06-001663 Olivia Lewis vs. Acts Retirement-Life Communities, Inc., D/B/A Indian River Estates Status: Closed Recommended Order on Friday, October 27, 2006.

Summary: Even if Petitioner proved a prima facie case of race discrimination in her termination, she failed to show that the employer`s explanation that she was fired for violating the rights of a nursing home resident was pretextual.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

OLIVIA LEWIS, )

)

Petitioner, )

)

vs. ) Case No. 06 - 1663

)

ACTS RETIREMENT - LIFE )

COMMUNITIES, INC., d/b/a )

INDIAN RIVER ESTATES, )

)

Respondent. )

______________________ ________)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division

of Administrative Hearings, conducted the final hearing in Vero

Beach, Florida, on September 6, 2006.

APPEARANCES

For Petitioner: Olivia Lewis, pro se

806 Mulberry Street

Sebastian, Florida 32958

For Respondent: David E. Block

Scott S. Allen

Jackson, Lewis, LLP

One Biscayne Tower

2 So uth Biscayne Boulevard, Suite 3500

Miami, Florida 33131

STATEMENT OF THE ISSUE

The issue is whether Respondent is guilty of discrimination

in employment based on race, in violation of Section 760.10(1),

Florida Statutes.

PRELIMINAR Y STATEMENT

By Charge of Discrimination dated May 21, 2005, Petitioner

alleged that Respondent discriminated against her in employment

based on her race, black. The Charge of Discrimination alleges

that Respondent did not restore Petitioner's schedule wh en she

returned from approved medical leave in January 2005, although

Respondent restored the schedules of four named white nurses and

aides when they returned from medical leave; and Respondent

terminated Petitioner's employment on April 13, 2005,

approxi mately eight days after Petitioner assisted another black

nurses' aide administer a physician - ordered medication to an

agitated patient, although Respondent did not terminate white

nurses and aides when they were involved in serious patient

incidents, incl uding death.

On March 30, 2006, the Florida Commission on Human

Relations entered a Notice of Determination: No Cause.

On May 4, 2006, Petitioner filed a Petition for Relief. In

the petition, she alleged that Respondent terminated her because

she had c ancer and she could not do her job. The petition

alleges that Respondent terminated her because she had held down

a patient, so the charge nurse could give her a physician -

ordered injection to calm down the patient. The petition

alleges that Respondent i mproperly changed her schedule after

her return from medical leave. The petition alleges that

Petitioner contacted the corporate office about a nurse who had

harassed her, but fails to explain more.

At the start of the hearing, Petitioner requested a

c ontinuance so that she could hire an attorney. However, she

failed to show good cause why she had not already retained

counsel in the four and one - half months that the case had been

pending at the Division of Administrative Hearings, so the

Administrative Law Judge denied the request.

At the hearing, Petitioner called three witnesses and

offered into evidence no exhibits. Respondent called six

witnesses and offered into evidence ten exhibits: Respondent

Exhibits 1 (pages 15 - 16, as marked by Respondent), 2 (pages

396 - 97, as marked by Respondent), 3, 4, 5 (page 283, as marked

by Respondent), 6, 7, 8 (not for truth), 9 (not for truth), 10

(not for truth, except as marked on exhibit), 11 (page 106, as

marked by Respondent -- not for truth, except as marked on

exhibit), 11 (page 110, as marked by Respondent -- not for truth,

except as marked on exhibit), 12 (not for truth), 13 (not for

truth), 14 (page 439, as marked by Respondent), Composite 15,

and 16 - 19. All exhibits were admitted.

The parties did not order a transcript. Respondent filed a

Proposed Recommended Order on September 26, 2006. Petitioner

did not file a proposed recommended order.

FINDINGS OF FACT

1. Respondent owns and operates Indian River Estates,

which is an adult community in which residents l ive

independently, in an assisted living facility, or in a

medical/nursing facility, as their needs dictate at various

times. At all material times, Petitioner, who is black, worked

as a certified nursing assistant in the medical/nursing

facility.

2. The m edical/nursing facility at Indian River Estates

comprises three units: the East unit (also known as an acute

unit), the Alzheimer's unit, and the South unit. The South unit

contains a maximum of 24 beds.

