vs.
Respondent.
) Case No. 05-2996
Pursuant to notice, a final hearing was held in this case on October 4, 2005, in Haines City, Florida, before T. Kent Wetherell, II, the designated Administrative Law Judge of the Division of Administrative Hearings.
The issue is whether Respondent committed an unlawful employment practice against Petitioner when it fired her in March 2004.
Through a Notice of Determination dated July 20, 2005, the Florida Human Relations Commission (Commission) advised the parties of its determination that there is reasonable cause to believe that Respondent, Heart of Florida Care, Inc. d/b/a Hampton Court of Haines City (Hampton Court), committed an unlawful employment practice against Petitioner when it fired her in March 2004. On August 18, 2005, Petitioner filed a Petition for Relief (Petition) with the Commission.
On August 22, 2005, the Commission referred the Petition to the Division of Administrative Hearings (DOAH) for the assignment of an administrative law judge to conduct a hearing on the Petition. The final hearing was scheduled for and held on October 4, 2005.
Hampton Court was represented at the hearing by Kenneth Wilder. Mr. Wilder is not a lawyer. He was authorized at the hearing to serve as Hampton Court’s qualified representative. See Fla. Admin. Code R. 28-106.106.
Petitioner testified at the hearing in her own behalf and also presented the testimony of Dorothy Pelemon. Petitioner did not offer any exhibits. Hampton Court presented the testimony of Mr. Wilder. Hampton Court’s Exhibits R1 through R4 were received into evidence.
No Transcript of the hearing was filed with DOAH. The parties were given 10 days from the date of the hearing to file proposed recommended orders (PROs). Petitioner did not file a PRO. Respondent's PRO was filed on October 17, 2005, and has been given due consideration.
Petitioner is an African-American female.
Hampton Court is assisted living facility in Haines City, Florida. Its residents include elderly Medicaid recipients.
Kenneth Wilder is the executive director of Hampton Court. Mr. Wilder is a white male.
Mr. Wilder has approximately nine years of experience administering assisted living facilities, and at the time of the events giving rise to this proceeding, he had been the executive director of Hampton Court for approximately a year and a half.
Petitioner’s immediate supervisor was Dorothy Pelemon.
Ms. Pelemon, like Petitioner, is an African-American female.
Petitioner was hired by Hampton Court as a Resident Care Aide in early February 2004. Her primary job duties in that position were providing direct care to Hampton Court residents. Petitioner’s salary was $7.50 per hour, and she typically worked 40 hours per week.
Several weeks after she was hired, Petitioner was promoted to the position of Resident Care Manager. In that position, Petitioner still provided direct care to Hampton Court residents, but she also had some supervisory duties.
Petitioner only held the Resident Care Manager position for two or three weeks. On March 10, 2004, she was demoted back to the position of Resident Care Aide for improperly transcribing medications on patient charts and for improperly assisting a patient with his medications.
On Saturday, March 20, 2004, Petitioner was involved in an altercation with another employee, Ivette Rodriguez.
Ms. Rodriguez is a Puerto-Rican female. She was re- hired as a Resident Care Aide at Hampton Court in early March 2004, after having been fired approximately six months earlier for excessive tardiness and absenteeism.
The altercation between Petitioner and Ms. Rodriguez was the culmination of a series of disputes that the two had on March 20, 2004. According to Petitioner, the disputes started when Ms. Rodriguez got agitated with her when she took responsibility for the upstairs residents, who had fewer medications, and left Ms. Rodriguez with the downstairs residents, who had more medications. According to Petitioner, Ms. Rodriguez also got agitated with her later in the day for not taking a phone message. Petitioner also testified that she
was agitated with Ms. Rodriguez for taking breaks and receiving numerous phone calls while “on the clock.”
According to Petitioner, the altercation that led to her firing started when she observed Ms. Rodriguez writing in the “manager’s log” at the nursing station. Petitioner told Ms. Rodriguez that she was not allowed to write in the log and Ms. Rodriguez got upset.
Petitioner and Ms. Rodriguez exchanged words, and at one point during the altercation, Petitioner told Ms. Rodriguez that “you don’t know who you’re dealing with,” or words to that effect, and she expressly threatened to send Ms. Rodriguez to the hospital.
Petitioner did not follow through on the threat, and there was no physical contact between her and Ms. Rodriguez at any point during the altercation. The altercation was entirely verbal and never went beyond Petitioner and Ms. Rodriguez yelling at each other.
The altercation was witnessed by other employees and by Hampton Court residents, and according to the “write-ups” given to Petitioner and Ms. Rodriguez, the altercation “created a hostile living environment for [the residents].”
Petitioner and Ms. Rodriguez were separated for the remainder of the day, and there were no further incidents between the two.
Neither Mr. Wilder, nor Ms. Pelemon was at the facility at the time of the altercation between Petitioner and Ms. Rodriguez.
Mr. Wilder and Ms. Pelemon conducted an investigation into the altercation the following week. Based upon the investigation, they preliminarily decided that both Petitioner and Ms. Rodriguez should be fired and “write-ups” were prepared to effectuate that discipline.
