93-001257 Willie F. Marshall vs. Oak Manor Nursing Home Status: Closed Recommended Order on Friday, July 23, 1993.

Summary: Claim under Pinellas County Code for imployment discrimination based on race or retaliation for filing charge of race discrimination. Not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WILLIE F. MARSHALL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-1257

)

OAK MANOR NURSING HOME, )

)

Respondent. )

___________________________________)

RECOMMENDED ORDER

On June 10, 1993, a formal administrative hearing was held in this case in

Clearwater, Florida, before J. Lawrence Johnston, Hearing Officer, Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Willie F. Marshall

13577 120th Street North

Largo, Florida 33601-1102

For Respondent: Wendolyn S. Busch, Esquire

Trenam, Simmons, Kemker, Scharf

Barkin, Frye & O'Neill

Post Office Box 1102

Tampa, Florida 33601-1102

STATEMENT OF THE ISSUE

The issue in this proceeding is whether the Respondent violated Pinellas

County Ordinance 84-10, codified as Chapter 17.5 of the Pinellas County Code, by

discriminating against the Petitioner with respect to employment in retaliation

for his having filed charges of race discrimination.

PRELIMINARY STATEMENT

This case was referred to the Division of Administrative Hearings on or

about March 1, 1993, for assignment of a hearing officer to conduct a hearing on

the Petitioner's charge of discrimination. The parties waived the right to have

the hearing conducted within 30 days, and final hearing was scheduled for June

10, 1993, by Notice of Hearing issued on or about April 1, 1993.

At the final hearing, the Petitioner testified in his own behalf. The

Respondent called two witnesses (one by deposition) and had Respondent's

Exhibits 1 through 16 and 18 admitted in evidence.

Neither party ordered the preparation of a transcript of the final hearing,

and the parties were given ten days in which to file proposed recommended

orders. Only the Respondent filed one, and the proposed findings of fact

contained in the Respondent's proposed recommended order are accepted and

incorporated to the extent not subordinate or unnecessary.

FINDINGS OF FACT

1. The Petitioner, Willie F. Marshall ("Marshall"), is a black man who

resides in Pinellas County, Florida.

2. Respondent, Oak Manor Nursing Home ("Oak Manor"), is a nursing home

located in Pinellas County, Florida. Oak Manor has approximately 180 residents

in the nursing home. The average age of the residents is 85 years, and the

majority of them require acute care or other medical supervision. Oak Manor

also operates a retirement apartment complex and a 70-bed adult congregate

living facility. Oak Manor is entrusted with caring for and protecting the

persons and property of these residents.

3. Patricia McCormack ("McCormack") was Oak Manor's administrator during

Marshall's employment there.

4. Robert W. Bell ("Bell") was, and continues to be, the president of

American Nursing Homes, Inc., a company which provides management services to

Oak Manor. Bell functioned as Oak Manor's general manager during the period of

Marshall's employment.

5. Marshall was employed at Oak Manor from June 18, 1991, until April 13,

1992, when he was terminated. Oak Manor paid Marshall a starting wage of $5.00

per hour.

6. Marshall was hired initially as a dietary aide, working in Oak Manor's

kitchen. His duties included cleaning the kitchen and serving meals to the

nursing home residents. During his employment, Marshall had regular and

frequent contact with the nursing home residents.

7. At the time he was hired, Marshall disclosed that he had been convicted

twice for sale and possession of cocaine, and he authorized Oak Manor to

investigate his background with local law enforcement authorities, as Oak Manor

does with all applicants for employment.

8. On or about the date that Marshall began working, Oak Manor sent a

letter to the Pinellas County Sheriff's Office inquiring as to whether Marshall

had any criminal record.

9. The Sheriff's report stated that Marshall had been arrested or

convicted of more than a dozen offenses, including not only the cocaine

possession charges Marshall had disclosed on his employment application but also

charges for petit theft, battery, armed robbery (twice), strong-arm robbery, and

battery on an inmate (twice).

