vs.
Respondent.
) Case No. 05-2599
September 16, 2005, in Tallahassee, Florida, before Suzanne F. Hood, Administrative Law Judge with the Division of Administrative Hearings.
For Respondent: Mark E. Levitt, Esquire
Allen, Norton & Blue, P.A.
The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on her race contrary to Section 760.10, Florida Statutes (2005).
On June 15, 2004, Petitioner Dorina Smith (Petitioner) filed an Employment Complaint of Discrimination with the Florida Commission on Human Relations (FCHR). Said complaint alleged that Respondent Delta Health Group, d/b/a Brynwood Nursing (Respondent) has discriminated against Petitioner based on her race.
On June 15, 2005, FCHR issued a Determination: No Cause. On July 12, 2005, Petitioner filed a Petition for Relief. On July 20, 2005, FCHR referred the petition to the Division of Administrative Hearings.
A Notice of Hearing dated August 2, 2005, scheduled the hearing for September 16, 2005.
During the hearing, Petitioner testified on her own behalf and offered one exhibit that was accepted as evidence.
Respondent presented the testimony of one witness and offered one exhibit that was accepted as evidence.
The court reporter filed the Transcript on October 3, 2005.
As of the date that this Recommended Order was issued, Petitioner had not filed proposed findings of fact or conclusions of law. Respondent filed a Proposed Recommended Order on October 13, 2005.
Respondent is an employer as defined in Section 760.027, Florida Statutes (2005).
Petitioner is an African-American female. At all times relevant here, Petitioner worked full-time as a floor technician (floor tech) at Respondent's nursing home facility. As a floor tech, Petitioner was responsible for dusting, mopping and buffing the floors.
At all relevant times, Cheryl Johnson was Respondent's facility administrator. Ms. Johnson has held that position since December 2002.
In May 2003, Petitioner asked Ms. Johnson if she could receive her paycheck early. Petitioner was aware that
Ms. Johnson had given an early paycheck to a nurse. The record does not reveal the nurse's race.
Ms. Johnson refused to give Petitioner the early paycheck. Ms. Johnson admitted that she had made a mistake in giving the nurse an early paycheck. Ms. Johnson stated that she would not violate Respondent's policy against early paychecks again. Petitioner filed a grievance, claiming that Ms. Johnson was not being fair.
Sometime thereafter, Ms. Johnson gave an early paycheck to a dietary employee. The dietary employee was an African- American. With regard to early paychecks, there is no evidence
that Ms. Johnson ever gave preferential treatment to employees who were not members of a protected group.
In October 2003, Sue Goldfarb was Petitioner's supervisor. Ms. Goldfarb criticized Petitioner because Petitioner was spending too much time in the Activities Room. Petitioner complained to Ms. Johnson and filed two grievances, claiming that she was being treated unfairly. According to Petitioner, Ms. Goldfarb and a medical records clerk, Pam Brock, did not get into trouble for spending time in the Activities Room.
Ms. Johnson explained that Petitioner could assist in the Activities Room, but only after she completed her floor tech duties. There is no evidence that Respondent ever allowed employees to assist in the Activities Room before they completed their regularly assigned duties. Petitioner did not suffer any adverse consequences as a result of Ms. Goldfarb's criticism.
At some point in time, Respondent informed all housekeepers, including Petitioner, that their hours were being cut from seven-and-a-half hours per day to six-and-a-half hours per day. Respondent also informed the housekeepers that they would not be eligible for overtime hours. Respondent took these actions because the facility's "census" (number of residents) was low.
In February 2004, Ms. Johnson decided to redecorate the Activity Room as a special weekend project. Ms. Johnson requested Gary Brock, Pam Brock's husband and a maintenance man for the facility, to work over the weekend to complete project. Ms. Johnson also requested Ms. Brock to assist with the project because Ms. Brock recently had been short on hours.
Thereafter, Petitioner impermissibly reviewed a document on a supervisor's desk. The document indicated that Ms. Brock, the medical records clerk, received three hours of overtime on the weekend of the special project. Petitioner copied the document and returned the original to the supervisor's desk. Petitioner admitted during the hearing that she was not supposed to be looking at documents on the supervisor's desk.
In February 2004, Petitioner filed a grievance, complaining that Ms. Brock had received overtime. Petitioner thought it was unfair for Ms. Brock, a medical records clerk, to receive overtime hours, while the housekeepers had their hours reduced. There is no evidence that Petitioner was treated any differently than any other housekeeper.
