STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
DEANNA L. EFTODA,
Petitioner,
vs.
HEALTHSOUTH REHABILITATIVE HOSPITAL,
Respondent.
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) Case No. 06-0594
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RECOMMENDED ORDER
Upon due notice, a disputed-fact hearing was held on June 6 and 7, 2006, in Tallahassee, Florida, before Ella Jane P. Davis, a duly-assigned Administrative Law Judge of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: Deanna L. Eftoda, pro se
2112 Mistletoe Court
Tallahassee, Florida 32301
For Respondent: L. Traywick Duffie, Esquire
Wesley E. Stockard Qualified Representative Hunton & Williams, LLP Bank of America Plaza 600 Peachtree Street
Suite 4100
Atlanta, Georgia 30308 STATEMENT OF THE ISSUE
Whether Respondent Employer committed an unlawful employment practice by discrimination on the basis of age and/or
retaliation1/ against Petitioner, in violation of Chapter 760, Florida Statutes.
PRELIMINARY STATEMENT
On May 3, 2005, Petitioner filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR), alleging that Respondent, HealthSouth Rehabilitation Hospital of Tallahassee, discriminated against her based on her age and by retaliation. On January 10, 2006, FCHR issued its Determination: No Cause.
Petitioner timely filed a Petition for Relief. Therein, she has raised issues under several federal statutes, but only violations pursuant to Chapter 760, Florida Statutes, may be considered in this forum. (See Conclusions of Law.)
The cause was referred to the Division of Administrative Hearings on or about February 15, 2006. The course of this case thereafter is adequately documented by the docket and Orders entered herein, and will not be reprised in detail here.
Assorted motions, oral and written, were ruled-upon on the record at the commencement of the disputed-fact hearing on
June 6, 2006, and are memorialized by the Transcript. Those rulings also will not be repeated here.
At hearing, Petitioner testified on her own behalf; presented the oral testimony of Catherine Taylor, Jackie Chaires, Lezlie Wachman, Deborah Mahara nee’ Mandar, Kimberly
Outlaw, and Lynn Streetman; and had Exhibits P-1 through P-4, P-
6 through P-9, P-11 through P-16, P-19 through P-20, and P-22 through P-34, admitted in evidence. Exhibits P-17 and P-18 are composites and were also admitted in evidence. Exhibits P-10 and P-21 were withdrawn. Respondent presented the oral testimony of Anne McElreath, Barbara Roberts, Kimberly Outlaw, Jackie Chaires, and Lynn Streetman, and had Exhibits R-1, and R-
3 through R-49, admitted in evidence.
A Transcript was filed on June 29, 2006. On July 5, 2006, a Post-Hearing Order was entered, explaining how to prepare proposed recommended orders. Respondent’s timely filed Proposed Recommended Order, filed on July 14, 2006, has been considered. Petitioner filed no proposal.
FINDINGS OF FACT
Petitioner, Deanna L. Eftoda, was born on August 26, 1949.
Respondent, HealthSouth Rehabilitation Hospital of Tallahassee (HealthSouth), is a healthcare facility providing both in-patient and out-patient rehabilitation services in Tallahassee, Florida. As such, it employs personnel designated as "exempt" and "non-exempt," pursuant to the federal Fair Labor Standards Act.
Generally speaking, "exempt" employees are salaried employees, in managerial posts, who do not receive over-time pay
by the hour, and "non-exempt" employees are regular, non- managerial employees, who are paid a set amount per hour up to
40 hours per week and time and a-half per hour for every hour above 40 hours that they work in the same 40-hour week. There are some exceptions to this federal compensation scheme which are immaterial to this case.
At all times material, a “Nursing House Supervisor” or “RN House Supervisor” were interchangeable job titles.
Petitioner was initially hired by Respondent on January 26, 2004, as an "RN-Baylor Nurse." The RN-Baylor position was a non-exempt position, and in that position, Petitioner's hourly pay rate was $28.00. Petitioner's hourly rate of $28.00, was very high for an RN-Baylor Nurse, but Petitioner's credentials are exceptional.
Within days of her hire, Petitioner was asked whether she would take an RN House Supervisor position. Petitioner accepted the RN House Supervisor position, and a corrected personnel action form reflecting this change was prepared on January 30, 2004. Petitioner signed an acknowledgement of her acceptance of the House Supervisor position on February 22, 2004.
Every House Supervisor employed by Respondent during Petitioner's period of employment was an exempt employee. The RN House Supervisor position that Petitioner accepted was an
exempt position. Nursing House Supervisors traditionally worked the evening and night shifts, when there was no member of the hospital administration on duty. Without a member of the hospital administration on duty, the Nursing House Supervisor was the highest ranking management employee at the facility.
While Petitioner was employed with Respondent as an RN/Nursing House Supervisor, Respondent simultaneously employed “Charge Nurses.” The duties of a Charge Nurse were similar to the duties of a Nursing House Supervisor. However, unlike Nursing House Supervisors, Charge Nurses traditionally worked the day shift, during which higher-ranking members of the facility’s administration were simultaneously on duty. In 2004, Respondent also employed a Charge Nurse on the weekend day shift(s) when at least one administrator was present for several hours. (This anomaly seems to be at least one element which confused Petitioner and led to this case.) Even so, unlike RN House Supervisors, all Charge Nurses were classified by Respondent Employer as filling non-exempt positions. Every Charge Nurse employed by Respondent during Petitioner's employment was classified as a non-exempt employee, eligible to earn time-and-a-half for overtime.
Petitioner’s salary was not increased when she accepted the RN House Supervisor position, because her base salary (calculated at $28.00 per hour) was commensurate with the salary
of other RN House Supervisors already being paid as managerial employees at straight salary.
