05-000094 James M. Bowles vs. Jackson County Hospital Corporation Status: Closed Recommended Order on Tuesday, September 13, 2005.

Summary: Petitioner is unable to show animus by Respondent for termination of employment on the basis of age, race, or gender. Recommend that the Petition for Relief be denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMES M. BOWLES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0094

)

JACKSON COUNTY HOSPITAL )

CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Ad ministrative Law Judge Don W. Davis of the Division of

Administrative Hearings (DOAH) held a formal hearing in this cause

in Marianna, Florida, on July 21, 2005. The following appearances

were entered:

For Petitioner: James M. Bowles, pro se

4193 Evelyn Street

Marianna, Florida 32446

For Respondent: Michael Mattimore, Esquire

Mark L. Bonfanti, Esquire

906 North Monroe Street

Tallahassee, Florida 32303

STATEMENT OF THE ISSUE

The issue for determination is whether Petitioner was

subjected to an unlawful employment practice by Respondent due to

Petitioner's race, age, or sex in violation of Section 760.10,

Florida Statut es.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against

Respondent with the Florida Commission on Human Relations (FCHR)

on October 7, 2003, alleging his termination by Respondent was the

result of discrimination on the basis of age, race, color, sex and

age.

On or about December 7, 2004, the FCHR issued its

determination: No Cause.

On or about January 10, 2005, Petitioner filed a Petition

for Relief with the FCHR. Subsequently, on or about January 12,

2005, the case was forwarded to DOAH for formal proceedings.

During the final hearing, Petitioner testified in his own

behalf. Respondent presented one witness and three exhibits.

A transcript of the final hearing was filed on August 10,

2005. By O rder dated Aug ust 30, 2005, the parties were granted

leave to file proposed r ecommended o rders no later than

September 6, 2005. Both parties were offered the opportunity to

file proposed findings of facts and proposed conclusions of law.

Both parties availed themselve s of that opportunity. The

Proposed Recommended Order of each party has been reviewed and

considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent employed Petitioner, an African - American

male, as a nursing assistant at the community healthcare

facility known as Jackson Hospital in Marianna, Florida, at all

times relevant to these proceedings. Petitioner obtained his

designation as a Certified Nursing Assistant (CNA) subsequent to

his employment by Respondent.

2. Petitioner entered into a conversation with a female

co - worker and CNA at Jackson Hospital on or about June 12, 2003.

In the course of the conversation, he made an unwelcome sexual

request of the co - worker. Petitioner was not on duty at the

time and had returned to the hospital for other reasons.

3. Subsequently, on June 12, 2003, the female co - worker

filed a complaint with Respondent's human resource office at the

hospital alleging unwelcome requests for sexual favors by

Petitioner, inclusive of a request that the co - worker engage in

sexual relations with Petitioner.

4. In the course of his employment with Respondent,

Petitioner was made aware of the strict guidelines and "zero

tolerance" policy of Respondent toward sexual harassment.

Respondent's policy expressly prohibits sexual advances and

requests for sexual favors by employees. Discipline for a

violation of this policy ranges from reprimand to discharge from

employment of the offending employee. Petitioner has received

a copy o f the policy previously and he knew that violation of

that policy could result in dismissal of an erring employee.

Violations of this policy resulted in dismissal of a non -

minority employee in the past.

5. Corroboration of Petitioner’s policy vi olation resulted

from interviews with other employees in the course of

investigation by the hospital director of human resources.

Further, in the course of being interviewed by the director,

Petitioner admitted he had propositioned his co - worker for

sexua l favors.

6. As a result of this policy violation, Respondent

terminated Petitioner’s employment on June 16, 2003.

7. At final hearing, Petitioner admitted the violation of

Respondent's policy, but contended that termination of

employment had not been effected for white employees for similar

offenses in the past. This allegation was specifically rebutted

through testimony of Respondent's hospital human resources

director that a white male employee had been previously

discharged for the sa me offense. Accordingly, allegations of

Petitioner of dissimilar treatment of employees on a racial

basis for violation of Respondent's policy are not credited.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over th e parties to, and the subject matter of

these proceedings. §§ 120.56(9) and 120.57(1), Fla. Stat.

9. Chapter 760, Florida Statutes, the "Florida Civil

Rights Act of 1992," provides security from discrimination based

upon race, color, religion, sex, national origin, age, handicap,

or marital status.

10. The adverse effectuation of an employee’s compensation,

conditions and privileges of employment on the basis of race is

an unlawful employment practice.

11. The burden of proof rests wit h Petitioner to show a

prima facie case of employment discrimination. After such a

showing by Petitioner, the burden shifts to Respondent to

articulate a nondiscriminatory reason for the adverse action.

If Respondent is successful and provides such a rea son, the

burden shifts again to Petitioner to show that the proffered

reason for adverse action is pre - textual. School Board of Leon

County v. Hargis , 400 So. 2d 103 (Fla. 1st DCA 1981).

12. Also, provisions of Chapter 760, Florida Statutes, are

analogo us to those of Title VII of the Civil Rights Act of 1964,

42 U.S.C. Sections 2000e, et seq . See Department of Corrections

v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991). Petitioner

must show that: (a) he belongs to a racial minority; (b) he was

subject ed to an adverse employment action; (c) he was qualified

for his position; and (d) Respondent treated similarly situated

employees outside the protected class more favorably. Holifield

v. Reno , 115 F.3d 1555, 1562 (11th Cir. 1997). Petitioner has

not met his initial burden of proof and cannot show that

Respondent's termination was a pretext for intentional

discrimination because he did not show that Respondent treated

"similarly situated" employees outside his protected class more

favorably. See Abel v. Dubberly , 210 F.2d 1334, 1339 (11th Cir.

2000) where the court stated, "absent some other similarly

situated but differently disciplined worker, there can be no

disparate treatment."

13. While age and sex of Petitioner would likely not have

been cont ested by the parties, at the final hearing Petitioner

made no effort to establish his age. Notably, he offered no

evidence of other factors considered by Respondent other than

Petitioner’s sexually inappropriate comments in terminating

Petitioner's employ ment. Further, Respondent identified a

former similarly situated white employee who was the subject of

alleged violation of Respondent's sexual harassment policy.

That former employee's employment was also terminated following

investigation of the compla int. Respondent's policy is applied

in a consistent manner to all employees without regard to the

employee's race.

14. The testimony and other evidence produced by

Petitioner are not sufficient to establish that racial

discrimination by supervisors of Respondent toward Petitioner

occurred. Petitioner failed to show that Respondent’s basis for

his termination, violation of Respondent's sexual harassment

policy, was pre - textual in any way.

15. Petitioner violated Respondent's sexual harassment

p olicy and suffered a termination of employment as a consequence

of that violation. Petitioner's belief that his off - duty status

relieved him from compliance with the policy while on hospital

premises with employees who were on duty is not persuasive.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED:

That a Final Order be entered dismissing the Petition for

Relief.

DONE AND ORDERED this 13th day of September , 2005 , in

Tallahassee, Leon Co unty, Florida.

S

DON W. DAVIS

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 13th day of September , 2005 .

COPIES FURNISHED :

James M. Bowles

4193 Evelyn Street

Marianna, Florida 32446

H. Matthew Fuqua, Esquire

Bondurant and Fuqua, P. A.

Post Office Box 1508

Marianna, Florida 32447

Michael Mattimore, Esquire

Allen, Norton & Blue, P.A.

906 North Monroe Street

Tallahassee, Florida 32303

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 excep tions 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 .