08-004554
Melvin Williams vs.
Consulate Healthcare Of Tallahassee
Status: Closed
Recommended Order on Friday, July 31, 2009.
Recommended Order on Friday, July 31, 2009.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8MELVIN WILLIAMS, )
11)
12Petitioner, )
14)
15vs. ) Case No. 08-4554
20)
21CONSULATE HEALTHCARE OF )
25TALLAHASSEE, )
27)
28Respondent. )
30)
31RECOMMENDED ORDER
33Upon due notice, a disputed-fact hearing was held in this
43case on May 5, 2009, in Tallahassee, Florida, before
52Ella Jane P. Davis, a duly-assigned Administrative Law Judge of
62the Division of Administrative Hearings.
67APPEARANCES
68For Petitioner: Melvin Williams, pro se
74Post Office Box 364
78Lloyd, Florida 32337
81For Respondent: Ryan Scott Callen, Esquire
87Foley & Lardner LLP
91106 East College Avenue
95Tallahassee, Florida 32301
98STATEMENT OF THE ISSUE
102Whether Respondent committed an unlawful employment practice against Petitioner by terminating her on the basis of her race.
120PRELIMINARY STATEMENT
122On March 21, 2008, Petitioner timely-filed a Charge of
131Discrimination with the Florida Commission on Human Relations
139(FCHR). On July 30, 2008, FCHR entered a Notice of
149Determination: No Cause. Petitioner timely-filed her Petition
156for Relief, which was referred to the Division of Administrative
166Hearings (DOAH) on or about September 17, 2008.
174DOAHs file reflects all pleadings, notices, and orders
182intervening before the disputed-fact hearing on May 5, 2009.
191At hearing, Petitioner testified on her own behalf. Her
200Exhibits P-1 through P-3, P-6 through P-10, and P-12 through
210P-13, were admitted in evidence. Respondent presented the
218testimony of Robert Walker and Elaine Leslie and had Exhibits
228R-1 and R-2 admitted in evidence. A two-volume Transcript was
238filed on May 26, 2009.
243Only Respondent elected to timely-file a Proposed
250Recommended Order on June 12, 2009. Petitioner waived the
259opportunity to file a Proposed Recommended Order.
266FINDINGS OF FACT
2691. Petitioner, an African-American female, was employed by
277Respondent in the position of Certified Nursing Assistant (CNA)
286from April 21, 2007, to February 21, 2008, when she was
297terminated.
2982. Respondent Employer is a provider of long-term and
307rehabilitative care to elderly patients and patients recovering
315from surgery. The majority of Respondents patients range from
32460-to-90 years old.
3273. Upon hiring, Petitioner received a copy of the
336Employers Handbook.
3384. CNAs are responsible for patients basic needs, which
347include feeding, bathing, dressing, and turning. They are
355responsible for performing vital sign checks and providing
363reports to nurses on each patients health condition. CNAs are
373supervised by nurses, including Nurse Practitioners, Registered
380Nurses (RNs), and Licensed Practical Nurses (LPNs).
3875. The majority of nurses and CNAs employed by Respondent
397are African-American.
3996. At all times material, Petitioner regularly worked
407night shifts, beginning at 11:00 p.m. and ending at 7:00 a.m.
418the following day.
4217. Typically, fewer CNAs are scheduled to work the night
431shifts as compared to shifts scheduled between 7:00 a.m. and
44111:00 p.m. The assignment of fewer CNAs to these shifts means
452that there is a greater need for those employees assigned to the
464night shifts to be alert and responsive to patients status,
474needs, and requests.
4778. Petitioner was scheduled to work a shift beginning at
4873:00 p.m. on February 7, 2008, and then another shift from
49811:00 p.m. February 7, 2008, to 7:00 a.m. February 8, 2008. She
510admitted that she worked a double shift spanning February 7,
5202008, and February 8, 2008. The Employers records show that
530she had been paid for the period of time from 11:00 p.m.
542February 7, 2008, to 7:00 a.m. February 8, 2008.
5519. According to employee disciplinary reports admitted in
559evidence, Michelle Hatcher, LPN, an African-American female who
567was the night shift Charge Nurse, observed Petitioner and a
577Caucasian female CNA sleeping on the job on February 8, 2008.
