05-001132 Jessica James vs. Winter Haven Health &Amp; Rehabilitation Center Status: Closed Recommended Order on Thursday, April 27, 2006.

Summary: Petitioner failed to prove that she was terminated as director of nursing because of her race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSICA JAMES , )

)

Petitioner , )

)

vs. ) Case No. 05 - 1132

)

WINTER HAVEN HEALTH & )

REHABILITATION CENTER , )

)

Respondent . )

)

RECOMMENDED ORDER

P ursuant to notice, a formal hearing was held in this case

on December 2, 2005, in Winter Haven, Florida, before Carolyn S.

Holifield, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Charla nn Jackson Sanders, Esquire

Charlann Jackson Sander s , P.A.

Post Office Box 7203

Lakeland, Florida 33860

For Respondent: Amy L. Christiansen, Esquire

Spector, Gadon, and Rosen, LLP

360 Central Avenue, Suite 1550

St. Petersburg, Florida 33701

STATEMENT OF THE ISSUE

The issue is whether Respondent engaged in an unlawful

employment practice by terminating Petitioner due to her race.

PRELIMINARY STATEMENT

Petitioner filed an Amended Charge of Employment

Discrimination with the Florida Commission on Human Relations

( " Commission " ) on March 31, 2003. The Commission entered a

Notice of Determination: No Cause on or about February 17, 2005.

Petitioner then filed a Petition for Relief, which was forwarded

to the Division of Administrative Hearings (Division) on

March 25, 2005, for assignment of an Administrative Law Judge to

conduct a formal hearing.

The matter was initially set fo r hearing on May 6 , 2005,

but was continued at the request of Petitioner, and was

rescheduled for June 28, 2005. Thereafter, the parties

requested and were granted several continuances. The hearing

was subsequently rescheduled and conducted on December 2 , 200 5 .

Prior to the evidentiary portion of the hearing, Petitioner

made an ore tenus motion for reconsideration of the

undersigned's Order, issued November 29, 2005, which granted

Respondent's Motion in Limine. 1 The motion for reconsideration

was denied.

At the final hearing, Petitioner testified on her own

behalf and presented the testimony of Nora Vrooman.

Petitioner's Exhibits 1, 2, 3, 13, 14, 15, 17, 18, 46, and 47

were admitted into evidence. Petitioner also presented the

post - hearing deposition te stimony of Charles Bell, formerly the

r egional d irector of o perations for Senior Health Management ,

and Debra Harris, custodian of records for Respondent. 2 The

depositions of Mr. Bell and Ms. Harris, and the exhibits

attached thereto, are deemed a part of the record in this

proceeding. On February 10, 2006, Petitioner filed a motion to

admit into evidence Petitioner's Exhibits 7, 20 through 29, 34,

36, 40, and 44, which were proffered at hearing. The motion was

granted, based on the documents' being auth enticated by

Respondent's custodian of records at a post - hearing deposition.

At hearing, Respondent presented the testimony of Patricia

Andrews and the deposition testimony of Petitioner.

Respondent's Exhibits 1 through 4 were admitted into evidence.

The Transcript of the proceeding was filed with the

Division on January 6, 2006. The deposition transcripts of

Mr. Bell and Ms. Harris were filed with the Division on

February 8, 2006. 3 Both parties filed P roposed R ecommended

O rders , which have been consid ered in preparation of this

Recommended Order.

FINDINGS OF FACT

1. Petitioner , Jessica James ( " Petitioner " ), is a black

female who was hired by Respondent, Winter Haven Health and

Rehabilitation Center ("Winter Haven Center" or "facility") , as

d irector of n urs ing on August 27, 2001.

2. Winter Haven Center is a nursing home facility located

in Winter Haven, Florida. At all times relevant to this

proceeding, Winter Haven Center was owned and operated by Senior

Health Winter Haven, L.L.C., and managed by a regional entity

know n as Senior Health Management ("Senior Health") .

3. Petitioner i s a registered nurse and ha s a bachelor's

degree in nursing. She also ha s a master's degree in health

care administration.

4. Prior to Petitioner's being employed as d ir ector of

n ursing in August 2001, she had been employed as a unit manager

at the Winter Haven Center in 1995. As a unit manager,

Petitioner supervised nurses in one unit of the facility. In

1996, Petitioner resigned from her position as unit manager and

l eft the facility.

5. Petitioner's previous employment included working as

director of risk management, a staff development nurse, a

private duty nurse, a visiting nurse, and a hospital nurse.

6. Prior to her employment as d irector of n urs ing in

August 2001, Petitioner had never worked in such capacity.

