04-000511 Emma J. Brown vs. Sunbelt Health Care Status: Closed Recommended Order on Friday, August 20, 2004.

Summary: Petitioner alleged discrimination as a reason for her termination for violation of employer`s policy requiring calling in and/or presenting for work. Petitioner failed to establish a prima facie case.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EMMA J. BROWN, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0511

)

SUNBELT HEALTH CARE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice and in accordance with Section 120.569

and Subsection 120.57(1), Florida Statutes (2003), a final

hearing was held on May 17, 2004, in Dade City, Florida, before

Fred L. Buckine, a duly - designated Administrative Law Judge of

the Division of Administrative Hearing s.

APPEARANCES

For Petitioner: Emma J. Brown, pro se

38723 Barbara Lane

Dade City, Florida 33523

For Respondent: Alan M. Gerlach, Esquire

Adventist Health System - Legal Services

111 North Orlando Avenue

Winter Park, Florida 32789

STATEMENT OF THE ISSUE

The issue to be resolved is whether Petitioner, Emma J.

Brown, was subject to discrimination in her employment by

Respondent for the reasons all eged in her Petition for Relief.

PRELIMINARY STATEMENT

On June 27, 2003, Petitioner, Emma J. Brown, filed a

complaint with the Florida Commission of Human Relations

("Commission"), alleging that she believed she had been

discriminated against pursuant to Chapter

760 of the Florida Civil Rights Act, and/or

Title VII of the Federal Civil Rights Act,

and/or Age Discrimination in Employment Act,

and/or the Americans with Disabilities Act

as applicable for the following reason(s):

On July 5, 2002, I was subjec t to different

terms and conditions and terminated because

of my race (black).

The Commission, after investigation of Petitioner's

complaint, found no reasonable basis to conclude that Petitioner

had been subject to discrimination, and on January 9, 2004,

issued a Notice of Determination: No Cause.

Petitioner filed a timely request for hearing pursuant to

Section 120.569 and Subsections 120.57(1) and 760.11(7), Florida

Statutes (2003). On February 12, 2004, this matter was referred

to the Division of Admi nistrative Hearings, and on that date,

the Initial Order was entered.

On February 18, 2004, Petitioner responded to the Initial

Order, and on February 19, 2004, Petitioner filed a letter

regarding being represented by a non - lawyer at the hearing.

On Februa ry 20, 2004, a Notice of Hearing, scheduling the

final hearing for April 8, 2004; an Order of Pre - hearing

Instructions; and an Order, enclosing rules regarding qualified

representatives, were entered.

On February 27, 2004, Petitioner filed a request for

co ntinuance of the final hearing, and on March 11, 2004, an

Order was entered, rescheduling the final hearing for May 17,

2004. On March 12, 2004, an Order extending the time for filing

the authorization of Petitioner's prospective qualified

representative to April 2, 2004, was entered.

On April 29, 2004, a Notice of Appearance and Respondent's

Witness List were filed by Alan M. Gerlach, Esquire.

On May 5, 2004, a copy of a letter to Charlene Barrett from

Petitioner regarding resolution of the matter was fil ed. On

May 14, 2004, Respondent's Motion to Preclude Petitioner's

Calling Witnesses and Introducing Exhibits was filed.

On May 17, 2004, at the final hearing, it was established

that Petitioner and Respondent had engaged in ongoing

discussions over a fiv e - day period but were unable to resolve

their differences. The parties did not exchange exhibits or

witness lists and did not engage in any discovery. Based upon

the failure to engage in discovery, Respondent's Motion to

Preclude Petitioner's Calling Wit nesses and Introducing Exhibits

was denied.

Petitioner testified in the narrative, cross - examined five

of Respondent's seven witnesses, and offered three exhibits (P - 1

through P - 3), which were accepted into evidence. Respondent

offered the testimony of se ven witnesses and offered ten

exhibits (R - A through R - J), which were accepted into evidence.

On May 19, 2004, Respondent filed a Motion for Extension of

Time to file proposed recommended orders. On June 1, 2004, the

one - volume Transcript of the final hear ing was filed, and on

that date, an Order granting Respondent's Motion for Extension

of Time to file proposed recommended orders was entered.

