MARY A. KING,
vs.
Respondent.
) Case No. 05-3537
Pursuant to Notice, this cause was heard by Linda M. Rigot, the assigned Administrative Law Judge of the Division of Administrative Hearings, on February 7, 2006, in Tallahassee, Florida.
For Respondent: L. Traywick Duffie, Esquire
Wesley E. Stockard, Esquire Hunton & Williams, LLP Suite 4100
The issue presented is whether Respondent HealthSouth Corporation engaged in an unlawful employment practice as to
Petitioner Mary A. King, and, if so, what relief should be granted to Petitioner, if any.
On May 17, 2005, Petitioner Mary A. King filed with the Florida Commission on Human Relations an Employment Complaint of Discrimination, alleging that Respondent HealthSouth Corporation had discriminated against her based upon her race and her age.
On September 14, 2005, the Commission issued its Notice of Determination: No Cause, finding that there was no reasonable cause to believe that an unlawful employment practice had occurred. Petitioner thereafter filed her Petition for Relief, and on September 26, 2005, this matter was transferred to the Division of Administrative Hearings to conduct an evidentiary proceeding.
At the final hearing, Petitioner testified on her own behalf and presented the testimony of Julia Ford. Respondent presented the testimony of Donna Crawford, Barbara Roberts, Cynthia Cox, and Lynn Streetman. Additionally, Respondent's Exhibits numbered 1 and 3-11 were admitted in evidence. Only the Respondent submitted a proposed recommended order after the conclusion of the final hearing in this cause. That document has been considered in the entry of this Recommended Order.
Petitioner Mary A. King is a black female born on April 5, 1952.
Respondent HealthSouth Corporation operates HealthSouth Rehabilitation Hospital of Tallahassee, located in Tallahassee, Florida.
Petitioner was initially employed by HealthSouth in 1995 as a nurse tech or certified nursing assistant (CNA) in the nursing department.
In 1998 she suffered a back injury while performing her regular CNA duties. She received treatment for the injury and returned to work with lifting limitations placed on her by her doctor. The limitations were inconsistent with her duties as a CNA and are still in effect.
In 1999 Petitioner requested a transfer to the position of patient transporter aide due to her lifting limitations and concerns over her back injury. Her transfer request was granted, and she began to work as a patient transporter in the physical therapy department. She was pleased with the transfer.
As a patient transporter, Petitioner was responsible for transporting patients to and from the locations in the hospital where they received treatment. She was not directly involved in the administration of treatment to patients.
Subsequently, Petitioner was transferred from the physical therapy department to the occupational therapy department. Her position and job duties remained the same; the only change was in the types of patients Petitioner transported.
On September 1, 2004, new federal regulations went into effect. These regulations directly impacted all in-patient rehabilitation hospitals, limiting the types of patients that HealthSouth could accept.
The new regulations had a severe impact on HealthSouth, causing a dramatic drop in the patient census. The 76-bed facility had an average daily census of 65, and occasionally up to 76, prior to the effective date, but only a patient census in the 30s and 40s after the effective date of the new regulations.
With the dramatic drop in patient census, HealthSouth had to dramatically reduce costs. Lynn Streetman, Administrator of HealthSouth Rehabilitation Hospital of Tallahassee, looked at a variety of ways in which costs could be reduced, including re- structuring contracts with outside vendors, reducing orders of medical supplies, reducing or substituting pharmaceutical orders, discontinuing the use of P.R.N. or as-needed staff, and, ultimately, reducing the workforce at the hospital.
Streetman began reducing the workforce through attrition. As positions at the hospital became vacant, they were not filled if they were not critical to the functioning of
the hospital and if there would not be a negative impact on patient care. Although reducing the workforce through attrition helped, more workforce reductions were necessary to respond to the hospital's declining patient census.
In order to determine what positions to eliminate, Streetman preliminarily reviewed all positions throughout the facility and developed a list of positions she thought could be eliminated with minimal impact on the hospital's operations. The criteria she used included whether the position was a clinical or non-clinical position, whether the position was essential to the operation of the hospital or merely a luxury position, whether the duties of the position could be effectively absorbed by other positions in the hospital, and what impact the elimination of the position would have on patient care.
Streetman next met individually with members of the hospital's senior management team to discuss the positions in their respective departments that she had preliminarily identified as appropriate for elimination. She obtained input from the team members as to whether it would be appropriate to eliminate those positions and what impact their elimination would have on the functioning of their respective departments.
After she met with the team members to discuss the reduction in force and consider their input, Streetman made the
decision to eliminate 13 positions at the hospital in December 2004 and January 2005. Three positions were eliminated in December, and ten were eliminated in January. Streetman was the person responsible for making the final decision about which positions to eliminate.
