Pursuant to notice, a formal hearing was held in this case on July 26, 2004, in Panama City, Florida, before the Division of Administrative Hearings, by its designated Administrative Law Judge, Diane Cleavinger.
For Respondent: L. Taywick Duffie, Esquire
Price H. Carroll, Esquire Hunton & Williams, LLP
The issue to be resolved in this proceeding is whether Petitioner was constructively terminated from her employment with Respondent because of her national origin.
On April 7, 2003, Petitioner, Maggie Beach-Gutierrez, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The Charge of Discrimination alleged that
Respondent, Bay Medical Center, constructively terminated Petitioner by creating a hostile work environment based on her national origin.
On March 24, 2004, FCHR entered a Determination of No Cause on Petitioner's Charge of Discrimination. Petitioner was advised of her right to contest FCHR's determination, by filing a Petition for Relief.
On April 28, 2004, Petitioner filed her Petition for Relief.
The petition alleged the same facts as alleged in her original Charge of Discrimination. The petition was forwarded to the Division of Administrative Hearings.
At the hearing, Petitioner testified in her own behalf and offered six exhibits into evidence. Respondent presented the testimony of six witnesses and offered sixteen exhibits into evidence.
After the hearing, Petitioner and Respondent filed Proposed Recommended Orders on August 26, 2004, and August 30, 2004, respectively.
Petitioner is a female of German and Turkish descent and has a somewhat heavy German accent.
In 1995, Petitioner was employed with Bay Medical Center, a hospital in Panama City, Florida. Petitioner was employed as a unit secretary for one of the hospital units. She voluntarily resigned that position in 1997. In March of 1998, Petitioner was again employed by Bay Medical Center as a unit secretary. She was a member of a secretarial float pool and
floated from one unit of the hospital to another as needed. Later, due to a hospital reorganization, the unit secretarial position was reclassified to a Clerical Support Associate (CSA) position. The CSA position included more duties than the unit secretary position and had a higher wage.
As a CSA, Petitioner was responsible for providing essential clerical support as required by patient’s and clinical staff. Her duties included entering physician orders into the hospital’s computer system, scheduling tests and procedures for patients, charging and crediting patient bills, greeting patients and visitors, chart maintenance, and otherwise assisting as needed.
Petitioner eventually, was assigned as a full-time CSA in the Critical Care Unit (CCU). The CCU was a very small unit with only eight open beds and was the least active unit in the hospital at that time relative to the duties of a CSA. The lower activity resulted in less work and less stress for the CSAs assigned to the CCU. Because of the light workload and low- stress environment for CSA’s, P.J. Dotson, Petitioner's supervisor in the CCU, used the CCU to train new CSAs. Because Petitioner had experience with the work, she occasionally helped train new CSAs.
At some point, Ms. Dotson determined that the CSAs in the CCU were only performing two and a half to three hours of clerical work during an eight-hour period. The small amount of productivity by the CSAs was unacceptable. In order to increase the CSAs’ productivity, Respondent changed the job role of the
CSAs in the CCU, including Petitioner's, and added basic patient care tasks. Some of the new tasks included feeding patients and helping patients on and off bedpans. Additionally, the CSAs' hours changed to require them to come in earlier.
On December 12, 2000, Petitioner was disciplined by Ms. Dotson for complaining to a physician about Respondent's decision to change the job requirements of the CSAs in the CCU. The physician was Respondent's "customer," not Petitioner's supervisor and Ms. Dotson felt that it was inappropriate for Petitioner to discuss her employment situation with a "customer." Ms. Dotson’s position was a reasonable position by an employer.
After the disciplinary action, Petitioner declined the upgraded CSA position because she did not want to change her working hours and did not want to do hands-on patient care. Rather than terminating Petitioner's employment, Respondent allowed Petitioner to transfer to the EKG department to work as an EKG technician which position also included some clerical tasks.
Petitioner served as an EKG technician for two months.
