02-000240 Gayle Stevenson, M.D. vs. Jackson Memorial Hospital Status: Closed Recommended Order on Friday, August 16, 2002.

Summary: Employer did not discriminate against employee. Employee discharged for legitimate, non-discriminatory reasons.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GAYLE STEVENSON, M. D., )

)

Petitioner, )

)

vs. ) Case No. 02 - 0240

)

JACKSON MEMORIAL HOSPITAL, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing

before Clau de B. Arrington, a duly - designated Administrative Law

Judge of the Division of Administrative Hearings, in Miami,

Florida, on July 12, 2002.

APPEARANCES

For Petitioner: Gayle Stevenson, M.D., pro se

1080 Runnymede Street

East Palo Alto, California 94303

For Respondent: William X. Candela, Esquire

Dade County Attorney's Office

Stephen P. Clark Center

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment

practice against Petitioner in violation of Section 760.10 et.

seq. , Florida Statutes, as set forth in Petitioner's Petition

for Relief file d with the Florida Commission on Human Relations

(FCHR) and, if so, the penalties that should be imposed.

PRELIMINARY STATEMENT

Prior to June 29, 1998, Respondent accepted Petitioner's

application for employment to work in its clinical anesthesia

program, which is operated in conjunction with the Public Health

Trust. By letter dated June 29, 1998, Respondent's program

director advised Petitioner that her employment was terminated

because she had made false statements on her application and

related document s. Thereafter, Petitioner timely exercised her

right to have the termination decision reviewed by Respondent's

senior vice president for medical affairs, who upheld the

termination decision on July 21, 1998. Next, Petitioner

exercised her right to a hear ing on whether there was just cause

to terminate her employment before a peer review committee,

which upheld the termination decision on December 1, 1998. On

December 23, 1998, the president of the Public Health Trust

upheld the termination of Petitioner' s employment following his

review of the decision of the peer review committee. Petitioner

filed a grievance as a member of a collective bargaining union

known as the Committee of Interns and Residents, alleging that

the termination of her employment was without cause. An

arbitration hearing was conducted October 21, 1999, with both

parties being represented by counsel. The Opinion and Award of

the arbitrator, entered November 1, 1999, found that

Petitioner's employment was terminated for just cause and denied

the grievance.

Petitioner filed a Charge of Discrimination with the FCHR

against Respondent in March 2000. Following an investigation,

the FCHR issued a determination of no cause on December 10,

2001. Petitioner filed a Petition for Relief with the FCHR on

January 14, 2002, in which Petitioner alleged that her

termination was in retaliation for complaints she had made

pertaining to racial discrimination.

Thereafter the cause came on for hearing as noticed. At

the beginning of the hearing, Resp ondent moved to dismiss the

proceeding on the grounds that the Petition for Relief was not

timely and, consequently, the Division of Administrative

Hearings lacked jurisdiction. Because the motion was not timely

filed, the undersigned reserved ruling on t he motion and

proceeded with the final hearing. Respondent has not pursued

its motion to dismiss, and the undersigned hereby denies the

motion as being moot.

At the final hearing, Petitioner testified on her own

behalf and presented four sequentially nu mbered exhibits, each

of which was admitted into evidence. Respondent presented the

testimony of one witness and offered 18 sequentially numbered

exhibits, each of which was admitted into evidence.

A Transcript of the proceeding was filed July 24, 2002.

Petitioner filed a post - hearing pleading styled "Request for

Final Order." That pleading has been construed as being a

proposed recommended order, and it has been duly considered by

the undersigned in the preparation of this Recommended Order.

Responde nt did not file a post - hearing submittal.

FINDINGS OF FACT

1. Petitioner is a female African - American who has

completed medical school.

2. On March 19, 1997, Petitioner completed an "Application

for Residency," seeking to participate in Respondent's cl inical

anesthesiology residency program. That program is operated in

conjunction with the Public Health Trust. Applicants selected

to participate in the residency program become employees of

Respondent. The terms and conditions of employment are subject

to the policies of both Respondent and the Public Health Trust.

3. Petitioner's application to participate in the

residency program related that she had completed an internship

at University of Maryland/Harbor Hospital (Harbor) and two years

of anesthe siology residency at King/Drew University, Los Angles

(King). Petitioner signed the application on March 19, 1997.

4. On April 30, 1997, Petitioner submitted an "Application

for Graduate Medical Education at the Jackson Memorial Medical

Center" that requ ired her to "list chronologically your

activities from time of graduation from Medical School to

present. Specify type of post graduate training if any."

Petitioner listed the internship at Harbor and the residency at

King. She signed the application un der the declaration: "I

hereby declare that I have examined this application; and to the

best of my knowledge and belief, it is true, correct, and

complete."

5. Petitioner was accepted into Respondent's clinical

anesthesiology residency program based, i n part, on the

information reflected in the foregoing applications. That

acceptance created an employee/employer relationship between

Petitioner and Respondent.