On June 14, 2004, Petitioner filed a motion for extension

of time to file proposed recommended orders, and on June 17,

2004, an Order granting Petitioner's motion was entered,

extending the time for filing proposed recommended orders to

July 11, 2004, thereby waiving the time requirement for this

Recommended Order. See Fla. Admin. Code R. 28 - 106.216.

Respondent's Pro posed Recommended Order was filed on

June 18, 2004, and Petitioner's Proposed Recommended Order was

filed on July 20, 2004. Both parties' proposals were given

consideration in the preparation of this Recommended Order.

FINDINGS OF FACT

Based upon the dem eanor of the witnesses while testifying,

exhibits admitted in evidence, and stipulations and argument of

the parties, the following relevant, material, and substantive

facts are found:

1. Petitioner, Emma J. Brown (Ms. Brown), an African -

American female, began working for Respondent, Sunbelt Health

Care (Sunbelt), a nursing home in Zephyrhills, Florida, as a

Certified Nursing Assistant (CNA) on or about February 11, 2002,

after an interview by Barbara Derby - Bartlett (Ms. Derby -

Bartlett), director of nursin g, who made the decision to hire

Ms. Brown. Margaret Levesque (Ms. Levesque), a white female,

was hired as a CNA by Sunbelt in June of 2002. A CNA's duties

include assisting the nursing staff in overall patient care.

2. At the time of their hire, all ne w employees were

required to attend an orientation process. During orientation,

new employees, including Ms. Brown, were given a copy of

Sunbelt's employee handbook and other printed materials,

including Sunbelt's "Call - Off Guides" policy. The "Call - Off

Guides" policy specifies the means and method employees are

required to follow when they can not be present for their

scheduled work shifts. The policy also informs the new employee

that repeated absenteeism will result in immediate dismissal.

3. Sunbe lt is a 24 - hour, full - care facility with residents

located in both its north side wing and south side wing.

Employees work on both wings. Sunbelt used two shifts, the day

shift and the night shift, to provide residents with 24 - hour

care and service. Ms. Brown testified that at the time of her

hire, she informed Sunbelt that she could not work the day

(first) shift because she had another job. Her request to work

the night (second) shift was granted.

4. On February 22, 2002, after 11 days of employment,

Ms. Brown suffered an on - the - job injury to her wrist. Ms. Brown

re - injured her wrist on March 22, 2002, and suffered an on - the -

job back injury on April 7, 2002.

5. Ms. Brown, through counsel, filed workers' compensation

claims for her on - the - job injuri es. Ms. Brown's treating

physician placed her on work restrictions, limiting her duties

to no bending and no lifting over 20 pounds. On or about

May 24, 2002, Ms. Brown returned to work and presented her work

restrictions, and Sunbelt assigned Ms. Brown to the night shift

to perform light - duty work assignments. The light - duty work

assigned to Ms. Brown consisted of answering residents' call

lights, checking their vital signs, assisting residents with

their meals (passing trays), and replenishing their w ater

supplies on both the north and south wings.

6. Ms. Brown requested that Sunbelt change her work

schedule to day shift and allow her to work five consecutive

days with weekends off. This request was denied.

7. During the pertinent time, two other CN As, Ms. Levesque

and Shirley Manley (Ms. Manley), were also on light - duty.

Ms. Levesque and Ms. Manley, white females, performed light - duty

work assignments on both the north and south wings similar to

those performed by Ms. Brown.

8. According to Ms. B rown, Ms. Levesque worked weekdays

for two consecutive months with no weekend duty, and she was not

allowed to do likewise.

9. On June 6, 2002, Sunbelt transferred Ms. Brown from

night shift to day shift. Ms. Brown maintained that there is

"more light - du ty work" during the day shift than during the

night shift, and by keeping her on the day shift, her workload

was increased when compared to CNAs working during the night

shift.

10. Ms. Brown filed her claim of discrimination, and

Sunbelt, by and through c ounsel, attempted settlement of

Ms. Brown's claim of discrimination without success. Ms. Brown

maintained that the proffered settlement did not justify the

treatment she received.

