08-001750 Henry Woodie vs. Independent Group Home Living Status: Closed Recommended Order on Monday, September 29, 2008.

Summary: Petitioner did not meet his burden of proof. The complaint alleging discrimination is dismissed. The request for monetary damages is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

HENRY WOODIE, )

)

Petitioner, )

)

vs. ) Case No. 08-1750

)

INDEPENDENT GROUP HOME LIVING, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on July 14, 2008, in Viera, Florida, before Administrative

Law Judge R. Bruce McKibben of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Reverend Henry Woodie, pro se

1067 Marlin Drive

Rockledge, Florida 32955

For Respondent: Kristyne E. Kennedy, Esquire

Jackson & Lewis

390 North Orange Avenue, Suite 1285

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioner was wrongly

terminated from employment by Respondent, and, if so, whether

monetary damages are warranted.

PRELIMINARY STATEMENT

On or about August 2, 2007, Petitioner was terminated from

employment by Respondent. Petitioner timely filed a Petition

for Relief with the Florida Commission on Human Relations, which

thereafter issued a Notice of Determination: No Cause, followed

by a Determination: No Cause.

Petitioner timely filed a request for an administrative

hearing, which was then forwarded to the Division of

Administrative Hearings (DOAH) on April 10, 2008. At the final

hearing held pursuant to that request, Petitioner testified on

his own behalf and called two additional witnesses: Darlene

Reynolds, direct care counselor (DCC), with Respondent during

the events in question; and Mrs. Kathey Woodie, Petitioner's

wife. Petitioner adopted the exhibits which had been

pre-numbered by Respondent. Petitioner offered Exhibits 11

and 18 into evidence during his case-in-chief. Exhibits 1, 3

through 5, 7, 9, 10, and 28 through 30 were offered by

Respondent during Petitioner's case-in-chief. Respondent

presented the testimony of two witnesses: Sarah McElvain, an

assistant residential manager (ARM), with Petitioner during the

events at issue; and Joyce Herman, residential director of

Individual Residential Alternatives for Respondent. Respondent

offered Exhibits 8, 12, 13, 16, 17, 19 and 27 during its case-

in-chief.

The parties also entered a joint exhibit, a Joint

Stipulation setting forth agreed-upon facts, procedural matters

and applicable law relating to the instant action.

The parties advised the undersigned that a transcript would

be ordered of the final hearing. The parties requested and were

given 30 days from the date the transcript was filed at DOAH to

submit proposed recommended orders. Petitioner filed a Proposed

Recommended Order on August 14, 2008, although no transcript had

been filed at DOAH by that date. The Transcript was ultimately

filed at DOAH on August 20, 2008. Respondent timely filed its

Proposed Recommended Order on September 22, 2008, a Monday. 1

FINDINGS OF FACT

1. Petitioner, Henry Woodie, is a 66-year-old African-

American man. He has a bachelor's degree in math and education,

a bachelor's degree in accounting, and a master's degree in

business administration. Petitioner first became employed by

Respondent in August 2004, as a DCC at Ranier House, a group

home owned and operated by Respondent, Independent Group Home

Living (IGHL).

2. In February 2007, Petitioner was promoted to the

position of overnight (or nighttime) ARM for Ranier House. This

promotion occurred after Petitioner filed a lawsuit against

Respondent for discrimination. A fellow employee (Sarah

McElvain, a white female) had been promoted to ARM for Ranier

House some months earlier. Petitioner felt slighted because he

had not been granted an interview, although he had more formal

education than McElvain. However, McElvain had considerably

more experience in the healthcare industry than Petitioner at

that time.

3. Nonetheless, Respondent created a position for

Petitioner equal in status to the position McElvain obtained.

In February 2007, Petitioner was made the overnight ARM; he and

McElvain were then co-managers of the Ranier House as McElvain

took the day shift. Neither had supervisory status over the

other. Each was responsible for assisting developmentally-

disabled adults at Ranier House by providing hands-on assistance

with daily living activities.

4. Petitioner worked from approximately midnight until

8:00 a.m. as the nighttime ARM. McElvain's hours were generally

9:00 a.m. until 5:00 p.m. The two managers' paths did not cross

very frequently, although McElvain would come in early on many

occasions to have her morning coffee and chat with the DCC

workers. She may or may not have contact with Petitioner during

those visits.

