This matter came on for formal hearing before P. Michael Ruff, duly-designated Administrative Law Judge of the Division of Administrative Hearings, with appropriate notice. The hearing was conducted on October 5, 2009, in Live Oak, Florida. The appearances were as follows:
For Respondent: Kevin D. Johnson, Esquire
Marquis W. Heilig, Esquire
Thompson, Sizemore, Gonzalez & Hearing, P.A.
The issue to be resolved in this proceeding concerns whether the Petitioner was harassed because of her race during employment as a registered nurse at Shands at Lakeshore, Inc. (Shands), and whether the Respondent terminated her because of race or for retaliation concerning alleged complaints of harassment.
Valeria Thompkins, the Petitioner, was employed as a registered nurse (RN) in the medical-surgical unit on the third floor at Shands Lakeshore, from August 2004 until December 28, 2005. She received three written corrective actions: on October 18, 2005, October 24, 2005 and December 28, 2005. The actions were related to her alleged provision of poor patient care. All three corrective actions were instituted by Jodi Wood, the Nurse Manager, and were authorized by Mattie Jones, the Director of Nursing, after her review.
The original charge of discrimination in this case was filed with the Florida Commission on Human Relations (Commission) on February 21, 2006. The Petitioner alleged that she was harassed because of her race by several white co-workers and supervisors. She also alleged that she was terminated because of her race and in retaliation for complaining about alleged harassment. For unknown reasons, the Commission did not
begin, or at least complete, its investigation for a substantial period of time. Apparently, the Petitioner had failed to respond to the Commission's initial request for information about the claim. The Commission did not close its investigatory file during that first year, however, and ultimately served the charge of discrimination on the Respondent in March 2008, after the Petitioner finally contacted the agency to inquire about the status of the investigation. The Commission apparently took the position that the matter was an open, ongoing investigation and therefore the claim remained timely and jurisdictional, even though it was originally filed February 21, 2006. In any event, the Respondent filed a response to the charge on April 18, 2008, and additional information was requested by the Commission, and provided by the Respondent, on May 7, 2008. The investigation was thereafter concluded and a No Cause finding was made by the Commission on June 26, 2008.
Thereafter, a timely Petition for Relief was filed on August 7, 2008, and the matter was set for hearing for November 21, 2008. The proceeding was continued a number of
times, by agreement of the parties, and because of a Show Cause Order entered concerning the question of jurisdiction, based upon timeliness of the claim. That Show Cause Order was entered on March 4, 2009. After responses to that Order, it was determined in essence that there was no evidence that a decision
had ever been made by the Commission to close the investigation and afford the Petitioner a resultant point of entry.
Accordingly, the matter was not dismissed based upon lack of jurisdiction, but was set for hearing. After a continuance was granted by agreement, the matter was ultimately heard October 5, 2009.
The Petitioner presented the testimony of three witnesses at the hearing, including herself. She offered no exhibits into evidence. The Respondent relied on its cross-examination of those three witnesses, as well as calling two additional witnesses. The Respondent's Exhibits A, B, C, and E were admitted into evidence.
Upon conclusion of the proceeding, the parties requested the opportunity to file proposed recommended orders. Those were required to be filed ten days after the filing of the transcript, which was ordered as well. The Respondent ordered and received the transcript sometime in November 2009. The Respondent and Petitioner, however, apparently conferred and agreed to withhold filing of the transcript until counsel for the Petitioner returned from a planned foreign trip, so as to afford the Petitioner ample time to submit a proposed recommended order after receipt of the transcript. Upon learning of this, because the original of the transcript had not been filed with the undersigned, as required, the parties were
directed to immediately file the transcript. The transcript was thus filed December 3, 2009. The proposed recommended orders were thereafter due December 17, 2009. Both parties filed Proposed Recommended Orders, which have been considered in the rendition of this Recommended Order.
The Petitioner, Valeria Thompkins, was employed as an RN on the medical-surgical unit on the third floor of Shands Lakeshore Hospital in Lake City, Florida, at times pertinent hereto. Each of the Petitioner's shifts began at 7 p.m. and ended at 7 a.m.