Of those employees affected by the reduction in force,
6 were black and 7 were white. Of those employees affected by the reduction in force, 6 were over 40 years of age, and 7 were under 40 years of age.
Each employee whose position was eliminated as a part of the reduction in force was informed that he or she would be eligible to purchase insurance benefits through COBRA for up to
18 months after his or her employment with the hospital ended, each was paid for any accrued paid time off, and each eligible employee received severance benefits in accordance with an identical formula: one week of pay for every year of service up to a maximum of ten years. With the exception of a part-time employee who was not eligible, all employees affected by the reduction in force received benefits, paid time off payments, or severance payments in accordance with these policies.
One of the positions selected for elimination was that of patient transporter. When Streetman was employed by HealthSouth, there had been three patient transporters. Two of the three positions had already been eliminated through
attrition, and Petitioner was the only remaining patient transporter. Since Petitioner's position was eliminated, HealthSouth has not hired anyone as a patient transporter.
Petitioner's position was selected for elimination because it was not essential to the operation of the hospital, was not responsible for any direct patient care, and was a luxury position for the facility. As verification that the elimination of Petitioner's position would not have a negative impact on the level of patient care at the hospital, Streetman considered that therapists at the hospital had already been assisting in the transportation of patients to and from treatment and that the previous reduction of two patient transporters through attrition did not negatively impact patient care at the hospital. Petitioner's job duties were absorbed into the daily work routine of therapists in the outpatient therapy department. Therapists simply transported their own patients rather than have Petitioner (and the other transporters who had previously been phased out through attrition) perform this function for them.
Petitioner was informed of the decision to eliminate her position on November 30, 2004, by Donna Crawford, Director of Clinical Services, and Cindy Cox, Occupational Therapy Team Leader. Crawford informed Petitioner that Petitioner's position was being eliminated, that Petitioner would receive severance
pay in accordance with her years of service, that Petitioner would be paid for all of her accrued paid time off, and that Petitioner was welcome to apply for any other open position at the hospital for which she was qualified. Crawford also told her that Petitioner was welcome to discuss any open positions with Jackie Chaires, Human Resources Director at the hospital.
Petitioner was paid 360 hours of severance pay (nine weeks pay for nine years of service), was compensated for all accrued paid time off, and was sent a letter informing her of her right to purchase insurance under COBRA for up to 18 months after her employment with Respondent had ended. Petitioner also applied for and received unemployment benefits as a result of her job being eliminated.
After Crawford advised her that her position had been eliminated, Petitioner went to talk with Jackie Chaires, a black female. Petitioner told Chaires that she did not understand why she had been laid off and asked about any available positions. During that conversation, in an attempt to console Petitioner according to Chaires' affidavit but as an act of discrimination according to Petitioner's testimony, Chaires suggested that Petitioner could also retire and let Petitioner's husband take care of her.
At no time did Chaires suggest that Petitioner's husband's situation, his income, or Petitioner's age were
factors in HealthSouth's decision to eliminate her position as part of its reduction in force. Moreover, Chaires was not involved in any way in the selection of Petitioner's position for elimination.
At some point after being informed that their positions were eliminated, Petitioner, along with Kim Spencer, another employee affected by the reduction in workforce, inquired as to whether there were positions available in the nursing department. However, there were no positions available in that department, and both Petitioner and Spencer were informed that their requests could not be accommodated. Spencer is a white female.
HealthSouth has a written policy prohibiting employees from giving letters of recommendation. At some point after being informed that her position was eliminated, Petitioner asked Cynthia Cox, her direct supervisor, for a letter of recommendation. Cox agreed to give her one even though she was uncertain as to the correct procedure, but after ascertaining from the human resources department that a recommendation would be against corporate policy, Cox told Petitioner she could not give her the letter and told Petitioner that it was against corporate policy. That policy is clearly stated in the hospital's employee handbook, which Petitioner had been given.
At no time prior to her filing her charge of discrimination with the Florida Commission on Human Relations did Petitioner inform any of her supervisors that she felt she was being discriminated against in any way based on either her race or her age.
Patsy Kitchens is a white female who is the same age as Petitioner. HealthSouth terminated her employment at the same time as it terminated Petitioner's employment as part of the same reduction in force.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter hereof and the parties hereto. §§ 120.569 and 120.57(1), Fla. Stat.
Section 760.10(1)(a), Florida Statutes, provides that it is an unlawful employment practice for an employer to discharge or otherwise discriminate against an individual on the basis of race or age. Petitioner asserts that she was fired by HealthSouth with no explanation and for no valid reason based only upon her race and/or age. Petitioner has failed to prove her allegations.
Petitioner bears the burden of proof established by the Supreme Court of the United States in McDonnell Douglas v.