3. Petitioner was first employed at Indian River Esta tes

in June 1999 as a per diem certified nursing assistant. In

September 2000, she became a fulltime certified nursing

assistant.

4. At one point, Petitioner worked in the East unit, but

asked for a transfer because she had felt that a supervising

nurse ha d been "harassing" her. Petitioner provided no other

details in support of this assertion. As a result of

Petitioner's complaint, Respondent transferred her to the South

unit.

5. The record provides no basis for a finding of unlawful

discrimination in the treatment that Petitioner received from

her supervisor in the East unit.

6. In June 2004, shortly after being transferred to the

South unit, Petitioner began a medical leave of absence. She

returned to work in January 2005.

7. Because Petitioner was out of w ork considerably in

excess of 12 weeks, Respondent filled her fulltime position with

a new employee. Pursuant to its employee policies, which are

consistent with the federal Family and Medical Leave Act,

Respondent guarantees a person's job only when the employee

takes no more than 12 weeks of leave within a 12 - month period.

When Petitioner was ready to return to work in January 2005, her

old job was no longer available. However, Respondent re - hired

her as a per diem certified nursing assistant and retur ned her

to fulltime status when an opening occurred.

8. Petitioner cites several other white employees whom,

she claims, Respondent treated preferably when they took medical

leave. However, each of their cases is distinguishable. One

returned from medical l eave within 12 weeks. Two were granted

brief extensions of the 12 weeks, but never returned to work.

The last was granted a three - week extension of the 12 weeks, but

returned to work after the extension expired; however, he

regained his old job because R espondent had not yet filled it.

9. Although Petitioner has provided a little more detail

concerning her return to work from medical leave than she did

about her harassment claim, again, the record provides no basis

for a finding of unlawful discrimination in the handling of her

medical leave or the reassignment of job duties following her

subsequent re - hiring.

10. While working in the South unit, Petitioner served as

one of two certified nursing assistants. A licensed practical

nurse served as the immediate su pervisor of the two certified

nursing assistants. The licensed practical nurse reported

directly to the director of nursing at Indian River Estates.

11. On April 5 - 6, 2005, Petitioner worked the shift from

11 p.m. to 7 a.m. B. H. was an 88 - year - old reside nt, who was

new to the South unit. A former nurse herself, B. H. sometimes

lived in the medical unit, when her condition required, but at

other times lived in an apartment upstairs, when her condition

permitted. B. H.'s diagnoses included a history of br east

cancer and functional decline. B. H. was in hospice care as of

April 6, 2005.

12. Nurses Progress Notes on April 4, 2005, indicate that

B. H. was resisting her prescribed medications, but would take

them after repeated persuasion. At 6:00 p.m. on Apr il 5, B. H.

received her normal administration of Ativan, which is a mild

tranquillizer, from the licensed practical nurse then on duty.

13. When Petitioner and her coworkers started arriving

around 10:30 p.m. for the next shift, they found B. H. in an

agitat ed state. Petitioner and the other certified nursing

assistant working the 11 - 7 shift informed Francine Scott, who

was the licensed practical nurse for this shift, that B. H. was

unsettled. Ms. Scott advised the certified nursing assistants

to place the bed alarm so that they could monitor B. H. more

easily.

14. Despite repeated efforts of the two certified nursing

assistants, B. H. remained agitated. On one occasion, one of

the certified nursing assistants found B. H. had half climbed

out of her bed and wa s at risk of injuring herself. The

certified nursing assistants told Ms. Scott that they needed to

do something more to settle down B. H., and Ms. Scott told them

to bring her from her room to the desk. When she saw B. H., Ms.

Scott observed that B. H. w as bleeding from wounds to both lower

legs, evidently from thrashing in her bed. Ms. Scott tried to

apply a dressing to a leg wound, but B. H. declined treatment.

Ms. Scott offered B. H. some Ativan orally, but B. H. refused to

take it, so Ms. Scott left her alone at the front desk and

returned to her work.

15. About an hour later, Ms. Scott asked B. H. what had

happened. B. H. responded by screaming, "don't touch me,"

"police," "help," and "I want to go home." Staff from the East

unit came to the South un it to find out what was wrong.

Ms. Scott directed a certified nursing assistant to take B. H.

to a nearby activity room, from which B. H. would less likely

disturb other residents.