The Petitioner reported to a "Charge Nurse" who supervised each shift and reported to the Nurse Manager for the unit. The Nurse Manager reported to the hospital’s Director of Nursing. Julia Woods was the Nurse Manager for the Petitioner's unit and Mattie Jones was the Director of Nursing, when the Petitioner was hired in August 2004.
Julia Woods was removed by the Nursing Director,
Ms. Jones, in September 2005 for performance issues. Jodi Wood replaced her as Nurse Manager for the Petitioner's unit. Julia Woods was removed by Ms. Jones because Ms. Woods had focused too heavily on staffing the unit and failed to properly supervise quality of patient care. When Ms. Jones promoted Jodi Wood, she
specifically instructed Ms. Wood to improve the quality of patient care.
Ms. Wood verbally counseled the Petitioner for failing to follow doctor's orders concerning administering intravenous antibiotics to a newly-admitted patient, who was suffering from sepsis. This verbal reprimand occurred on September 26, 2005. The failure to administer antibiotics to that patient harmed the patient's care and could have allowed the sepsis, a systemic infection, to become more severe. When the sepsis worsened as a result of failure to administer antibiotics timely, the Respondent was required to transfer that patient to the Intensive Care Unit.
The Petitioner admits that she did not administer the ordered antibiotics, but claims that she did not administer them because the Respondent did not provide training explaining when to administer medications ordered to be administered twice per day. This explanation, however, does not raise any issue concerning disparate treatment for racial or other reasons and does not question the imposition of the verbal reprimand. All the nurses hired in August 2004 received the same training from the Respondent, including the Petitioner. The immediate administration of antibiotics is a standard nursing protocol for a patient with sepsis and the Respondent could reasonably presume that it did not need to train a registered nurse in such
basic nursing care. It was reasonable for the Respondent to presume that the Petitioner was aware of that standard nursing practice.
The Respondent's failure to raise any issue about the Petitioner's training, or orientation training, does not indicate that the verbal discipline was motivated by any illicit purpose, but rather was based upon the inadequate care provided the patient. The Respondent could fairly expect the Petitioner, hired as an RN, to have had adequate training in such standard nursing care or procedure before she was ever employed.
The Petitioner ignored a doctor's order to monitor a patient's heart rate with a telemetry unit on October 14, 2005. This was less than a month after the previous verbal warning referenced above. The Petitioner admitted the patient to her unit and signed the patient's chart, noting that all orders above her signature, including the order for telemetry monitoring, had been executed, that is, performed. The Petitioner, however, failed to ensure that a telemetry unit was connected to the patient and did not take any telemetry readings while treating that patient.
Ms. Wood presented this incident to Nursing Director Jones, who made an independent review of the events, including a review of the patient's chart. Ms. Jones decided to issue a First Written Corrective Action to the Petitioner because of
this incident. The Petitioner's failure to place a telemetry unit on the patient made it impossible for the medical staff to monitor the patient's heart, thereby negatively affecting patient care.
The Petitioner admitted that she was to blame for failing to ensure that the telemetry monitoring unit was on the patient. The Petitioner, however, attempted to dispute the First Written Corrective Action by claiming that other nurses, specifically those who had treated the patient in the Intensive Care Unit, were also at fault for failing to place a telemetry monitor on the patient. The Petitioner conceded, however, that Ms. Wood did not supervise any of those unidentified comparator nursing staff and could not therefore recommend discipline of them. Therefore, no question was raised concerning comparative discipline between the Petitioner and the nurses who had treated the patient in the Intensive Care Unit.
Further, Ms. Jones is African-American. There is no evidence indicating that she would discipline the Petitioner concerning this mistake because of her race, while allowing employees outside the Petitioner's protected class to escape without discipline, if indeed they had done anything blame- worthy. The Petitioner has thus not provided credible evidence that any similarly-situated employees received disparate
treatment with regard to any issue about responsibility for the referenced mistake in the care of this patient.