Green, 411 U.S. 792 (1973), and in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248 (1981). Under this well-
established case law, Petitioner bears the initial burden of establishing by a preponderance of the evidence a prima facie
case of discrimination. If a prima facie case is established, the burden to go forward shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. The employee then has the burden of showing that the business reason is pretextual and that a discriminatory reason more likely than not motivated the decision.
In order to establish a prima facie case, Petitioner must prove that (1) she is a member of a protected class, (2) she was qualified for her position, (3) she suffered an adverse employment action, and (4) she was treated less favorably than similarly-situated employees who were not members of her protected class. Holifield v. Reno, 115 F.3d 1555 (11th Cir. 1997). Petitioner has failed to establish a prima facie case of discrimination by failing to prove the fourth element of the analysis.
Petitioner offered no evidence that she was terminated due to her race. Of the 13 employees laid off by HealthSouth in December 2004 and January 2005 due to the reduced census due to the new federal regulations, six, including Petitioner, were black, and seven were white. There is no evidence that race was a factor in selecting positions for elimination, or that it was even considered.
Petitioner offered no evidence that she was terminated due to her age. Of the 13 employees laid off by HealthSouth in December 2004 and January 2005 due to the reduced census due to the new federal regulations, two were older than Petitioner, one was five months younger and, therefore, the same age, and the rest were somewhat-to-much younger than Petitioner. There is no evidence that age was a factor in selecting positions for elimination, or that it was even considered.
Petitioner seems to base her claims of race and age discrimination on three alleged facts. First, Petitioner claims that the comment made by Jackie Chaires about Petitioner retiring and letting her husband take care of her shows that HealthSouth discriminated against her on the basis of age. This suggestion is without merit. Chaires had no involvement in the decision to eliminate Petitioner's position, the comment was made after the decision was made and communicated to Petitioner, and the comment is capable of supporting many interpretations ranging from compassion to envy.
Second, Petitioner claims that she was discriminated against based upon her race since Patsy Kitchens, a white employee whose position was eliminated at the same time as Petitioner's, was given 18 months of insurance but Petitioner was not. Petitioner offered no competent evidence to support this assertion. To the contrary, the uncontroverted evidence is
that all employees whose positions were eliminated were advised of their right to purchase insurance under COBRA for 18 months.
Third, Petitioner claims that she was discriminated against based upon her race since Patsy Kitchens was given a letter of recommendation but Petitioner was not. Again, Petitioner offered no competent evidence to support this claim. To the contrary, the uncontroverted evidence is that corporate policy, as set forth in the employee handbook, prohibits giving letters of recommendation. Cindy Cox, Petitioner's immediate supervisor, at first told Petitioner she would give Petitioner a letter of recommendation, but after checking with the human resources department as to whether she could do so, told Petitioner she could not because it was against corporate policy.
Assuming arguendo that Petitioner has established a prima facie case, which she has not, her claim still fails because HealthSouth has articulated a legitimate, non- discriminatory reason for its actions, and Petitioner has failed to meet her burden of showing that the reason HealthSouth gave is a pretext for discrimination. The uncontroverted evidence is that because of new federal regulations, the hospital's declining census, and its inability to reduce costs to the appropriate level by other means, it was necessary for HealthSouth to reduce its workforce.
Positions were selected for elimination based upon whether the position was a clinical or non-clinical position, whether the position was essential to the operation of the hospital or merely a luxury position, whether the duties of the position could be effectively absorbed by other positions in the hospital, and what impact the elimination of the position would have on patient care. Petitioner's position as a patient transporter was selected for elimination because it was not essential to the operation of the hospital, was not responsible for any direct patient care, and was a luxury position for the facility.
HealthSouth has clearly shown a legitimate business decision based on a non-discriminatory reason for eliminating Petitioner's position. On the other hand, Petitioner has failed to offer any competent evidence to rebut or cast doubt on Respondent's proffered legitimate, non-discriminatory reason for the elimination on her position and has, therefore, failed to show that the proffered reason is pretextual.
An employer may terminate an employee for a good reason, for a bad reason, for a reason based upon erroneous information, or for no reason at all, as long as the termination was not based upon a discriminatory reason. See Dept. of
Corrections v. Chandler, 582 So. 2d 1183 (Fla. 1st DCA 1991), and the cases cited therein. HealthSouth has articulated a good
reason for Petitioner's termination, and Petitioner has not shown by any direct evidence, statistical evidence, or even circumstantial evidence, that the reason was discriminatory.
RECOMMENDED that a final order be entered finding that Petitioner failed in her burden of proof and dismissing the petition filed in this cause.
DONE AND ENTERED this 24th day of March, 2006, in Tallahassee, Leon County, Florida.
LINDA M. RIGOT
Filed with the Clerk of the Division of Administrative Hearings this 24th day of March, 2006.
Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
L. Traywick Duffie, Esquire Wesley E. Stockard, Esquire Hunton & Williams, LLP Suite 4100
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.