7 . At all times relevant to this proceeding, the d irector

of n urs ing at Winter Haven Center was responsible for doing the

following: overseeing the nursi ng department of the facility;

directing all of the clinical programs at the facility, ensur ing

compliance with state guidelines; managing the quality of

patient care at the facility; generating state mandated reports;

and supervising clinical personnel.

8 . Recently hired d irectors of n urs ing are given a

policies and procedures manual for the facility. The manual

contains information regarding how the facility i s to be run.

Specifically, the manual describes all of the clinical programs

of the facility and how to implement those programs. It also

con tains all of the forms used to implement the programs.

9 . Regional n urse c onsultants are employed by Winter Haven

Center 's management entity, Senior Health. Persons working in

those positions visit the facilities managed by Senior Health,

conduct audits of those facilities, and provide support to

d irectors of nurs ing in the various facilities. Such support

include s reviewing the facility's policies and procedures.

10 . Directors of n urs ing ha ve the opportunity to consult

with regional nurse consultants n ot only when the y visit the

facilities, but also , on a regular basis, via telephone and

electronic mail.

1 1 . At all times relevant to this proceeding, the

procedures and practices described in paragraphs 8 through 10

were applicable to the d irector of n ur sing at Winter Haven

Center .

1 2 . Nora Vrooman was a regional nurse consultant assigned

to Winter Haven Center when Petitioner was first employed as the

d irector of n ursing at the facility. As part of her

responsibilities, on September 11, 2002, Ms. Vroo man met with

Petitioner at the facility and reviewed the facility's policies

and procedures manual .

1 3 . A copy of the facility's polic ies and procedure s

manual was available at Winter Haven Center and accessible to

Petitioner any time she needed to consul t or review it.

1 4 . Ms. Vrooman was not aware of Petitioner's job

performance. The only thing that Ms. Vrooman recalled was that

when she reviewed the policies and procedures manual with

Petitioner on September 11, 2001, Petitioner was very pleasant

and nice.

1 5 . At all times relevant to this proceeding, Patricia

Andre w s was a compliance specialist employed by Senior Health.

During the same time period, Ms. Andrews also performed the

duties of regional nurse consultant.

1 6 . When Petitioner assumed her new position, Petitioner

believed that Ms. Andrews was responsible for providing her with

"job specific" orientation regarding her duties as d irector of

n ursing. Specifically, Petitioner thought that the orientation

should have included orientation of th e specifics of the job

such as the day - to - day reports and clinical aspects of the job.

Apparently, no such "job specific" orientation was provided to

Petitioner .

1 7 . Although Petitioner was never given a "job specific"

orientation, during Ms. Andrews' vi sits to the facility, she

talked to Petitioner about various issues related to her

responsibilities as d irector of n ursing. Also, Petitioner

raised several job - related issues with Ms. Andrews. These

issues were discussed and Ms. Andrews offered advice,

s uggestions, and recommendations to Petitioner.

1 8 . During her visits to the facility, Ms. Andrews

observed Petitioner having difficulty performing her job duties.

Petitioner was unable to perform required tasks in a timely

manner and to identify soluti on strategies to better run the

nursing department. Petitioner also had problems keeping and

transferring statistical data regarding the facility and its

residents/pa tients. Such statistical data - keeping has a direct

effect on the facility’s ability to m aintain its nursing

license. Incomplete data - keeping can also subject a d irector of

n ursing to disciplinary action.

1 9 . Given the number of tasks Petitioner was responsible

for accomplishing, it was important that she delegate some

responsibilities to her staff. Ms. Andrews discussed the

necessity of Petitioner 's assigning certain tasks to support

staff in order to ensure that all tasks were timely completed.

Despite this recommendation, Petitioner demonstrated difficulty

assigning tasks and developin g clear roles for her support

staff.

20. Petitioner was unaware of the status of the units in

the facility. In Ms. Andrews ' discussions with Petitioner , it

became apparent that Petitioner was not always knowledgeable as

to the facility's census ( i.e. , th e number of residents/ patients

in her facility, the care they required, and where they were

being placed in the facility ) . It was important that Petitioner

always know th e facility's census in order to ensure that the

facility was properly staffed at a ll time s . Proper staffing is

necessarily and directly related to the quality of care received

by residents in the facility.

2 1. Petitioner also had trouble processing incident

reports in a timely fashion. These reports are required

whenever there i s an adv erse event involving a resident. As

d irector of n ursing, Petitioner was responsible for reviewing

the incident reports, discussing the incident s with staff, and

investigating the incidents. The investigation of such adverse

incidents is required by s tate guidelines.