On October 19, 2005, Terry Wayne, a Patient Care Coordinator at Shands, discovered that the Petitioner had administered an intravenous antibiotic, Gentamicin, to a patient who did not have an order for that antibiotic. Ms. Wayne determined that the antibiotic had actually been ordered for the other patient in the same room, but was carelessly administered to the wrong patient by the Petitioner. The Petitioner's error exposed the patient to potentially severe side effects. The error compromised the care of both patients by risking side effects for the patient who received the antibiotic in error, and by allowing the patient who should have received it to thus go untreated.
The Petitioner denies administering the Gentamicin to that patient. The Petitioner claims that Jay Nash, the evening charge nurse, had come into the room and administered the antibiotic in an effort to “frame” the Petitioner as a sub- standard nurse. The Petitioner's explanation is not plausible. There is no credible evidence that Mr. Nash would be motivated to engage in such conspiratorial behavior to try to falsely blame the Petitioner. That theory relies heavily on the Petitioner's erroneous belief that Mr. Nash, not Terry Wayne, discovered the medication error. The Petitioner's explanation
is simply not credible. It is undisputed that the Patient Care Coordinators, such as Ms. Wayne, were responsible for auditing patient charts to confirm that patients were receiving proper patient care. The Petitioner concedes that she does not know Terry Wayne or what her capacity is with Shands. Thus, there is no way she could know of Terry Wayne's holding any improper motivation to fabricate a medical error and blame it on the Petitioner.
Ms. Wayne completed a Medical Error Report when she discovered the improperly administered Gentamicin. This was in accordance with routine Shands protocol. A copy of that report was delivered to the Nurse Manager, by routine policy. When the Nurse Manager, Ms. Wood, received the report, she forwarded it to the Nursing Director, Ms. Jones, and she recommended additional disciplinary action for the Petitioner. Ms. Jones made an independent review of the incident that included a review of the patient's chart and the incident report. Based upon this, Ms. Jones issued a Second Written Corrective Action to the Petitioner.
Ms. Wood and Ms. Jones subsequently met with the Petitioner to prepare a development plan to try to improve the Petitioner's repeated patient-care problems. The Respondent routinely prepares development plans for employees who have two Written Corrective Actions, because a third Written Corrective
Action in a 12-month period would result in termination.
Ms. Wood met with the Petitioner once each week for the first two weeks after the development plan was presented to the Petitioner. Ms. Wood did not meet with the Petitioner the following two weeks because she took a vacation during the holiday season.
The Petitioner caused several patient-care problems during the period Ms. Wood was unavailable to meet with her. Between December 13, 2005, and December 27, 2005, the Petitioner provided sub-standard care on at least eleven occasions. Two of these incidents were more serious patient-care problems than the others, because they resulted in a direct injury to one patient and exposed another patient to the risk of very serious infection.
The first of the two incidents came to light when the Shands administration received a complaint from a patient, in the third floor medical-surgical unit, that his nurse had roughly removed a dressing for his IV and tore his skin. This complaint was passed on to Ms. Jones and Ms. Wood. Ms. Jones reviewed the patient’s chart and determined that the Petitioner had discontinued the IV on the patient in question. The discontinuation of an IV is the only reason to remove the dressing, so Ms. Jones reasonably concluded that the Petitioner was the nurse who tore the patient's skin.
The Petitioner admitted treating the patient but denied tearing his skin. She claimed that she removed the first IV and replaced it with a new IV, only to have some other nurse come and discontinue the IV and tear the patient's skin. At the final hearing, however, the Petitioner conceded that she had to discontinue the original IV in order to replace it and that the patient's chart then would show that the Petitioner had discontinued the patient's IV. Therefore, even if the Petitioner was not the nurse who tore the patient's skin, the Petitioner's admission that the patient chart showed that she had discontinued at least one of the patient's I.V.'s creates a non-discriminatory explanation for a good faith belief by Nursing Director Jones that the Petitioner was the nurse who injured the patient.
The second serious incident was discovered on December 24, 2005. Dayshift nurse Darlene Hewitt, who had taken over care of patients treated by the Petitioner during the preceding evening, noticed that one of the patients had dark stool dried over the site of his “femoral central line.”
