to second- guess an employer’s business judgment. In Chapman v. AI Transport, 229 F.3d 1012, 1031 (11th Cir. 2000), the 11th Circuit reiterated that:
[f]ederal courts do not sit as a super- personnel department that reexamines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, the ADEA does not interfere. Rather our inquiry is limited to whether the employer gave an honest explanation of its behavior.
See also Elrod v Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991); Nix v. WLCY Radio-Rahall Communications, 738 F.2d 1181, 1187 (11th Cir. 1984)(An “employer may fire an employee for a good reason, a bad reason, a reason based on erroneous facts, or for no reason at all, as long as its action is not for a discriminatory reason.”).
Accordingly, Petitioner failed to prove her ultimate burden that Respondent fired her due to her race. Respondent had legitimate, non-discriminatory reasons for firing Petitioner. The greater weight of the evidence indicates that Respondent did not commit an unlawful employment practice.
RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 3rd day of August, 2005, in Tallahassee, Leon County, Florida.
ROBERT S. COHEN
Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 2005.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Rhonda S. Bennett, Esquire Brooks, LeBoeuf, Bennett
Foster & Gwartney, P.A.
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.