588The two sleeping CNAs were not attending to patient call lights,
599which was an unsafe situation. Nurse Hatchers observation was
608confirmed by two separate, dated written statements provided by
617female African-American Nurse Felicia Rockett against each named
625CNA. Discharge was the proposed disciplinary action.
63210. Serious injury or death of a patient may result when a
644CNA fails to perform required job responsibilities.
65111. Respondents Employee Handbook describes sleeping or
658inattention on the job as a serious infraction which is subject
669to immediate discharge.
67212. Petitioner testified that she knew that sleeping on
681the job was a cause for immediate discharge and that it warrants
693termination on the spot, without prior warnings or progressive
703discipline. She denied ever sleeping on the job.
71113. Nurse Hatcher did not have authority to immediately
720terminate Petitioner and the sleeping Caucasian LPN on the
729spot. Nurse Hatcher was required to provide a written
738disciplinary report of the incident to the Director of Clinical
748Services, a/k/a the Director of Nursing, which she did.
75714. In turn, the Director of Clinical Services was
766responsible for reporting any termination of employment issue to
775Employer's Regional Director of Human Resources for review and a
785final decision on the appropriate course of action.
79315. Laura Register, a Caucasian female, had been appointed
802Acting Director of Clinical Services on or about
810February 7, 2008. She was new to the position, and there were
822many pending matters when she assumed the position, including
831disciplinary matters.
83316. Elaine Leslie, a Caucasian female and Respondents
841Regional Director of Clinical Services, visited Respondents
848Tallahassee facility two or three days per week for awhile to
859help acclimate Ms. Register to her new position and to assist
870her with pending matters. Mesdames Leslie and Register triaged
879resident care issues ahead of disciplinary actions. Therefore,
887there was a delay in addressing the two CNAs' disciplinary
897action forms.
89917. To ensure consistency and protect against bias,
907discrimination, and personality problems, Robert Walker,
913Respondents Regional Director of Human Resources, reviews and
921makes the final decisions with respect to all termination
930actions. This process is designed to ensure that uniform
939policies are applied to one and all equally.
94718. Ms. Leslie and Ms. Register contacted Mr. Walker, a
957Caucasian male, to review the disciplinary reports related to
966the charges of sleeping on the job. The three executives then
977reviewed the disciplinary reports of Nurses Hatcher and Rockett
986and believed their reports of Petitioners and the Caucasian
995CNAs sleeping-on-the-job to be credible.
100019. Mr. Walker made the final decision to terminate
1009Petitioner and the Caucasian CNA. He held a termination
1018meeting with Petitioner, rather than terminating her by
1026telephone. Petitioners termination date reflects when the
1033termination actually occurred, on February 21, 2008, not the
1042date of the offense or when the offense was reported to
1053management.
105420. Respondent offered evidence of Petitioner sleeping on
1062the job as the sole motivating factor in terminating her
1072employment. 1/
107421. Respondent has a firm anti-discriminatory policy, of
1082which Petitioner was aware because she signed a copy thereof
1092upon her date of hire. However, Petitioner never complained to
1102Mr. Walker about perceived racial discrimination, before or
1110after her termination. At hearing, she denied any
1118discriminatory treatment or any racial slurs or comments by any
1128of Respondents employees at any time before, during, or after
1138the incidents previously related.
114222. On February 29, 2008, which was after Petitioners
1151February 21, 2008, termination, Respondent hired three new CNAs:
1160one Caucasian and two African-American. Ten of the eleven CNAs
1170hired by the Employer from February 5, 2008, to March 26, 2008,
1182were African-American females.
1185CONCLUSIONS OF LAW
118823. The Division of Administrative Hearings has
1195jurisdiction of the parties and subject matter of this cause,
1205pursuant to Sections 120.569, 120.57(1) and Chapter 760, Florida
1214Statutes (2008).
121624. The shifting burdens of proof in discrimination cases
1225have been cogently explicated in the seminal case of Department
1235of Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991),
1247which stated:
1249Pursuant to the [Texas Department of
1255Community Affairs v.] Burdine, [450 U.S.