Ms. Hewitt had received a report from the Petitioner, only ten minutes before discovering the feces, but the Petitioner had not informed her of the patient's condition. Ms. Hewitt reported the incident to Ms. Wood, who reviewed the patient’s chart and determined that the Petitioner returned to the chart, after the
presence of the feces had been discovered, and added false entries, effective 6 a.m. that morning, claiming to have discovered and reported the stool to the succeeding nurse at the shift change.
A femoral central line is an I.V. line inserted into the femoral artery in the groin of the patient. It is used to administer prescription medication directly to a patient's heart. A dressing is used to cover the central line insertion point, because any bacteria that contaminate the site could potentially go directly to a patient's heart. A contaminated femoral central line is a serious patient-care issue and exposes the patient to potentially serious health consequences.
Ms. Wood reported the incident to Director Jones, along with the other ten incidents of sub-standard patient-care occurring between December 13, 2005, and December 27, 2005.
Ms. Jones reviewed each incident independently, and made an examination of each patient chart at issue. She determined that the Petitioner's patient-care practices had not improved. She therefore decided to issue the Petitioner a Third Written Corrective Action.
Ms. Woods and Ms. Jones met with the Petitioner on December 28, 2005, to discuss the issues underlying the Third Written Corrective Action. Ms. Jones explained to the Petitioner that the Third Written Corrective Action would result
in automatic termination. Ms. Jones offered the Petitioner the opportunity to resign, in lieu of termination, before the Third Written Corrective Action was completed. The Petitioner left the meeting and never responded to Ms. Jones’ offer. The Petitioner maintains that she was terminated. Whether she was terminated or resigned in lieu of termination, or was constructively terminated, is not material to resolution of the issues at hand.
In fact, the Petitioner was effectively terminated for providing sub-standard patient care. There is no evidence to suggest that Ms. Jones’ decision to discipline and terminate the Petitioner was based upon race, retaliation for any alleged complaints of harassment, or engaging in any statutorily protected conduct. The Petitioner did not identify any employees outside her protected class that were not disciplined for providing similar sub-standard patient care. The Respondent, however, identified several employees outside the Petitioner's protected class who were disciplined by Ms. Wood for providing poor patient care. When faced with that evidence at hearing, the Petitioner conceded that the Respondent did not terminate her for any improper purpose.
The Petitioner also claims to have been harassed by several white co-workers. Co-workers Shannon Poppel, Kim Morris, and Darlene Hewitt were purported by the Petitioner to
have harassed her. Those three persons, however, all work on the day shift. The Petitioner worked on the 7 p.m. to 7 a.m. shift. Jay Nash was the only night-shift employee who had been alleged to have mistreated the Petitioner. At hearing, however, the Petitioner conceded that Mr. Nash was not harassing her; rather, she contends he was assigning her more difficult patients than he was assigning other employees.
The Petitioner maintains that Poppel, Morris, and Hewitt were very friendly with Nursing Director Wood. The Petitioner suspects they had a social relationship outside the hospital. The Petitioner contends that Poppel, Morris, and Hewitt ignored her and interrupted her when she was attempting to give her report at shift changes. Finally, the Petitioner claims that the three people would stop all conversation whenever she entered a room and, on one occasion, she overheard Director Wood and one of the alleged harassers laughing in
Ms. Woods's office when discussing the Petitioner.
The Petitioner concedes, however, that none of the alleged harassers ever used any racially derogatory language or made any reference to the Petitioner's race. In fact, she offered no evidence relating the behavior of the three alleged harassers to the Petitioner's race, aside from the fact that the alleged harassers are Caucasian and the Petitioner is African- American. The Petitioner's contention that this behavior was
based on race is the Petitioner's own bare, unsupported opinion and is un-persuasive. The Petitioner even concedes that the harassers were friends away from the hospital. Their social relationship, which was not shared with the Petitioner, is a more plausible explanation for any behavior of the alleged harassers than is the race of the Petitioner. This is especially so, given the fact that Nursing Director Wood herself is African-American.
The Petitioner has also exaggerated the severity of the alleged harassment, because there was an insufficient temporal opportunity for the alleged harassers to engage in that conduct. The day-shift nurses, including the three alleged harassers, must "punch in" between 6:45 a.m. and 6:52 a.m. for their 12-hour shift, which runs from 7 a.m. to 7 p.m.
