97-000704 Jayne E. Griffith vs. Beverly Health And Rehabilitation Services, Inc., D/B/A Mount Dora Healthcare Center Status: Closed Recommended Order on Monday, August 18, 1997.

Summary: Petitioner failed to prove prima facie case of racial discrimination. Petitioner's testimony was not credible.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAYNE E. GRIFFITH , )

)

Petitioner , )

)

vs. ) Case No. 97-0704

) FCHR NO. 95-1234

BEVERLY HEALTH AND )

REHABILITATION SERVICES, INC. , )

d/b/a PARK LAKE NURSING AND )

REHABILITATION CENTER , )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, the above-styled matter was heard before

the Division of Administrative Hearings by its duly designated

Administrative Law Judge, Daniel M. Kilbride, on June 13, 1997,

by video conference to Orlando, Florida. The following

appearances were entered:

APPEARANCES

For Petitioner : Jayne E. Griffith, pro se

2018 Gairloch Street

Orlando, Florida 32817

For Respondent : Deborah Gibson, Esquire

Jackson Lewis

390 North Orange Avenue

Suite 1285

Orlando, Florida 32801

STATEMENT OF THE ISSUES

Whether Petitioner was terminated from her position with the

Respondent as a Certified Nurses Assistant ( CNA) on or about

July 1, 1995, on the basis of her race (white), in violation of

Section 760.10(1)(a), Florida Statutes (1995).

PRELIMINARY STATEMENT

The Petitioner filed a Charge of Discrimination with the

Florida Commission on Human Relations (FCHR), charging the

Respondent with employment discrimination. On or about

September 17, 1996, a determination was issued by the FCHR. In a

letter dated September 27, 1996, the Petitioner requested a

hearing and filed a Petition for Relief with the FCHR. This

matter was subsequently referred by FCHR to the Division of

Administrative Hearings for formal hearing de novo on February

10, 1997. Respondent filed a Position Statement. Petitioner

filed a Petition for Relief which did not appear to relate to the

allegation in her earlier charge. Petitioner alleged that she

was physically threatened by an unidentified person who broke her

back and neck. As relief, Petitioner stated that she wanted "to

relieve [her] state record of ‘currently imprisoned for

conviction of a felony’ [and] ‘to comply to a worker's

compensation PA.’” Following discovery, a formal hearing was

held.

At the hearing, Petitioner appeared pro se . The

Administrative Law Judge ruled that the testimony at the hearing

would be limited to issues related to Petitioner’s discharge and

her allegation of discrimination. Petitioner testified in her

own behalf. No exhibits were offered or received in evidence.

The Respondent presented the testimony of three witnesses, and

eight exhibits were received in evidence, plus the deposition

testimony of Kay Vermette, taken June 9, 1997. A transcript was

ordered and was filed on July 2, 1997. The parties were allowed

ten days from the hearing in which to file proposed findings of

fact and conclusions of law. Petitioner had not filed proposed

findings as of the date of this order. Respondent filed proposed

findings on July 14, 1997.

Based upon all of the evidence, the following findings of

fact are determined:

FINDINGS OF FACT

1. The Respondent i s an employer as that term is defined

under the Florida Civil Rights Act of 1992.

2. Petitioner was employed by Respondent as a CNA at Park

Lake Nursing and Rehabilitation Center during the relevant period

of time from April through July, 1995.

3. Petitioner is a white female and a licensed CNA.

4. Kay Vermette (“Vermette”), a white female, was the

Director of Nursing at Park Lake and the department head over the

entire nursing staff during Petitioner’s tenure.

5. Vermette hired Petitioner as a CNA on A pril 18, 1995.

6. Petitioner worked as a CNA at Park Lake for less than

ninety (90) days when she was terminated by Vermette for verbal

abuse of a resident on July 1, 1995.

7. Joyce Donahue (“Donahue”), Assistant Director of Nursing

at Lake Park during Petitioner’s tenure, was the second in charge

of the entire nursing staff. Donahue, a white female, has been a

Registered Nurse (RN) since April, 1990.

8. On June 29, 1995, Mary Taylor (“Taylor”), a Licensed

Practical Nurse, reported to Donahue she heard a loud voice and

crying coming from the room of resident Matteye Samuels

(“Samuels”). Taylor is black.

9. Samuels was a black female and an elderly resident at

Park Lake who needed assistance to perform all normal activities

of daily living (ADL) and could not walk without assistance.

10. As Donahue and Taylor approached Samuels’ room, they

overheard a loud voice which they recognized as Petitioner’s and

loud crying coming from another person.

11. When Donahue and Taylor entered the room, they heard

the resident crying in the bathroom area, where she sat on the

toilet with only a robe draped over her, crying and trembling.

12. Petitioner was very excited and pacing and was talking

in a rapid, jarring, and incoherent fashion. Donahue and Taylor

dressed Samuels and took her to the nurses’ station.

13. Petitioner told Donahue that Samuels had thrown her

around the room.

14. Petitioner yelled at Samuels, “[y] ou are not a Nigger.

I am not a Honky. Those aren’t really Jews. Those aren’t irate

Indians,” while in Samuels’ room.