The “write-up” for Petitioner contains the following account of the altercation:
On March 20, 2004, [Petitioner] was involved in an altercation with co-worker Ivette Rodriguez. The altercation resulted when [Petitioner] took control of the upstairs med cart instead of the one she was supposed to take control of. [Petitioner] refused to cooperate and escalated the level of aggression in the fight making threats such as, “I’ll send to you Heart of Florida Hospital!” . . . .
The “write-up” for Ms. Rodriguez contains the following account of the altercation:
On March 20, 2004, [Ms. Rodriguez] was involved in an altercation with co-worker [Petitioner]. The shouting and fighting took place in public areas and was witnessed by co-workers and residents. [Ms.
Rodriguez] also had her brother-in-law come to the community to get involved by confronting [Petitioner]. . . . .
The source of the accounts of the altercation in the “write-ups” is not entirely clear and, as a result, the findings
made above regarding the altercation are based on Petitioner’s testimony at the hearing rather than the accounts in the “write- ups”. (It is noted, however, that the “write-up” given to Petitioner and her testimony at the hearing both make reference to her express threat of physical violence towards Ms.
Rodriguez.)
Mr. Wilder and Ms. Pelemon met with Ms. Rodriguez on March 24, 2004, to discuss the altercation. Ms. Rodriguez was given an opportunity to tell her side of the story and to explain her actions. In doing so, Ms. Rodriguez acknowledged that her actions were wrong, she expressed remorse for her role in the altercation, and she promised that it would not happen again.
Based upon the remorse expressed by Ms. Rodriguez, Mr.
Wilder and Ms. Pelemon agreed that Ms. Rodriguez should be suspended for one week rather than be fired. The “write-up” prepared in advance of the meeting was edited to change Ms. Rodriguez’s discipline from termination to “1 week suspension from 3/24/04 to 3/30/04.”
Mr. Wilder and Ms. Pelemon met with Petitioner the following day, March 25, 2004, to discuss the altercation. Like Ms. Rodriguez, Petitioner was given an opportunity to tell her side of the story and to explain her actions, but unlike Ms. Rodriguez, Petitioner expressed no remorse for her actions and,
according to Mr. Wilder, she was loud and acted aggressively during the meeting.
Petitioner and Ms. Pelemon testified that Petitioner did not act aggressively during the meeting but, consistent with Mr. Wilder’s testimony, they acknowledged that Petitioner did speak in a loud voice at the meeting and that she never expressed any remorse for her involvement in the altercation with Ms. Rodriguez.
Based upon the lack of remorse expressed by Petitioner regarding her role in the altercation, Mr. Wilder and Ms. Pelemon agreed that the preliminary recommendation of termination should stand for Petitioner, and her employment with Hampton Court was terminated on March 25, 2004.
Ms. Pelemon testified that she fully supported the decision to fire Petitioner for her role in the altercation with Ms. Rodriguez and, consistent with Mr. Wilder’s testimony, Ms. Pelemon testified that race played no part in Petitioner’s termination. Ms. Pelemon also testified that she fully supported the decision to suspend Ms. Rodriguez rather than fire her based upon the remorse that she expressed for her role in the altercation.
Petitioner started working for Wal-Mart in May 2004, and she is still working there. She is paid $15.10 per hour and she typically works 36 hours per week.
Ms. Rodriguez was fired by Hampton Court in August 2004 for poor work performance.
CONCLUSIONS OF LAW
DOAH has jurisdiction pursuant to Sections 120.569, 120.57(1), and 760.11(6), Florida Statutes (2004).
Section 760.10(1)(a), Florida Statutes (2004), which is part of the Florida Civil Rights Act of 1992 (Act), provides that it is an unlawful employment practice for an employer:
[t]o discharge or to fail or 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, . . . .
The Act was patterned after Title VII of the Civil Rights Act of 1964 and, as a result, case law construing Title VII is persuasive when construing the Act. See, e.g., Florida
State University v. Sondel, 685 So. 2d 923, 925 n.1 (Fla. 1st DCA 1996); Brand v. Florida Power Corporation, 633 So. 2d 504,
509 (Fla. 1st DCA 1994); Department of Community Affairs v.
Bryant, 586 So. 2d 1205, 1209 (Fla. 1st DCA 1991).
Petitioner’s discrimination claim is not based upon any direct evidence of discrimination, which is:
evidence which, if believed, would prove the existence of a fact in issue without inference or presumption. Only the most blatant remarks, whose intent could be nothing other than to discriminate . . . constitute direct evidence of
discrimination. For statements of discriminatory intent to constitute direct evidence of discrimination, they must be made by a person involved in the challenged decision. Remarks by non-decisionmakers or remarks unrelated to the decisionmaking process itself are not direct evidence of discrimination.
Bass v. Board of County Commissioners, 256 F.3d 1095, 1105 (11th Cir. 2001) (citations omitted).