10. Oak Manor's personnel director at the time, Susan Massa, presumably

received the Sheriff's Office's report, but did not place it in Marshall's

personnel file. Nor did she inform Oak Manor's top management personnel, Bell

and McCormack, about Marshall's criminal background. Massa left Oak Manor's

employment early in 1992.

11. The personnel director position at Oak Manor has never been a

management level position. The personnel director has never had the authority

to make hiring and firing decisions.

12. In September, 1991, Marshall received a wage increase of $.25 per

hour.

13. In October, 1991, Oak Manor promoted Marshall from dietary aide to

cook and increased his hourly wage again, to $6.00 per hour.

14. In January, 1992, Marshall requested that Oak Manor return him to his

former position as dietary aide, stating that the cook's position was too

stressful.

15. In February, 1992, a dietary aide position became available at Oak

Manor, and Marshall accepted the position. Approximately two weeks later, Oak

Manor reduced Marshall's hourly wage back to that of a dietary aide, but allowed

him to keep the pay raise he had received as a cook.

16. In March, 1992, Marshall was referred to McCormack to find out why his

pay had been reduced. McCormack told Marshall that Oak Manor would allow

Marshall to keep two weeks' pay he already had received at the cook's rate but

explained that, from then on, Oak Manor could not pay him more than other people

doing the same job.

17. On or about April 17, 1992, Marshall filed a Charge of Discrimination,

claiming that Oak Manor demoted him and reduced his pay based on his race. (He

also complained that the person selected to replace him as cook was white.)

18. On or about February 23, 1993, the investigating agency issued a "no-

cause" determination on Marshall's race discrimination charge.

19. When Oak Manor received the race discrimination charge, at Bell's

direction, McCormack requested and reviewed Marshall's employee file so that she

could assemble and forward relevant information to the investigator.

20. The report from the Pinellas County Sheriff's Office listing

Marshall's arrests and/or convictions was in Marshall's employee file at the

time McCormack reviewed it. It is unknown who placed it in the file, but it

probably was filed by Massa's replacement as personnel director, who assumed her

duties in approximately late February, 1992.

21. While examining Marshall's file to respond to the race discrimination

charge McCormack learned, for the first time, of the full extent of Marshall's

criminal record.

22. McCormack immediately put Marshall on paid suspension until she had an

opportunity to advise Bell of this information. Based upon Marshall's criminal

record, Bell decided to terminate Marshall's employment immediately.

23. Bell and McCormack became aware of Marshall's criminal background only

in the course of preparing to respond to the race discrimination charge that

Marshall filed.

24. If Bell or McCormack had known about Marshall's arrests or convictions

previously, Oak Manor would not have hired him in the first place. Both Bell

and McCormack testified that the previously filed race discrimination charge did

not in any manner motivate the decision to terminate Marshall.

25. Marshall felt that, in terminating him, Oak Manor was discriminating

against him on the basis of race, or retaliating against him for having filed a

race discrimination charge, for several reasons.

First, he testified that he had told other employees about his

criminal record and that he did not understand why the issue was not raised

sooner. But he did not call any witnesses to corroborate his testimony.

Moreover, the employees to whom he was referring were not members of Oak Manor's

management, and there is no evidence that they relayed the alleged information

to Oak Manor's management (McCormack and Bell, in particular).

Second, Marshall testified that three other employees with criminal

records as bad or worse than his were still working at Oak Manor. But, again,

he did not call any witnesses to corroborate his testimony, and he was unable to

prove the criminal records of the three individuals to whom he made reference.

Moreover, he was unable to prove that Oak Manor (McCormack and Bell, in

particular) were aware of the criminal records of the three individuals to whom

he made reference.

26. Meanwhile, Oak Manor presented evidence suggesting that it terminated

several white employees soon after Oak Manor's management became aware of a

Sheriff's report showing a criminal arrest and conviction record similar to

Marshall's. (Since the evidence did not establish the date on which the

Sheriff's reports were received, it could not be ascertained how soon Oak Manor

acted after the report was received.)