At some point in time, Petitioner complained to Ms. Johnson and filed a grievance that Ms. Goldfarb was not doing her job. After receiving Petitioner's complaint,
Ms. Johnson decided to obtain a statement from each housekeeper as to whether they had any concerns regarding Ms. Goldfarb.
In March 2004, Ms. Johnson temporarily held all of the housekeepers' paychecks. She requested the housekeepers to visit her office, render their opinions about the housekeeping supervisor, and collect their checks.
Petitioner, like all of the housekeepers had to visit Ms. Johnson's office to pick up her paycheck. While she was there, Petitioner signed a statement, indicating that
Ms. Goldfarb did not treat her fairly.
Subsequently, Petitioner filed a grievance, complaining, in part, because Ms. Johnson held the paychecks for the entire housekeeping department. There is no evidence that Petitioner was treated any differently than any other housekeeper.
At the end of March 2004, Petitioner had a confrontation with a co-worker, Robert Goldfarb. Mr. Goldfarb was Sue Goldfarb's husband.
The altercation occurred after Mr. Goldfarb walked across a wet floor that Petitioner had just mopped.
Mr. Goldfarb had to walk across the wet floor to get to the restroom.
Petitioner and Mr. Goldfarb cursed at each other and engaged in a shouting match. Petitioner filed a grievance about
the incident. Respondent did not discipline Petitioner or Mr. Goldfarb for getting into the argument. Petitioner and Mr. Goldfarb have not had a similar exchange since the March 2004 incident.
In September 2004, Petitioner and her supervisor, Ms. Goldfarb, engaged in an argument outside Ms. Johnson's office. Ms. Johnson suspended both employees for three days. After an investigation, Ms. Johnson reinstated Petitioner and Ms. Goldfarb and gave them back pay to make them whole.
Since September 2004, Petitioner has received pay raises. She has not received any write-ups, reprimands, or any other type of discipline. She has not filed any grievances since September 2004.
At the time of the hearing, Ms. Goldfarb was still Petitioner's supervisor. Petitioner was serving as Respondent's Chairperson of the Safety Committee, a position of special trust and responsibility.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this case pursuant to Section 760.11(4)(b), Florida Statutes (2005).
Section 760.10(1)(a), Florida Statutes (2005), prohibits discrimination against any individual with respect to
compensation, terms, conditions, or privileges of employment because of the individual's race.
The Florida Civil Rights Act of 1992 (FCRA), Sections
760.01 through 760.11, Florida Statutes (2005), is patterned after Title VII of the Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq.; therefore, Florida courts have held that decisions construing Title VII are applicable when considering claims under the FCRA. See Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
The employee has the ultimate burden to prove discrimination by direct or indirect evidence. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).
There is no direct evidence of discrimination in this case.
In order to prove a claim of indirect discrimination, an employee must establish a prima facie case by creating an inference of discrimination through circumstantial evidence. See Earley v. Champion International Corporation, 907 F.2d 11077, 1081 (11th Cir. 1990).
Generally, a prima facie case of discrimination based on circumstantial evidence requires an employee to show the following: (a) she is a member of a protected group; (b) she was subjected to an adverse employment action; and (c) she was treated differently than employees who are not members of the protected class with respect to the adverse action. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Weaver v. Tech Data Corporation, 66 F. Supp. 1258, 1259 ( M.D. Fla. 1999).
If an employee proves a prima facie case, the employer then must articulate a legitimate, nondiscriminatory reason for the challenged employment decision. Burdine, 450 U.S. at 254. The employer is required only to "produce admissible evidence, which would allow the trier of fact rationally to conclude that the employment decision had not been motivated by discriminatory animus." Burdine, 450 U.S. at 257.
If the employer produces evidence of a non- discriminatory reason for the adverse action, the burden shifts back to the employee to prove that the employer's reason was a pretext for discrimination. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 503 (1993).
In her attempt to establish race discrimination, Petitioner points to six separate events occurring between May 2003 and September 2004. Applying the McDonnell analysis to each alleged instance of discrimination reveals that Petitioner has failed to establish her prima facie case.
