STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DIANNE M. SARTIN, )

)

Petitioner, )

)

vs. ) CASE NO. 90-4919

)

BAY MEDICAL CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this matter came on for hearing in Panama City, Florida, before the Division of Administrative Hearings by its duly designated Hearing Officer, Diane Cleavinger, on January 3, 1991.

APPEARANCES

For Petitioner: Richard M. Brasher, Sr., Esquire

222C Government Street

P. O. Box 711

Valparaiso, Florida 32580

For Respondent: Robert L. Norton, Esquire

J. Mark Johnston, Esquire Barnett Plaza

Suite 740

201 South Orange Avenue Orlando, Florida 32801

STATEMENT OF THE ISSUES

The issue addressed in this proceeding is whether Petitioner was the subject of an unlawful employment practice.

PRELIMINARY STATEMENT

Around May 23, 1989, Petitioner, Dianne Sartin filed a charge of discrimination based on her marital status and her sex against Respondent Bay Medical Center. On May 16, 1990, a determination of no cause was filed by the Florida Commission on Human Relations (FCHR). Around May 29, 1990, Petitioner filed a Petition For Redetermination with FCHR. By letter dated June 29, 1990, FCHR again found no cause on the Petition For Redetermination. On July 29, 1990, Ms. Sartin filed a Petition for Relief which was forwarded to the Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and presented the testimony of four witnesses. Respondent presented the testimony of one witness and introduced twenty-one exhibits into evidence.

Petitioner and Respondent filed Proposed Recommended Orders on April 12, 1991, and July 13, 1991, respectively. The parties' Proposed Findings of Fact have been considered and utilized in the preparation of this Recommended Order except where such proposals were not supported by the weight of the evidence or were immaterial, cumulative or subordinate. Specific rulings on the parties' proposals are contained in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Dianne M. Sartin is a licensed practical nurse. She was hired by Bay Medical Center in December of 1978. Ms. Sartin initially was hired as a nurse on the surgical medical floor. After one year, Ms. Sartin left the hospital to go to North Carolina with her first husband. She soon returned to Bay County and resumed her employment with Bay Medical Center. A short time after her return, she accepted a full time position in the hyperbaric medicine department. 1/ Ms. Sartin has since become a specialist in nursing care involving hyperbaric medicine and is one of a very limited number of nurses in the nation who can claim such a specialty.

   
   

2. Petitioner is a person as defined by the Florida Human Rights Act of 1977. 760.02(5), Florida Statutes, (1990).

   
   

3. Bay Medical Center is a health care institution established to support, manage and furnish facilities, personnel and services to provide diagnosis, medical, surgical and hospital care to those persons residing in the hospital's primary, secondary and tertiary service areas. In this capacity, Respondent employs a large number of personnel; and therefore, is an employer as defined by the Florida Human Rights Act of 1977, 760.02(6) Florida Statutes (1990).

   
   

4. William Sartin, the Technical Director of Hyperbaric Medicine, was Dianne Sartin's immediate supervisor during the entire time Ms. Sartin worked in the hyperbaric medicine department.

   
   

5. As Director, Mr. Sartin conducted employee evaluations of Ms. Sartin and was the individual responsible for disciplining Ms. Sartin if discipline was warranted. Those employee evaluations indirectly affected her pay raises. Mr. Sartin was also the person responsible for preparation of all the work and on- call schedules, including those of Ms. Sartin.

   
   

6. The on-call schedule determined who would be called during evening and weekend hours should hyperbaric care be required. An individual who was on-call was required to carry a beeper at all times and be available for emergency runs in the hyperbaric chamber whenever notified. The individual would receive a stipend for being on-call in addition to receiving pay for time the individual was actually at the hospital performing work in the hyperbaric department.

   
   

7. Petitioner and Respondent worked closely together over the years. At the time Ms. Sartin began to work in the hyperbaric department, there was not a personal romantic relationship between her and Mr. Sartin. However, in 1983, the Sartins began dating. On March 30, 1985, Petitioner and Mr. Sartin were married. At the time of their marriage both Mr. and Ms. Sartin were aware of the hospital policy prohibiting an individual from being the immediate supervisor of his or her spouse.