27. Marshall also was suspicious that, to his understanding, he was

initially told that he was fired for falsifying his job application, not because

his arrest and conviction record posed an unacceptable risk of harm to the Oak

Manor patient population. But it is found that Marshall misunderstood Bell and

McCormack when they told him that his job application did not disclose all of

the arrests and convictions on the basis of which Bell had decided to terminate

him.

28. The evidence also reflects that Oak Manor did not react to arrests or

convictions for simple sale and possession of drugs as severely as they did

against crimes like robbery, battery and thefts. It appears that convicts of

the latter crimes were considered to create a more serious risk to the Oak Manor

patient population.

CONCLUSIONS OF LAW

29. Section 2-17.5-3, Pinellas County Code, prohibits an employer from

discriminating against an employee on the basis of race. Section 2-17.5-8,

Pinellas County Code, prohibits retaliation against an employee for having filed

a charge of race discrimination.

30. Oak Manor Nursing Home does business in Pinellas County, Florida.

Ordinance 84-10 applies to all territory within the legal boundaries of Pinellas

County, including all unincorporated and incorporated areas. Section 2-17.5-12,

Pinellas County Code.

31. Pinellas County Ordinance 84-10 defines "employer" as "a person who

employs five (5) or more employees for each working day in each of thirteen (13)

or more calendar weeks in the current or preceding calendar year and any agent

of such a person. . . ." Section 2-17.5-2 (H), Pinellas County Code.

32. Oak Manor employs five or more employees and is subject to Pinellas

County Ordinance 84-10 as an "employer."

33. Pinellas County Ordinance 84-10, codified as Chapter 17.5 in the

Pinellas County Code, provides in pertinent part:

(A) The general purposes of this ordinance [chapter]

are:

(1) To provide for execution within Pinellas County of

the policies embodied in the Federal Civil Rights Act

of 1964, as amended to January 15, 1979, and title VIII

of the Federal Civil Rights Act of 1968, as amended to

January 15, 1979; and

(2) To secure for all individuals within Pinellas

County the freedom from discrimination because of race

. . ..

Section 2-17.5-1, Pinellas County Code.

34. Marshall bears the burden of establishing a prima facie case that Oak

Manor discharged him in retaliation for his filing the race discrimination

charge. Morgan v. City of Jasper, 959 F.2d 1542 (11th Cir. 1992). To establish

a prima facie case, Marshall must show, by a preponderance of the evidence: (1)

that he participated in a Title VII proceeding; (2) that, at the same time or

thereafter, Oak Manor took adverse employment action against him; and (3) that

the adverse action was caused by Marshall's participation in the Title VII

proceeding. Id.

35. Marshall established a prima facie case of retaliatory discharge.

36. Upon the showing of a prima facie case, the burden shifts to Oak Manor

to articulate a legitimate, nondiscriminatory reason for Marshall's termination.

Oak Manor is not required to persuade the factfinder that its articulated reason

actually motivated Marshall's discharge, but simply to raise a genuine issue of

fact as to whether it unlawfully retaliated against Marshall. Morgan, supra,

959 F.2d at 1547-48.

37. Oak Manor presented a legitimate, nondiscriminatory reason for

terminating Marshall--the fact that he had been arrested or convicted of more

than a dozen offenses, including strong armed robbery and battery on an inmate.

In Oak Manor's view, because of these arrests or convictions, Marshall posed a

threat to the safety and well-being of the elderly Oak Manor residents.

38. Once Oak Manor rebuts the prima facie case, Marshall is required to

prove, again by a preponderance of the evidence, that Oak Manor's stated reason

for terminating him was pretextual, or that a discriminatory reason more likely

motivated his discharge. Morgan, supra, 959 F.2d at 1547-48.

39. Marshall failed to prove that Oak Manor's articulated reason for

discharging him was pretextual.

40. Marshall's own, uncorroborated testimony that Oak Manor fired him in

retaliation for his filing a discrimination charge is insufficient evidence of

pretext. Conclusory allegations that an employer retaliated against a claimant

in violation of Title VII do not show pretext. See Grigsby v. Reynold Metals

Co., 821 F.2d 590 (11th Cir. 1987); Houser v. Sears, Roebuck & Co., 627 F.2d

756, 759 (5th Cir. 1980).