As a result, Petitioner’s claim must be analyzed under the framework established by the United States Supreme Court in McDonnell Douglass Corporation v. Green, 411 U.S. 792 (1973), and Texas Department of Community Affairs v. Burdine, 450 U.S.
248 (1981), and reaffirmed and refined in St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). See also Reeves v. Sanderson Plumbing Products, 530 U.S. 133 (2000).
Under that framework, Petitioner has the initial burden to establish a prima facie case of unlawful discrimination. See St. Mary's Honor Center, 509 U.S. at 506.
In order to establish a prima facie case of wrongful termination, which is the essence of Petitioner’s discrimination claim, Petitioner must present evidence that: (1) she belongs to a group protected by the Act; (2) she was qualified for the job from which she was discharged; (3) she was discharged; and (4) her former position was filled by a person outside of her protected class or that she was disciplined differently than a
similarly-situated employee outside of her protected class. See Jones v. Lumberjack Meats, Inc., 680 F.2d 98, 101 (11th Cir.
1982); Scholz v. RDV Sports, Inc., 710 So. 2d 618, 623 (Fla. 5th DCA 1998); Cesarin v. Dillards, Inc., Order No. 03-037 (FCHR Apr. 29, 2003) (adopting the Recommended Order in DOAH Case No. 01-4805, but clarifying what must be established as the first element of the prima facie case).
If Petitioner establishes a prima facie case, the burden shifts to Hampton Court to produce evidence that the adverse employment action was taken for legitimate non- discriminatory reasons. St. Mary's Honor Center, 509 U.S. at 506-07. If Petitioner fails to establish a prima facie case, the burden never shifts to Hampton Court.
Once a non-discriminatory reason is offered by Hampton Court, the burden shifts back to Petitioner to demonstrate that the proffered reason is merely a pretext for discrimination, or stated another way, that the proffered reason is “false” or “unworthy of credence” and that the real reason for Hampton Court's decision to fire her was her race. Id. at 507-08, 515- 17.
The ultimate burden of persuasion remains with Petitioner throughout the case to demonstrate a discriminatory motive for the adverse employment action, id. at 508, 510-11, and proof that "the employer's proffered reason is unpersuasive,
or even obviously contrived, does not necessarily establish that the [Petitioner’s] proffered reason [of discrimination] . . . is correct." Id. at 524. In this regard, "[i]t is not enough ... to dis believe the employer; the factfinder must believe the [Petitioner’s] explanation of intentional discrimination." Id. at 519 (emphasis in original).
Applying these standards to the facts of this case, it is concluded that Petitioner failed to establish a prima facie case. She established the first three elements, but she failed to establish that she was treated less favorably than a similarly-situated employee outside of her protected class.
For an employee to be considered similarly-situated to Petitioner, she must be similar “in all relevant respects.” See Department of Children & Family Servs. v. Garcia, 2005 WL 2030310, at *2 (Fla. 3d DCA Aug. 24, 2005) (citing cases). Specifically,
it is necessary to consider whether the employees are involved in or accused of the same or similar conduct and are disciplined in different ways. The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed. We require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second-guessing employers' reasonable decisions and confusing apples with oranges.
Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir. 1999) (citations omitted).
Under this exacting standard, Ms. Rodriguez is not similarly-situated to Petitioner. Indeed, even through Ms. Rodriguez and Petitioner were involved in the same verbal altercation, there was no credible evidence that Ms. Rodriguez threatened to send Petitioner to the hospital (as Petitioner did to Ms. Rodriguez) and, unlike Ms. Rodriguez, Petitioner expressed no remorse for her role in the altercation when given the opportunity to do so.
Even if Petitioner had established a prima facie case, she failed to meet her ultimate burden of persuasion because she failed to prove that the reasons given by Hampton Court for her firing and for the less severe discipline imposed on Ms. Rodriguez were “false,” “unworthy of credence,” or otherwise pretextual.
Indeed, Petitioner did not dispute that she was involved in a verbal altercation with a co-employee in the presence of Hampton Court residents or that she threatened the co-employee with physical harm, which are the grounds upon which Hampton Court fired her. Moreover, the preponderance of the evidence establishes that Ms. Rodriguez received less severe discipline for her role in the altercation because, unlike
Petitioner, Ms. Rodriguez expressed remorse for her actions and acknowledged that they were wrong.
In sum, there is absolutely no credible evidence that Hampton Court’s decision to fire Petitioner was based upon her race rather than her conduct, nor is it reasonable to infer such discriminatory intent from Ms. Rodriguez being suspended rather than being fired. There are material differences between Petitioner and Ms. Rodriguez in relation to their conduct in the altercation and the remorse they showed after the altercation, and Ms. Pelemon (who is the same race as Petitioner) and Mr. Wilder credibly testified that race played no role in the decisions.
RECOMMENDED that the Commission issue a final order dismissing with prejudice Petitioner’s discrimination claim against Hampton Court.
DONE AND ENTERED this 25th day of October, 2005, in Tallahassee, Leon County, Florida.
T. KENT WETHERELL, II Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2005.
Cecil Howard, General Counsel Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk 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.
