05-000977 Robert K. Coles vs. Sacred Heart Health System, Inc. Status: Closed Recommended Order on Wednesday, October 12, 2005.

Summary: Petitioner, an operating room technician, asserted that he was terminated based on his race. Petitioner was terminated solely due to his noncompliance with Respondent`s personnel policies.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT K. COLES, )

)

Petitioner, )

)

vs. ) Case No. 05 - 0977

)

SACRED HEART HEALTH SYSTEM, )

INC., )

)

Respondent. )

)

RECOMMENDED ORDER

This cause came on for formal hearing before Harry L.

Hooper , Administrative Law Judge with the Division of

Administrative Hearing, on September 12, 200 5 , in Pensacola ,

Florida.

APPEARANCES

For Petitioner: Robert K. Cole s , pro se

5805 Saint Elmo Street

Pensacola, Florida 32503

For Respondent: Erick M. Drlicka, Esquire

Emmanuel Sheppard & Condon

30 South Spring Street

Pensacola, Florida 32502

STATEMENT OF THE ISSUE

The issue is whether Petitioner was the subject of an

unlawful employment action committed by Respondent .

PRELIMINARY STATEMENT

On April 19, 2004, Petitioner Robert K. Coles (Mr. Coles)

filed an Employment Charge of Discrimination with the Florida

Commission on Human Relations (Commission) , alleging

discrimination by Respondent Sacred Heart Health System s , Inc.

(Sacred Heart) base d on his race, black. He alleged that he was

the victim of disparate treatment. On February 17, 2005, the

Commission issued its "Notice of Determination: No Cause."

On March 9, 2005, Mr . Coles filed a Petition for Relief

with the Commission . It was forwarded to the Division of

Administrative Hearings , which filed it on March 16 , 2005. The

case was set for hearing on June 7, 2005. Pursuant to an

unopposed M otion to C ontinue filed by Sa cred Heart, the hearing

was continued until July 5, 2005. Subsequently, on June 2,

2005, Sacred Heart again moved to continue. Mr. Coles opposed

the Motion and Administrative Law Judge Cleavinger denied the

Motion in an order filed June 22, 2005. Howeve r, in an Amended

Notice of Hearing the case was ultimately set for September 12,

2005, and was heard on that date by the undersigned

Administrative Law Judge.

At the hearing, Mr. Coles testified and offered E xhibit

N os. 1 through 6 into evidence. Of thos e, Exhibit N os. 1, 2, 3,

and 5 were admitted into evidence. Sacred Heart presented the

testimony of five witnesses and offered E xhibit N o s . 1 through

15 into evidence.

A Transcript was filed on September 26, 2005 . After the

hearing, Respondent timely f iled its Proposed Findings of Fact

and Conclusions of Law on September 30, 2005. Mr. Coles file d a

document entitled "Written Exception" on October 11, 2005, which

was in the nature of a p roposed r ecommended o rder. It was not

timely filed and not conside red .

References to statutes are to Florida Statutes (200 4 )

unless otherwise noted.

FINDINGS OF FACT

1. Mr. Coles is a person of the black race. He was first

employed by Sacred Heart , in Pensacola, Florida, on April 29,

1999 , as an environmental servic e worker . At the time of his

discharge on May 7, 2004, he was employed as an operating room

technician.

2. Sacred Heart operates a hospital in Pensacola, Florida ,

that employs more than 15 people.

3. Mr. Coles believes that he received written

Disci plinary Action s that should not have issued. He believes

that he was the subject of these Action s because he is black and

because he objected to what he believed to be an illegal

abortion performed on a 17 - year - old girl without her consent.

He is of the opinion that blacks are disciplined unequally when

compared to their white counterparts.

4. Mr. Coles also believes that he has been discriminated

against because he is a minister. However, he did not list that

occupation on the Employment Charge of Dis crimination he filed.

5. Mr. Coles' supervisor during the period August 2001

through May 7, 2004, was Jim Jones (Mr. Jones). Mr. Jones is a

nurse who has a bachelor of science degree in biology from the

University of California at Riverside, a bachelor of science

degree in nursing from Montana State University, and a master of

education degree from George Washington University. He retired

from the U. S. Navy at the rank of Commander and was employed by

Sacred Heart in 1988 .

6. Mr. Jones promoted Mr. Coles to his position as a

technician in the operating room. Mr. Coles asserted that

Mr. Jones was a racial bigot , but the only direct evidence

produced tending to prove Mr. Coles' assertion of bias was a

calendar owned by Mr. Jones upon which was a joke regarding

"rednecks." This purported evidence that Mr. Jones was biased

is not persuasive .