8. Knowing that he and Ms. Sartin would be in violation of the policy subsequent to their marriage, Mr. Sartin requested that Ms. Sartin be allowed to continue working in the hyperbaric department due to Ms. Sartin's expertise in hyperbaric medicine and the lack of qualified nurses in the area of hyperbaric medicine.

   
   

9. This request, was granted, in part, by the Administration who permitted Ms. Sartin to work in the hyperbaric medicine department but only for a six month period or until a replacement could be found. The Administration expressed its concern in waiving the hospital's nepotism policy and required Mr. Sartin to make sure there was adequate staffing so that Ms. Sartin's services in the department would not be needed by the end of the six month period. During this time period, Ms. Sartin would be employed as an independent contractor by Respondent and would not be considered a regular employee.

   
   

10. After the initial six month period ended, Mr. Sartin again requested that Ms. Sartin be permitted to work in the hyperbaric department.

    
    

11. Michael L. Norman, Assistant Administrative Director, reluctantly agreed to extend Ms. Sartin's period of employment in the hyperbaric medicine department. Mr. Norman reiterated that the rehiring of Ms. Sartin was strictly temporary in order to allow Mr. Sartin time to provide or find adequate staffing for the department. In addition, Mr. Sartin was informed that his next evaluation would reflect his success in recruiting a qualified replacement.

    
    

12. Mr. Sartin's inability to find a qualified replacement for Ms. Sartin was due to the fact that there were a very limited number of nurses who are qualified in hyperbaric medicine and that there is little interest in the nursing community to become so qualified because of the working conditions required by hyperbaric medicine.

    
    

13. During this second contract period, Sherine Thompson, the Personnel Director for Bay Medical Center from February 1984 to October 1986, indicated to Ms. Sartin and her husband that if the Sartins obtained a divorce decree both could continue working together. The evidence was not clear on whether Ms. Thompson or another Bay Medical Center official indicated whether they could continue to live together enjoying all the other aspects of marriage and maintain their present employment situation. However, after the second contract's time period had elapsed and Mr. Sartin had not found a replacement, Mr. And Mrs. Sartin divorced so that Ms. Sartin could continue working in the hyperbaric department. 2/

    
    

14. Other than dissolving the marriage, the relationship between Mr. and Ms. Sartin did not change after the divorce and they continued living together as if they were still married.

    
    

15. Subsequent to the divorce, Ms. Sartin was placed back on regular employment status and was allowed to continue working for Mr. Sartin until January 18, 1989. At that time, William Touchstone, a co-worker in the hyperbaric department, filed a grievance concerning the Sartins.

    
    

16. The grievance alleged, among other things that Ms. Sartin received preferential treatment as to pay for on call time which she was not scheduled to work. The grievance also alleged that she was permitted to arrive at work any time she pleased.

17. The year before the grievance was filed, Mr. Touchstone received the highest possible score an employee could receive in his evaluation. This evaluation was completed by Mr. Sartin. However, irrespective of this evaluation, the evidence demonstrated that there were some major problems between Mr. Touchstone and Mr. Sartin prior to the filing of the grievance. Primarily, Mr. Sartin was unhappy with Mr. Touchstone's performance when he was on-call and when he was working his regular hours. Mr. Sartin had tried to have Mr. Touchstone terminated just prior to the date Mr. Touchstone filed his grievance. From this evidence it appears that the grievance was motivated, in part, by a desire for vengeance by Mr. Touchstone.

    
    

18. Subsequent to the filing of the grievance, and pursuant to hospital policy, Stephen Adrianse, Director of Human Resources reviewed the grievance and the applicable hospital policies and procedures. Mr. Adrianse spoke to Mr. Sartin, Mr. Touchstone and Mr. Norman as to the allegations contained in the grievance. Mr. Adrianse requested more evidence be submitted to support the grievance.