On the other hand, because Petitioner worked as an RN/Nursing House Supervisor on a “Baylor,” or weekend, shift, Respondent paid Petitioner a special compensation for being scheduled to work every weekend, with no weekends “off.” This special compensation took the form of Respondent’s paying Petitioner as if she had worked 36 hours per week, even though she was only scheduled for 32 actual hours of work per week.
Petitioner believes that she worked a minimum of four additional hours per week, because it was her practice to come on shift an hour early and leave an hour late to set up and wind down the area and staff under her supervision as Nursing House Supervisor. She “guessed” there were some weeks when, between this practice and meetings she was required to attend, she worked 32 hours above the usual 40 hours per week. Her “best guess” was that she was working “two (additional) hours per eight-hour shift,” plus attending meetings which were not held during her shift(s), beyond her scheduled 32 hours, but Petitioner never worked straight eight-hour shifts. (See Findings of Fact 12-15, and 25.)
A Nursing House Supervisor working the Baylor shift, or an RN-Baylor Nurse, normally worked two twelve-hour shifts on the weekend and one eight-hour shift during the week. When
Petitioner was hired by Respondent in January 2004, she was completing a second doctoral degree. In order to accommodate Petitioner's work on her dissertation, Respondent had offered Petitioner an irregular shift pattern consisting of two sixteen- hour shifts on the weekends. Petitioner had accepted this scheduling accommodation.
As RN House Supervisor, Petitioner was required to attend occasional mandatory meetings for Nursing Supervisors and other nursing staff. These meetings were held during the week, and usually, but not always, between 5:00 and 6:00 p.m. This meeting time was more convenient for employees regularly working the weekday shift immediately before 5:00 p.m. or coming on shift immediately after 6:00 p.m., than for staff on other shifts, but no age or retaliation component existed with regard to Petitioner or anyone else on other shifts. Petitioner also was required once or twice to attend several hours of computer classes in a single day and other training, but so was everyone else on staff. Because the meetings were not on the weekends during the hours Petitioner would normally work, Petitioner’s attendance at the mandatory weekday meetings upset Petitioner's personal plans for study, research, and writing her doctoral dissertation, but there is no evidence she was singled out for this inconvenience.
Petitioner claimed herein that she was entitled to be paid overtime for coming to "work" for meetings and classes. Because her Nursing House Supervisor position was an exempt position, Petitioner was not paid overtime for attending these mandatory meetings and classes, but no other exempt employees were paid overtime for attending these meetings and classes outside of their normal working hours, either.
Respondent's policy does provide that if a Nursing House Supervisor works an additional shift as a "floor nurse," separate and apart from his/her regularly scheduled shifts as a House Supervisor, then that Nursing House Supervisor can be granted additional pay for that additional shift during which he/she works as a floor nurse, even though the House Supervisor position is that of an exempt employee. In order to be granted this additional pay, the Nursing House Supervisor must fill out an "Additional Pay for Exempt Employees" request form and submit the form to management for prior approval. The mandatory weekly meetings that Petitioner was required to attend as a part of her Nursing House Supervisor duties did not qualify as a full additional shift, for any employee. Petitioner received a memorandum dated April 12, 2004, explaining this. In fact, When Petitioner filled out the correct form for work as a floor nurse, she was paid at the $27.50 per hour rate for a floor
nurse. She was not paid when she filled out such a form for mandatory staff meetings, classes, and training sessions.
Petitioner represented that throughout her employment by Respondent, she repetitively and persistently inquired about how her pay was being calculated and why the Employer did not calculate it the way she thought it should. She also claims to have repeatedly requested a different calculation of her pay and leave accruals on the basis of her beliefs and desires, but at the time she made no formal claim or discrimination complaint related to these inquiries and requests. In her testimony, even Petitioner described what she was doing as “negotiating” her salary.
Throughout her employment by Respondent, Petitioner was cited by management for performance problems, including but not limited to difficulty in dealing with staff; poor management style; poor judgment in dealing with her supervisors and subordinates; creating confusion and chaos for staff on her scheduled shift by her confrontational manner; failing to properly address performance concerns with staff on her scheduled shift; and failure to take responsibility for her own actions.
Giving Petitioner the benefit of the doubt, some of her friction with management and staff may have arisen because of her complaining that evaluators did not observe her for an
entire shift; because she mis-read management’s instructions on how to code her timesheets as a requirement to falsify them; because she perceived that Respondent’s staffing levels occasionally fell below matrix, and she then created turmoil by calling in extra staff, whereas her superiors did not share her interpretation of the matrix requirements or the staffing events themselves; because she blamed the preceding shift for cleanliness issues; because she perceived herself undervalued for her extensive nursing experience; because she perceived herself personally opposed and ridiculed by a nurse of lesser or equal rank (Mandar); and because she did not believe that her superiors backed her up sufficiently and/or did not afford her the appropriate discretion in her interactions with subordinates. Petitioner objected to Respondent’s chain of command, which had her reporting to Ms. Roberts, Nurse Manager. Petitioner felt she should report directly to the Director of Nursing, her “two-up” supervisor. However, none of these disputes rose to the level of a protected activity under Chapter 760.10(7), Florida Statutes (see Finding of Fact 35), or related to Petitioner's age in any way.
From Respondent's perspective, its administration received a myriad of complaints from Petitioner's supervisors, peers, and subordinates, regarding Petitioner's management style and performance. Some of Respondent's employees threatened to
quit if they were forced to continue to work under Petitioner's supervision. Petitioner testified that in July 2004, she had polled her subordinates and asked them to indicate that they had “no problems” with her management style. Then she presented the list of subordinates to her superiors. This could have legitimately been viewed by Respondent’s management as Petitioner’s insubordination to them and/or intimidation of the polled subordinates by Petitioner.