7 . Mr. Coles testified with regard to a list of persons

working for Mr. Jones who were disciplined by him. Despite his

assertion that Mr. Jones disciplined blac k employees

disproportionately, a statistical analysis of his list does not

support this. Disciplinary Action R eports signed by Mr. Jones

were presented to 35 persons during the period January 2003 to

March 2004 . Of the 35 persons disciplined, 14 were b l ack, 18

were white, two were Asian, and one was Hispanic.

8 . Mr. Coles did not present evidence as to the racial or

ethnic make - up of all persons working for Mr. Jones during this

period . Based on the evidence in the record, it is found as a

fact that blacks were not disproportionately disciplined by

Mr. Jones.

9 . Mr. Coles was the recipient of many counseling sessions

based on poor performance and was the recipient of numerous

Disciplinary Action Reports .

10. Mr. Coles received a Disciplinary Act ion report on

February 13, 2004, for failing to hold a patient's leg during

presurgery preparation , after having been properly instructed to

do so .

11. Mr. Coles received a Disciplinary Action R eport on

February 3, 200 4 , in the nature of a written warnin g, for

failing to take personal responsibility and failing to support

other employees. This involved his failure to provide a

suitable wheelchair for a patient.

12 . Mr. Coles received a Disciplinary Action R eport in the

nature of a formal counseling on February 17, 2003, for failure

to follow proper grievance procedures.

13 . On March 23, 2004, Mr. Coles received a Disciplinary

Action R eport in the form of a formal counseling due to a number

of incidents over several weeks preceding March 23, 2004. The

counseling addressed two incidents based on complaints by Nurse

Angie Lee dated January 16, 2004, and February 26, 2004. Nurse

Lee complained in the first incident that Mr. Coles refused to

take specimens to the laboratory as it was his duty to do.

14 . The second complaint addressed an encounter in which

Mr. Coles raised his voice and made threatening gestures toward

her. T his occurred while Nurse Lee was pregnant and she feared

for the safety of her child who was scheduled to be delivered by

C - section shortly after the incident. She was sufficiently

unnerved by this encounter that she asked Mr. Jones not to

schedule Mr. Coles to work in the operating room on the day she

was to deliver.

15 . Another complaint addressed at the counseling session

of March 23, 2004, was filed by Nurse Guthrie who cited Mr.

Coles for failing to pick up trash, and failing to sweep, prior

to departing his work site , contrary to the instructions

properly given to him .

16 . On April 5, 2004, Mr. Coles received a Disciplinary

Act ion R eport in the nature of a written warning addressing his

rude behavior and his failure to appear at his work - site o n

March 22, 2004 . He was informed that if further incidences

occurred that additional administrative a ction would ensue, up

to and inclu ding discharge.

17 . On April 5, 2004, Mr. Coles was also presented with a

"performance plan." The performance plan cited a written

warning and four formal counse ling sessions dating from June 12,

2002, and the written warning received on the same day. He was

given a 90 - day probation ary period in which to accomplish

specific goals. He was instructed to adhere to the Service

Standards, Core Commitments, and Core Values of Sacred Heart,

which are embodied in "The Core Commitments , " which apply to,

and a re provided to, all Sacred Heart employees , and which were

specifically provided to Mr. Coles .

18 . The performance plan also requi red Mr. Coles to adhere

to the Mutual Respect P olicy promulgated by Sacred Heart, which

specifically forbids retaliatory con duct toward other employees .

The performance plan further required Mr. Coles to carry and

respond to his pager, and to adhere to the Time and Attendance

Policy, and the Call - in P olicy.

19 . He was required to read again the policies

corresponding with th e performance plan and was informed that he

would be evaluated on the basis of his success in meeting the

goals.

20. On May 7, 2004, Mr. Coles received a Disciplinary

Action Report which resulted in his suspension . The basis for

the Disciplinary Action Report was a verbal threat to harm

Mr. Jones. After further investigation, Mr. Coles was

terminated. Under the circumstances, the termination was

appropriate.

21. Mr. Coles was not terminated as a result of

discrimination. He was terminated because h e would not or could

not adhere to the Sacred Heart policies applicable to employees .

CONCLUSIONS OF LAW

22 . The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. §§ 120.569, 120.57(1), a nd 760.11, Fla. Stat.

23. Sections 760.01 - 760.11 and 509.092, comprise the

Florida Civil Rights Act. § 760.01, Fla. Stat.

24. Sacred Heart is subject to Section 760.10, because it

employs, " 15 or more employees for each working day in each of

20 or m ore calendar weeks in the current or preceding calendar

year. . . ." § 760.02(7). Fla. Stat.