    
    

19. Mr. Touchstone provided the additional evidence which consisted of time records and patient treatment start times. These records showed that Ms. Sartin arrived for work at various times and almost always at least 15 to 45 minutes past the scheduled work time of 8:00 a.m. Ms. Sartin's arrival times were due, in part, to the fact that, Mr. Sartin maintained a flexible working schedule due to the exigencies of hyperbaric medicine. In essence, his employees did not have a fixed working day and were only required to be present before a hyperbaric chamber run started. However, these time records also showed that Ms. Sartin clocked-in much later than the time a patient treatment was to commence thus causing others to perform parts of treatments without adequate staffing. The grievance investigation also revealed that Ms. Sartin's name never appeared on the "on-call" schedule even though her payroll records indicated that she had many times received stipend "on-call" pay. Mr. Sartin testified that Ms. Sartin had been paid for on-call duties she performed when the person who was scheduled, namely Mr. Touchstone, could not be reached or was incapacitated.

    
    

20. After a thorough review of all the evidence, Mr. Adrianse recommended to Mr. Norman that Ms. Sartin be transferred due to the appearance of preferential treatment received by Ms. Sartin. 3/

    
    

21. On March 22, 1989, Mr. Norman sent a memorandum to Mr. Sartin requesting that Ms. Sartin submit a transfer request as soon as possible. This memorandum indicated that there were many other LPN positions available to Ms. Sartin.

    
    

22. A day later, March 23, 1989, Mr. Norman revised and corrected his previous memorandum and informed Mr. Sartin that either he or Ms. Sartin could either transfer to another department or resign. 4/ The Respondent's decision was not based on either Ms. Sartin's marital status or her sex.

    
    

23. Subsequent to this March 23, 1989, memorandum, Ms. Sartin came to Mr. Adrianse's office and discussed the possibility of her transferring to another department. Mr. Adrianse explained to Ms. Sartin the different options available to her as well as the options available to Mr. Sartin. A cut in pay would have accompanied any transfer Ms. Sartin made. There was no evidence of the amount or duration of this pay cut and the evidence did not otherwise demonstrate that this cut in pay would be intolerable or would create any conditions of employment which would force Ms. Sartin to resign.

24. On April 7, 1989, Ms. Sartin submitted her resignation from the hospital. The evidence demonstrated that Ms. Sartin chose to resign because she determined it was more important for Mr. Sartin to continue as director of the hyperbaric medicine department since his paycheck was larger than hers. There was no evidence submitted as to the transfer options available to Mr. Sartin, although the evidence suggests such options were available.

    
    

25. On April 17, 1989, Mr. Adrianse sent a letter to Ms. Sartin once again explaining to her that she did not need to resign and that either her or Mr. Sartin would have the option to simply transfer to another department.

    
    

26. On April 20, 1989, Ms. Sartin tendered a second written resignation form the hospital.

    
    

27. On April 23, 1989, Mr. Sartin requested that Warren Wilson's status be changed from part-time to full-time so that he could assume Dianne Sartin's position. Mr. Wilson is outside Ms. Sartin's protected class.

    
    

    CONCLUSIONS OF LAW

    
    

28. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of this proceeding. Section 120.57(1), Florida Statutes (1987).

    
    

29. In Owens v. Upper Pinellas Association for Retarded Citizens 8 FALR

    438 (1985), the Florida Commission on Human Relations held that the standard of proof applicable in establishing a claim for martial status discrimination under the Florida Human Rights Act is the same standard as was set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under that test, the Petitioner has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. In order to establish a prima facie case the Petitioner must show: (a) she was a member of a protected class; (b) she was performing her duties in a satisfactory manner and; (c) despite her satisfactory performance, she was terminated. If this burden is met, the burden of production then shifts to Respondent to articulate some legitimate, nondiscriminatory reason for discharging Petitioner. Should the employer carry this burden, the burden then shifts back to the Petitioner to show by a preponderance of the evidence that the reasons offered by the employer were not its true reasons, but were merely a pretext for discrimination. See also, Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981).