Generally, the night-shift nurses finish giving reports to the day-shift nurses and leave the hospital by 7:15 a.m. Therefore, at most, Ms. Poppel, Morris, or Hewitt could have interacted with the Petitioner only for a total of about 30 minutes per day. Thus any harassment, if it occurred, would have occurred for only a very short period of time. Moreover, there is no proof that any harassment, based upon race, occurred at all.
The Petitioner contends that she complained to Nursing Director Jones about the harassment, but Ms. Jones denies this. Ms. Jones is well-trained in the anti-harassment policy followed
by Shands. She had conducted several other investigations into harassment allegations during her tenure as Nursing Director.
Her thorough response to those other allegations concerning harassment makes it very unlikely that Ms. Jones would have ignored the Petitioner's alleged complaint, had she made one. Ms. Jones is an African-American woman and, if she had a history, as she does, of actively investigating any allegations of harassment, it is unlikely that she would have disregarded an allegation that an employee felt that she was being harassed because of her race. Therefore, the Petitioner's self-serving opinion that she was being harassed, and her allegation that she had complained about the harassment, lacks credibility and
persuasiveness.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction of the subject matter of and the parties to this proceeding. §§ 120.569 and 120.57, Fla.Stat. (2009).
Section 760.10(1)(a), Florida Statutes (2008), makes it illegal to discharge or otherwise discriminate against any individual with respect to the terms, conditions, or privileges of employment because of that person's race.
In order to prove a prima facie case of discriminatory discharge under the Florida Civil Rights Act, the Petitioner must prove (1) that she is a member of a protected class;
(2) that at the time of her discharge she was qualified for her position; (3) that she suffered an adverse employment action; and (4) that she was replaced by a person outside her protected class or was treated less favorably than similarly-situated co- workers outside her protected class. Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1999).
The Petitioner has not met the burden of proving a prima facie case of discrimination based upon race. She could not identify with her evidence any employee, outside her protected class, who received more favorable treatment after similar patient-care errors. The Respondent identified several employees outside the Petitioner's protected class who had received similar discipline for similar patient-care problems. The Petitioner, for this reason, has not established a prima facie case of discrimination in the termination of her employment.
Even if she had established a prima facie case of discriminatory discharge based upon race, her claim fails because she was terminated for a legitimate, non-discriminatory reason. That reason, as amply shown by the Respondent's evidence, embodied the repetitive and sometimes serious failures in the patient-care the Petitioner provided as an RN. The Petitioner did not then come forward with any persuasive evidence to show that the reason for her termination was a mere
pre-text for what amounted to discrimination based upon her race or based upon retaliation for her engaging in a statutorily- protected complaint or conduct. See Dept. of Children and Families v. Garcia, 911 So. 2d 171, 172 (Fla. 3d DCA 2005).
There is no question that the Respondent had a serious concern about the level of patient care in the unit where the Petitioner was employed. In fact, the Respondent promoted
Ms. Wood to Nurse Manager in order to improve the quality of patient-care. There is no dispute that the Petitioner's conduct, on the occasions referenced in the above Findings of Fact, undermined patient care by her failure to put a telemetry unit on a heart patient; by her administration of the antibiotic Gentamicin to the wrong patient; by the harm caused to a patient in removing an I.V. dressing and by allowing a patient's stool to remain on the femoral central line I.V. site for an extended period of time. Proper patient-care is the essence of the Respondent's operations and constitutes a legitimate, non- discriminatory reason for the Petitioner's termination, based upon the above-found facts.
The Petitioner has not offered persuasive evidence that her poor patient-care record served as a mere pretext for what amounted to racial discrimination. The Petitioner conceded, in fact, that the Respondent did not terminate her for
any improper purpose. Therefore, the claim for discriminatory termination must fail as a matter of law.
In order to make out a case for retaliatory discharge, the Petitioner must establish that she is engaged in protected activity, such as making a complaint concerning harassment or discrimination and that the employer knew of that complaint or protected activity and then intentionally discriminated against the Petitioner, for engaging in that protected activity, by imposing discipline or termination based upon it. See Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 3d DCA 2009).