16. Ms. Scott telephoned B. H.'s physician and reported

that B. H. was agitat ed and cut, but had refused wound treatment

and Ativan. Ms. Scott told the physician that she needed help,

and the physician ordered Ativan administered by injection.

17. At about 3:00 a.m., Ms. Scott informed B. H. that her

physician had ordered the Ativan to help her calm down.

Ms. Scott administered Ativan intramuscularly to B. H. Due to

the size of the needle, Ms. Scott had to administer two

injections in order to administer the prescribed dosage. B. H.

did not want to take the injections. While Ms. S cott was trying

to administer the injections, B. H. swung her arms from side to

side, while seated in her wheelchair. Ms. Scott directed

Petitioner to restrain B. H., so Ms. Scott could administer the

injections. At times standing and at times seated nex t to B.

H., Petitioner pinned down B. H.'s arms, so they were folded

across her chest, while Ms. Scott injected the Ativan. At one

point, B. H. bit Petitioner on her left forearm, leaving bite

marks.

18. B. H. remained agitated through the rest of the

night, but, by breakfast that day, she had calmed down, as her

husband had come to the unit to help calm her. By the

afternoon, B. H. was taking her Ativan voluntarily and allowed a

hospice nurse to dress her leg wounds. Later on April 6 or the

following day, B. H. complained about the treatment that she had

received from Ms. Scott and Petitioner. Respondent initiated an

investigation that resulted in the immediate suspension of

Ms. Scott and Petitioner and their eventual termination for

violating B. H.'s righ t to refuse treatment and other rights.

19. At all material times, Respondent maintained a

written policy enumerating residents' rights. Paragraph 6

recognizes:

The right to be adequately informed of

his/her medical condition and proposed

treatment, unless o therwise indicated by the

Resident's Physician; to participate in the

planning of all medical treatment, including

the right to refuse medication and treatment

unless otherwise indicated by the Resident's

Physician; and to know the consequences of

such act ions.

20. Paragraph 9 recognizes:

The right to be treated courteously, fairly,

and with the fullest measure of dignity and

to receive a written statement and an oral

explanation of the services provided by the

Licensee, including those required to be

offered on an as - needed basis.

21. Paragraph 10 recognizes:

The right to be free from mental and

physical abuse and from physical and

chemical restraints, except those restraints

authorized in writing by a Physician for a

specified and limited period of time or as

are necessitated by an emergency. In case

of an emergency, restraints may be applied

only by a qualified Licensed Nurse who shall

be [sic] set forth in writing the

circumstances requiring the use of

restraints; and in the case of use of a

chemical restra int, a Physician shall be

consulted immediately thereafter.

Restraints may not be used in lieu of staff

supervision or merely for staff convenience,

for punishment, or for reasons other than

Resident protection or safety.

22. It is doubtful that Respondent 's statement of

residents' rights prohibits the administration of Ativan without

B. H.'s consent or the nonabusive touching of B. H. to

administer the Ativan. Paragraph 6 is probably inapplicable

because the physician, knowing that B. H. had refused the

m edication, directed the administration of Ativan. Paragraph 9

is probably inapplicable. Although Petitioner's handling of B.

H. was rough - handed, B. H. had already injured herself while in

her bed, had risked even greater injury while trying to climb

out of her bed, and had disrupted the South unit and part of the

East unit, so the administration of Ativan had acquired a degree

of urgency for the welfare of B. H. and the welfare of other

residents. Paragraph 10 appears to have required a prior

written au thorization from the physician for the use of Ativan,

but not in an emergency, and the above - described scenario at

least approached qualifying as an emergency. Paragraph 10

imposes a burden on the licensed practical nurse when using

restraints -- probably, physical restraints -- to document the use

and necessity. Paragraph 10 imposes a burden to consult a

physician immediately after using a chemical restraint. It is

unlikely that Petitioner violated this provision because: 1)

Ms. Scott consulted with the ph ysician before using a chemical

restraint and 2) the burden of consultation falls on the person

using the restraint -- Ms. Scott -- not her subordinate, who merely

follows her direction.

23. However, as noted in the Conclusions of Law, B. H.

had a clear right to refuse the Ativan, regardless of the

direction of her physician. And Ms. Scott and Petitioner

violated that right.