During those two months, Petitioner experienced numerous performance problems and was disciplined several times by
Ms. Dotson. Petitioner admits she simply was not very good at direct patient care and performed poorly as an EKG technician.
On February 20, 2001, Ms Dotson issued Petitioner a Notice of Corrective Action based on a number of issues that had arisen beginning around January 15, 2001. The Notice states, "During week two, we started experiencing several problems with the paper work [Petitioner] was doing. Files were not in correct order (alphabetical), Cardiology Associates were complaining about paperwork, [and] the unsigned copies of Echo reports were not getting to M.D.s for their signature.” These problems were detrimental to efficient and timely patient care in an area of health care, cardiology, where efficiency and timeliness of care are very important. Due to these concerns, Ms. Dotson changed Petitioner's orientation schedule and established specific times to achieve performance goals. However, the changed schedule did not help resolve Petitioner's performance problems. After Petitioner was fully trained to perform an EKG procedure, Petitioner "developed the inability to perform this task" within a few weeks. Petitioner also improperly double-billed a large number of Respondent's patients. The double billing was a major oversight on Petitioner's part that could have been seriously detrimental to Respondent's ability to serve Medicare and Medicaid patients if the problem had not been discovered and resolved by Ms. Dotson.
On March 8, 2001, Petitioner received a final written warning because her work-related problems persisted. At that
time, Ms. Dotson informed Petitioner that she needed to find a different position within Bay Medical Center, resign, or be terminated. Ms. Dotson also took this opportunity to coach Petitioner on how to sell herself to other managers, so Petitioner could acquire another position. One of the areas Ms. Dotson discussed with Petitioner was her communication skills. Ms. Dotson explained that she needed to communicate better because she has an accent, does not articulate well and
often speaks with her hands in front of her mouth thereby making it difficult for others to understand her. In addition,
Ms. Dotson explained to Petitioner that she demonstrated a somewhat negative attitude and failed to take responsibility for her mistakes. These traits were concerns for managers in the various departments throughout the hospital. These traits were also demonstrated at the hearing. There was no evidence that any action taken by Ms. Dotson was done for discriminatory purposes or that the reasons given for such action were pretextual. Indeed, Petitioner admitted that Ms. Dotson did not discriminate against her.
However, because of these traits, Petitioner had a difficult time finding another position within Bay Medical Center, even though there was a high turnover rate among CSAs throughout the hospital. Eventually, Petitioner was accepted by Ms. Pat Owens to serve as a CSA on Three South, a
medical/surgery unit at Bay Medical Center. Indeed, Petitioner’s transfer to Three South was against hospital policy since Petitioner was slated for termination from her earlier position and had received her final warning. However, in order to help Petitioner, the transfer was allowed.
Although Petitioner had served as a CSA in CCU previously, the working atmosphere of Three South was very different. Three South was, as Petitioner described it, a "very, very busy floor." Three South had 39 beds and over 200 physicians on staff. However, during Ms. Owen’s time as manager of Three South, Ms. Owens did not formally discipline Petitioner regarding her job performance. Ms. Owens did not testify at the hearing.
Petitioner admits that she made mistakes while Ms. Owens was her supervisor. She testified that there were "minor things" that Ms. Owens would make her redo. However, under these facts, the fact that Ms. Owens chose not to discipline Petitioner formally is not evidence of discrimination.
The hospital was not satisfied with the way Three South was being managed by Ms. Owens. The unit staff were not following various hospital protocols impacting patient care. Numerous complaints were made by both patients and doctors regarding the quality of care being delivered by the unit staff.
Therefore, in April, 2002, Ms. Andi Bush was hired as the manager of Three South. She was hired in order “to get Three South into shape.” Ms. Bush also became Petitioner's supervisor and demanded considerably more performance and compliance with protocols of all the employees on Three South.
