04-000392 Stephanie Francis vs. Holmes Regional Medical Center Status: Closed Recommended Order on Wednesday, January 19, 2005.

Summary: Petitioner alleged racially-based discrimination but failed to present a prima facie case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHANIE FRANCIS, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0392

)

HOLMES REGIONAL MEDICAL CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative

Hearings, by its duly - designated Administrative Law Judge,

Jeff B. Clark, held a final administrative hearing in this case

on December 14, 2004, in Viera, Florida.

APPEARANCES

For Petitioner: Stephanie Francis , pro se

Post Office Box 161

Melbourne, Florida 32902

For Respondent: Andrew S. Hament, Esquire

Gray, Harris & Robinson, P.A.

1800 West Hibiscus Boulevard, Suit e 138

Melbourne, Florida 32901

STATEMENT OF THE ISSUE

Whether Respondent, Holmes Regional Medical Center, is

guilty of violating Subsection 760.10, Florida Statutes (2003),

by allowing Petitioner, Stephanie Francis, to be harassed

b ecause of her race and denying her reasonable accommodations

for her pregnancy during her employment.

PRELIMINARY STATEMENT

On January 29, 2004, Petitioner filed a Petition for Relief

with the Florida Commission on Human Relations. The Petition

was forwar ded to the Division of Administrative Hearings on

January 7, 2004. On February 3, 2004, an Initial Order was sent

to both parties. On February 19, 2004, the case was scheduled

for final hearing at 9:00 a.m., on April 13, 2004, in Viera,

Florida. On Resp ondent's motion, the case was rescheduled at

the same place and time on May 25, 2004.

On May 24, 2004, the time of the final hearing was changed

from 9:00 a.m. to 1:00 p.m. by an Amended Notice of Hearing. On

May 25, 2004, Petitioner failed to appear for the final hearing.

As a result of Petitioner's failure to appear for the final

hearing, a Recommended Order of Dismissal was forwarded to the

Florida Commission on Human Relations.

Not being satisfied that Petitioner had received adequate

notice of the ti me - change of the final hearing, the Florida

Commission on Human Relations remanded the case with directions

to reschedule the final hearing. The final hearing was

rescheduled for December 14, 2004, in Viera, Florida.

The final hearing took place as resche duled on December 14,

2004. At the onset of the hearing, Petitioner advised that her

claim of discrimination was based on her race and that she was

denied reasonable accommodations because of her pregnancy.

Petitioner presented two witnesses in addition to herself, Sue

Stehman and Jennifer Struthers. Petitioner offered 20 exhibits

that were received into evidence and marked Petitioner's

Exhibits 1 through 20. Respondent presented three witnesses:

Sue Stehman, Jennifer Struthers, and Pegreen Bibby. Res pondent

offered 17 exhibits that were received in evidence and marked

Respondent's Exhibits 1 through 16 and 22.

No transcript of proceedings was prepared. The parties

were given until January 10, 2005, to submit proposed

recommended orders. Respondent s ubmitted a Proposed Recommended

Order. Petitioner submitted copies of various statutes, a

portion of a Glossary of Terms, and letters. On January 5,

2005, the Florida Commission on Human Relations forwarded copies

of all original documents filed with it.

FINDINGS OF FACT

Based on the oral and documentary evidence presented at the

final hearing, the following findings of facts are made:

1. Petitioner is an African - American female who was

employed by Respondent as a Certified Nursing Assistant. At the

tim e of the incidents that led to her dismissal from employment,

she was pregnant although her condition was not apparent and was

unknown initially, at least, by her employer.

2. Respondent is a Florida corporation that operates a

major hospital facility in Brevard County, Florida. Respondent

is subject to Chapter 760, Florida Statutes (2003).

3. Having recently received her certification,

Petitioner's employment began in October 2002. Several months

after she became employed, Petitioner requested and rece ived

permission to attend Health Unit Coordinator classes. This

training would provide the opportunity for career advancement.

4. In order to enable Petitioner to attend Health Unit

Coordinator classes, adjustments were made in the work schedules

of Pe titioner and her co - workers. As the classes were during

the day, Petitioner began working night shift.