24. Likewise, B. H. obviously has a right not to be

physically abused, and the marks that Petitioner left on B. H.'s

arms at least raise a legitimate fact question of such abuse.

25. Respondent undertook a prompt, fair, and reasonably

thorough investigation. The Department of Children and Family

Services was contacted about possible abuse. The agency

investigator told Respondent's staff that B. H.'s rights had

been violated. Respondent's staff reached the same conclusion.

26. Finding that Petitioner had violated B. H.'s rights,

Respondent had a legitimate reason to terminate Petitioner, as

it did Ms. Scott. Petitioner failed to produce any evidence

whatsoever of a racial motive and has thus failed to prove that

the reason cited by Respondent is pretextual.

27. Petitioner's scant effort to show preferential

treatment to other similarly situated employees failed to

provide a basis on which to inf er race discrimination.

Petitioner testified that she had heard of employees who had

abandoned a patient, who then died, but Respondent never fired

the employees. However, Petitioner offered no direct evidence

of this event. Absent detailed evidence of this alleged

incident, it is impossible to use this briefly mentioned

incident for the purpose for which Petitioner offers it.

28. As noted above, the record does not support

Petitioner's allegations of racial discrimination in harassment

from a supervisor on the East unit or in the reassignment of

duties following her return from an extended leave of absence.

Implicitly abandoning these claims, Petitioner testified that

her sole claim of racial discrimination involves her termination

for her role in the B. H. incident. Thus, Petitioner did not

try to prove racial discrimination in Respondent's handling of

the B. H. incident by proving other instances of racial

discrimination by Respondent -- she admitted that there was none.

29. The record contains no evidence whatsoever of

unlawful discrimination based on any illness of Petitioner.

CONCLUSIONS OF LAW

30. The Division of Administrative Hearings has

jurisdiction over the subject matter. §§ 120.569, 120.57(1),

and 760.11(6), Fla. Stat. (2006).

31. Section 760.10(1) , Florida Statutes, prohibits an

employer from discharging, failing or refusing to hire, or

otherwise discriminating against an employee on the basis of

race or handicap, among other things.

32. Under federal law, nursing home residents have the

right to refu se treatment. 42 C.F.R. § 483.10(b)(4). Under

Florida law, nursing home residents have the right to refuse

medication or treatment. § 400.022(1)(k), Fla. Stat.

33. Petitioner produced no evidence whatsoever to support

her claim that she was fired because she had or has cancer. She

produced no evidence on her claims of racial discrimination

pertaining to her claims of harassment in the East unit or

reassignment of job duties following her return to work after an

extensive leave of absence. To the contrar y, she implicitly

withdrew these two other claims of race discrimination when she

testified the B. H. incident was the sole instance of race

discrimination.

34. The record does not establish that Petitioner's

position was filled by a white person. However, e ven without

regard to whether Petitioner has made out a prima facie case of

racial discrimination concerning her discharge for her role in

the B. H. incident, she has failed to carry her burden of proof

under McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973). In the allocation of the burden

of production in a discriminatory - treatment case, the Supreme

Court anticipated that the plaintiff would attempt to prove a

prima facie case of discrimination, then the defendant wo uld

attempt to prove a legitimate purpose for its action, and then

the plaintiff would attempt to prove that the proffered purpose

was pretextual and that unlawful discrimination was the real

reason for the complained - of action, such as discharge.

35. Here, a ssuming the existence of a prima facie case,

Respondent has shown a legitimate reason for terminating

Petitioner's employment, and Petitioner has failed to prove that

the real reason was racial.

RECOMMENDATION

It is

RECOMMENDED that the Florida Commissio n of Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 27th day of October, 2006, in

Tallahassee, Leon County, Florida.

S

_________________________________ __

ROBERT E. MEALE

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkwa y

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 27th day of October, 2006.

COPIES FURNISHED:

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

David E. Block

Scott S. Allen

Jackson, Lewis, LLP

One Biscayne Tower

2 South Biscayn e Boulevard, Suite 3500

Miami, Florida 33131

Olivia Lewis

806 Mulberry Street

Sebastian, Florida 32958

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended orde r. Any exceptions

to this recommended order must be filed with the agency that

will issue the final order in this case.