1261248, 101 S. Ct. 1089, 67 L. Ed. 2d 207
1271(1981)] formula, the employee has the
1277initial burden of establishing a prima facie
1284case of intentional discrimination, which
1289once established raises a presumption that
1295the employer discriminated against the
1300employee. If the presumption arises, the
1306burden shifts to the employer to present
1313sufficient evidence to raise a genuine issue
1320of fact as to whether the employer
1327discriminated against the employee. The
1332employer may do this by stating a
1339legitimate, nondiscriminatory reason for the
1344employment decision, a reason which is
1350clear, reasonably specific, and worthy of
1356credence. Because the employer has the
1362burden of production, not of persuasion,
1368which remains with the employee, it is not
1376required to persuade the trier of fact that
1384its decision was actually motivated by the
1391reasons given. If the employer satisfied
1397its burden, the employee must then persuade
1404the fact finder that the proffered reason
1411for the employment decision was a pretext
1418for intentional discrimination. The
1422employee may satisfy this burden by showing
1429directly that a discriminatory reason more
1435likely than not motivated the decision, or
1442indirectly by showing that the proffered
1448reason for the employment decision is not
1455worthy of belief. If such proof is
1462adequately presented, the employee satisfies
1467his or her ultimate burden of demonstrating
1474by a preponderance of the evidence that he
1482or she has been a victim of intentional
1490discrimination.
149125. Herein, Petitioner failed to establish a prima facie
1500case of employment discrimination.
150426. Petitioner is a member of a protected class, but she
1515established no nexus between her race and her Employers
1524decision to terminate her. Petitioner was confused over the
1533dates she worked. Her mistrust in her superiors motivation
1542hinged on her termination occurring 12-13 days after the
1551sleeping infraction/report and is not reasonably related to
1559discrimination. Proof that amounts to no more than mere
1568speculation and self-serving belief concerning the motives of
1576the employer (in this case, two African-American supervisors and
1585three Caucasian executives) are insufficient to establish a
1593prima facie case. See Little v. Republic Refining Co. Ltd., 924
1604F.2d 93 (5th Cir. 1991.) Petitioner established no different
1613treatment by the Employer of any similarly situated employee of
1623a different race than Petitioner. Petitioner did not establish
1632any actual or purported racial animus by any superior.
164127. Assuming arguendo , but not ruling, that Petitioner did
1650establish a prima facie case, Respondent Employer articulated a
1659legitimate, non-discriminatory reason for its employment action:
1666a good-faith belief that Petitioner was sleeping on the job in
1677violation of the Employers policies and general safety
1685practices, which non-discriminatory reason Petitioner did not
1692refute. Even if Respondent's executives were wrong in their
1701reliance on African-American Nurses Hatcher and Rockett's
1708reports, or wrong in their belief that Petitioner was asleep so
1719as to offend the Employers rules, an honest mistake does not
1730constitute discriminatory conduct. See Damon v. Fleming
1737Supermarkets, Inc. 196 F.3d 1354, 1363 n. 3 (11th Cir. 1999).
1748RECOMMENDATION
1749Based upon the foregoing Findings of Fact and Conclusions of
1759Law, it is RECOMMENDED that the Florida Commission on Human
1769Relations enter a Final Order dismissing Petitioners Charge of
1778Discrimination and Petition for Relief.
1783DONE AND ENTERED this 31st day of July, 2009, in
1793Tallahassee, Leon County, Florida.
1797S
1798ELLA JANE P. DAVIS
1802Administrative Law Judge
1805Division of Administrative Hearings
1809The DeSoto Building
18121230 Apalachee Parkway
1815Tallahassee, Florida 32399-3060
1818(850) 488-9675
1820Fax Filing (850) 921-6847
1824www.doah.state.fl.us
1825Filed with the Clerk of the
1831Division of Administrative Hearings
1835this 31st day of July, 2009.
1841ENDNOTE
18421/ Both the African-American Petitioner and the same
1850Caucasian CNA were written-up for failure to take vital signs of
1861patients on February 10, 2008. This write-up was also authored
1871by LPN Hatcher and witnessed by LPN Rockett, but these
1881subsequent write-ups did not enter into managements final
1889decision to terminate both the African-American CNA and the
1898Caucasian CNA.