Respondent’s Nurse Manager and Petitioner’s direct supervisor, Barbara Roberts, felt that she was being required to spend an inordinate amount of her time dealing with Petitioner's problems.
As a result of these problems, Petitioner was placed on probation on September 10, 2004.
Petitioner challenged this probation, and a review was conducted by Respondent's management. Despite the fact that the complaints concerning Petitioner's management style and performance came from various sources, Petitioner complained that Ms. Roberts was unfairly disciplining and harassing her. Respondent's management concluded that the attention Petitioner had received from Ms. Roberts was not improperly motivated, but was a result of personality conflicts between Petitioner and other employees.
Some of the allegations against Petitioner were substantiated, but investigation into an allegation that Petitioner had coerced or threatened employees into working, only produced limited supporting documentation. In the absence of additional documentation, Lynn Streetman, Hospital Administrator, concluded that probation was not the correct level of discipline for Petitioner. (P-22) Ms. Streetman recommended that Petitioner's supervisor, Ms. Roberts, chalk the problems up to differences in management style and downgrade Petitioner’s probation citation to a "written warning."
On September 30, 2004, the probation citation was replaced with a written warning citation.
Also on September 30, 2004, six months after Petitioner’s initial hire and approximately five and a-half months after she accepted the exempt Nursing House Supervisor position, Ms. Roberts sent Petitioner a memorandum informing her that it was no longer operationally feasible to continue the irregular pattern of two sixteen-hour shifts on the weekend (R- 3).2/ Respondent's reason for this change was that for four hours of each day that Petitioner was scheduled to work, there was an overlapping period when two supervisors were on duty, and this duplication of supervisory personnel resulted in an unnecessary expense for Respondent. Ms. Roberts' memorandum informed Petitioner that it was operationally necessary for
Petitioner to begin working the traditional Baylor-RN's two twelve-hour weekend shifts and one eight-hour shift during the week, beginning with the October 16-17, 2004, weekend. This managerial decision obviously inconvenienced Petitioner for purposes of completing her doctoral dissertation, and she contends the decision was “retaliatory.” However, the change had been in discussion with management before September 30, 2004.
Immediately after her probation was down-graded to a written warning, Petitioner asked for a weekend off, which was granted. Because she took a weekend off at that time, Petitioner had one less weekend to use later in December 2004. (See Finding of Fact 36.)
Approximately October 17-18, 2004, when her new shift arrangement was beginning, Petitioner's supervisors again sought to put her on probation, due to a series of complaints by staff similar to the previous ones. Ms. Roberts and other superiors believed Petitioner distorted common conversations and created chaos on her shift by misinterpreting in her conversations with her subordinates the instructions her superiors had given her.
In accord with its policy, Respondent launched a second investigation into Petitioner's alleged misconduct.
On December 11, 2004, prior to conclusion of the second investigation, Petitioner sent an e-mail to Ms. Roberts
and to Respondent's Human Resources Director, Jackie Chaires, requesting that her status be changed from full-time Nursing House Supervisor to "PRN," or "as needed," status. Petitioner's e-mail stated,
I believe I have 'too many irons in the fire.' With my dissertation and numerous meetings outside my 32 hours, I find myself run down. To remedy this situation I am willing to wait until January 17, 2005 for this transition to begin. Please advise as to the salary changes.
Petitioner believed that by giving four weeks’ notice before the date she wanted to “go PRN” she would be entitled to a payout of “personal time off” (PTO). However, due to subsequent events, she was not entitled to an "in cash" payout of PTO. (See Findings of Fact 59-60.)
Respondent's policy provided that at any time an employee moved to a new position, he/she was placed on a 90-day mandatory probation to assess his/her performance in that new position. Because Petitioner was to be placed on a mandatory 90-day probation at the time that her status changed to PRN, there was no need to also place Petitioner on probation due to the conclusions of the second investigation into her alleged misconduct. However, Ms. Streetman instructed Ms. Chaires and Ms. Roberts to meet with Petitioner to go over the various performance problems that Petitioner was experiencing, and to inform Petitioner that continued poor performance in these areas
during her PRN probationary period could result in disciplinary action up to, and including, termination. This meeting took place on December 15, 2004, and led to a rebuttal by Petitioner on December 29, 2004. (See Finding of Fact 34.)
Petitioner previously considered moving to PRN status during February 2004. Petitioner also claimed that in March or April 2004, she had requested to be moved back to an RN-Baylor Nurse position, and that Ann McElreath, Director of Patient Care Services/Director of Nursing, told her that she could not make such a move without suffering a 45-percent decrease in compensation. Ms. McElreath testified that she did not remember any such request from Petitioner, and that she never told Petitioner that Petitioner would suffer a 45 percent decrease in pay if she moved back to a Baylor-RN position. Ms. McElreath further testified that she would have no reason to make such a statement to Petitioner, because she was not involved in any way in setting salaries.
In light of the differential between part-time and full-time pay schedules, as discussed hereafter (see Findings of Fact 38 and 58), and the complexity of Respondent Employer’s other pay categories, coupled with the complexity of Baylor status, one can see how Petitioner misunderstood her situation, but her testimony evidences a clear misunderstanding of how
Respondent calculated salaries, as well as a misunderstanding of the effect of designating exempt and non-exempt positions.