5. Shortly after she began taking Health Unit Coordinator

classes, Petitioner became aware that she would not receive

additional pay for attending the training.

6. Petitioner, whose work had been satisfactory, had a

marked change in attitude after she learned that she would not

receive additional pay.

7. Beginning in April 2003, Petitioner requested numerous

transfers from the acute care unit to which she had been

initially assigned. Her immediate supervisor, Pegreen Bibby,

approved each of Petitioner's transfer requests. Petitioner was

not transferred. No evidence was received regarding the

reason(s) why Petitioner was not transferred. Petitioner

i ndicated that she was not aware of why she was not transferred.

8. On April 23, 2003, a co - worker complained that

Petitioner spoke to a patient in an inappropriate manner. An

investigation confirmed the inappropriate conduct. Petitioner

was counseled by her immediate supervisor and received a

Counseling Memo which noted that Petitioner had a "poor

attitude." Petitioner refused to sign the Counseling Memo.

9. On April 28, 2003, Petitioner's immediate supervisor

received a complaint from a patient about Petitioner's conduct.

An investigation revealed that Petitioner had treated the

patient callously and had made several inappropriate comments to

the patient. In the course of the investigation, Licensed

Practical Nurse Linda Sweeney (LPN Sweeney) comment ed that

Petitioner made inappropriate comments and had a bad attitude,

which according to LPN Sweeney was "normal behavior" for

Petitioner. LPN Sweeney is African - American.

10. As a result of the April 28, 2003, incident and

related investigation, Petit ioner received a written warning and

information about the Employee Assistance Program. Petitioner

refused to sign the written warning.

11. On March 3, 2003, Petitioner presented a note from a

gynecologist stating that she required light - duty and that sh e

could not lift more than 20 pounds. Petitioner did not offer an

explanation for the note and her supervisor, unaware that

Petitioner was pregnant, did not inquire, believing that the

basis for the light - duty was a private matter. Petitioner did

not ind icate that she had made her co - workers aware of her

pregnancy.

12. Petitioner's job description requires her to have the

ability to lift up to 40 pounds unassisted and to lift, assist,

bathe, and dress patients. No positions were available in the

acute c are unit that did not require fulfillment of the job

description. Light - duty work is reserved for employees who

suffer job - related injuries. As a result, Petitioner was not

scheduled for work.

13. On May 14, 2003, Petitioner presented a note

indicating that she was able to return to work without

restrictions. She was immediately rescheduled for work.

14. Upon her return to work, her co - workers complained

that Petitioner's attitude was "hostile." Co - workers, both

African - American and Caucasian, complai ned that Petitioner

resisted helping them. Petitioner was observed wearing

headphones and reading a newspaper for approximately two hours

while co - workers performed her and their responsibilities.

15. As a result of Petitioner's demonstrated poor attitud e

and lack of job - effectiveness, Respondent initiated the final

stage of its progressive disciplinary process: "decision day."

On May 23, 2003, Petitioner received a Counseling Memo which

documented her inappropriate work behavior, co - workers'

complaints , and failure to follow Respondent's employee rules.

Again she refused to sign the Counseling Memo.

16. When "decision day" is invoked, an employee is given

paid leave and presented the opportunity to offer a written

action plan addressing the deficienci es listed in the Counseling

Memo. Petitioner refused to present an action plan as required.

Petitioner refused a memo regarding the Employee Assistance

Program, indicating that she had one.

17. Petitioner left work and did not return. As a result,

on M ay 30, 2003, Respondent terminated Petitioner's employment.

18. Petitioner failed to identify a similarly situated

employee who received different treatment than did Petitioner.

Respondent presented evidence of a Caucasian male employee who

had refused t o submit an action plan following a "decision day"

and was discharged.

19. Petitioner suggests, without offering evidence, that

she was "harassed" by LPN Sweeney. As previously noted,

LPN Sweeney is African - American.