2 2 . Petitioner sometimes did not take appropriate

disciplinary action against staff. For example, one evening or

in the early morning hours , when Petitioner returned to the

facility, she found two certified nursing assistants ("CNAs")

braidi ng each other's hair while they were on duty. Petitioner

reported this incident to Ms. Andrews, but Petitioner indicated

that she had not disciplined the CNAs when she observed this

inappropriate activit y occurring during work hours.

2 3 . On two occasions , Ms. Andrews became aware of

Petitioner's conduct only because Petitioner reported the

conduct to her. During one of her visits to the facility,

Petitioner told Ms. Andrews that a nurse at the facility told

Petitioner that she had given a half dosage of a narcotic to a

resident, as had been prescribed, leaving the remaining half in

the vial. Petitioner also told Ms. Andrews that the nurse

involved in the foregoing incident reported the incident to

Petitioner and stated that she (the nurse) had destroyed the

remaining narcotic . According to Petitioner, the nurse then

asked Petitioner to sign the narcotic destruction form .

Petitioner told Ms . Andrews that she complied with the nurse's

request and signed the narcotics destruction form . Petitioner's

signat ure on the document indicated that she had witnessed the

destruction of the narcotic even though she had not observed

such destruction .

2 4 . With regard to the destruction of narcotics, the

standard nurse practice is to have another person sign the

destruc tion form to verify that the remaining narcotic was , in

fact , destroyed. Petitioner's conduct, signing the destruction

form when she did not personally witness the destruction of the

narcotic, violated the forgoing nurse standard.

2 5 . After Petitioner to ld Ms. Andrews about the incident

described in paragraphs 23 and 24 , and confirmed that she signed

the destruction form even though she had not witnessed the

destruction of the narcotic, Ms. Andrews counse led Petitioner.

Specifically, Ms. Andrews told Pet itioner that because she had

not witness ed the destruction, she should not have signed the

destruction form.

2 6 . Ms. Andrews memorialized t he narcotics destruction

form incident in a typed unsigned document, dated October 2,

2001 . This document was neve r placed in Petitioner's personnel

file or given to Petitioner.

2 7 . Petitioner also told Ms. Andrews about another

incident which involved information re cord ed on an incident

report. According to Petitioner, after a staff member found a

resident on the f loor, Petitioner and a licensed practical nurse

( " LPN " ) were called to the scene to determine if the resident

was injured. At the time Petitioner and the LPN arrived at the

scene, no incident report had been completed so it was necessary

to complete one. The incident report form included a space to

record the resident's vital signs at the time of the incident .

Because Petitioner was not at the scene when the incident

occurred, she was apparently unsure how to report the resident's

vital signs. Petitione r contacted a regional nurse, Nora

Roberts, and asked what she should do. The regional nurse told

her that she should review the resident's medical chart, average

the vital signs reported on the chart, and then record that

average on the incident report. Petitioner averaged the

resident's vital signs and recorded the average on the incident

report. This method did not accurately reflect the resident's

vital signs at the time of the fall.

2 8 . Immediately upon being informed of the incident by

Petitioner , Ms. Andrews told Petitioner that the method that she

used in recording the resident's vital signs constituted

falsification of documentation, which is a violation of the

Nurse Practice Act. Ms. Andrews explained to Petitioner that

the information she re corded on the incident report was not

accurate in that it did not report the resident's vital signs at

the time the resident fell.

2 9 . Ms. Andrews wrote a memo regarding the incident report

described in paragraph 27 , and the memo was placed i n

Petitioner' s personnel file.

30 . At hearing, Petitioner d oes not dispute that the

incidents involving the narcotics destruction form or the

reporting of vital signs on the incident report occurred.

Neither does Petitioner dispute the fact that there were many

facet s of her job that she had difficulty performing and did not

adequately perform .

31 . Petitioner does not deny or dispute any of the

foregoing cited work - related deficiencies . Instead, she seeks

to explain the reasons for such deficiencies . According to

P etitioner, her failure to perform her duties as d irector of

n urs ing was the result of Winter Haven Center 's or Senior

Health's failing to provide her with a "job specific

orientation," failing to evaluate her, and failing to give her

written notice of her deficiencies.

3 2 . Notwithstanding her assertions, Petitioner was advised

of her responsibilities as d irector of n ursing during routine

visits of Ms. Andrews. Nonetheless, Petitioner failed to comply

with the reporting and scheduling requirements of the j ob. With

regard to orientation, a regional nurse consultant reviewed the

facility's policy and procedures manual with Petitioner. That

manual was available for Petitioner to study and review.