15. When Donahue entered, Petitioner was pacing back and

forth by the bed saying, “ Nigger, Honky, Jews . . . this is

enough of this.”

16. Donahue told Petitioner to leave the room and wait in

the employee break room.

17. Donahue reported this incident to her superior,

Vermette.

18. Due to the severe nature of the incident, it was

investigated immediately. Petitioner was placed on

administrative leave, pending the investigation’s outcome.

During the investigation, several witnesses came forward with

information confirming the verbal abuse. Each witness provided a

statement concerning her recollection.

19. As an eyewitness to the verbal abuse of Samuels by

Petitioner, Taylor and Sterling Brown, CNA, provided a written

statement detailing her knowledge of the events.

20. Donahue reported her findings to her supervisor,

Vermette, both verbally and in writing. Vermette prepared a

three-page, hand-written report which included the findings of

her investigation, all of which confirmed the verbal abuse of

Samuels by Petitioner.

21. Verbal harassment of a resident is a Category I

violation of Respondent’s disciplinary code. It subjects an

employee to immediate suspension, followed by investigation.

When an investigation confirms that a Beverly employee commits a

Category I offense, the employee is subject to immediate

termination.

22. Petitioner received and signed the June 29, 1995,

Associate Memorandum, which reflects that she was suspended while

Respondent investigated the verbal abuse claims.

23. The allegations of verbal abuse were investigated by

Donahue, a white female, among others. The findings of the

investigation and the proposed discipline (termination) were

approved by Malley, the white female administrator. Petitioner

was terminated by Vermette, a white female, who was the person

who had, in fact, hired her.

24. The three individuals who investigated the allegations

of verbal abuse are white, as Petitioner.

25. Petitioner’s statement regarding her treatment prior to

the incident on June 29, 1995, and her version of the events that

occurred on June 29, 1995, are not credible.

CONCLUSIONS OF LAW

26. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding, and the

parties thereto, pursuant to subsections 120.569 and 120.57(1),

Florida Statutes, and Rule 60Y-4.016(1), Florida Administrative

Code.

27. The State of Florida, under the legislative scheme

contained in Chapter 760, Florida Statutes, incorporates and

adopts the legal principles and precedents established in the

federal anti-discrimination laws specifically set forth under

Title VII of the Civil Rights Act of 1964, as amended. 42 USC

Section 2000e et seq . The Florida law prohibiting unlawful

employment practices is found in Section 760.10, Florida

Statutes. This section prohibits discharge or otherwise to

discriminate against any individual with respect to compensation,

terms, conditions, or privileges of employment because of such

individual's race. (Sec. 760.10(1)(a), F.S.) The Florida

Commission on Human Relations and the Florida courts interpreting

the provisions of the Florida Civil Rights Act of 1992 have

determined that federal discrimination law should be used as

guidance when construing provisions of the Act. 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); Cooper vs. Lakeland Regional Medical

Center , 16 FALR 567, 574 (FCHR 1993).

28. The Supreme Court established, and later clarified, the

burden of proof in disparate treatment cases in McDonnell Douglas

Corp. vs. Green , 411 U.S. 792 (1973) and Texas Department of

Community Affairs vs. Burdine , 450 U.S. 248 (1981) and again in

the recent case of St. Mary's Honor Center vs. Hicks , 509 U.S.

___,113 S.Ct. 2742 (1993). The FCHR has adopted this evidentiary

model. Kilpatrick vs. Howard Johnson Co. , 7 FALR 5468,5475 (FCHR

1985). McDonnell Douglas places upon the Petitioner the initial

burden of proving a prima facie case of racial discrimination.

See also Laroche vs. Department of Labor and Employment Security ,

13 FALR 4121 (FCHR 1991); Davis vs. Humana of Florida, Inc. , 15

FALR 231 (FCHR 1992).

29. Judicial authorities have established the burden of

proof for establishing a prima facie case of discriminatory

treatment. Petitioner must show that:

a. The Petitioner is a member of a protected

group;

b. The employee is qualified for the position;

and

c. The employee was subj ect to an adverse

employment decision (Petitioner was terminated);

d. The position was filled by a person of another

race or that she was treated less favorably than

similarly-situated persons outside the protected class:

e. There must be shown by the evidence that there

is a causal connection between a and c. Canino vs.

EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);

Smith vs. Georgia , 684 F.2d 729, 29 FEP Cases 1134

(11th Cir. 1982); Lee vs. Russell County Board of

Education , 684 F.2d 769, 29 FEP Cases 1508 (11th Cir.

1982), appeal after remand, 744 F.2d 768, 36 FEP Cases

22 (11th Cir. 1984).

30. Proving a prima facie case serves to eliminate the most

common nondiscriminatory reasons for the Plaintiff's disparate

treatment. See Teamsters vs. U.S. , 431 U.S. 324, 358 and n. 44

(1977). It is not, however, the equivalent of a factual finding

of discrimination. It is simply proof of actions taken by the

employer from which discriminatory animus is inferred because

experience has proved that, in the absence of any other

explanation, it is more likely than not that those actions were

bottomed on impermissible considerations. The presumption is

that more often than not people do not act in a totally arbitrary

manner, without any underlying reason, in a business setting.