After Ms. Bush became manager, Petitioner claims that Ms. Bush commented on Petitioner's accent and that "[Ms. Bush's] hearing would be perfect if anybody else would talk to her. But whenever I said something to her or tried to quote her [sic] about something, all of a sudden she had this major problem." This alleged evidence is not convincing. Ms. Bush wears a hearing aid and relies on "lip-reading" because she has a significant amount of hearing loss due to nerve damage. She often has difficulty hearing others' words and asks others to repeat themselves. This difficulty was demonstrated at the hearing. In addition, Petitioner did not provide any details about the times Ms. Bush allegedly commented on her accent. There is no evidence in the record about how often or in what context any such comment allegedly happened. Given the facts that Ms. Bush is hearing impaired and reads lips and that Petitioner often speaks with her hands in front of her mouth, has an accent and does not enunciate her words, comments by
Ms. Bush regarding Petitioner’s accent do not support a finding of discrimination.
Ms. Bush, unlike her predecessor, enforced the hospital protocol’s and demanded that her staff comply with those protocols. It was clear that Ms. Bush's job, as the new manager of Three South, was to impose accountability and discipline on that unit. Indeed, Petitioner testified that, during Ms. Bush's initial meeting with the employees on Three South, Ms. Bush made it clear that she believed Three South was a "mess" and that "she was going to straighten it out." Petitioner failed to provide any evidence that Ms. Bush applied the rules or issued discipline inconsistently among the employees or that employees of other nationalities were treated better than her. There is no comparator evidence in the record to demonstrate that Ms. Bush's discipline of Petitioner was for discriminatory purposes.
Under Ms. Bush's administration, Petitioner was disciplined on several occasions for various performance issues. On May 23, 2002, Petitioner was issued a written warning for failing to enter a physician's order. The order requested a consultation with a cardiologist to determine what treatment the patient needed. Because Petitioner did not enter the order, the consultation was delayed for over 24 hours. When the consultation was eventually performed, the cardiologist determined that the patient needed a pacemaker. Petitioner's mistake could have had dire consequences for the patient
involved. Petitioner does not deny that she failed to enter the order but claims that she was told by her co-workers that she did not need to enter the order because the patient was going to be transferred to a different floor. However, Petitioner knew that other co-workers could not instruct her not to follow the hospital’s protocol for entering a physician’s order in a timely manner. The discipline she received was clearly not pretextual and was appropriate for her failure to enter the physician’s order.
On June 5, 2002, Petitioner received a written warning for excessive absenteeism. Again, Petitioner does not deny that she was excessively absent. Instead, Petitioner alleges that her absences "weren't really more extensive than anybody else's." Petitioner later admits, however, that these other employees were also punished for their tardiness and absenteeism. Petitioner provided no other evidence that Respondent applied its attendance policy inconsistently among the employees. Given these facts, the evidence is insufficient to demonstrate that Petitioner’s disciplinary action was discriminatory or pretextual.
On July 3, 2002, Petitioner was suspended following two different incidents. First, Petitioner placed several documents in the wrong patient's chart. Second, Petitioner failed to properly consult a physician regarding a patient care
issue. Both of these incidents could have had detrimental impact on the health and safety of Respondent's patients. Petitioner offered no evidence to dispute the accuracy of the report of these incidents.
On August 7, 2002, Ms. Bush held a corrective action meeting with Petitioner to discuss the following incidents:
(1) Petitioner's repeated failure to enter consultations into the computer; (2) Petitioner's repeated failure to consult physicians in a timely manner; (3) a patient complaint that her call light was not being answered during Petitioner's shift;
and (4) Petitioner’s failure to file a stack of documents as she was assigned to do, but instead twice sent them to medical records to file. Petitioner denies making these mistakes, but her denial is based on her lack of memory for the events.
Indeed, Ms. Bush based the disciplinary action on complaints and witness statements she received form a variety of sources.
Again there was no evidence that the Ms. Bush’s actions were discriminatory or pretextual.