11. Sunbelt presented the testimony of Ms. Levesque, who

was hired in Jun e 2002 as a CNA but was initially assigned to

the duty and function of "staffing coordinator." The staffing

coordinator is a day shift employee whose primarily duties

consisted of preparing CNAs' work schedules and identifying and

securing replacements fo r those CNAs who called in and, for

whatever reasons, did not or could not report for duty as

scheduled. During her staffing coordinator assignment,

Ms. Levesque also assisted CNAs in their duties, but was

assigned light - duty with a 20 - pound lifting rest riction. Her

CNA duties include passing food trays during breakfast, lunch,

and dinner; replenishing water; and anything that did not

require her to physically pick - up and/or lift a resident.

12. In or about mid - August of 2002, Ms. Levesque's

schedule ch anged, and she was required to work every other

weekend. On several occasions, Ms. Levesque and Ms. Brown

worked on the same shift, but not on the same wing.

13. Ms. Derby - Bartlett testified that upon receipt from an

employee's physician detailing the em ployee's limitations, she

would work within those specific limitations in assigning CNAs

to light - duty. According to Ms. Derby - Bartlett, light - duty work

assignments are less during the night when residents are asleep

and more during the day when residents are awake.

14. After her appointment to the position of director of

nursing, Ms. Derby - Bartlett became aware that Ms. Levesque was

not working every other weekend and informed Ms. Levesque that

she would be scheduled to work every other weekend.

Ms. Le vesque's request for a couple of weeks to make adjustments

was granted, and she thereafter was scheduled to work every

other weekend.

15. Ms. Derby - Bartlett confirmed that Ms. Brown was

assigned light - duty work assignments on June 6, 2002, and

Ms. Brown was a no - show for work. On July 3, 2002, Ms. Brown

was assigned light - duty, and she called in as a no - show. On

July 4, 2002, Ms. Brown was assigned light - duty, and she did not

call in or show for work. On July 5, 2002, Ms. Brown was

assigned light - duty, and she did not call in or show for work.

16. Ms. Derby - Bartlett contacted the staffing person on

each day Ms. Brown called in and on each day Ms. Brown was a no -

show, confirming the accuracy of the reports.

17. Ms. Derby - Bartlett contacted Ms. Brown re garding her

no - calls and no - shows and informed her of Sunbelt's policy of

termination for repeated absenteeism. Ms. Brown, believing her

doctor had called Sunbelt on one of the days she was a no - show,

was mistaken because no doctor called. On July 5, 200 2,

Ms. Derby - Bartlett completed Sunbelt's disciplinary form to

terminate Ms. Brown due to her several no - calls and no - shows, in

violation of Sunbelt's policy, and forwarded her recommendation

to Maria Coddington, Sunbelt's unit manager.

18. Ms. Derby - Bar tlett testified that since her

appointment as director of nursing, the no - show/no - call

termination policy has been consistently applied, and she was

not aware of any employee who had been no - show/no - call for two

consecutive days who had not been terminated .

19. Five months after hiring Ms. Brown, Ms. Derby - Bartlett

terminated her.

20. Sunbelt's employee handbook's "Call - Off Guides" policy

regarding absenteeism provides, in pertinent part that: "if

employees do not call in or do not show up for work for t wo

consecutive days or three nonconsecutive days, it is grounds for

termination." Each employee, as did Ms. Brown, signed

individual employment documents attesting to having received a

copy of Sunbelt's "Call - Off Guides" policy when hired.

21. Ms. Brown was terminated because of her violation of

Sunbelt's policy regarding two or more absenteeism without

notice to her employer and her repeated failure, albeit her

belief that her physician was going to call on her behalf and

did not do so, to timely inform her employer of her absence from

scheduled duty.

22. Ms. Brown's termination by Sunbelt was based on her

violation of their employee work attendance policy and not

because of her race and/or ethnic origin.

23. Ms. Brown failed to present a prima facie ca se of

discrimination based on her race as alleged in her complaint of

discrimination.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569, 120.57(1), an d 760.11, Fla. Stat.

(2003).

25. Petitioner has the burden of proving, by the

preponderance of the evidence, that Respondent committed an

unlawful employment practice. Florida Department of

Transportation v. J. W. C. Company, Inc. , 396 So. 2d 778 (Fla.

1 st DCA 1981).

26. It is an unlawful employment practice for an employer

to discharge or otherwise to discriminate against any individual

with respect to compensation, terms, conditions, or privileges

of employment, because of such individual's race.

