vs. ) Case No. 06-1663
Respondent. )
Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Vero Beach, Florida, on September 6, 2006.
For Respondent: David E. Block
Scott S. Allen Jackson, Lewis, LLP One Biscayne Tower
The issue is whether Respondent is guilty of discrimination in employment based on race, in violation of Section 760.10(1), Florida Statutes.
By Charge of Discrimination dated May 21, 2005, Petitioner alleged that Respondent discriminated against her in employment based on her race, black. The Charge of Discrimination alleges that Respondent did not restore Petitioner's schedule when she returned from approved medical leave in January 2005, although Respondent restored the schedules of four named white nurses and aides when they returned from medical leave; and Respondent terminated Petitioner's employment on April 13, 2005, approximately eight days after Petitioner assisted another black nurses' aide administer a physician-ordered medication to an agitated patient, although Respondent did not terminate white nurses and aides when they were involved in serious patient incidents, including death.
On March 30, 2006, the Florida Commission on Human Relations entered a Notice of Determination: No Cause.
On May 4, 2006, Petitioner filed a Petition for Relief. In the petition, she alleged that Respondent terminated her because she had cancer and she could not do her job. The petition alleges that Respondent terminated her because she had held down a patient, so the charge nurse could give her a physician- ordered injection to calm down the patient. The petition alleges that Respondent improperly changed her schedule after her return from medical leave. The petition alleges that
Petitioner contacted the corporate office about a nurse who had harassed her, but fails to explain more.
At the start of the hearing, Petitioner requested a continuance so that she could hire an attorney. However, she failed to show good cause why she had not already retained counsel in the four and one-half months that the case had been pending at the Division of Administrative Hearings, so the Administrative Law Judge denied the request.
At the hearing, Petitioner called three witnesses and offered into evidence no exhibits. Respondent called six witnesses and offered into evidence ten exhibits: Respondent Exhibits 1 (pages 15-16, as marked by Respondent), 2 (pages 396-97, as marked by Respondent), 3, 4, 5 (page 283, as marked
by Respondent), 6, 7, 8 (not for truth), 9 (not for truth), 10 (not for truth, except as marked on exhibit), 11 (page 106, as marked by Respondent--not for truth, except as marked on exhibit), 11 (page 110, as marked by Respondent--not for truth, except as marked on exhibit), 12 (not for truth), 13 (not for truth), 14 (page 439, as marked by Respondent), Composite 15, and 16-19. All exhibits were admitted.
The parties did not order a transcript. Respondent filed a Proposed Recommended Order on September 26, 2006. Petitioner did not file a proposed recommended order.
Respondent owns and operates Indian River Estates, which is an adult community in which residents live independently, in an assisted living facility, or in a medical/nursing facility, as their needs dictate at various times. At all material times, Petitioner, who is black, worked as a certified nursing assistant in the medical/nursing facility.
The medical/nursing facility at Indian River Estates comprises three units: the East unit (also known as an acute unit), the Alzheimer's unit, and the South unit. The South unit contains a maximum of 24 beds.
Petitioner was first employed at Indian River Estates in June 1999 as a per diem certified nursing assistant. In September 2000, she became a fulltime certified nursing assistant.
At one point, Petitioner worked in the East unit, but asked for a transfer because she had felt that a supervising nurse had been "harassing" her. Petitioner provided no other details in support of this assertion. As a result of Petitioner's complaint, Respondent transferred her to the South unit.
The record provides no basis for a finding of unlawful discrimination in the treatment that Petitioner received from her supervisor in the East unit.
In June 2004, shortly after being transferred to the South unit, Petitioner began a medical leave of absence. She returned to work in January 2005.
Because Petitioner was out of work considerably in excess of 12 weeks, Respondent filled her fulltime position with a new employee. Pursuant to its employee policies, which are consistent with the federal Family and Medical Leave Act, Respondent guarantees a person's job only when the employee takes no more than 12 weeks of leave within a 12-month period. When Petitioner was ready to return to work in January 2005, her old job was no longer available. However, Respondent re-hired her as a per diem certified nursing assistant and returned her to fulltime status when an opening occurred.
Petitioner cites several other white employees whom, she claims, Respondent treated preferably when they took medical leave. However, each of their cases is distinguishable. One returned from medical leave within 12 weeks. Two were granted brief extensions of the 12 weeks, but never returned to work. The last was granted a three-week extension of the 12 weeks, but returned to work after the extension expired; however, he regained his old job because Respondent had not yet filled it.
Although Petitioner has provided a little more detail concerning her return to work from medical leave than she did about her harassment claim, again, the record provides no basis for a finding of unlawful discrimination in the handling of her medical leave or the reassignment of job duties following her subsequent re-hiring.
While working in the South unit, Petitioner served as one of two certified nursing assistants. A licensed practical nurse served as the immediate supervisor of the two certified nursing assistants. The licensed practical nurse reported directly to the director of nursing at Indian River Estates.