On December 29, 2004, Petitioner sent a memorandum to Ms. Roberts, Ms. Chaires, Ms. Streetman, and Ms. McElreath, requesting to rescind her request to move to PRN status and requesting to finish another six months as House Nursing Supervisor; complaining about “harassment” by Ms. Roberts due to Ms. Roberts’ telephone calls reminding Petitioner to attend meetings and Ms. Roberts’ “insulting” Petitioner’s professional abilities by not seeing/taking Petitioner’s side of many issues with staff. Petitioner requested to begin “dispute resolution.” At no point in this memorandum did Petitioner mention anything about alleged discrimination on the basis of age.
At no point during any investigation, nor at any other time, did Petitioner allege that she was being discriminated against based on her age. She did allege harassment by her immediate supervisor, Ms. Roberts, but this was in the nature of challenging Respondent’s basic chain-of-command decisions;
Ms. Roberts' not permitting her sufficient discretion; and Petitioner’s belief that only Petitioner could interpret Center for Disease Control (CDC) requirements regarding cleanliness and restrictions on the employment of coughing personnel and Occupational Safety and Health Act (OSHA) staffing requirements with regard to scheduling additional staff and instructing staff
concerning these issues. Yet, Petitioner has never posed any complaint directly alleging violations of any federal or state regulation besides her “exempt” versus overtime issues, which she raised for the first time, herein.
Petitioner wanted to take off December 31, 2004, and January 1, 2005 (New Year’s Eve and New Year’s Day), and she had been authorized in advance to do so. However, that authorization was rescinded when management discovered that she had already used the three weekend leaves to which she was entitled and that there might be staffing problems for the weekend period requested. (See Findings of Fact 26 and 54-57.) Petitioner had already made arrangements for her personal activities, and badgered management by e-mail to give her one or the other day off. Management ultimately let her have one of the days off, despite its “only three weekends” policy.
Due to Petitioner’s on-going performance problems; management’s continuing concerns about her ability to effectively function as Nursing House Supervisor raised in the second misconduct investigation; and the patient safety concerns raised by her admission that she felt she had too many demands on her time, Respondent's management declined to allow Petitioner to rescind her request to move to PRN status. On January 5, 2005, Ms. Chaires told Petitioner, and on January 10, 2005, Ms. Chaires sent Petitioner a formal acknowledgement, of
Respondent's acceptance of Petitioner's request to move to PRN status, effective January 17, 2005.
On January 12, 2005, Ms. Chaires sent Petitioner an e- mail communication outlining the Respondent Employer’s pay rates for PRN status/service. Because Petitioner would be moving from a full-time House Nursing Supervisor position to a part-time PRN position, Ms. Chaires informed Petitioner that there would be a reduction in her salary from $28.00 per hour to $21.00 per hour. Ms. Chaires testified that it was customary for an employee moving from a full-time House Supervisor position to a PRN position to experience a reduction in pay.
Petitioner claimed she was discriminated against because she received no merit increase at the end of 2004. She believes the lack of merit increase constituted retaliation for her obtaining the rescission of probation on September 30, 2004. Actually, Respondent’s employees undergo performance evaluations approximately every October. According to Respondent's policy, if an employee is on probation at any time during the third- quarter (July, August, September) of the calendar year, that employee is not eligible for a merit increase in connection with that year's October performance review. Respondent considered Petitioner ineligible for a merit raise at the end of 2004, because she had been on probation in September 2004; because there was a second investigation into Petitioner's performance
and alleged misconduct that continued at least until December 15, 2004; and because Petitioner had requested to change her status to PRN.
Because Petitioner’s probation was rescinded on the last day of September 2004, she technically was not barred from a merit increase due to being on probation in the third quarter, but she continued to be in the turmoil of some sort of disciplinary investigation until at least December 15, 2004. Respondent may have not followed the letter of its policy, but it maintained that policy’s spirit and purpose in not rewarding with a merit increase an employee who was subject to discipline at any moment. Petitioner also has not demonstrated that she was eligible for a merit increase based on meeting or exceeding performance standards. There is no credible evidence that the lack of an evaluation, the contents of an evaluation, or the lack of a 2004 merit increase in pay for Petitioner, constituted discrimination against her on the basis of her age or in retaliation for any protected activity.
On January 14, 2005, a Friday, Petitioner had a friend phone Ms. Roberts on her behalf. The friend informed
Ms. Roberts that Petitioner had undergone surgery that same day and would not be able to work as scheduled on the upcoming weekend. When Ms. Roberts inquired as to what kind of surgery Petitioner had undergone, the speaker would not give that
information to Ms. Roberts. Ms. Roberts informed the caller that Petitioner should call Respondent to discuss her expected recovery time and her availability to return to work.
Petitioner, who testified that she had listened to the foregoing conversation, described Ms. Roberts as “rude,” and the phone call may, indeed, have been acrimonious, in that the caller insisted on Petitioner’s right to medical privacy and Ms. Roberts wanted some detailed explanation why Petitioner was unable to report for work and why Petitioner was giving such short notice for her weekend shift(s), if she had not been in an accident and if she had elected the surgery in advance.
At hearing, Petitioner’s explanation for her inability to work her last House Supervisor shift(s) covering January 14, 15, and 16, 2005, was that she had elected minor surgery with the intent to return to work her regular shift, but the procedure had turned out to be more debilitating than she had expected, so she could not return to work as scheduled.
Also by date of January 14, 2005, Petitioner submitted an application for PRN employment with a different health care provider, Interim Healthcare. This date was a little more than a month after Petitioner had requested PRN status with Respondent; a little more than two weeks after Petitioner had sought to rescind that request; and two days after Respondent had declined in writing Petitioner's PRN rescission request. It
was three days prior to Petitioner's scheduled move to PRN status with Respondent on January 17, 2005, pursuant to her accepted request. There was nothing to prohibit Petitioner from signing-up for PRN work with multiple health care providers.