Finally, on August 14, 2002, Petitioner was given her annual performance appraisal. Petitioner was rated as "unsatisfactory" based on her record of discipline and the real potential of her performance failures to adversely impact patient care. Based on her previous performance problems and the performance appraisal, Petitioner was told that she could no
longer work as a CSA at Bay Medical Center. Indeed, Ms. Dotson who was consulted regarding Ms. Bush’s decision, concurred that Petitioner should not be transferred to any CSA position or position involving patient care due to past mistakes which were potentially detrimental to a patient’s health. Respondent gave her two weeks to find a different position within the hospital, resign, or be terminated.
Respondent, through its personnel department, tried to assist Petitioner to find a position within the facility. After reviewing the printout of available positions with Petitioner the only positions that were open, and for which Petitioner was qualified, were in Dietary, Housekeeping, and Laundry. Petitioner did not offer any evidence of any other positions outside those areas that were available and for which she was qualified. Petitioner refused to apply to any of these positions and, instead, resigned on August 28, 2002. The evidence did not demonstrate that her resignation was forced or caused by any discriminatory actions by Respondent. Again, Petitioner failed to provide any evidence that Respondent discriminated against her and the Petition For Relief should be dismissed.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. § 120.57(1), Fla. Stat.
Under the provisions of Section 760.10, Florida Statutes, it is an unlawful employment practice for an employer:
(1)(a) To discharge 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.
FCHR and the Florida courts have determined that federal discrimination law should be used as guidance when construing provisions of Section 760.10, Florida Statutes. See Brand v. Florida Power Corp., 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida Department of Community Affairs v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991); Cooper v. Lakeland Regional Medical Center, 16 FALR 567 (FCHR 1993).
The Supreme Court of the United States established in McDonnell-Douglas Corporation 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 discrimination under Title VII 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, non- discriminatory reason for its employment action. If the employer articulates such a reason, the burden of proof then shifts back to Petitioner to demonstrate that the offered reason is merely a pretext for discrimination. As the Supreme Court stated in Hicks, before finding discrimination, "[t]he fact finder must believe the Plaintiff's explanation of intentional discrimination." 509 U.S. at 519.
In Hicks, the Court stressed that even if the fact finder does not believe the proffered reason given by the employer, the burden at all times remains with Petitioner to demonstrate intentional discrimination. Id.
In order to establish a prima facie case, Petitioner must establish that:
She is a member of a protected group;
She is qualified for the position;
She was subject to an adverse employment decision;
She was treated less favorably than similarly-situated persons outside the protected class; and
Canino v. EEOC, 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);
Smith v. Georgia, 684 F.2d 729, 29 FEP Cases 1134 (11th Cir.
1982); Lee v. Russell County Board of Education, 684 F.2d 769, 29 FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d 768, 36 FEP Cases 22 (11th Cir. 1984).
If Petitioner fails to establish a prima facie case of discrimination, judgment must be entered in favor of Respondent. Bell v. Desoto Memorial Hospital, Inc., 842 F. Supp. 494 (M.D. Fla. 1994).
As indicated earlier, if a prima facie case is established, a presumption of discrimination arises and the burden shifts to Respondent to advance a legitimate, non- discriminatory reason for the action taken against Petitioner. However, Respondent does not have the ultimate burden of persuasion but merely an intermediate burden of production. Once this non-discriminatory reason is offered by Respondent, the burden shifts back to Petitioner. Petitioner must then demonstrate that the offered reason was merely a pretext for discrimination.
In the instant case, Petitioner alleges that she was constructively terminated because of discrimination based on her national origin. Petitioner's national origin is German/Turkish and as such, she belongs to a protected class. Petitioner voluntarily left her employment with Respondent. However, the evidence did not show that Petitioner was forced to terminate her employment because of her national origin. Additionally, Petitioner did not establish that similarly situated non- protected employees were treated more favorably.
Petitioner also alleges two types of adverse employment actions--(1) hostile work environment and (2) constructive discharge. However, Petitioner has failed to proffer any evidence that supports these allegations.