5. In mid-July 2007, Petitioner noticed that there was a

shortage of available food products at Ranier House. Inasmuch

as Petitioner was responsible for preparing bag lunches for the

customers (residents of the house), he purchased some lunch

meats and other products from his personal account on July 30,

2007, at 2:39 p.m., i.e., outside his normal work hours. It was

understood that any such purchases would be reimbursed.

6. Petitioner contends the food shortage existed because

McElvain was overspending the funds budgeted for food, thus

resulting in shortages. However, McElvain made food purchases

using a WalMart debit card provided by Respondent. The card was

replenished with funds each month by Respondent's corporate

offices in New York. If the card was not timely replenished,

McElvain could not make food purchases. This is the more

reasonable and likely explanation of why shortages sometimes

occurred.

7. Any time a food shortage occurred, one of the ARMs

could make a purchase with their own money (if they were able)

and then obtain reimbursement from the corporate office.

8. At 10:41 p.m. on July 30, 2007, some nine hours after

Petitioner had made a food purchase using his own money,

McElvain made a very large purchase ($711.11) of food and other

items using the corporate WalMart card. McElvain was also

shopping outside her normal work hours.

9. McElvain brought the groceries to Ranier House at

around 11:30 p.m., i.e., just prior to Petitioner coming on duty

for his regular night shift. McElvain and DCC LaShonda Hemley

sorted the purchase by item type. They then distributed the

items to the rooms or areas where those items would ultimately

be put away for storage. For example, cleaning products were

left near the storage closet; food was left near the

refrigerator or pantry; household goods were left in the

kitchen, etc.

10. After the food items had been distributed, McElvain

saw Petitioner in passing and told him the goods needed to be

put away. She then left the Ranier House. Petitioner does not

specifically remember being told to put away the groceries. He

does remember being told that the groceries were being

distributed around the house so they could be put away, but

assumed that someone else would do that job. 2

11. McElvain and Hemley did not put the groceries away

because of several stated reasons: McElvain had been working

and going to classes all day and she was tired; the night shift

was coming on duty and would be paid to put the groceries away,

whereas McElvain and Hemley would have to be paid overtime to do

that job; and McElvain made a presumption that Petitioner would

follow through on her statement that "the food needs to be put

away."

12. Neither Petitioner, nor his DCC staff put away the

food and supplies. As a result, dangerous chemicals were left

sitting in the hallway all night long. Perishable foods were

left in the garage (right next to the refrigerator) all night

long and spoiled.

13. Petitioner did not put away the food because of two

stated reasons: Usually the person who buys the groceries puts

them away; further, he had previously suffered a stroke and did

not feel fully recovered. As for his medical condition, his

physician had released Petitioner to work as of July 9, 2007

(several weeks prior to the incident in question), but

Petitioner did not personally believe he was fully able to

perform his duties. He did not make a request to his employer

for a lighter work load or relief from his duties, however.

Further, the final hearing was the first time Petitioner raised

his health concerns as a reason why he did not put the groceries

away. That testimony is not credible and flies in the face of

the fact that Petitioner said he put away the groceries that he

had purchased.

14. Petitioner does not remember McElvain asking or

telling him to put away the groceries. He says he would have,

had he been asked. This statement is not credible since the

groceries were in full view throughout Petitioner's shift, but

he did not put them away.

15. At some point during the night of July 30 or 31, 2007,

Petitioner opened some of the bags containing perishable foods

and used some of them to make sandwiches for the customers. He

did not put the opened packages or any of the other bags of

groceries into the refrigerator at that time. Petitioner does

not accurately remember, but believes the lunch meats he used

may have come from food he had bought (and put away) earlier in

the day.

16. Besides the perishable foods, there were also some

bleach and cleaning supplies left unattended. These items were

placed on the floor in a hallway immediately adjacent to a

locked storage closet where they are to be stored. The closet

was locked and the keys were located in the office at Ranier

House. Petitioner maintained at final hearing that he did not

see the items even though they were right next to customer rooms

(which are supposed to be checked every 15 minutes throughout

the night). It is hard to reconcile Petitioner's statement with

the pictures of the bleach introduced into evidence at final

hearing. The location of the bleach is patently obvious to even

the most casual observer.