Furnco Construction Corp. vs. Waters , 438 U.S. 567, 576 (1978).

31. Once the Plaintiff has succeeded in proving all the

elements necessary to establish a prima facie case, the employer

must then articulate some legitimate, nondiscriminatory reason

for the challenged employment decision. The employer is required

only "to produce admissible evidence which would allow the trier

of fact to conclude that the employment decision had not been

motivated by discriminatory animus ." Texas Department of

Community Affairs vs. Burdine , at 257. The employer "need not

persuade the court that it was actually motivated by the

proffered reasons . . . it is sufficient if the [employer's]

evidence raises a genuine issue of fact as to whether it

discriminated against the Plaintiff." Id . at 254-255. This

burden is characterized as "exceedingly light." Perryman vs.

Johnson Products Co., Inc. , 698 F.2d 1138 (11th Cir. 1983).

32. Once the employer articulates a legitimate reason for

the action taken, the evidentiary burden shifts back to the

Petitioner who must prove that the reason offered by the employer

for its decision is not the true reason, but is merely a pretext.

The employer need not prove that it was actually motivated by the

articulated nondiscriminatory reasons or that the replacement was

more qualified than the Petitioner. Texas Department of

Community Affairs vs. Burdine , at 257-8.

33. In Burdine , the Supreme Court emphasized that the

ultimate burden of persuading the trier of fact that the

Respondent intentionally discriminated against the Petitioner

remains at all times with the Petitioner. Texas Department of

Community Affairs vs. Burdine , at 253. The Court confirmed this

principle again in St. Mary's Honor Center vs. Hicks , 509 U.S

502,113 S.Ct. 2742 (1993).

34. In the case sub judice , the Petitioner has failed to

establish that she is a member of a protected class. However,

she has established that she was qualified for the position, at

the time she was hired. The Petitioner has also established that

she was subjected to an adverse employment decision when she was

terminated. However, Petitioner has failed to come forward with

credible evidence that there is a causal connected between her

race and her termination. Petitioner has failed to show that

similarly-situated non-whites received more favorable treatment

under similar circumstances. Petitioner was hired and fired by

Vermette, a white female, while still on probation. Therefore,

there can be no inference of discrimination. Pound vs. Stone ,

945 F.2d 796 (4th Cir.1991). "Whatever the employer's decision-

making process, a disparate treatment claim cannot succeed unless

the employee's protected trait actually played a role in that

process and had a determinative influence on the outcome." Hazen

Paper Co. vs. Biggins , 505 U.S. 604, 113 S.Ct. 1701, 1706 (1993).

This standard requires Petitioner to establish that but for her

protected class and the employer's intent to discriminate she

would not have been terminated. Therefore, the Petitioner has

failed to came forward with sufficient evidence to meet her

initial burden of proof on the issue of racial discrimination.

35. Assuming arguendo that the Petitioner had met her

initial burden, the sequence of presentation of evidence then

required the Respondent to come forward and articulate valid,

nondiscriminatory reasons for the resulting termination decision.

The Respondent has done so. It established by credible evidence

that the Petitioner's bizarre and incoherent behavior was a

danger to the residents of the nursing home and that Respondent

verbally abused a resident of the facility. Respondent could

properly consider this when making employment decisions. See

generally Hale vs. Cuyahoga County Welfare Dept. , ___F.2d___, 51

FEP 1264 (6th Cir. 1989).

36. Petitioner has failed to produce any evidence to

demonstrate that the Respondent's articulated reasons for its

actions in June and July, 1995, were " pretextual."

37. From the testimony and the exhibits, the Petitioner has

failed to carry the burden required by law to establish

discriminatory conduct. There was no credible testimony by any

of the witnesses that the reason for Petitioner's termination was

because of her race, white. Petitioner may not rely on a mere

refutal of the employer's stated reason to establish pretence.

Petitioner must establish that (i) that reason was false and(ii)

discrimination was the motivating factor for the employment

action taken. St Mary's Honor Center vs. Hicks , supra .

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of

law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a Final Order which DENIES the Petition for Relief.

DONE AND ENTERED this 18th day of August, 1997, in

Tallahassee, Leon County, Florida.

_____________________________________

DANIEL M. KILBRIDE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488- 9675 SUNCOM 278-9675

Fax Filing [phone]

Filed with the Clerk of the

Division of Administrative Hearings

this 18th day of August, 1997.

COPIES FURNISHED:

Jayne E. Griffith, pro se

2018 Gairloch Street

Orlando, Florida 32817

Deborah Gibson, Esquire

Jackson Lewis

390 North Orange Avenue

Suite 1285

Orlando, Florida 32801

Sharon Moultry, Clerk

Commission on Human Relations

325 John Knox Road

Building F, Suite 249

Tallahassee, Florida 32303-4149

Dana Baird, General Counsel

Commission on Human Relations

325 John Knox Road

Building F, Suite 249

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days 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.