Regarding the May 2003 incident, there is no authority for the proposition that refusal to release a paycheck early constitutes an adverse employment. Even if it were, Petitioner has not demonstrated that she was treated less favorably than her white counterparts. She did not present evidence showing
the race of the nurse who received an early paycheck. She admitted that the dietary employee who received an early paycheck was African-American.
The October 2003 incident involved the time Petitioner spent in the Activities Room. There was no adverse employment action apart from her supervisor's criticism and Ms. Johnson's appropriate instructions for Petitioner to finish her regularly assigned work before assisting in the Activities Room. Petitioner was not reprimanded, written-up, or otherwise disciplined.
Moreover, Petitioner did not present testimony or evidence to establish the race of Ms. Goldfarb or Ms. Brock, both of whom occasionally worked in the Activities Room. Therefore, she has not presented evidence that she was treated less favorably than white employees in this regard.
In February 2004, Ms. Brock, a medical records clerk, worked with her husband, a maintenance employee, on a weekend project to redecorate the Activities Room. Ms. Brock earned about three hours overtime at a time when housekeeping employees had their hours cut and could not earn overtime. As to this complaint, Petitioner has not established that she was treated less favorably than a similarly situated white employee because Ms. Brock, race unknown, was not a housekeeper. Petitioner was treated no differently than other housekeepers.
In March 2004, Petitioner complained about her supervisor, Ms. Goldfarb. As a result of that complaint,
Ms. Johnson held the housekeepers' paychecks in order to take their written statements about Ms. Goldfarb's job performance. Clearly, Ms. Johnson did not take adverse employment action against Petitioner or treat her any differently from white housekeepers.
In March 2004 Petitioner and Mr. Goldfarb got into an argument. Neither employee suffered adverse employment action as a result of the argument. There is no evidence that Petitioner was treated less favorably than a similarly situated white employee because Mr. Goldfarb's race has not been established.
In September 2004, Petitioner and Ms. Goldfarb had a heated disagreement. Both of them were temporarily suspended then reinstated with back pay. Petitioner has not shown how she was treated less favorably that white counterparts who engaged in similar conduct.
Petitioner has not shown that Respondent discriminated against her based on her race.
Citing Sections 57.105 and 120.695, Florida Statutes (2005), Respondent requests an award of costs and attorney's fees for the first time in its Proposed Recommended Order. However, the more specific provisions of Sections 760.11(6) and
760.11(7), Florida Statutes (2005), state as follows in relevant part:
Any administrative hearing brought pursuant to paragraph (4)(b) shall be conducted under ss. 120.569 and 120.57. . .
. If the administrative law judge, after the hearing finds that a violation of the Florida Civil Rights Act of 1992 has occurred, the administrative law judge shall issue an appropriate recommended order in accordance with chapter 120 prohibiting the practice and providing affirmative relief from the effects of the practice, including back pay. Within 90 days of the date the recommended or proposed order is rendered, the commission shall issue a final order by adopting, rejecting, or modifying the recommended order as provided under ss.
120.569 and 120.57. In any action or
proceeding under this subsection, the commission, in its discretion, may allow the prevailing party a reasonable attorney's fee as part of the costs. It is the intent of the Legislature that this provision for attorney's fees be interpreted in a manner consistent with federal case law involving a Title VII action.
If the commission determines that there is not reasonable cause to believe that a violation of the Florida Civil Rights Act of 1992 has occurred, the commission shall dismiss the complaint. The aggrieved person may request an administrative hearing under ss. 120.569 and 120.57 . . . If the administrative law judge finds that a violation of the Florida Civil Rights Act of 1992 has occurred, he or she shall issue an appropriate recommended order to the commission prohibiting the practice and recommending affirmative relief from the effects of the practice, including back pay.
. . . In any action or proceeding under this subsection, the commission, in its discretion, may allow the prevailing party a
reasonable attorney's fee as part of the costs. It is the intent of the Legislature that this provision for attorney's fees be interpreted in a manner consistent with federal case law involving a Title VII action.
Until FCHR enters a final order, there is no prevailing party. At that time, FCHR has discretionary authority to consider a request for costs and attorney's fees. Accordingly, Respondent's request for costs and attorney's fees is untimely and cannot be considered here.
That FCHR enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 26th day of October, 2005, in Tallahassee, Leon County, Florida.
SUZANNE F. HOOD
Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2005.
Alvin J. Taylor Delta Health Group
Mark E. Levitt, Esquire Allen, Norton & Blue, P.A.
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