17. Further, a letter written by Petitioner to an unknown

recipient clearly states, "When I came to work at Mid-night

[sic], I noticed about 50 bags of groceries spread out on the

floors of different rooms." This letter, which Petitioner

admits writing, contradicts his contention that he did not see

the goods.

18. One of the concerns about the bleach was that one

customer was prone to getting up at night and finding something

to drink. He would apparently drink anything, including bleach.

Knowing that, it is unconscionable that Petitioner would allow

the bleach to sit in close proximity to the customer bedrooms

over an entire eight-hour shift.

19. On July 31, 2007, McElvain came to work around

8:30 a.m. When she passed Petitioner on her way in, he said

something akin to "I'm out of here" and left. McElvain then

spotted the spoiled food and other items which had not been put

away. She became extremely angry about that negligence.

20. McElvain sorted through the food products and

identified $167.27 worth of groceries that were no longer

edible. She took pictures of the bags of groceries that were

placed in different areas around the house. Then she called her

supervisor, Joyce Herman, to lodge a complaint. McElvain told

Herman that she (McElvain) had instructed Petitioner to put away

the food items or, at least, had told Petitioner that the items

needed to be put away.

21. Herman contacted Petitioner at his home, inquiring as

to why he had not put the groceries away. He said that he had

not been told to do so. Herman says that the job descriptions

for ARMs would suggest that someone needed to put the groceries

away; if one ARM didn't, the other should. She places the

primary blame in this case on Petitioner because the groceries

were left out for his entire shift.

22. Herman instructed Petitioner not to contact McElvain,

but he did so anyway. Petitioner left a message on McElvain's

home phone and then one on her cell phone. The messages were

not preserved and could not be played at final hearing.

However, a transcript of the home phone message, which both

parties indicated was an accurate reflection of what was said,

reads as follows: "Yes, Sarah, this is [Petitioner]. I was

wondering why you told Joyce [Herman] that lie that you told me

to put the groceries away and I didn't. Number one, you don't

tell me what to do and number two, you could have put the

groceries away yourself. Give me a call." McElvain says part

of the message was stated in a "nasty tone," but Petitioner

disagrees.

23. McElvain contacted Herman and forwarded Petitioner's

voicemail message so Herman could listen to it. Both McElvain

and Herman describe the tone in Petitioner's voice as angry and

confrontational.

24. The voicemail was alternatively described by

Respondent as "threatening," "confrontational" or "upsetting."

Petitioner admits that he was angry when he made the call and

might not have made the call had he not been angry. Petitioner

and McElvain did not appear to have had a smooth or cordial

working relationship, although they were peers.

25. Upon hearing the voicemail and considering the facts

as to what had occurred, Herman and her subordinate, Doris Diaz,

made the decision to terminate Petitioner's employment. The

basis of the termination was violation of the IGHL Code of

Conduct, specifically the following language: "[D]ecisions on

disciplinary action to be taken will be up to and including

discharge. The following are examples of unacceptable behavior.

. . . Confrontation with customers or co-workers." Petitioner

acknowledged receipt and understanding of the Code of Conduct.

26. Petitioner requested of Respondent a letter setting

out the reason for his discharge. He was told that IGHL policy

did not allow for a written statement; however, a letter was

thereafter sent to him stating the basis for Respondent's

action. The letter is unequivocal that the employer's reliance

on confrontation with a co-worker was the basis for terminating

Petitioner's employment.

27. Petitioner presented no competent substantial evidence

to support his claim of race, gender, or age discrimination as

the basis for his termination from employment.

28. Petitioner was promoted from DCC worker to nighttime

ARM by IGHL. His promotion included a substantial salary

increase, but not much change in his duties or responsibilities.

He was, by his own admission, probably overpaid for the job he

was performing. He claims that his termination from employment

was for the purpose of eliminating this particular position.

There is no evidence to support that contention. 3

29. Petitioner claims retaliation may have occurred

because of the fact that he pointed out McElvain's failure to

stay within her prescribed food budget. There is no evidence

that McElvain strayed from her budget. Rather, the evidence

shows a failure on the part of IGHL's corporate offices to stay

current when replenishing the WalMart card used for making

purchases.

30. The 90-day evaluation for Petitioner after his

promotion to ARM is acceptable, but is considerably less

laudatory in nature than McElvain's evaluation. It is clear

Petitioner did have some minor issues relating to other

employees, but that is often the case when someone is promoted

from within an organization.