Because Petitioner did not show up for her last three scheduled shifts (two days) as Nursing House Supervisor, Respondent's policy required Petitioner to provide a doctor's note releasing her to return to work before Respondent would place her on PRN duty. Petitioner never provided Respondent with a doctor's note releasing her to return to work. Petitioner's testimony, that Ms. Chaires had told Petitioner on some previous occasion that as an "exempt" employee Petitioner did not need a doctor’s note for her absences, is not credible upon the record as a whole. It also is immaterial whether Petitioner's absence for her last three shifts/two days equate with "three consecutive days' absence," per Respondent’s policy on doctors’ notes, because more than three days passed without any word from Petitioner in response to Ms. Robert’s January 14, 2005, instructions by telephone.
Respondent’s witnesses maintain that after January 14, 2005, Petitioner never initiated contact with Respondent in any way to discuss her availability for work, and that Ms. Streetman first phoned Petitioner in March 2005, to determine whether she was returning to work as a PRN. Petitioner claims that
Respondent did not call her for any PRN work until May 2005, and therefore, in effect, Respondent constructively terminated Petitioner’s employment.
There also is some divergence in testimony whether or not Respondent mailed Petitioner a package of materials with instructions that she must complete and return those materials before Respondent would call her for PRN duty, in March or at any other time.
However, there is no dispute that during May 2005, Ms. Streetman, as acting interim Human Resources Director for Respondent, had telephone contact with Petitioner to coordinate Petitioner’s return to work as a PRN nurse.
During this conversation, Petitioner informed
Ms. Streetman that she would not return to work for Respondent as a PRN nurse under any circumstances. Petitioner stated that she would only work for Respondent if: Petitioner were returned to the position of full-time House Supervisor; Petitioner would only work a 16-hour shift on the weekends; and Ms. Streetman would set up a meeting with herself, Petitioner, Ms. Roberts, and a corporate representative of Respondent to discuss the resolution of various issues Petitioner wanted addressed. These issues were much as set out previously. (See Findings of Fact 17-19 and 35-39.) Age does not seem to have been one of Petitioner’s issues. Petitioner also indicated that she had not
received the PRN packet of information that Respondent maintains it had sent her.
Ms. Streetman immediately forwarded a copy of the PRN package to Petitioner.
Although Petitioner provided a copy of a current CPR card to Respondent in May of 2005, she did not provide a doctor's note releasing her to return to work, her executed PRN paperwork acknowledging her duties and responsibilities as a PRN nurse, or an executed acknowledgement of Respondent's HIPPA policies and procedures, all of which Respondent required before putting Petitioner on its PRN status/phone list.
On or about May 24, 2005, Ms. Streetman once again contacted Petitioner and informed her that she was unable to bring Petitioner back to work under the conditions that Petitioner had previously outlined, but Respondent was willing for Petitioner to work as a PRN nurse. Once again, Petitioner informed Ms. Streetman that she would not return to work as a PRN nurse under any circumstances. Accordingly, at that time, Ms. Streetman terminated Petitioner.
During her employment with Respondent as a Nursing House Supervisor, Petitioner accrued PTO, in accordance with her position and length of service. As a Nursing House Supervisor, Petitioner should have accrued PTO at the rate of 7.69 hours of accrued PTO per two week pay period, which corresponds to the
PTO accrual schedule for staff employees. However, due to a clerical error by Ms. Chaires, Petitioner actually had been allowed to accrue PTO at a rate of 9.54 hours of accrued PTO per two-week pay period, which corresponds to the PTO accrual schedule for department head employees, even though as Nursing House Supervisor, Petitioner was not a department head.
Respondent's policy in 2004, permitted all Baylor, or weekend, employees of Respondent to expend PTO hours on no more than three weekends per year. Because Petitioner worked a Baylor, or weekend, schedule as Nursing House Supervisor, Petitioner was limited to using PTO for three weekends per year. Petitioner signed off on, and acknowledged, this three weekend limitation.
Although this policy limited the weekend days on which Petitioner was entitled to use her accrued PTO, Petitioner was entitled to use her accrued PTO for any weekday shifts for which she was scheduled after September 30, 2004, when Ms. Roberts informed her that it was operationally necessary for her to work at least one eight-hour shift during each week.
During 2004, Petitioner used 171 hours and 15 minutes of PTO, and all three of her allotted weekends off as a Baylor employee of Respondent. (See Findings of Fact 26 and 36.)
Later in 2005, Respondent re-examined its PTO leave policy. In order to compete for staff with other local health
care providers, Respondent changed the number of allowed weekend PTO days for its Baylor employees from three to four weekends.
However, this increase in the number of weekend leaves permitted for Baylor employees did not affect Petitioner, because her request to move from full-time Nursing House Supervisor to PRN nurse had been granted, effective January 17, 2005, and the new leave policy was not retroactive.
A PRN nurse occupies a part-time position. As a PRN nurse, Petitioner was not eligible to accrue or use PTO.
On January 22, 2005, Petitioner’s PTO balance was 4.37 hours, meaning Petitioner had 4.37 hours of PTO available for use. The dollar value of Petitioner’s remaining PTO hours amounted to $83.09.
