04-000757 Nicole M. Brandon vs. Baptist Hospital, Inc. Status: Closed Recommended Order on Thursday, December 30, 2004.

Summary: Respondent showed a legitimate, non-discriminating reason for Petitioner`s discharge, which Petitioner did not rebut.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NICOLE M. BRANDON, )

)

Petitioner, )

)

vs. ) Case No. 04 - 0757

)

BAPTIST HOSPITAL, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a hearing was held in the above - styled

case on November 5, 2004, by Stephen F. Dean, assigned

Administrative Law Judge of the Division of Administrative

Hearings, in Pensacola, Florida.

APPEARANCES

For Petitioner: Nicole Brandon, pro se

314 East Blount Street

Pensacola, Florida 32503

For Respondent: Russell F. Van Sickle, Esquire

Beggs & Lane LLP

Post Office Box 12950

Pensacola, Flori da 32591 - 2950

STATEMENT OF THE ISSUE

Whether the Respondent engaged in an unlawful employment

practice by discharging the Petitioner and setting different

standards of employment for the Petitioner because of her race?

PRELIMINARY STATEMENT

This case arose on April 28, 2003, when the Petitioner

filed a Charge of Discrimination against the Respondent with the

Florida Commission on Human Relations (FCHR) alleging that the

Respondent discharged the Petitioner and treated her unfairly

b ecause of her race. The FCHR investigated the complaint and

made a no cause determination that it communicated to the

Petitioner by letter dated February 9, 2004. The Petitioner

filed a timely Petition for Relief with the FCHR, and the FCHR

referred the case to the Division of Administrative Hearings to

conduct a formal hearing. After a continuance occasioned by the

hurricane, the matter was noticed for November 5, 2004, and

heard as noticed.

The Petitioner testified in her own behalf, and introduced

Pet itioner's Exhibits numbered 1, 2, and 4 into the record. The

Respondent presented the testimony of Venus Jones, Vicki Orcutt,

Carolyn Schuster, and Jamie Greathouse. The Respondent

introduced the Respondent's Exhibits numbered 1 through 10 into

the recor d. A transcript was ordered, which was filed on

November 29, 2004. The Petitioner filed proposed findings on

December 13, 2004, and the Respondent filed a Proposed

Recommended Order on December 9, 2004, both of which were read

and considered.

FINDINGS O F FACT

1. The Petitioner is an African - American, female who was

employed by the Respondent from May 5, 1998, until she was

discharged on April 14, 2003.

2. The Respondent is a hospital serving the general public

in Pensacola, Florida, and is an employer under the provisions

of Chapter 760, Florida Statutes.

3. In 2002, Carolyn Schuster was the assistant director of

the radiology department. In February of 2002, the director of

the radiology department left, and Schuster became the interim

director and i n July of 2002, she became the director. She was

the director of the radiology department at all times pertinent

to the disciplining and discharge of the Petitioner.

4. Vicki Orcutt, a white female and the operations manager

of the radiology department, was the Petitioner's direct

supervisor, and the person who was directly responsible for her

discharge.

5. The Petitioner previously had had attendance problems

related to her mother who was sick and, in 2002 she again had

attendance problems arising out o f a bad personal relationship

with a boyfriend. As a result of these problems, she was moved

from the early shift to the late shift.

6. The Petitioner reacted very angrily to this change, and

this led to a verbal exchange with Vicki Orcutt and to the

Pe titioner's getting a final warning letter.

7. A final warning letter is a disciplinary written

warning that any additional employment violations will result in

the violator's discharge.

8. Vicki Orcutt testified that she would have discharged

the Petitio ner for this verbal exchange had she been able. The

basis for this animus was in no way racial.

9. The offense for which the Petitioner was ultimately

discharged was for falsifying a time card. The Petitioner was

originally entitled to take an hour for lunch. The manner in

which the individuals accounted for their lunch breaks varied,

dependent upon whether they ate in the hospital, on campus, or

left the facility. If they left the facility, employees were

expected to clock out; however, trips to the c redit union across

the street were considered to be on campus. If the employees

stayed on campus, they did not have to make any adjustment to

their time cards and their lunch hour was automatically deducted

from their hours worked. If they left the campu s, as mentioned

above, they were expected to clock out.

10. In June of 2002, Orcutt instructed the payroll

department to change the Petitioner to a thirty - minute lunch

break. There was no evidence of how this was communicated to

the Petitioner or that it formally was communicated to her;

however, examination of the payroll/pay record would have

revealed the change.

11. On April 3, 2003, the Petitioner received a check,

which her boyfriend brought to her at the hospital. She needed

to cash this check at the credit union, and left the hospital

with her boyfriend in his car to cash this check. Before she

left, there was a confrontation with the boyfriend, which caused

the involvement of a hospital security guard, and this was

brought to Orcutt's attent ion together with the fact that the

Petitioner had left in the car.

12. Orcutt believed that the Petitioner went from the

credit union to her father's house to deliver the money to him.

There was conflicting testimony about whether the Petitioner

left th e campus, but Orcutt believed that she had.

13. Subsequently, on April 10, 2003, the Petitioner's

boyfriend had an accident in the Petitioner's automobile and

called the Petitioner to have her bring him proof of insurance

to the scene of the accident. Sh e called a cab, and left the

campus to take him the proof of insurance. In her haste to

leave, she did not clock out.