On April 5-6, 2005, Petitioner worked the shift from
11 p.m. to 7 a.m. B. H. was an 88-year-old resident, who was new to the South unit. A former nurse herself, B. H. sometimes lived in the medical unit, when her condition required, but at other times lived in an apartment upstairs, when her condition permitted. B. H.'s diagnoses included a history of breast cancer and functional decline. B. H. was in hospice care as of April 6, 2005.
Nurses Progress Notes on April 4, 2005, indicate that
B. H. was resisting her prescribed medications, but would take them after repeated persuasion. At 6:00 p.m. on April 5, B. H. received her normal administration of Ativan, which is a mild tranquillizer, from the licensed practical nurse then on duty.
When Petitioner and her coworkers started arriving around 10:30 p.m. for the next shift, they found B. H. in an agitated state. Petitioner and the other certified nursing assistant working the 11-7 shift informed Francine Scott, who was the licensed practical nurse for this shift, that B. H. was unsettled. Ms. Scott advised the certified nursing assistants to place the bed alarm so that they could monitor B. H. more easily.
Despite repeated efforts of the two certified nursing assistants, B. H. remained agitated. On one occasion, one of the certified nursing assistants found B. H. had half climbed out of her bed and was at risk of injuring herself. The certified nursing assistants told Ms. Scott that they needed to do something more to settle down B. H., and Ms. Scott told them to bring her from her room to the desk. When she saw B. H., Ms. Scott observed that B. H. was bleeding from wounds to both lower legs, evidently from thrashing in her bed. Ms. Scott tried to apply a dressing to a leg wound, but B. H. declined treatment. Ms. Scott offered B. H. some Ativan orally, but B. H. refused to take it, so Ms. Scott left her alone at the front desk and returned to her work.
About an hour later, Ms. Scott asked B. H. what had happened. B. H. responded by screaming, "don't touch me," "police," "help," and "I want to go home." Staff from the East
unit came to the South unit to find out what was wrong.
Ms. Scott directed a certified nursing assistant to take B. H. to a nearby activity room, from which B. H. would less likely disturb other residents.
Ms. Scott telephoned B. H.'s physician and reported that B. H. was agitated and cut, but had refused wound treatment and Ativan. Ms. Scott told the physician that she needed help, and the physician ordered Ativan administered by injection.
At about 3:00 a.m., Ms. Scott informed B. H. that her physician had ordered the Ativan to help her calm down.
Ms. Scott administered Ativan intramuscularly to B. H. Due to the size of the needle, Ms. Scott had to administer two injections in order to administer the prescribed dosage. B. H. did not want to take the injections. While Ms. Scott was trying to administer the injections, B. H. swung her arms from side to side, while seated in her wheelchair. Ms. Scott directed Petitioner to restrain B. H., so Ms. Scott could administer the injections. At times standing and at times seated next to B. H., Petitioner pinned down B. H.'s arms, so they were folded across her chest, while Ms. Scott injected the Ativan. At one point, B. H. bit Petitioner on her left forearm, leaving bite marks.
B. H. remained agitated through the rest of the night, but, by breakfast that day, she had calmed down, as her
husband had come to the unit to help calm her. By the afternoon, B. H. was taking her Ativan voluntarily and allowed a hospice nurse to dress her leg wounds. Later on April 6 or the following day, B. H. complained about the treatment that she had received from Ms. Scott and Petitioner. Respondent initiated an investigation that resulted in the immediate suspension of
Ms. Scott and Petitioner and their eventual termination for violating B. H.'s right to refuse treatment and other rights.
At all material times, Respondent maintained a written policy enumerating residents' rights. Paragraph 6 recognizes:
The right to be adequately informed of his/her medical condition and proposed treatment, unless otherwise indicated by the Resident's Physician; to participate in the planning of all medical treatment, including the right to refuse medication and treatment unless otherwise indicated by the Resident's Physician; and to know the consequences of such actions.
Paragraph 9 recognizes:
The right to be treated courteously, fairly, and with the fullest measure of dignity and to receive a written statement and an oral explanation of the services provided by the Licensee, including those required to be offered on an as-needed basis.
Paragraph 10 recognizes:
The right to be free from mental and physical abuse and from physical and chemical restraints, except those restraints authorized in writing by a Physician for a
specified and limited period of time or as are necessitated by an emergency. In case of an emergency, restraints may be applied only by a qualified Licensed Nurse who shall be [sic] set forth in writing the circumstances requiring the use of restraints; and in the case of use of a chemical restraint, a Physician shall be consulted immediately thereafter.
Restraints may not be used in lieu of staff supervision or merely for staff convenience, for punishment, or for reasons other than Resident protection or safety.