According to Respondent's policy, an employee was eligible for a cash payout for his/her unused PTO hours upon voluntary resignation (including a voluntary employment status change) and/or involuntary lay-off if: (1) the employee had successfully completed his/her 90-day probationary period; (2) the employee provided Respondent with proper notice; and (3) the employee worked a minimum of four hours on his or her final scheduled day of work. Whether Petitioner successfully completed her probationary period as a Nursing House Supervisor is not at issue in this case. Sufficient notice of status change is not at issue in this case. (See Findings of Fact 29-
30.) Petitioner did not receive a cash payout for her 4.37 unused PTO hours on January 17, 2005, when she moved from a full-time Nursing House Supervisor position to a PRN nurse position, because she did not work the required four hours on her final scheduled day of work as a Nursing House Supervisor. Petitioner missed her final three scheduled shifts as a Nursing House Supervisor in January of 2004, and she did not work on the day that her employment with Respondent was terminated. whether one counts the status change date of January 17, 2004 or the final termination date in May 2005. (See Findings of Fact 45 and 52.) Therefore, Petitioner was not eligible for a PTO payout under Respondent Employer’s policy at the time her status changed to PRN nurse, January 17, 2005.
Between January 14, 2005, and November 2005, Petitioner did not apply for any type of work so as to mitigate potential damages. After January 14, 2005, she had PRN status with Interim Healthcare, but she did not accept work from Interim until November 2005. During that period, she only attended classes and lived on her student loans. Petitioner had previously acquired at least a J.D. (law degree), two nursing degrees, and possibly another doctorate. With these credentials, she was certainly not “unemployable” during the interim of January-November 2005.
Petitioner never complained to Ms. Roberts, her direct supervisor, that Petitioner believed that she was being discriminated against on the basis of her age. In 2004, Petitioner would have been 55, and Ms. Roberts would have been
51 years of age. Ms. Roberts never treated Petitioner any differently than any other Nursing House Supervisor.
Ms. Roberts was not actively aware of Petitioner's age at any time during her employment.
Petitioner never complained to Ms. McElreath, then- Director of Nursing and Petitioner's “two-up” supervisor, that Petitioner believed she was being discriminated against on the basis of her age. Ms. McElreath would have been 50 to Petitioner's 55 years of age at all times material.
Petitioner never complained to Ms. Chaires, Director of Human Resources, that Petitioner believed she was being discriminated against on the basis of her age. No decision that Ms. Chaires made concerning Petitioner was motivated by Petitioner's age.
Petitioner never complained to Ms. Streetman, Respondent's administrator, that Petitioner believed she was being discriminated against on the basis of her age.
Ms. Streetman would have been 49 years of age, at all times material. No decision that Ms. Streetman made concerning Petitioner was motivated by Petitioner's age.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1), 120.569, and 760.11, Florida Statutes.
Petitioner has asserted that she was discriminated against on the basis of her age and in retaliation. She does not seek re-employment with Respondent or any other employment emoluments except for $30,620.00, which she represents constitutes the amount she would have earned if she had been paid overtime as a Charge Nurse, including the merit increases she believes she was entitled to, for 450 hours, which she has calculated she worked, at “time and a half for overtime.”
Petitioner contends that due to her age and/or in retaliation, (1) Respondent promoted her in February 2004, to the exempt position of Nursing House Supervisor so as to prevent her from earning overtime pay and simultaneously unjustly denied her a promotional pay increase; (2) Respondent unjustly disciplined her with regard to her performance and denied her a 2004 merit increase in retaliation for successfully challenging that discipline on September 30, 2004; (3) Respondent removed the accommodation for her doctoral dissertation (all her hours being on a weekend, instead of a straight Baylor configuration) and switched her to a straight Baylor configuration on
September 30, 2004, because she successfully challenged her probation discipline so that probation was reduced to a written warning on September 30, 2004. Petitioner also peripherally faults Respondent for not telling her back in 2004, that she could only use three weekends, and for letting her use her last available weekend approximately September 30, 2004; (4) Respondent cut her pay when she moved from full-time Nursing House Supervisor to PRN status at her request; (5) Respondent denied her request to rescind her PRN status; and (6) Respondent constructively terminated her by not calling her for PRN work after January 17, 2005.
Petitioner’s construction of the facts for her first allegation cannot carry the day. First, Petitioner's January/February 2004, promotion to Nursing House Supervisor cannot form the basis of any case of discrimination under Chapter 760, Florida Statutes. Petitioner's relief as to this issue is time-barred. Petitioner accepted the promotion in January/February of 2004, and did not file her Charge of Discrimination with FCHR until May 3, 2005, Therefore, any allegation of discrimination by Petitioner based solely on her promotion to Nursing House Supervisor is time barred. See Maynard v. Pneumatic Prods. Corp., 256 F.3d 1259, 1263 (11th Cir. 2001), holding that under the Age Discrimination in Employment Act (ADEA), a Florida resident must file a charge
with the appropriate agency within 300 days of the alleged unlawful employment practice. See also Freney v. University of
Florida, DOAH Case No. 03-1233 (RO: July 10, 2003; FO:
December 26, 2003); Perry v. Dept. of Business and Professional Regulation, DOAH Case No. 83-1140 (RO: July 1, 2003; FO: February 26, 2004) and cases cited therein concerning the 365- day time bar, pursuant to Section 760.11(1), Florida Statutes.
Assuming arguendo, but not ruling, that the Employer's salary payments and policy as to overtime and leave pursuant to Petitioner's promotion could extend the statute of limitations as to all of her post-promotion complaints, Petitioner still cannot prevail. Petitioner admitted she voluntarily accepted the position of Nursing House Supervisor, signed an acknowledgment of that acceptance in February 2004, and continued to work in the position of Nursing House Supervisor for almost a year without complaining to any of her supervisors about her age discrimination or that her promotion was any form of retaliation. See Faragher v. City of Boca Raton, 524 U.S. 775, 118 S. Ct. 2275 (1998).
Even treating all six of Petitioner’s concerns without regard to the statute of limitations, she cannot prevail.