To prove that a workplace constitutes a hostile work environment, Petitioner must show that "the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions
of the victim's employment and create and abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S. Ct. 367,370 (1993). "The factors to consider are the frequency and severity of the conduct, whether it is physically threatening or humiliating, and to what degree it reasonable interferes with plaintiff's job performance." Rojas v. State of Florida, 285 F.3d 1339, 1344 (11th Cir. 2002) (citing Allen v. Tyson Foods, Inc., 121 F.3d 642, 647 (11th Cir. 1997). "[S]imple teasing'… offhand comments, and isolated incidents (unless extremely serious) will not amount to discriminatory changes in 'terms and conditions of employment," Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 2283 (1998).
In this case, Petitioner failed to provide enough evidence to establish that a hostile work environment existed. First, Petitioner alleges that Ms. Bush made comments about her accent. However, such comments cannot create an actionable claim of hostile work environment unless they are so "commonplace, overt and denigrating that they create an atmosphere charged with hostility." Edwards v. Wallace Cmty. Coll., 49 F.3d 1517, 1521 (11th Cir. 1995) (quoting EEOC v. Bederage Canners, Inc., 897 F.2d 1067, 1068 (11th Cir. 1990)). Petitioner failed to offer any evidence of the frequency, severity, or context in which the statements were allegedly made. Petitioner also did not provide any evidence that Respondent's comments or conduct was physically threatening or humiliating. Second, the fact that Ms. Owens never formally disciplined Petitioner is not evidence that
Ms. Bush disciplined Petitioner in order to harass her because of
her national origin. "Different supervisors may impose different standards of behavior, and a new supervisor may decide to enforce policies that a previous supervisor did not consider important." Rojas, 285 F.3d at 1343. Moreover, Petitioner failed to provide evidence of any comparators to prove that the discipline was issued because of her national origin. See Mendoza v. Borden, Inc., 195 F.3d 1238, 1254 fn.3 (11th Cir. 1999)(Edmundson, J., concurring)("A claim of sexual harassment is a claim of disparate treatment. The rule is that the plaintiff must actually prove discrimination, normally by evidence showing directly that similarly situated person's not of plaintiff's sex were treated differently and better."). The evidence presented by Petitioner is simply insufficient to establish a prima facie case for hostile work environment.
To establish a case of constructive discharge,
Petitioner must establish that her working conditions were "so difficult . . . that a reasonable person would have felt compelled to resign." See Walton v. Johnson & Johnson Servs., Inc., 347 F.3d 1272, 1282 (11th Cir. 2001)(quoting Pipkins v. City of Temple Terrace, Fla., 267 F.3d 1197, 1201 (11th Cir.
2001)(internal quotations and citations omitted)). Petitioner never transferred and never worked a day in another department. She presented no evidence concerning the potential working conditions she would have faced in a new position. Moreover, there was no evidence that Petitioner’s job duties were onerous or more onerous than other similarly-situated, non-protected
CSAs. Therefore, Petitioner has not met her burden to prove a prima facie case of constructive discharge.
Moreover, even if Petitioner provided sufficient proof to establish a prima facie case of discrimination based on national origin, Respondent articulated many credible, non- discriminatory reasons for it's actions regarding its decision to require Petitioner to transfer to a non-clerical, non-patient care position, or resign. That reason was Respondent's legitimate concern that, based on Petitioner's history of performance problems, including mistakes that directly impacted patient care, Petitioner could detrimentally impact the standard of care Respondent is required to give its patients if she remained in a clerical or care position. Petitioner has failed to offer any evidence to rebut Respondent's reason. Therefore, Petitioner has failed to prove her claims of discrimination and the Petition For Relief should be dismissed.
order dismissing the Petition for Relief.
DONE AND ENTERED this 25th day of October, 2004, in Tallahassee, Leon County, Florida.
Filed with the Clerk of the Division of Administrative Hearings this 25th day of October, 2004.
L. Taywick Duffie, Esquire Price H. Carroll, Esquire Hunton & Williams, LLP
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.