Finally, with regard to being evaluated, there was no

require ment that Petitioner be evaluated during the eight months

she worked as d irector of n ursing. The usual practice at Winter

Have n Center was to evaluate an employee's performance annually.

3 3 . Throughout her eight - month tenure as d irector of

n ursing at Win ter Haven Center , Petitioner was approached by

Ms. Andrews several times about her (Petitioner's) performance.

Ms. Andrews also discussed many of those issues with Larry

Potter, the facility administrator and Petitioner's direct

supervisor , during the ti me period when most of Petitioner's

deficiencies occurred.

3 4 . As Petitioner's direct supervisor, it was Mr. Potter's

responsibility to impose any disciplinary measures against

Petitioner. However, even though Ms. Andrews talked to

Mr. Potter about her observations of Petitioner and the

incidents Petitioner discussed with her, there is no indication

that Mr. Potter ever discussed any of those issues with

Petitioner. Also, there is no evidence in the record that

Mr. Potter took any disciplinary action a gainst Petitioner for

any of her performance deficiencies.

3 5 . Mr. Potter resigned from the facility at some point

during Petitioner's tenure as d irector of n urs ing at Winter

Haven Center. In or about February or March 2002, Dale Sanders

was employed as the administrator of the facility.

3 6 . Soon after Mr. Sanders was employed as the facility's

administrator, Petitioner was given an opportunity to resign,

but she refused to do so.

3 7 . After Petitioner refused to resign, on April 1, 2002,

Mr. Sanders, Ms . Andrews, and Petitioner met in Mr. Sanders'

office. During the meeting, Mr. Sanders told Petitioner that

she was being let go because, "We've decided we want to go in a

different direction." Notwithstanding the foregoing statement

Mr. Sanders made to P etitioner , the reason Winter Haven Center

terminated Petitioner as d irector of n urs ing was that she failed

to adequately perform many of the job duties for which she was

responsible.

38 . Although Mr. Sanders did not elaborate on what he

meant when he told Petitioner the company/facility was going in

a "different direction," Petitioner believed that Mr. Sanders

meant he was not comfortable working with her. Petitioner made

this assumption based on her recollection and interpretation of

an incident which oc curred shortly after Mr. Sanders became

administrator of the facility .

39 . According to Petitioner, the incident that caused her

to question the reason for her termination occurred in

Mr. Sanders' office a few weeks before April 1, 2001.

Petitioner reca lled that she entered Mr. Sanders' office while

he and another employee were there. Petitioner testified that

as soon as she entered the office, she heard Mr. Sanders say

"something to the effect that, 'oh, it sure smells bad in

here.'" Since she was the last person to enter the office,

Petitioner thought that Mr. Sanders was talking about her.

Petitioner responded by telling Mr. Sanders, "You couldn't be

talking about me because I bathe every morning before I come to

work."

4 0 . Based on the incident de scribed in paragraph 39 , and

the fact that the incident occurred only about a month before

she was terminated, Petitioner believed that she was terminated

because Mr. Sanders did not want to work with her. Although

Mr. Sanders never made any comments reg arding Petitioner's race ,

Petitioner seemed to impute a racial connotation to Mr. Sanders'

comments and unreasonably concluded that she was terminated

because of her race.

4 1 . Petitioner was ultimately terminated from her position

on April 1, 2002 , by the a dministrator of the facility for

failure to adequately perform her job duties as d irector of

n ursing.

42 . When Petitioner began her employment as d irector of

n urs ing , Winter Haven Center issued to her an "Employee

Handbook," which details the personnel policies/work rules of

the facility. The Employee Handbook provides for progressive

discipline in instances in which an employee has violated work

rules, but also provides that for serious violations, an

employee can be discharged without regard to the em ployee's

prior conduct.

43 . Petitioner's job performance deficiencies were serious

in nature and could have had severe consequences for both the

residents and the facility. In light of deficiencies, Winter

Haven Center was justified in terminating Petiti oner's

employment as d irector of n urs ing .

4 4 . T he person hired as d irector of n urs ing at Winter

Haven Center after Petitioner was terminated was a white female .

4 5 . There are currently at least three black persons

working as d irectors of n urs ing at facil ities managed by Senior

Health.

CONCLUSIONS OF LAW

4 6 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding . §§ 120.569 and 120.57, Fla. Stat. (2005).

4 7 . S ubs ection 760.10(1), Florida St atutes (2001) , 4 states

that it is an unlawful employment practice for an employer to

discharge or otherwise discriminate against an individual on the

basis of race.