Under the provisions of Section 760.10(1), Florida Statutes, it is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
Section 760.10(7), Florida Statutes, renders it an unlawful employment practice for an employer to:
. . . discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing, under this section.
Similarly, the ADEA makes it "unlawful for an employer to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individuals age."
Although this forum has no jurisdiction to resolve ADEA cases, FCHR and the Florida courts have determined that all federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Fla. Power Corp., 633 So. 2d 504 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
The Supreme Court of the United States established in McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973), and Texas
Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), the analysis to be used in cases alleging unlawful discrimination and which are persuasive in cases such as the one at bar. This analysis was reiterated and refined in St. Mary's
Honor Center v. Hicks, 509 U.S. 502 (1993).
Pursuant to this analysis, Petitioner has the burden of establishing by a preponderance of the evidence a prima facie case of unlawful discrimination. If a prima facie case is established, Respondent must articulate some legitimate, nondiscriminatory reason for the action taken against Petitioner. Once this nondiscriminatory reason is offered by Respondent Employer, the burden then shifts back to Petitioner to demonstrate that the reason offered by the Respondent is merely a pretext for discrimination.
When pursuing a claim of age discrimination under the burden-shifting analysis as described in McDonnell-Douglas and Hicks, an employee must affirmatively demonstrate that age was a motivating factor in the alleged adverse employment action. Chapman v. AI Transp., 229 F.3d 1012, 1024 (llth Cir. 2000). The court stressed in Chapman that "[w]hen a plaintiff alleges disparate treatment, liability depends on whether the protected trait (under the ADEA, age) actually motivated the employer's
decision-making process and had a determinative influence on the outcome." Id. (quoting Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133 (2000)). To prove an age discrimination claim, a plaintiff can establish a prima facie case of age discrimination through either direct evidence of discrimination or circumstantial evidence of discrimination. Damon v. Fleming
Supermarkets of Fla., 196 F.3d 1354, 1358 (11th Cir. 1999). Direct evidence of age discrimination is evidence which reflects "a discriminatory or retaliatory attitude correlating to the discrimination or retaliation complained of by the employee." Carter v. Three Springs Residential Treatment, 132 F.3d 635, 641 (11th Cir. 1998). As the court noted in Damon, at pages 1358- 1359, "In other words, the evidence must indicate that the complained-of employment decision was motivated by the decision- maker's ageism. As a result, 'only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age' will constitute direct evidence of discrimination." This quotes Early v. Champion Int'l Corp., 907 F.2d 1077, 1081-82 (11th Cir. 1990)).
To establish a prima facie case of age discrimination by circumstantial evidence, Petitioner must establish: (1) that she was a member of a protected age group; (2) that she was subjected to adverse employment action; (3) that she was qualified to do the job; and (4) that she was replaced by, or
otherwise lost a position to, a younger individual or suffered from disparate treatment because of membership in the protected class. Kelliher v. Veneman, 313 F.3d 1270, 1275 (11th Cir.
2002); see also Chapman v. AI Transport, supra.
At all times material, Petitioner’s supervisors were of ages similar, but not identical, to her own. All credibly denied age-based discrimination against Petitioner. Petitioner has provided no comparators of an age similar to her own who were either Baylor/weekend employees or PRNs and who suffered the same wage and leave disparities she allegedly suffered. She has presented no Baylor/weekend employees or PRNs of a younger age who were employed on any different basis; who received pay on any different basis; or who accrued leave and were permitted to use that accrued leave on any different basis, than was Petitioner. The evidence herein shows differences in salary classifications based on exempt and non-exempt status, but it does not show any relationship between those classifications and the age of any employee, including Petitioner. Thus, Petitioner has failed to present a prima facie case of discrimination based on her age.
Assuming arguendo, but not ruling, that a prima facie case of age discrimination has been shown, Respondent’s witnesses presented not just plausible, but credible, reasons for the Employer’s pay, overtime, and leave policies, and
demonstrated that these policies had universal application among its employees, regardless of age. Any prima facie case of age discrimination has been credibly rebutted, and Petitioner has not demonstrated that Respondent’s reasons were pretextual.
Moreover, Petitioner did not report any alleged discrimination on the basis of age to her direct supervisor, her “two-up” supervisor, the Hospital's Director of Human Resources, or the Hospital Administrator, prior to filing her Charge of Discrimination with FCHR. Since Petitioner failed to use reasonable care to avoid the harm alleged, Respondent cannot be held vicariously liable for any alleged discrimination. See Faragher v. City of Boca Raton, supra.
To establish a retaliation claim, Petitioner must at least show she participated in some protected activity and that a nexus existed between that protected activity and some employment action by the Employer. At law, a prima facie case is established by showing that (a) she engaged in statutorily protected expression; (b) she suffered an adverse employment action such as demotion and/or assignment to a position with less responsibility; and (c) the adverse employment action was causally related to the protected activity. See Harper v. Blockbuster Entertainment Corp., 139 F.3d 1385, 1388 (11th Cir. 1998).
With regard to the alleged retaliation, “negotiating” salary, overtime, and leave issues is not a protected activity. Preparing one’s doctoral dissertation in uninterrupted blocks of weekday time is not a protected activity. Moreover, informal conversations, inquiries, and even disputes, over normal terms of employment or day-to-day business decisions by one’s superiors, without something more, do not constitute protected activity. The courts and this forum are not in the business of second-guessing business decisions of employers. "An employee's feelings and perceptions of being discriminated against are not evidence of discrimination. See Bickerstaff v. Vassar College,
196 F.3d 435 (2nd Cir. 1999). "Courts do not sit as a super- personnel department that re-examines an entity's business decisions." See Chapman v. A.I. Transportation, 229 F.3d 1012 (11th Cir. 2000); Cofield v. Goldkist,Inc., 267 F.3d 1264, 1269 (11th Cir. 2001).