§ 7 60.10(1)(a), Fla. Stat. (2003).

27. It also is an unlawful employment practice to

discriminate against any person because the person opposes an

unlawful employment practice or has filed a charge of an

unlawful employment practice. § 760.10(7), Fla. Stat. (2003).

28. The provisions of Chapter 760, Florida Statutes

(2003), are analogous to those of Title VII of the Civil Rights

Act of 1964, 42 U.S.C. Sections 2000e, et seq . Cases

interpreting Title VII are, therefore, applicable to Chapter

760, Florida St atutes. School Board of Leon County v. Hargis ,

400 So. 2d 103 (Fla. 1st DCA 1981).

29. Subsection 760.11(1), Florida Statutes (2003),

provides as follows, in pertinent part:

Any person aggrieved by a violation of ss.

760.01 - 760.10 may file a complain t with the

commission within 365 days of the alleged

violation . . .

30. Petitioner filed her Charge of Discrimination with the

Commission on June 27, 2003.

Disparate Treatment

31. In cases alleging racial discrimination based on

disparate treatment, t he complainant bears the burden of proof

established in McDonnell Douglas v. Green , 411 U.S. 792 (1973),

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

248 (1981). Under this model of proof, the complainant bears

the initial burden of esta blishing a prima facie of

discrimination. If the complainant meets his or her initial

burden, the burden to go forward shifts to the employer to

articulate a legitimate, non - discriminatory explanation for the

employment action. See Department of Correcti ons v. Chandler ,

582 So. 2d 1183 (Fla. 1st DCA 1991). If the employer meets its

burden of production, the complainant must then persuade the

court that the employer's proffered reason is a pretext for

intentional discrimination. Conversely, if Petitioner fails to

meet the initial burden of proof to establish a prima facie

case, the inquiry ends.

32. To establish a prima facie case of racial

discrimination based on disparate treatment, Petitioner must

show the following: (a) she belongs to a racial minor ity;

(b) she was subjected to an adverse employment action; (c) she

was qualified for her position; and (d) Respondent treated

similarly situated employees outside the protected class more

favorably. See Holifield v. Reno , 115 F.3d 1555, 1562 (11th

Cir. 1997).

33. Here, Petitioner proved that she, as an African -

American, belongs to a racial minority.

34. Petitioner proved that she suffered an adverse

employment action because of her repeated failures to comply

with the policy of her employer regarding timely notice when one

is unable to report to work as scheduled and was terminated by

her employer.

35. Petitioner proved that she was qualified for her

position as a CNA with Respondent.

36. Respondent's treatment of all employees who violated

the abo ve - referenced policy was the same; more than one failure

to timely call in when the employee knows he/she would not be

able to report to work as scheduled resulted in termination.

37. Petitioner does not deny that she did not call in when

she knew she w as not going to be at work as scheduled. She

excused her failure by her attempt to blame her doctor (unnamed)

for failing to carry out his alleged promise to call her

employer for her and inform her employer that she would not be

at work on a date and tim e certain. This excuse was not borne

out by Petitioner's physician. The fact that she did not appear

for work on two consecutive scheduled workdays and did not call

on either of those days and the fact that she may have had a

reason, albeit a mistaken re ason, for one of her non - appearances

would not have deprived her employer of a legitimate non -

discriminatory reason for taking disciplinary action for two

consecutive scheduled work days of non - appearance. Petitioner

has not shown that Respondent's strict enforcement of its policy

was a pretext for racial discrimination.

38. Petitioner has failed to carry the initial burden of

making a prima facie case of discrimination, and her Petition

for Relief must be dismissed.

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 by

Petitioner, Emma J. Brown.

DONE AND ENTERED this 20th day of August, 2004, in

Talla hassee, Leon County, Florida.

S

FRED L. BUCKINE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fa x Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 20th day of August, 2004.

COPIES FURNISHED :

Emma J. Brown

38723 Barbara Lane

Dade City, Florida 33523

Denise Crawford, Agency Clerk

Flor ida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Alan M. Gerlach, Esquire

Adventist Health System - Legal Services

111 North Orlando Avenue

Winter Park, Florida 32789

Cecil Howard, General Counsel

Florida Com mission 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 exceptio ns

to this Recommended Order should be filed with the agency that

will issue the final order in this case.