41. The fact that Oak Manor terminated Marshall shortly after he filed a

charge of race discrimination was merely a coincidence in timing which will not

support a finding of pretext. See Chojar v. Levitt, 773 F.Supp. 645 (S.D.N.Y.

1991). See also Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir.

1989); Caleshu v. Merrill Lynch, Etc., 737 F.Supp. 1070, 1085 (E.D. Mo. 1990);

Devlin v. Federal Reserve Bank of St. Louis, 634 F.Supp. 389 (E.D. Mo. 1986);

Peterson v. King Tree Center, Inc., 722 E. Supp. 360, 364 (S.D. Ohio 1989);

Johnson v. Fulton Sylphon Div., 439 F.Supp. 658, 670 (E.D. Tenn. 1977).

42. Oak Manor reasonably and legitimately concluded that, based upon

Marshall's series of arrests or convictions, he posed a threat to the safety of

the elderly residents at Oak Manor and, therefore, should not be retained. See

Foster v. Board of School Commissioners, Etc., 872 F.2d 1563, 1569 (11th Cir.

1989); Osborne v. Cleland, 620 F.2d 195 (8th Cir. 1980); E.E.O.C. v. Carolina

Freight Carriers Corp., 723 F.Supp. 734, 752-3 (S.D. Fla. 1989); Chojar, supra.

43. An employer retains the right to make employment decisions,

unmotivated by unlawful intent, even if they may appear harsh to others. As the

Eleventh Circuit Court of Appeals has recognized, the "employer may fire an

employee for a good reason, a bad reason, a reason based on erroneous facts or

for no reason at all, as long as its action is not for a discriminatory reason."

Nix v. WLCY Radio, 738 F.2d 1181, 1187 (11th Cir. 1984).

44. Oak Manor applies its policy of terminating employees due to arrests

or convictions of serious offenses equally to white and black employees. See

Drayton v. City of St. Petersburg, 477 F.Supp. 846, 855-57 (M.D. Fla. 1979).

45. Marshall's discharge was not related to or motivated by the fact that

he previously filed a discrimination charge against Oak Manor. Oak Manor

terminated Marshall solely on the basis of his lengthy and serious criminal

record. Marshall has failed to present sufficient evidence to prove that he was

fired in retaliation for his having filed a race discrimination charge.

46. The Pinellas County Board of County Commissioners is authorized to

contract with official bodies to administer the Ordinance. Sections 2-17.5-1(C)

and 2-17.5-2(B), Pinellas County Code. The Commission has entered into such a

contract with the City of Clearwater Community Relations Board.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

recommended that the City of Clearwater Community Relations Board, acting as the

commission that administers Pinellas County Ordinance 84-10, codified under

Chapter 17.5 of the Pinellas County Code, enter a final order: (1) finding the

Respondent, Oak Manor Nursing Home, not guilty of race discrimination or of

retaliating against the Petitioner for his having filed a race discrimination

charge against the Respondent; and (2) dismissing the Petitioner's complaint.

RECOMMENDED this 23rd day of July, 1993, in Tallahassee, Florida.

___________________________

J. LAWRENCE JOHNSTON

Hearing Officer

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings

this 23rd day of July, 1993.

COPIES FURNISHED:

Willie F. Marshall

13577 120th Street North

Largo, Florida 33601-1102

Wendolyn S. Busch, Esquire

Trenam, Simmons, Kemker, Scharf

Barkin, Frye & O'Neill

P.O. Box 1102

Tampa, Florida 33601-1102

Sally A. Ruby

Community Relations EO Manager

City of Clearwater

P.O. Box 4748

Clearwater, Florida 34618-4748

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the Community Relations Board written

exceptions to this Recommended Order. The Board must allow each party at least

ten days in which to submit written exceptions. You should consult with the

Community Relations Board concerning its rules on the deadline for filing

exceptions to this Recommended Order.