31. If Petitioner is claiming retaliation based on his

previous claim of discrimination against his employer, that

claim is not supported by the evidence. As a matter of fact,

Petitioner was promoted, not fired, as a result of the prior

claim he filed.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding pursuant to Section 120.569 and Subsection 120.57(1),

Florida Statutes (2008).

33. The Florida Civil Rights Act of 1992 (the "Act") is

codified in Sections 760.01 through 760.11 and 509.092, Florida

Statutes (2007). Among other things, the Act makes certain

actions by employers "unlawful employment practices" and gives

the Commission authority--following an administrative hearing

conducted pursuant to Sections 120.569 and 120.57, Florida

Statutes (2007)--to issue an order "prohibiting the practice and

providing affirmative relief from the effects of the practice,

including back pay." §§ 760.10 and 760.11(6), Fla. Stat.

(2007).

34. Petitioner has the burden of proof that he was the

victim of a discriminatory act. See Department of Banking and

Finance, Division of Securities and Investor Protection v.

Osborne Stern and Company , 670 So. 2d 932, 934 (Fla. 1996),

wherein the Court stated: "The general rule is that a party

asserting the affirmative of an issue has the burden of

presenting evidence as to that issue."

35. At final hearing, Petitioner did not allege or present

evidence to prove the existence of race, age, or gender

discrimination. Petitioner dropped each of those bases in favor

of a claim of discrimination based upon retaliation. Petitioner

believes his employer was acting in a retaliatory manner because

the employer had previously promoted Petitioner to ARM status,

but then later wanted to eliminate the position by firing

Petitioner. The promotion was a positive action performed by

the employer. Under Petitioner's theory, the employer would

effectively be retaliating against itself.

36. Petitioner relies generally upon Chapter 10 from a

legal treatise, Employment Discrimination Laws and Litigation ,

edited by Merrick T. Rossein, as support for his claim of

retaliation discrimination. The treatise discusses a number of

issues relating to discrimination and cites to state and federal

case law. However, Petitioner did not cite to any particular

case or holding within the treatise, and nothing found therein

by the undersigned supports Petitioner's claims in the instant

case.

37. In order to establish a claim of retaliatory conduct,

Petitioner must prove that: (1) he engaged in a statutorily

protected expression; (2) the employer took an adverse

employment action against him; and (3) there is a causal

connection between the protected activity and the adverse

employment action. Shannon v. BellSouth Telecommunications,

Inc. , 292 F.3d 712, 715 (11th Cir. 2002). Petitioner's

promotion to ARM was not statutorily protected; the action taken

by the employer was positive, not adverse; and there is no

causal connection between the promotion and Petitioner's

termination for confronting another employee. Petitioner did

not, therefore, prove even a prima facie case of retaliation by

Respondent.

38. Petitioner did not meet his burden of proof in this

matter. Petitioner did not establish a prima facie case that

his employer retaliated against him in any fashion, thus, the

employer was not required to establish legitimate,

non-retaliatory reasons for its termination of Petitioner.

There is no evidence of discrimination.

39. There is no evidence to support an award of damages

against Respondent.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered by the Florida

Commission on Human Relations finding Respondent not guilty of

an unlawful employment practice and dismissing Petitioner's

Petition for Relief.

DONE AND ENTERED this 29th day of September, 2008, in

Tallahassee, Leon County, Florida.

R. BRUCE MCKIBBEN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 29th day of September, 2008.

ENDNOTES

1/ The Proposed Recommended Order was actually faxed to DOAH on

Friday, September 19, 2008, but arrived in full after business

hours and so was clocked in officially on the next business day,

September 22, 2008.

2/ Petitioner believed that whoever purchased the groceries

should put them away. There was no policy or written protocol

to that effect, however.

3/ In fact, IGHL has closed and/or sold Ranier House and its

other properties in Florida. Thus, Petitioner's position was in

jeopardy notwithstanding any issue in the present proceeding.

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

Kristyne E. Kennedy, Esquire

Jackson & Lewis

390 North Orange Avenue, Suite 1285

Orlando, Florida 32801

Henry Woodie

1067 Marlin Drive

Rockledge, Florida 32955

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.