25. Race is class a protected by the Florida Civil Rights

Act.

26. There is no dispute that Mr. Coles is of the black

race. § 760.10 Fla. Stat.

2 7 . It is an unlawful employment practice for an employer

to discharge a person based on his race.

28 . Mr. Coles has the burden of proving by the

preponderance of the evidence that Respondent committed an

unlawful employment practice. Florida Department of

Transpo rtation v s . J. W. C. Company, Inc. , 396 So. 2d 778 (Fla.

1st DCA 1981).

29 . Section 760.10, Florida Statutes, provides as follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail to 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

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

(b) To limit, seg regate, or classify

employees or applicants for employment in

any way which would deprive or tend to

deprive any individual of employment

opportunities, or adversely affect any

individual's status as an employee, because

of such individual's race, color, r eligion,

sex, national origin, age, handicap, or

marital status.

30. The Commission and the Florida courts have determined

that federal discrimination law should be used as guidance when

construing provisions of Section 760.10. See Brand v s . Florida

Pow er Corp , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida

Department of Community Affairs v s . Bryant , 586 So. 2d 1205

(Fla. 1st DCA 1991).

31 . Mr. Coles had the opportunity to provide either direct

or circumstantial evidence of discrimination. If he had offered

direct evidence of discrimination, and if the trier - of - fact had

accepted that evidence, then Mr. Coles would have proven

discrimination. Civil Rights Act of 1964, § 701 et seq. , 42

U.S.C.A. § 2000e, et seq . Mr. Coles produced no competent

direct evidence of discrimination. Accordingly, proof of

discrimination, if discrimination can be proved, must be

accomplished using circumstantial evidence.

32 . The Supreme Court of the United States established, in

McDonnell - Douglas Corporation v s . Green , 411 U.S. 792 (1973),

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

248 (1981), the analysis to be used in cases alleging

discrimination which might be persuasive in cases such as the

one at bar. This analysis was reiterated and refined in S t.

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

33 . Pursuant to this analysis, Mr. Coles has the burden of

establishing a prima facie case of unlawful discrimination by a

preponderance of the evidence. If a prima facie case is

established, Sacred Heart must articulate some legitimate,

non - discriminatory reason for the action taken against

Mr. Coles . Once this non - discriminatory reason is offered by

Sacred Heart, the burden then shifts back to Mr. Coles to

demonstrate that the offered reason is m erely a pretext for

discrimination. As the Supreme Court stated in Hicks , before

finding discrimination, "[t]he fact finder must believe the

plaintiff's explanation of intentional discrimination." 509

U.S. at 519.

34 . Under the McDonnell - Douglas scheme applicable to Title

VII discriminatory treatment cases, Mr. Coles must first

establish by a preponderance of the evidence a " prima facie "

case of racial discrimination, thus creating the presumption

that Sacred Heart unlawfully discriminated against him. Civil

Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. § 2000e - 2(a)(1).

35 . In order for Mr. Coles to establish a prima facie

case, he must demonstrate that: (1) he belongs to a protected

class; (2) Sacred Heart treated similarly situated employees

outside o f his classification differently or more favorably, or

he was replaced by a person outside his protected class; (3) he

was qualified for the position of nurse technician ; (4) and he

was terminated from that position. Maynard v s . Board of Regents

of Divisi on of Universities of the Florida Department of

Education , 342 F.3d 1281 (11th Cir. 2003).

36 . Mr. Coles proved that he belonged to a protected class

and that he was qualified for the position of nurse technician .

However, h e failed to prove that Sacred Heart treated similarly

situated employees outside of his classification differently.

Thus he failed to prove a prima facie case.

37. However, if he had proved a prima facie case, the

second McDonnell - Douglas factor would have require d Sacred Heart

to pr ovide a legitimate, non - discriminatory reason for its

adverse employment action , and Sacred Heart did this . It is

clear that the reason for its employment action was the

continuing misbehavior of Mr. Coles and the consequence of his

failure to abide by Sa cred Heart's policies. He was continually

warned that a s evere adverse employment action would occur if he

did n o t improve his work habits .

38 . Mr. Coles did not demons trate that the reasons given

by Sacred Heart for its adverse employment action, were

p retextual.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED that the Petition be dismissed.

DONE AND ENTERED this 12th day of October, 2005, in

Tallahassee, Leon County, Florida.

S

HARRY L. HOOPER

Administrati ve 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 Administrat ive Hearings

this 12th day of October , 2005 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Robert K. Coles

5805 Saint Elmo Street

Pensacola, Florida 32503

Erick M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Pensacola, Florida 32501

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIG HT 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.