08-004554 Melvin Williams vs. Consulate Healthcare Of Tallahassee Status: Closed Recommended Order on Friday, July 31, 2009.

Summary: Petitioner was unable to demonstrate racial discrimination due to equal treatment of her by two African-American supervisors, three Caucasian executives and a Caucasion CNA.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MELVIN WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 08-4554

)

CONSULATE HEALTHCARE OF )

TALLAHASSEE, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed-fact hearing was held in this

case on May 5, 2009, in Tallahassee, Florida, before

Ella Jane P. Davis, a duly-assigned Administrative Law Judge of

the Division of Administrative Hearings.

APPEARANCES

For Petitioner: Melvin Williams, pro se

Post Office Box 364

Lloyd, Florida 32337

For Respondent: Ryan Scott Callen, Esquire

Foley & Lardner LLP

106 East College Avenue

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Respondent committed an unlawful employment practice against Petitioner by terminating her on the basis of her race.

PRELIMINARY STATEMENT

On March 21, 2008, Petitioner timely-filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR). On July 30, 2008, FCHR entered a Notice of

Determination: No Cause. Petitioner timely-filed her Petition

for Relief, which was referred to the Division of Administrative

Hearings (DOAH) on or about September 17, 2008.

DOAH’s file reflects all pleadings, notices, and orders

intervening before the disputed-fact hearing on May 5, 2009.

At hearing, Petitioner testified on her own behalf. Her

Exhibits P-1 through P-3, P-6 through P-10, and P-12 through

P-13, were admitted in evidence. Respondent presented the

testimony of Robert Walker and Elaine Leslie and had Exhibits

R-1 and R-2 admitted in evidence. A two-volume Transcript was

filed on May 26, 2009.

Only Respondent elected to timely-file a Proposed

Recommended Order on June 12, 2009. Petitioner waived the

opportunity to file a Proposed Recommended Order.

FINDINGS OF FACT

1. Petitioner, an African-American female, was employed by

Respondent in the position of Certified Nursing Assistant (CNA)

from April 21, 2007, to February 21, 2008, when she was

terminated.

2. Respondent Employer is a provider of long-term and

rehabilitative care to elderly patients and patients recovering

from surgery. The majority of Respondent’s patients range from

60-to-90 years old.

3. Upon hiring, Petitioner received a copy of the

Employer’s Handbook.

4. CNAs are responsible for patients’ basic needs, which

include feeding, bathing, dressing, and turning. They are

responsible for performing vital sign checks and providing

reports to nurses on each patient’s health condition. CNAs are

supervised by nurses, including Nurse Practitioners, Registered

Nurses (RNs), and Licensed Practical Nurses (LPNs).

5. The majority of nurses and CNAs employed by Respondent

are African-American.

6. At all times material, Petitioner regularly worked

night shifts, beginning at 11:00 p.m. and ending at 7:00 a.m.

the following day.

7. Typically, fewer CNAs are scheduled to work the night

shifts as compared to shifts scheduled between 7:00 a.m. and

11:00 p.m. The assignment of fewer CNAs to these shifts means

that there is a greater need for those employees assigned to the

night shifts to be alert and responsive to patients’ status,

needs, and requests.

8. Petitioner was scheduled to work a shift beginning at

3:00 p.m. on February 7, 2008, and then another shift from

11:00 p.m. February 7, 2008, to 7:00 a.m. February 8, 2008. She

admitted that she worked a double shift spanning February 7,

2008, and February 8, 2008. The Employer’s records show that

she had been paid for the period of time from 11:00 p.m.

February 7, 2008, to 7:00 a.m. February 8, 2008.

9. According to employee disciplinary reports admitted in

evidence, Michelle Hatcher, LPN, an African-American female who

was the night shift Charge Nurse, observed Petitioner and a

Caucasian female CNA sleeping on the job on February 8, 2008.

The two sleeping CNAs were not attending to patient call lights,

which was an unsafe situation. Nurse Hatcher’s observation was

confirmed by two separate, dated written statements provided by

female African-American Nurse Felicia Rockett against each named

CNA. “Discharge” was the proposed disciplinary action.

10. Serious injury or death of a patient may result when a

CNA fails to perform required job responsibilities.

11. Respondent’s Employee Handbook describes “sleeping or

inattention on the job” as a serious infraction which is subject

to immediate discharge.

12. Petitioner testified that she knew that sleeping on

the job was a cause for immediate discharge and that it warrants

termination “on the spot,” without prior warnings or progressive

discipline. She denied ever sleeping on the job.

13. Nurse Hatcher did not have authority to immediately

terminate Petitioner and the sleeping Caucasian LPN “on the

spot.” Nurse Hatcher was required to provide a written

disciplinary report of the incident to the Director of Clinical

Services, a/k/a the Director of Nursing, which she did.

14. In turn, the Director of Clinical Services was

responsible for reporting any termination of employment issue to

Employer's Regional Director of Human Resources for review and a

final decision on the appropriate course of action.

15. Laura Register, a Caucasian female, had been appointed

Acting Director of Clinical Services on or about

February 7, 2008. She was new to the position, and there were

many pending matters when she assumed the position, including

disciplinary matters.

16. Elaine Leslie, a Caucasian female and Respondent’s

Regional Director of Clinical Services, visited Respondent’s

Tallahassee facility two or three days per week for awhile to

help acclimate Ms. Register to her new position and to assist

her with pending matters. Mesdames Leslie and Register triaged

resident care issues ahead of disciplinary actions. Therefore,

there was a delay in addressing the two CNAs' disciplinary

action forms.