20. In addition to Petitioner's not ed inappropriate

behavior, subsequent to her discharge, Petitioner made

Respondent aware that she had secretly tape - recorded

conversations of her co - workers. She acknowledged this during

her testimony. This, of course, is a violation of Section 934,

Flor ida Statutes (2003), and is a punishable as a third - degree

felony. While not the basis for her dismissal from employment,

Respondent's representative testified that this conduct

constituted a dischargeable offense in accordance with

Respondent's policies.

CONCLUSIONS OF LAW

21. The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat. (2004).

22. Subsection 760.10(1)(a), Florida Statutes (2003),

provides that it is an un lawful employment practice for an

employer:

To 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

individ ual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

23. Florida courts have determined that federal

discrimination law should be used as a guidance when construing

provisions of Section 760.10, Florida Statutes (2003). H arper

v. Blockbuster Entertainment Corp. , 139 F.3d 1385 (11th Cir.

1998); Florida Department of Community Affairs v. Bryant , 586

So. 2d 1205 (Fla. 1st DCA 1991).

24. The United States Supreme Court established, in

McDonnell Douglas Corporation v. Green , 4 11 U.S. 792 (1973) and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be used in cases alleging discrimination

under Title VII, which is persuasive in the instant case, as

reiterated and refined in the case of St. Ma ry's Honor Center v.

Hicks , 509 U.S. 502 (1993).

25. This analysis illustrates that a petitioner has the

burden of establishing, by a preponderance of evidence, a prima

facie case of discrimination. If that prima facie case is

established, the respondent must articulate a legitimate, non -

discriminatory reason for the action taken. The burden then

shifts back to the petitioner to go forward with evidence to

demonstrate that the offered reason is merely a pretext for

unlawful discrimination. The Supreme C ourt stated in Hicks ,

before finding discrimination in that case, that:

[T]he factfinder must believe the

plaintiff's explanation of intentional

discrimination.

509 U.S. at 519.

26. In the Hicks case, the Court stressed that even if the

factfinder does n ot believe the proffered reason given by the

employer, the burden still remains with the petitioner to

demonstrate a discriminatory motive for the adverse employment

action taken.

27. In order to establish a prima facie case, Petitioner

must establish tha t she is a member of a protected class or

group; that she is qualified for her position; that she was

subjected to an adverse employment action; and that she was

treated less favorably or differently than similarly situated

persons outside her protected cl ass. McDonnell Douglas

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

E.E.O.C. , 707 F.2d 468, (11th Cir. 1983). In so doing,

Petitioner demonstrates that there is a causal connection

between Petitioner's status as a member of the protected gro up

and the adverse employment action.

28. There is no dispute in this case that Petitioner is a

member of a protected class or that she suffered an adverse

employment action. The evidence clearly and convincingly

(although that is a greater quantum of p roof than required)

revealed that by her personal conduct and attitude she

disqualified herself from her job. In addition, she has failed

to demonstrate that she was treated dissimilarly than persons

outside her protected class.

29. Petitioner has failed to advance a prima facie case of

discrimination based on her race.

30. Petitioner suggests that she was discriminated against

because she was pregnant and that respondent failed to make

reasonable accommodations for her condition. Notwithstanding

that t he evidence reveals that none of her co - workers were aware

that she was pregnant, an employer is not required to give

preferential treatment to pregnant employees. Spivey v. Beverly

Enterprises, Inc. , 196 F.3d 1309 (11th Cir. 1999).

31. In addition, Peti tioner offered, again without

evidence, that she was harassed by other employees. The

evidence demonstrates that by her conduct and attitude she

isolated herself from her co - workers. She was counseled and

when offered an opportunity to participate in the Employee

Assistance Program, she refused. Finally, Petitioner refused to

submit an action plan as mandated by the published employee

discipline procedures.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED t hat Petitioner's Petition for Relief be

dismissed.

DONE AND ENTERED this 19th day of January, 2005, in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative 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 Administrative Hearings

this 19th day of January, 2005.

COPIE S FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Stephanie Francis

Post Office Box 161

Melbourne, Florida 32902

Andrew S. Hament, Esquire

Gray, Harris & Robin son, P.A.

1800 West Hibiscus Boulevard, Suite 138

Melbourne, Florida 32901

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All part ies 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 case.