1900COPIES FURNISHED :
1903Denise Crawford, Agency Clerk
1907Florida Commission on Human Relations
19122009 Apalachee Parkway, Suite 100
1917Tallahassee, Florida 32301
1920Larry Kranert, General Counsel
1924Florida Commission on Human Relations
19292009 Apalachee Parkway, Suite 100
1934Tallahassee, Florida 32301
1937Ryan Scott Callen, Esquire
1941Foley & Lardner LLP
1945106 East College Avenue
1949Tallahassee, Florida 32301
1952Melvin Williams
1954Post Office Box 364
1958Lloyd, Florida 32337
1961NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
1967All parties have the right to submit written exceptions within
197715 days from the date of this Recommended Order. Any exceptions
1988to this Recommended Order should be filed with the agency that
1999will issue the Final Order in this case.
![](/images/view_pdf.png)
- Date
- Proceedings
-
PDF:
- Date: 10/28/2009
- Proceedings: Final Order Dismissing Petition for Relief from an Unlawful Employment Practice filed.
-
PDF:
- Date: 07/31/2009
- Proceedings: Recommended Order cover letter identifying the hearing record referred to the Agency.
- Date: 07/21/2009
- Proceedings: Petitioner's Exhibits (exhibits not available for viewing) filed.
- Date: 05/26/2009
- Proceedings: Transcript (Volumes 1, 2) filed.
- Date: 05/05/2009
- Proceedings: CASE STATUS: Hearing Held.
-
PDF:
- Date: 05/04/2009
- Proceedings: Respondent's Motion for Protective Order or Alternatively for Motion in Limine filed.
-
PDF:
- Date: 04/02/2009
- Proceedings: Amended Notice of Hearing (hearing set for May 5, 2009; 10:30 a.m.; Tallahassee, FL; amended as to Status of Court Reporter).
-
PDF:
- Date: 03/25/2009
- Proceedings: Respondent`s Third Notice of Taking Deposition Duces Tecum filed.
-
PDF:
- Date: 02/25/2009
- Proceedings: Order (Respondent`s Motion Seeking Dismissal is denied without prejudice).
-
PDF:
- Date: 02/16/2009
- Proceedings: Letter to Judge Davis from M. Williams regarding request to subpoena ADL book from Petitioner for the month of January and request for loss wages filed.
-
PDF:
- Date: 02/11/2009
- Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
-
PDF:
- Date: 02/10/2009
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for May 5, 2009; 10:30 a.m.; Tallahassee, FL).
-
PDF:
- Date: 02/05/2009
- Proceedings: Respondent`s Second Motion to Compel & Motion Seeking Sanctions Including Dismissal of the Appeal filed.
-
PDF:
- Date: 02/05/2009
- Proceedings: Respondent`s Second Motion to Compel & Motion Seeking Sanctions Including Dismissal of the Appeal filed.
-
PDF:
- Date: 02/03/2009
- Proceedings: Respondent`s Prehearing Statement & Motion to Exclude any Witness or Exhibit Submitted by Petitioner at the Final Hearing filed.
-
PDF:
- Date: 01/13/2009
- Proceedings: Order (Respondent`s Motion to Compel and Motion for Continuance is denied).
-
PDF:
- Date: 11/21/2008
- Proceedings: Order Granting Continuance and Re-scheduling Hearing (hearing set for February 18, 2009; 10:00 a.m.; Tallahassee, FL).
-
PDF:
- Date: 11/21/2008
- Proceedings: Agency`s court reporter confirmation letter filed with the Judge.
-
PDF:
- Date: 11/19/2008
- Proceedings: Respondent`s Notice of Appearance & Unopposed Motion for Continuance (R. Scott Callen) filed.
-
PDF:
- Date: 09/29/2008
- Proceedings: Notice of Hearing (hearing set for December 4, 2008; 10:00 a.m.; Tallahassee, FL).
Case Information
- Judge:
- ELLA JANE P. DAVIS
- Date Filed:
- 09/17/2008
- Date Assignment:
- 09/17/2008
- Last Docket Entry:
- 10/28/2009
- Location:
- Tallahassee, Florida
- District:
- Northern
- Agency:
- ADOPTED IN TOTO
Counsels
-
Ryan Scott Callen, Esquire
Address of Record -
Melvin Williams
Address of Record