The Petitioner has not proved a case of a retaliatory discharge because she has not proven that she engaged in any protected activity. In fact, there is no evidence that the Petitioner ever made any complaint concerning harassment or other discriminatory conduct by any co-employee or supervisor while she remained employed by the Respondent. Therefore, the Respondent, in terminating her, could not have done so in retaliation for her engaging in protected activity by filing any sort of complaint, because none had been made. The Respondent would have had to have known about the complaint or protected activity in order for any claim to lie based upon discriminatory retaliation for such a complaint. Brumgart v. Bell South Telecommunications, Inc., 231 F.3d 791, 799 (11th Cir. 2000).
Further, the Respondent terminated the Petitioner for a legitimate, non-retaliatory reason. The Petitioner offered no persuasive evidence that that reason was a mere pretext for what amounted to a discriminatory termination based upon race or based upon retaliation for engaging in protected conduct.
The Petitioner has also complained of unlawful harassment. Harassment based upon a protected characteristic such as race, is a form of discrimination prohibited by Chapter 760, Florida Statutes. Maldanado v. Publix Supermarkets,
939 So. 2d 290, 293 (Fla. 4th DCA 2006). In order to prove a prima facie case of harassment, the Petitioner must prove
(1) that she belongs to a protected class; (2) that she is subjected to unwelcome harassment; (3) that the harassment complained of was based upon membership in the protected class;
(4) that the harassment was sufficiently pervasive and severe as to alter the terms, conditions or privileges of her employment and create an abusive environment and (5) that there is a reason to hold a Respondent responsible for that harassment. Miller v. Kenworth of Dothan, Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).
The Petitioner has not established a prima facie case of unlawful harassment. While her co-workers may have been impolite or even rude to her, the Petitioner has not established that the behavior of the co-workers was based on her race. The conclusory allegation or opinion that race is the only factor
that explains the behavior of her co-workers ignores the fact that the harassers had a social relationship outside of work. That social relationship, to the exclusion of the Petitioner, may have made the Petitioner have feelings of rejection, but the claim of harassment must fail as a matter of law because she has offered no evidence to show that the harassment was related to her race in any way.
Even if it was established that the harassment, if it occurred, was related to her race, she has still not proven a prima facie case of racial harassment because it was not sufficiently severe and pervasive as to alter a term, condition, or privilege of employment. Simple teasing, offhand comments, and isolated incidents will not suffice to prove discriminatory changes in the terms and conditions of employment. Maldanado v. Publix Supermarkets, supra.; Faragher v. City of Boca Raton, 524 U.S. 775, 778 (1998).
The Petitioner has conceded that she interacted with the alleged harassers at Shands, at most, for 30 minutes per day. Such a brief, limited contact does not constitute severe or pervasive conduct, as a matter of law, and therefore cannot support a prima facie claim of unlawful harassment. See, e.g., Newman v. Career Consultants, Inc., 470 F. Supp. 2d 1333, 1349 (M.D. Ala., 2007).
The Petitioner’s harassment claim must fail as a matter of law because no evidence has been offered to establish that the Respondent is responsible for any alleged harassment. The Petitioner concedes that the Respondent has many avenues for employees to complain of illegal harassment at work. The Petitioner, however, did not utilize any complaint procedure offered by Shands, despite her claims to the contrary. Her failure to use the complaint procedure offered by her employer prevents her from holding the Respondent employer liable for any alleged harassment and bars a harassment claim as a matter of law. Faragher, supra.
In summary, in consideration of the persuasive evidence of record and the above Findings of Fact, the Petitioner has not demonstrated by preponderant evidence that she was terminated because of her race or in retaliation for any alleged protected activity; neither has the Petitioner proven that she was subjected to any unlawful harassment during her employment with the Respondent, based upon her race.
Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore,
RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the petition in its entirety.
DONE AND ENTERED this 19th day of January, 2010, in Tallahassee, Leon County, Florida.
P. MICHAEL RUFF Administrative Law Judge
Filed with the Clerk of the Division of Administrative Hearings this 19th day of January, 2010.
Marquis W. Heilig, Esquire
Thompson, Sizemore, Gonzalez & Hearing, P.A.
Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100
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.