    
    

30. In this case, the evidence was clear that Respondent did not discriminate against Petitioner based on her marital status. 5/ Bay Medical Center did not discriminate against Petitioner because there was no termination of employment. Ms. Sartin resigned. In Ms. Sartin's complaint of discrimination she states, "I was discharged after my husband and I were divorced." (emphasis added) The evidence was clear that Ms. Sartin voluntarily resigned her employment. Therefore, the only plausible theory of recovery on which Ms. Sartin could proceed was that she was forced to resign, ie., a constructive discharge.

    
    

31. In order to establish a case of constructive discharge the Petitioner must establish: (1) that a reasonable person in the charging party's position would have found the working conditions intolerable; (2) that conduct which constituted an unlawful employment practice violation against the charging party created the intolerable working conditions; and (3) that the charging party's

    involuntary resignation resulted from the intolerable working conditions. EEOC Dec. 8401, 33 FEP 1887, 1892 (1983). See also, Holovak v. State of Florida, 4

    FALR 1786-A (FCHR 1981); and Garner v. Walmart, 42 FEP 1141 (1986).

    
    

32. The Eleventh Circuit Court of Appeals in Garner v. Walmart, supra, addressed a constructive discharge issue in a case very similar to the case at bar. In this case, prior to Plaintiff's approved maternity leave, she had been the manger of the household department of a Walmart store. Upon her return from maternity leave, she was given an assignment as a "floater". The new position carried less authority and involvement than the manager's position and included working from time to time in various departments, including the department where the male who had replaced her was her superior. On Ms. Garner's first full day back to work, she resigned due to this demotion.

    
    

33. The Eleventh Circuit found no constructive discharge stating "to find constructive discharge we believe that the trier of fact must be satisfied that the ... working conditions would have been so difficult or unpleasant that a reasonable person in the employees shoes would have been forced to resign." Id. at 1144. The Court said that it would have been reasonable for Plaintiff to complain of this situation and if a similar position did not become available within a reasonable period to file a complaint for discriminatory demotion. However, the claim for constructive discharge was inappropriate and thus dismissed.

    
    

34. As stated in Holovak:

    
    

    A constructive discharge requires some sort of aggravated circumstances, in addition to inequitable working conditions. Work

    conditions must have been made so difficult that any reasonable person in such a position would have felt compelled to quit.

    
    

35. Applying the above, there is no question that this Ms. Sartin was not constructively discharged. Mr. & Ms. Sartin were asked to choose which one would transfer to another department so that the conflicts in the hyperbaric medicine department could be resolved. Ms. Sartin never worked a day in another department and the only possible adverse action shown by the evidence was that Ms. Sartin might receive less pay. There was no evidence concerning the amount of the reduction and no evidence as to the time period such a cut in pay would have to be endured. Additionally, there was no evidence concerning the terms of any transfer available to Mr. Sartin. Given this lack of evidence it is impossible to determine whether such a paycut would create an intolerable working condition. Therefore, the evidence did not demonstrate that this possible pay reduction, was such that would make working conditions intolerable and force an employees resignation. Further, the evidence did not demonstrate that Petitioner was constructively discharged or actually discharged. The evidence did demonstrate that Ms. Sartin voluntarily resigned her employment. Therefore, Ms. Sartin has failed to state a prima facia case of discrimination and her charge must be dismissed.

    
    

36. However, even assuming for argument purposes that Ms. Sartin did set forth a prima facia case of discrimination, the burden of production then shifts to Respondent to articulate a legitimate nondiscriminatory reason for the alleged adverse treatment. Because the burden on the employer is only a burden of production and not the burden of persuasion, the employer is not required to

    persuade the Hearing Officer that its reason was factually accurate. Department of Corrections v. Chandler, Case No 90-648 FLW Fla. 1st DCA (opinion filed July 10, 1991).