14. During the same week, the Petitioner's co - worker was

out on leave. During this period the Petitioner did not eat

lunch on some days or brought her lunch back to her work station

to eat. During her absence, Orcutt covered the Petitioner's

workstation. As a result, Orcutt has a good idea of the

Petitioner's working during the pay period.

15. At the end of the pay period, Orcutt calle d the

Petitioner as Orcutt was reviewing and approving the time

records and questioned her about her time records. Orcutt

believed that the Petitioner had left the campus and had not

clocked - out on April 3, 2003.

16. A telephone conversation took place between Orcutt and

the Petitioner regarding the Petitioner's time records for the

pay period. Orcutt queried the Petitioner about her lunch

breaks. Although Orcutt believed that the Petitioner had left

the campus on April 3, 2003 and not signed out, Orc utt asked if

the Petitioner wanted her to put down as "no lunch" for the

whole week. The Petitioner responded that Orcutt knew she had

taken lunch breaks because Orcutt had covered for her. Orcutt

indicated to the Petitioner that she had gone right down and

come right back, and that she was going to put down "no lunch"

for those days. The Petitioner indicated that the record was

right.

17. Based upon the Petitioner's response, Orcutt initiated

disciplinary action and discharge proceedings against the

P etitioner for falsifying a time card based upon the Petitioner

leaving the campus on April 3, 2003.

18. Subsequently, when confronted about the time card, the

Petitioner mentioned the April 10, 2003, incident; however,

Orcutt had no prior knowledge of th e April 10 absence prior to

initiating charges.

19. There was no proof presented that the Petitioner left

the campus on April 3, 2003, except Orcutt's testimony about a

statement made by the Petitioner when confronted that she had

taken the money to her f ather. The Petitioner admitted that she

had failed to clock - out on April 10 in her haste to get to the

accident scene; however, she offered no explanation regarding

why she did not report the matter when called by Orcutt.

20. There was a great deal of te stimony regarding other

alleged disparate treatment of the Petitioner; however, it does

not appear from the record that any of the allegations about pay

differences had any basis in fact. It was admitted that the

Respondent counseled the Petitioner about covering up a tattoo

she had on her neck; however, it was not demonstrated that she

was treated differently from other employees who held similar

positions.

21. It was admitted that the Respondent counseled the

Petitioner for soliciting contributions to a political campaign

based upon its non - solicitation policy. The Petitioner did

solicit contributions, and the Respondent differentiated those

solicitations from those for schools (candy sales), cosmetic

sales, etc. Political activities are distinguisha ble from the

other forms of solicitation. No disciplinary action was taken

against the Petitioner.

22. Evidence was received that employees of all races and

backgrounds were routinely discharged for time record

violations.

CONCLUSIONS OF LAW

23. Th e Division of Administrative Hearings has

jurisdiction over the parties and subject matter pursuant to

Section 760.11, Florida Statutes.

24. The Petitioner filed a timely Petition for Relief and

a timely Charge of Discrimination with the FCHR. The FCHR

r eferred the matter to the Division of Administrative Hearings

to conduct the formal hearing in the case. After delays

associated with the hurricane, the matter was heard in late

November of 2004. Both parties filed proposed findings that

were read and co nsidered.

25. The Petitioner had the burden of proof in this case.

She demonstrated that she was a member of a protected group,

African - American, and that she was discharged. Under the

principles stated in McDonnell Douglas Corp. v. Green , 411 U.S.

792, 93 S.Ct. 1817 (1973), the burden shifted to the Respondent

to state a non - discriminatory rationale for discharging the

Petitioner.

26. Although the evidence presented indicates that the

Petitioner's supervisor, Ms. Orcutt, may have jumped to the

conclu sion that the Petitioner left the campus on April 3, 2002,

and should have signed out; and although Orcutt may have set the

Petitioner up by asking her about her time records, given that

the Petitioner, according to Orcutt, had worked through some

lunch pe riods during the pay period, the fact remains that the

employer had a basis for discharge. The Petitioner appeared to

have left the campus on April 3, and did leave the campus on the

April 10 without signing out. The head of human relations

testified cre dibly that persons, both black and white, were

discharged all the time for falsifying time records.

27. Although Orcutt may have set up the Respondent,

Orcutt's motivation in doing so was her prior confrontation with

the Petitioner, which was unrelated to the Petitioner's race.

The Respondent's discharge of the Petitioner had a basis in fact

and policy, and, to the extent, Orcutt may have been motivated

by a negative animus towards the Petitioner, the discharge was

not based upon the Petitioner's race. The Petitioner offered no

evidence that the grounds asserted by the Respondent were

pretextual.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED:

T hat the Florida Commission on Human Relations enter its

final order dismissing the Petition for Relief filed by the

Petitioner.

DONE AND ENTERED this 30th day of December, 2004, in

Tallahassee, Leon County, Florida.

S

__

STEPHEN F. DEAN

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 Administrative Hearings

this 30th day of December, 2004.

COPIES FURNISHED :

Nicole Brandon

314 East Blount Street

Pensacola, Florida 32503

Russell F. Van Sickle, Esquire

Beggs & Lane LLP

Post Offic e Box 12950

Pensacola, Florida 32591 - 2950

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

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 case.