6. On July 17, 1997, Petitioner submitted a completed

"Personnel Form" to Respondent. The Personnel Form required her

to disclose all her activities since her completion of medical

school. On that form Petitioner listed her previous internship

at Harbor and her previous residency training at King. She

verified it was correct to the best of he r knowledge and signed

the form.

7. At the times pertinent to this proceeding, Dr. Brian

Craythorne was a Professor of Medicine at the University of

Miami and the Chairman of Respondent's Department of

Anesthesiology. Dr. Craythorne had supervisory res ponsibility

for Petitioner and was instrumental in selecting her to

participate in the residency program.

8. In April 1998, Dr. Craythorne received routine

information from the American Board of Anesthesiology (ABA)

setting forth the number of hours of training from other

anesthesiology residency programs for which each resident

participating in Respondent's residency program had received

credit. The information from the ABA also set forth the number

of hours of training for which each resident had rece ived no

credit.

9. From that information, Dr. Craythorne learned that

Petitioner had a total of 39 hours of residency training in

anesthesiology from other programs for which she had received no

credit.

10. Three of the 39 hours of training for which she had no

training were at King, which was reflected on her application

and related paperwork. The training at King is not an issue in

this proceeding.

11. The additional 36 hours of residency training for

which she received no credit was from Howard H ospital. 1/ The

program at Howard, which was equivalent to a three - year program,

was not reflected on any application or related document

Petitioner submitted to Respondent before April 1998.

Petitioner's failure to disclose her participation in the

res idency program at Howard was intentional. Petitioner's

failure to disclose her participation in the residency program

at Howard violated the clear policies of both Respondent and the

Public Health Trust that require applications and related

documents to b e truthful, correct, and complete.

12. Dr. Craythorne confronted Petitioner about the

foregoing omissions in her applications and associated

paperwork. In response, Petitioner submitted a letter dated

May 27, 1998, in which she tried to explain why sh e did not

obtain credit at Howard and why she had not divulged that

information to Respondent. Petitioner asserted that she had

sued Howard and had subsequently settled the litigation with

instructions from her attorney that she could not discuss the

liti gation. 2/

13. Petitioner's letter of May 27, 1998, was not

satisfactory to Dr. Craythorne.

14. On June 3, 1998, Dr. Craythorne issued to Petitioner a

"Disciplinary Action Report" (DAR) advising he was recommending

that Petitioner be dismissed from t he residency program (thereby

terminating her employment with Respondent). The grounds for

the action were her violation of Respondent's policies by making

a false statement or statements on her application for

employment and related documents and her vio lation of Public

Health Trust Policy #305 pertaining to falsifying records or any

other record of the Trust.

15. Referencing Respondent's Department of Anesthesiology,

the DAR also contained the following:

Our department's recruiting and hiring

practi ces . . . includes a policy/practice

not to accept residents [sic] who have had

more than one prior anesthesia residency

experience for the clinical anesthesia

years 1 through 3. [3/] ]

16. On June 29, 1998, Dr. Craythorne wrote a letter to

Petitioner te rminating her employment on the grounds set forth

in the DAR. The termination letter advised Petitioner that she

could request the Senior Vice President for Medical Affairs

(Dr. Gerard A. Kaiser) to review the decision to terminate her

participation. The letter also advised Petitioner that

"[u]nless the Senior Vice President rescinds the proposed

action, it will become effective following his review and

decision."

17. On July 21, 1998, Dr. Kaiser advised Petitioner that

he had reviewed the facts surround ing her termination and agreed

with the termination decision.

18. Consistent with her rights pursuant to the applicable

collective bargaining agreement, Petitioner requested and

received a hearing before the Peer Review Committee, which was

composed of other participants in the anesthesiology residency

program. On December 1, 1998, the Peer Review Committee issued

its report upholding Petitioner's termination for the reasons

cited by Dr. Craythorne.

19. On December 23, 1998, Ira C. Clark, president of the

Public Health Trust, advised Petitioner that he had upheld her

dismissal based on his review of the Peer Review Committee's

findings and recommendation.

20. Petitioner thereafter filed a grievance pursuant to

her collective bargaining rights. On O ctober 21, 1999, an

evidentiary hearing was conducted before an arbitrator. On

November 1, 1999, the arbitrator entered his Opinion and Award

upholding Petitioner's termination of employment.

21. Petitioner thereafter filed a complaint of

discriminatio n with the FCHR on or about March 27, 2000. The

gravamen of the complaint was that Respondent fired her in

retaliation for her complaint to Dr. Craythorne that another

resident had made a derogatory racial comment towards her.

22. On December 10, 2001, t he FCHR entered a determination

of "no cause," determining that there was no cause to believe

that an unlawful employment practice had occurred.