    
    

37. The nondiscriminatory reason articulated at the hearing by Respondent centers around the grievance filed by William Touchstone. Not even addressing the merits of this grievance, the filing of the grievance indicated morale problems within the department, the potential for conflict of interest and perceived preferential treatment and may result in an employer taking some action gainst an employee without such action being discriminatory. All of these matters are of legitimate concern to an employer. Therefore, the filing of this grievance alone, would constitute a nondiscriminatory reason to support a transfer and would be sufficient evidence of production to rebut the Petitioner's prima facie case and the burden of persuasion is on the Petitioner to show that this reason was merely a pretext for discrimination. See Burdine, supra.

    
    

38. In reviewing all the evidence in the case, the only pretextual reason offered by Petitioner was that William Touchstone was a bad employee who did not like Mr. Sartin and thus filed a meritless grievance in an attempt to get at Mr. Sartin. Since Mr. Touchstones' grievance was supported by the hospital records, the evidence supporting Petitioner's vengeance theory was insufficient to support a finding that the Respondent joined in some conspiracy with Mr. Touchstone to further his revenge. Mr. Touchstone's reasons for filing his grievance can simply not be attributed to the hospital. In fact, there was no evidence submitted that Respondent acted for any other reason than to eliminate the problems caused by the perceived preferential treatment of Ms. Sartin. Moreover, Bay Medical requested that either she or Mr. Sartin transfer to another department. The decision to request either Mr. or Ms. Sartin to transfer or resign was made, not to discriminate, but to eliminate the perceived preferential treatment Ms. Sartin was receiving and alleviate the problems such perceived treatment was causing and potentially could cause in the hyperbaric medicine department. Therefore, the evidence wholly fails to demonstrate any pretext on the part of Respondent in its treatment of either Sartin in this case.

    
    

39. Finally, the vast majority of the case law which has addressed marital status discrimination with respect to an employee supervising his spouse has determined that this relationship presents a potential conflict of interest and an employer has the right to alter the employment relationship without being guilty of some type of discrimination. See Harper v. Trans World Airlines, 525 So.2d 409 (8th Cir. 1975); Yuhas v. Libby Owens Ford Company, 526 F.2d 496 (7th Cir. 1977). Vuyanica v. Republic National Bank, 24 FEP 128 (N.D. Texas 1980) 6/; Salter v. Guest Services, 33 FEP 886 (D.D.C. 1981); Thompson v. Sanboin's Motor Express, 30 FEP 33 (N.J. App. Div. 1977); and Muller v. C.A. Myer Corp., 43 FEP 1195 (Mich. Sup. Ct. 1984).

    
    

40. Given the evidence in this case and the legal precedents, Petitioner's charge of discrimination based on marital status should be dismissed.

    
    

41. The final issue which needs to be addressed in this Recommended Order involves Petitioner's claim of discrimination based on her sex. The majority of the arguments concerning martial status discrimination are applicable to sex discrimination and there is no need to recapitulate in detail those areas already discussed. Generally, Petitioner's claim of sex discrimination should also be dismissed in that a prima facia case of discrimination was never put forth due to Ms. Sartin's voluntary resignation. In addition, Respondent has

articulated a legitimate nondiscriminatory reason for its decision to ask one of the Sartins to transfer. This reason centered around Mr. Sartin's direct supervision of Ms. Sartin and the morale problems such supervision appeared to be causing in the hyperbaric Medical Department. In addition, since the alternative to transfer or resign was given to both Sartins there is no discrimination based on sex. There can be no discrimination when either the male or the female have the same options available. Respondent's decision had nothing to do with Petitioner's sex nor was it shown that Respondent's decision or policy had a disparate impact on one sex. Therefore, Petitioner's claim of sex discrimination must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations issue a Final Order dismissing Petitioner's complaint.

RECOMMENDED this 8th day of August, 1991 in Tallahassee, Leon County, Florida.

DIANE CLEAVINGER

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 8th day of August, 1991.

ENDNOTES

1/ Hyperbaric medicine involves the use of a pressurized room and is used primarily to treat diving injuries. Generally, one person operates the chamber from the outside and one person stays inside the chamber with the patient during the time it is pressurized. Stays in the chamber can vary in length and are handled as if a diver were undergoing pressurization and depressurization.