It is doubtful that Respondent's statement of residents' rights prohibits the administration of Ativan without
B. H.'s consent or the nonabusive touching of B. H. to administer the Ativan. Paragraph 6 is probably inapplicable because the physician, knowing that B. H. had refused the medication, directed the administration of Ativan. Paragraph 9 is probably inapplicable. Although Petitioner's handling of B.
H. was rough-handed, B. H. had already injured herself while in her bed, had risked even greater injury while trying to climb out of her bed, and had disrupted the South unit and part of the East unit, so the administration of Ativan had acquired a degree of urgency for the welfare of B. H. and the welfare of other residents. Paragraph 10 appears to have required a prior written authorization from the physician for the use of Ativan, but not in an emergency, and the above-described scenario at least approached qualifying as an emergency. Paragraph 10 imposes a burden on the licensed practical nurse when using
restraints--probably, physical restraints--to document the use and necessity. Paragraph 10 imposes a burden to consult a physician immediately after using a chemical restraint. It is unlikely that Petitioner violated this provision because: 1) Ms. Scott consulted with the physician before using a chemical restraint and 2) the burden of consultation falls on the person using the restraint--Ms. Scott--not her subordinate, who merely follows her direction.
However, as noted in the Conclusions of Law, B. H. had a clear right to refuse the Ativan, regardless of the direction of her physician. And Ms. Scott and Petitioner violated that right.
Likewise, B. H. obviously has a right not to be physically abused, and the marks that Petitioner left on B. H.'s arms at least raise a legitimate fact question of such abuse.
Respondent undertook a prompt, fair, and reasonably thorough investigation. The Department of Children and Family Services was contacted about possible abuse. The agency investigator told Respondent's staff that B. H.'s rights had been violated. Respondent's staff reached the same conclusion.
Finding that Petitioner had violated B. H.'s rights, Respondent had a legitimate reason to terminate Petitioner, as it did Ms. Scott. Petitioner failed to produce any evidence
whatsoever of a racial motive and has thus failed to prove that the reason cited by Respondent is pretextual.
Petitioner's scant effort to show preferential treatment to other similarly situated employees failed to provide a basis on which to infer race discrimination. Petitioner testified that she had heard of employees who had abandoned a patient, who then died, but Respondent never fired the employees. However, Petitioner offered no direct evidence of this event. Absent detailed evidence of this alleged incident, it is impossible to use this briefly mentioned incident for the purpose for which Petitioner offers it.
As noted above, the record does not support Petitioner's allegations of racial discrimination in harassment from a supervisor on the East unit or in the reassignment of duties following her return from an extended leave of absence. Implicitly abandoning these claims, Petitioner testified that her sole claim of racial discrimination involves her termination for her role in the B. H. incident. Thus, Petitioner did not try to prove racial discrimination in Respondent's handling of the B. H. incident by proving other instances of racial discrimination by Respondent--she admitted that there was none.
The record contains no evidence whatsoever of unlawful discrimination based on any illness of Petitioner.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569, 120.57(1), and 760.11(6), Fla. Stat. (2006).
Section 760.10(1), Florida Statutes, prohibits an employer from discharging, failing or refusing to hire, or otherwise discriminating against an employee on the basis of race or handicap, among other things.
Under federal law, nursing home residents have the right to refuse treatment. 42 C.F.R. § 483.10(b)(4). Under Florida law, nursing home residents have the right to refuse medication or treatment. § 400.022(1)(k), Fla. Stat.
Petitioner produced no evidence whatsoever to support her claim that she was fired because she had or has cancer. She produced no evidence on her claims of racial discrimination pertaining to her claims of harassment in the East unit or reassignment of job duties following her return to work after an extensive leave of absence. To the contrary, she implicitly withdrew these two other claims of race discrimination when she testified the B. H. incident was the sole instance of race discrimination.
The record does not establish that Petitioner's position was filled by a white person. However, even without regard to whether Petitioner has made out a prima facie case of
racial discrimination concerning her discharge for her role in the B. H. incident, she has failed to carry her burden of proof under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). In the allocation of the burden of production in a discriminatory-treatment case, the Supreme Court anticipated that the plaintiff would attempt to prove a prima facie case of discrimination, then the defendant would attempt to prove a legitimate purpose for its action, and then the plaintiff would attempt to prove that the proffered purpose was pretextual and that unlawful discrimination was the real reason for the complained-of action, such as discharge.
Here, assuming the existence of a prima facie case, Respondent has shown a legitimate reason for terminating Petitioner's employment, and Petitioner has failed to prove that the real reason was racial.
RECOMMENDED that the Florida Commission of Human Relations enter a final order dismissing the Petition for Relief.
DONE AND ENTERED this 27th day of October, 2006, in Tallahassee, Leon County, Florida.
ROBERT E. MEALE
Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2006.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
David E. Block Scott S. Allen Jackson, Lewis, LLP One Biscayne Tower
15 days from the date of this recommended order. Any exceptions to this recommended order must be filed with the agency that will issue the final order in this case.