17. To ensure consistency and protect against bias,

discrimination, and personality problems, Robert Walker,

Respondent’s Regional Director of Human Resources, reviews and

makes the final decisions with respect to all termination

actions. This process is designed to ensure that uniform

policies are applied to one and all equally.

18. Ms. Leslie and Ms. Register contacted Mr. Walker, a

Caucasian male, to review the disciplinary reports related to

the charges of sleeping on the job. The three executives then

reviewed the disciplinary reports of Nurses Hatcher and Rockett

and believed their reports of Petitioner’s and the Caucasian

CNA’s sleeping-on-the-job to be credible.

19. Mr. Walker made the final decision to terminate

Petitioner and the Caucasian CNA. He held a termination

meeting with Petitioner, rather than terminating her by

telephone. Petitioner’s termination date reflects when the

termination actually occurred, on February 21, 2008, not the

date of the offense or when the offense was reported to

management.

20. Respondent offered evidence of Petitioner sleeping on

the job as the sole motivating factor in terminating her

employment. 1/

21. Respondent has a firm anti-discriminatory policy, of

which Petitioner was aware because she signed a copy thereof

upon her date of hire. However, Petitioner never complained to

Mr. Walker about perceived racial discrimination, before or

after her termination. At hearing, she denied any

discriminatory treatment or any racial slurs or comments by any

of Respondent’s employees at any time before, during, or after

the incidents previously related.

22. On February 29, 2008, which was after Petitioner’s

February 21, 2008, termination, Respondent hired three new CNAs:

one Caucasian and two African-American. Ten of the eleven CNAs

hired by the Employer from February 5, 2008, to March 26, 2008,

were African-American females.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction of the parties and subject matter of this cause,

pursuant to Sections 120.569, 120.57(1) and Chapter 760, Florida

Statutes (2008).

24. The shifting burdens of proof in discrimination cases

have been cogently explicated in the seminal case of Department

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

which stated:

Pursuant to the [Texas Department of

Community Affairs v.] Burdine, [450 U.S.

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207

(1981)] formula, the employee has the

initial burden of establishing a prima facie

case of intentional discrimination, which

once established raises a presumption that

the employer discriminated against the

employee. If the presumption arises, the

burden shifts to the employer to present

sufficient evidence to raise a genuine issue

of fact as to whether the employer

discriminated against the employee. The

employer may do this by stating a

legitimate, nondiscriminatory reason for the

employment decision, a reason which is

clear, reasonably specific, and worthy of

credence. Because the employer has the

burden of production, not of persuasion,

which remains with the employee, it is not

required to persuade the trier of fact that

its decision was actually motivated by the

reasons given. If the employer satisfied

its burden, the employee must then persuade

the fact finder that the proffered reason

for the employment decision was a pretext

for intentional discrimination. The

employee may 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. If such proof is

adequately presented, the employee satisfies

his or her ultimate burden of demonstrating

by a preponderance of the evidence that he

or she has been a victim of intentional

discrimination.

25. Herein, Petitioner failed to establish a prima facie

case of employment discrimination.

26. Petitioner is a member of a protected class, but she

established no nexus between her race and her Employer’s

decision to terminate her. Petitioner was confused over the

dates she worked. Her mistrust in her superiors’ motivation

hinged on her termination occurring 12-13 days after the

sleeping infraction/report and is not reasonably related to

discrimination. Proof that amounts to no more than mere

speculation and self-serving belief concerning the motives of

the employer (in this case, two African-American supervisors and

three Caucasian executives) are insufficient to establish a

prima facie case. See Little v. Republic Refining Co. Ltd., 924

F.2d 93 (5th Cir. 1991.) Petitioner established no different

treatment by the Employer of any similarly situated employee of

a different race than Petitioner. Petitioner did not establish

any actual or purported racial animus by any superior.

27. Assuming arguendo , but not ruling, that Petitioner did

establish a prima facie case, Respondent Employer articulated a

legitimate, non-discriminatory reason for its employment action:

a good-faith belief that Petitioner was sleeping on the job in

violation of the Employer’s policies and general safety

practices, which non-discriminatory reason Petitioner did not

refute. Even if Respondent's executives were wrong in their

reliance on African-American Nurses Hatcher and Rockett's

reports, or wrong in their belief that Petitioner was asleep so

as to offend the Employer’s rules, an honest mistake does not

constitute discriminatory conduct. See Damon v. Fleming

Supermarkets, Inc. 196 F.3d 1354, 1363 n. 3 (11th Cir. 1999).

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 Petitioner’s Charge of

Discrimination and Petition for Relief.

DONE AND ENTERED this 31st day of July, 2009, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 31st day of July, 2009.

ENDNOTE

1/ Both the African-American Petitioner and the same

Caucasian CNA were written-up for failure to take vital signs of

patients on February 10, 2008. This write-up was also authored

by LPN Hatcher and witnessed by LPN Rockett, but these

subsequent write-ups did not enter into management’s final

decision to terminate both the African-American CNA and the

Caucasian CNA.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Ryan Scott Callen, Esquire

Foley & Lardner LLP

106 East College Avenue

Tallahassee, Florida 32301

Melvin Williams

Post Office Box 364

Lloyd, Florida 32337

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.