4 8 . In discrimination cases alleg ing disparate treatment,

Petitioner generally bears the b urden of proof established by

the United States Supreme Court in McDonnell Douglass v. Green ,

411 U.S. 792 (1973), and Texas Department of Community Affairs

v. Burdine , 450 U.S. 248 (1981). 5 Under this burden of proof,

Petitioner has the initial burden of establishing a prima facie

case of discrimination. When Petitioner is able to establish a

prima facie case, the burden to go forward shifts to the

employer to articulate a legitimate, non - discriminatory

explanation for the employment action. See Departm ent of

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

(court discussed shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion and need only persuade the finder of fact that the

decision was non - discriminatory. Id. See also Alexander v.

Fulton County, Georgia , 207 F.3d 1303 (11th Cir. 2000). The

employee must then come forward with specific evidence

demonstrating that the reasons given by the employer are a

pretext for discrimination. "The employee m ay satisfy this

burden by showing directly that a discriminatory reason more

likely than not motivated the decision, or indirectly by showing

that the proffered reason for the employment decision is not

worthy of belief." See Chandler , supr a, at 1186.

49 . To establish a prima facie case of discrimination,

Petitioner must prove that (1) she is a member of a protected

class ( e.g. , African - American or black); (2) she was subject to

an adverse employment action; (3) her employer treated similar ly

situated employees, who are not members of the protected class,

more favorably; and (4) she was qualified for the job at issue.

5 0 . Petitioner has not proven all of the elements to

establish a prima facie case of discrimination.

5 1 . Petitioner proved that she is an African - American,

and, thus, a member of a protected class. Petitioner

established that she was subject to an adverse employment action

in that she was terminated from her job as d irector of n urs ing .

Petitioner also proved that she was qua lified for the position

of d irector of n urs ing .

5 2 . Petitioner failed to establish that other similarly

situated employees, who were not members of the protected class,

were treated more favorably. With regard to the latter element,

Petitioner presented no evidence that any other d irector of

n urs ing had the job - related deficiencies that she had and that

such individual was retained in his or her position.

5 3 . Assuming arguendo that Petitioner established a prima

facie case of discrimination, Winter Haven Center presented

persuasive evidence that Petitioner was terminated because of

her failure to adequately perform her job responsibilities.

5 4 . Petitioner did not present any credible evidence that

Winter Haven Center 's reasons for the adverse employment action

w ere a pretext for race discrimination.

RECOMMENDATION

Based upon 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.

DONE A ND ENTE RED this 2 7 th day of April , 2006 , in

Tallahassee, Leon County, Florida.

S

CAROLYN S. HOLIFIELD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Fl orida 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 2 7 th day of April , 2006 .

ENDNOTES

1/ The Motion in Limine, filed on November 7, 2005 , and to

which Petitioner did not respond, sought to limit the evidence

at hearing only to such evidence that related to the allegations

of discrimination raised in the Amended Charge of Employment

D iscrimination filed with the Commission. Based on this r uling,

the issue in this proceeding was limited to Petitioner's

original allegation of discrimination based on race.

2/ At the hearing, the Administrative Law Judge granted

Petitioner's request to allow the record to remain open to allow

her to take the depositions of Mr. Bell and Ms. Harris.

Mr. Bell had been properly subpoenaed, but was unavailable to

appear at the final hearing. Petitioner indicated that

Ms. Harris' testimony was necessary after Respondent objected to

its various records being admi tted into evidence because the

records were not properly authenticated. The depositions were

taken on December 15 and 21, 2005, and, pursuant to an order

issued December 21, 2005, the record in the case remained open

until the deposition transcripts were filed with the Division.

3/ The record indicates that the court reporters completed the

deposition transcripts of Mr. Bell and Ms. Harris on

December 20, 2005, and January 9, 2006, respectively.

4/ This statutory provision is identical to the 2005 vers ion.

5 / The Florida Commission on Human Relations and Florida courts

have determined that federal discrimination law should be used

as guidance when construing provisions of Section 760.10,

Florida Statutes. See Brand v. Florida Power Corporation , 633

S o. 2d 504 (Fla. 1st DCA 1994).

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Charlann Jackson Sanders, Esquire

Charlann Jackson Sander s , P.A.

Post Off ice Box 7203

Lakeland, Florida 33860

Amy L. Christiansen, Esquire

Spector, Gadon, and Rosen, LLP

360 Central Avenue, Suite 1550

St. Petersburg, Florida 33701

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Su ite 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 a gency that

will issue the final order in this case.