Petitioner claims two specific instances of retaliation. She claims that she was returned to a straight Baylor shift on September 30, 2004, because she had bested Ms. Roberts in their dispute over Petitioner's probation.
Although the events share identical dates, Petitioner's premise on motivation was adequately rebutted. Petitioner also claims that she was retaliated against for the same reason by being denied a 2004 merit increase. This premise also was adequately
rebutted. Respondent Employer herein demonstrated that Petitioner's return to straight Baylor status was to avoid the Employer having to pay four hours of overlapping service, for two employees, per shift. Respondent also demonstrated that its established and published policy forbade a merit increase to someone on probation. On this occasion, Petitioner's continued involvement in disciplinary activity after September 30, 2004, amounted to the same thing. Petitioner did not rebut this evidence. Where an employer proffers a reasonable motivation for its decision, it is not up to a court to question the wisdom of the employer's reasons. See Lee v. GTE Florida, Inc., 226 F.3d 1249, 1253 (11th Cir. 2000). Conclusory allegations of discrimination, without more, are not sufficient to raise an inference of pretext or intentional discrimination [by the employer] where the employer has offered extensive evidence of legitimate, non-discriminatory reasons for its actions. See Isenburgh v. Knight Ridder Newspaper Sales, Inc, 97 F.3d 436 (11th Cir. 1996). Even if an employer's view is mistaken, if it is honestly believed, it is not discrimination. Ghosh v.
Indiana Dept. of Environmental Management, 192 F.3d 1087 (7th Cir. 1999).
Even if Petitioner had established a prima facie case with regard to either her age or retaliation premises, which she has not, Respondent presented credible and unrebutted evidence
to refute her first premise. Petitioner was promoted in February without a pay increase because she was already being paid at grade and nothing had occurred in the two weeks she had been employed that an employer might want to retaliate against. Petitioner was not granted a pay increase at the time she was promoted to the position of House Supervisor, because her $28.00 per hour salary was very high for an RN-Baylor Nurse and that salary was already commensurate with that of other House Supervisors. It was not uncommon for an employee to be promoted without a pay increase. Respondent demonstrated that all other House Supervisors employed by Respondent during the course of Petitioner's employment were exempt employees and were not paid for overtime, including mandatory meetings held outside their working hours. Finally, Petitioner offered no evidence that the decision to promote her to the position of Nursing House Supervisor without a corresponding pay increase was based on anything other than legitimate, non-discriminatory reasons, much less impermissible factors. Even so, Respondent proved its decision was made due to staffing and operational concerns and because Petitioner was qualified and available to fill an immediate staffing need. Respondent presented credible, and unrebutted evidence with regard to Petitioner's second premise. Petitioner was not unjustly disciplined. An investigation resulted in her probation being rescinded and another
investigation was halted short of probation because the same result had been achieved by Petitioner’s voluntary choice to go PRN. The reasons for Petitioner being denied a merit increase were unrelated to any protected activity and were appropriate, pursuant to Respondent's policy. Petitioner demonstrated no retaliation nexus and no entitlement to the merit increase.
Credible and unrebutted evidence was presented by Respondent with regard to Petitioner’s third premise, to the effect that the removal of the accommodation for Petitioner by special instead of regular Baylor shifts, was not retaliatory. Rather, it was a business decision to avoid overlapping shifts and save the Employer money. Respondent presented credible unrebutted evidence as to Petitioner's fourth premise. It was customary to pay part-time, non-exempt PRN nurses at a lower wage per hour than that paid to full-time, exempt Nursing House Supervisors.
Credible and unrebutted evidence was presented with regard to Petitioner’s fifth premise. Management had good business reasons for not allowing Petitioner to rescind her election of PRN status in light of her performance problems and her admission that she was overwrought, "with too many irons in the fire." This refusal to permit the recsission may have been in response to Petitioner’s being an extremely difficult employee to supervise or work with, but it was not in retaliation for any protected activity. Credible and unrebutted evidence also was
presented with regard to Petitioner’s sixth premise, that she was constructively terminated. Efforts were made to get Petitioner to comply with management’s requirements for being placed on its PRN phone list, and Petitioner refused to cooperate. Moreover, Petitioner's demands and her subsequent choice to live on her student loans do not inspire a belief that she ever seriously intended to work for Respondent as a PRN.
Based on the foregoing Findings of Facts and Conclusions of Law, it is
RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination.
DONE AND ENTERED this 22nd day of September, 2006, 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
(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 22nd day of September, 2006.
ENDNOTES
1/ Although Petitioner did not check the box for “retaliation” on her Charge of Discrimination, she used the term, “retaliation” in the body of the Charge, and an allegation of retaliation may be inferred within the verbosity of her Petition for Relief.
2/ Respondent argues in its Proposed Recommended Order that this memorandum was dated August 16, 2004, but the Exhibit R-3 clearly shows the date as September 30, 2004.
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
Deanna L. Eftoda 2112 Mistletoe Court
Tallahassee, Florida 32301
L. Traywick Duffie, Esquire
Wesley E. Stockard, Qualified Representative Hunton & Williams, LLP
Bank of America Plaza 600 Peachtree Street
Suite 4100
Atlanta, Georgia 30308
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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 13, 2006 | Agency Final Order | |
| Sep. 22, 2006 | Recommended Order | Respondent`s wage tables and policy were scrupulously followed. Age and retaliation discrimination was not proven. |