23. On January 14, 2002, Petitioner filed a Petition for

Relief from an unlawful employment practice with th e FCHR. The

Petition alleged the following facts in support of her claim of

discrimination:

On April 1, 1998, a racial remark was made

to me by Dr. Kirsten O'Neal, which was, "we

know how lazy you Blacks are." I reported

it (the statement) to Dr. Crayt horne and Dr.

Brindle, as well as in writing (copies are

in my file). Dr. Craythorne asked me if I

had any witnesses, I said yes. The

following month they decided to investigate

my application, and terminated me on July

1998 (sic).

24. The Petition d escribed the disputed issues of fact as

follows:

I was terminated because I did not put on

my application that I had worked for Howard

Hospital in Washington, D. C. They stated

the reason I was terminated is because the

ABA (American Board of Anesthesio logy)

requires that you only attend two programs

if you have received credit. I did not

receive any credit. Please see the enclosed

pamphlet from the ABA at page 9.

25. The Petition set forth the following ultimate facts

entitling Petitioner to relief:

When JMH terminated me, it was because I

made a claim of racial discrimination, which

I reported prior to investigation of my

application. Had I not complained of racial

remarks that was made to me by the above

Dr. Kirsten O'Neal, it would not have com e

up about my application.

26. The evidence established that Petitioner complained to

Dr. Craythorne that Dr. O'Neal had made the derogatory, racial

remark set forth in the Petition. 4/

27. There was no evidence to establish a link between the

compl aint made by Petitioner to Dr. Craythorne pertaining to

Dr. O'Neal and the decision to terminate her participation in

the residency program.

28. Respondent established that Petitioner was terminated

because she failed to adhere to Respondent's and the Pub lic

Health Trust's clear policies requiring applications and other

employment documents to be truthful, correct, and complete.

CONCLUSIONS OF LAW

29. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. Section 120.57(1), Florida Statutes.

30. Section 760.10, Florida Statutes, provides that it is

an unlawful employment practice for an employer:

(1)(a) to discharge or refuse to hire any

individual, or otherwise to discriminate

against an y individual with respect to

compensation, terms, conditions, or

privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

31. Petitioner has the burden of establishing by

prepond erance of the evidence a prima facie case of

discrimination. If that prima facie case is established, the

defending Respondent must articulate a legitimate, non -

discriminatory reason for the action taken against the

Petitioner. The burden then shifts bac k to the Petitioner to go

forward with evidence to demonstrate that the offered reason is

merely a pretext for unlawful discrimination. See McDonnell -

Douglas Corporation v. Green , 411 U.S. 792 (1973); Texas

Department of Community Affairs v. Burdine , 450 U.S. 248 (1981);

and St. Mary's Honor Center v. Hicks , 509 U.S. 502 (1993).

32. Petitioner presented no credible evidence that would

establish a prima facie case of discrimination against

Respondent.

33. The overwhelming evidence presented in this pro ceeding

is that Respondent had legitimate, non - discriminatory reasons

for terminating Petitioner's participation in the residency

program.

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 dismissing the Petition for Relief

filed in this case.

DONE AND ENTERED this 16th day of August, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

CLAUDE B. ARRINGTON

Admini strative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admi nistrative Hearings

this 16th day of August, 2002.

ENDNOTES

1/ Howard Hospital is operated in conjunction with Howard

University, Washington, D.C.

2/ There was no competent evidence as to the terms of any

settlement agreement with Howard. Even if one were to accept

Petitioner's statement that her attorney told her not to discuss

the settlement, that does not explain her failure to disclose

the fact that she had participated in the Howard residency

program.

3/ The DAR stated that one reason for th e department's policy

is that the ABA allows a total of two anesthesia programs for

the clinical anesthesiology 1 through 3 residency years. Based

on the department's policy, Petitioner clearly would not have

been accepted into Respondent's residency prog ram had Respondent

known of her participation in two prior residency programs.

Petitioner's Exhibit 1 is an attempt to refute the department's

policy by introducing a letter from the ABA dated July 10, 2002,

that appears to conflict with Respondent's desc ription of the

ABA policy. It should be noted that the letter is not competent

evidence because it is uncorroborated hearsay and it does not

speak to the ABA's policy at the times pertinent to this

proceeding. More importantly, Petitioner has missed the point.

She was fired because she failed to disclose her participation

in the Howard residency program and because she submitted

falsified documents to Respondent. Whether she would have been

discharged for having participated in two prior residency

progr ams is not in issue because such participation was not the

reason for her termination.

4/ There was no evidence, other than Petitioner's self - serving,

uncorroborated testimony that Dr. O'Neal actually made the

derogatory remark attributed to her.

C OPIES FURNISHED :

Gayle Stevenson, M.D.

1080 Runnymede Street

East Palo Alto, California 94303

William X. Candela, Esquire

Dade County Attorney's Office

Stephen P. Clark Center

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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 ca se.