2/ Mr. & Ms. Sartin remarried in 1990 after the filing of the Petition For Relief and the occurrence of the events relevant to this action.

3/ Mr. Adrianse's recommendation was technically based on his very strained interpretation of the hospital's nepotism policy to include a "common law" marriage situation. Irrespective of this policy interpretation, the evidence was clear that what concerned the hospital was the appearance of preferential treatment being given to Ms. Sartin and the effect, both real and potential, it was having on the hyperbaric department as evidenced by Mr. Touchstone's grievance.

4/ The evidence was unconvincing that there are presently, or that there has been within the last five years any other employees (not including the Sartins) who are or were the immediate supervisor of their significant other.

Additionally, the Touchstone grievance is the only grievance known to the Hospital Administration concerning two "relatives" in a supervisory position.

5/ It should be noted that Mr. and Ms. Sartin were divorced when the decision to transfer was made and during all the times relevant to Ms. Sartin's Petition. Thus, the claim of discrimination based on marital status is one involving two people living together.

6/ In Vuyanica, the Texas District court found no evidence of discrimination with respect to a bank's policy of declining to hire close relatives of existing employees and of requiring the resignation of one spouse if two existing employees married. The policy also provided that if two employees, each have three years seniority married, the bank reserved a discretionary right to require one spouse to resign and in any event to assign the spouses to different departments. The Court found that this policy was also not in any way in violation of Title VII.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-4919

1. The facts contained in paragraphs 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 18, 20, 21, 22, 24, 25, 26, 28, 29, 30, 31, 31, 32, 33, 34, 35, 36,

   37 and 38 of Respondent's Proposed Findings of Fact are adopted in substance, insofar as material.

   
   

2. The facts contained in paragraphs 6, 27 and 39 of Respondent's Proposed Findings of Fact are subordinate.

   
   

3. The facts contained in paragraph 19 of Respondent's Proposed Findings of Fact were not shown by the evidence.

   
   

4. The facts contained in the first two sentences of paragraph 23 of Respondent's Proposed Findings of Fact are adopted. The remainder of the paragraph was not shown by the evidence.

   
   

5. The facts contained in paragraphs 1, 8 and 11 of Petitioner's Proposed Findings of Fact are adopted in substance, insofar as material.

6. The facts contained in paragraphs 2, 3, 4, 6, 7, 9, 10, 12, 13, 14, 15, 16, 17, and 18 of Petitioner's Proposed Findings of Fact are subordinate.

7. The facts contained in paragraph 5 of Petitioner's Proposed Findings of Fact were not shown by the evidence.

COPIES FURNISHED:

Richard M. Brasher, Sr., Esquire 222C Government Street

P. O. Box 711

Valparaiso, Florida 32580

Robert L. Norton, Esquire

J. Mark Johnston, Esquire Barnett Plaza

Suite 740

201 South Orange Avenue Orlando, Florida 32801

Ronald M. McElrath Executive Director

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

Dana Baird General Counsel

325 John Knox Road Building F, Suite 240

Tallahassee, Florida 32399-1570

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS:

ALL PARTIES HAVE THE RIGHT TO SUBMIT WRITTEN EXCEPTIONS TO THIS RECOMMENDED ORDER. ALL AGENCIES ALLOW EACH PARTY AT LEAST 10 DAYS IN WHICH TO SUBMIT WRITTEN EXCEPTIONS. SOME AGENCIES ALLOW A LARGER PERIOD WITHIN WHICH TO SUBMIT WRITTEN EXCEPTIONS. YOU SHOULD CONTACT THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE CONCERNING AGENCY RULES ON THE DEADLINE FOR FILING EXCEPTIONS TO THIS RECOMMENDED ORDER. ANY EXCEPTIONS TO THIS RECOMMENDED ORDER SHOULD BE FILED WITH THE AGENCY THAT WILL ISSUE THE FINAL ORDER IN THIS CASE.

Docket for Case No: 90-004919

Orders for Case No: 90-004919