LATONYA PERKINS,
Petitioner,
vs.
BAPTIST HEALTH CARE CORPORATION,
Respondent.
/
Case No. 20-4204
RECOMMENDED ORDER
Pursuant to notice, a final hearing was conducted in this case on November 18, 2020, and January 11, 2021, via Zoom teleconference, before Lawrence P. Stevenson, a duly-designated Administrative Law Judge ("ALJ") of the Division of Administrative Hearings.
APPEARANCES
For Petitioner: LaTonya Jackson Perkins, pro se
3319 Milo Court
Pensacola, Florida 32526
For Respondent: Russell F. Van Sickle, Esquire
Beggs & Lane
Post Office Box 12950 Pensacola, Florida 32591
STATEMENT OF THE ISSUES
The issues are whether Respondent, Baptist Health Care Corporation, discriminated against Petitioner based upon her race or age, in violation of
section 760.10, Florida Statutes,1 and/or whether Respondent retaliated against Petitioner for the exercise of protected rights under section 760.10.
PRELIMINARY STATEMENT
On February 12, 2020, Petitioner, LaTonya Perkins ("Ms. Perkins" or "Petitioner"), filed with the Florida Commission on Human Relations ("FCHR") an Employment Complaint of Discrimination against Baptist Health Care Corporation ("Baptist"). Ms. Perkins alleged that she had been discriminated against pursuant to chapter 760 and Title VII of the Federal Civil Rights Act, based upon her race and age, and that Baptist had retaliated against her, resulting in the termination of her employment.
The FCHR conducted an investigation of Ms. Perkins's allegations. On August 11, 2020, the FCHR issued a written determination that there was no reasonable cause to believe that an unlawful practice occurred.
On September 11, 2020, Ms. Perkins timely filed a Petition for Relief with the FCHR. On September 17, 2020, the FCHR referred the case to the Division of Administrative Hearings ("DOAH") for the assignment of an ALJ and the conduct of a formal hearing. The final hearing was initially scheduled for November 18 and 19, 2020. Because Respondent's counsel had a conflicting case commitment, the hearing was rescheduled for November 18, 2020, only. The hearing was convened but not completed on November 18, 2020. The hearing was reconvened on January 11, 2021, on which date it was completed.
1 Citations shall be to Florida Statutes (2020) unless otherwise specified. Section 760.10 has been unchanged since 1992, save for a 2015 amendment adding pregnancy to the list of classifications protected from discriminatory employment practices. Ch. 2015-68, § 6, Laws of Fla.
At the hearing, Ms. Perkins testified on her own behalf and presented the testimony of her mother, Mary Thomas Jackson. Petitioner's Exhibits 3 through 10, 14, 15, and 17 were admitted into evidence. Respondent presented the testimony of: Amanda Phillips, Baptist's Patient Access Manager; Kristi Brown, Baptist's Senior Manager for Patient Access; Kimberly Craig, a former Emergency Room Registrar at Baptist; Christopher Cockrell, Baptist's Human Resources Business Partner; Lindsey Eaves, Baptist's Director of Human Relations and Engagement; and Amy Purvis, Baptist's Corporate Director of Patient Access. Respondent's Exhibits 1 through 42 were admitted into evidence.
The three-volume Transcript of the November 18, 2020, portion of the hearing was filed with DOAH on January 8, 2021. The two-volume Transcript of the January 11, 2021, portion of the hearing was filed with DOAH on February 10, 2021.
Petitioner filed her Proposed Recommended Order on January 21, 2021, before the final two volumes of the Transcript had been filed with DOAH. On February 19, 2021, Respondent filed a motion for an extension of the deadline for filing proposed recommended orders, citing workload issues that necessitated a brief extension of the filing deadline. Petitioner objected to the extension. By Order dated February 19, 2021, the undersigned granted the motion to extend the deadline and further ordered that Petitioner would be allowed to revise her Proposed Recommended Order if her review of the Transcript revealed a need. On March 1, 2021, in keeping with the revised deadline imposed by the Order granting extension, Respondent filed its Proposed Recommended Order and Petitioner filed a revised Proposed Recommended Order. The Proposed Recommended Orders have been duly considered in the writing of this Recommended Order.
FINDINGS OF FACT
Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made:
PARTIES
Baptist is an employer as that term is defined in section 760.02(7).
Ms. Perkins is an African-American female who is older than 40 years of age.
Baptist hired Ms. Perkins as an Emergency Room Registrar in 2015. In August 2017, Patient Access Manager Amanda Phillips selected and promoted Ms. Perkins to a newly created Patient Access Coordinator position. Patient Access Coordinators perform general patient registration and data entry functions, including answering the phone, interacting with customers, and processing patient admission paperwork. Ms. Perkins worked the hours of 7 p.m. to 7 a.m. in the Patient Access Coordinator position until her department transitioned to "shift bidding" in August 2018.
Ms. Perkins was one of seven people promoted or hired into the new Patient Access Coordinator position. Ms. Perkins testified that two of the other Patient Access Coordinators were older than her and that one of them was a minority person.
Ms. Phillips was Ms. Perkins's direct supervisor until Baptist hired Kristi Brown for the intermediate position of Patient Access Supervisor in August 2018. From that point until Ms. Perkins left Baptist, Ms. Brown was the immediate supervisor to Ms. Perkins. Ms. Brown reported to Ms. Phillips.
Ms. Perkins was involuntarily terminated from her employment with Baptist on December 16, 2019.
ALLEGED RACIST AND AGEIST STATEMENTS BY COWORKERS
Ms. Perkins's first complaint about a fellow employee was memorialized in an email she wrote to Ms. Phillips on December 5, 2017. She stated that
Emergency Room Registrar Kimberly Craig was disrespectful to her in a public place that included patients. Ms. Craig was not in Ms. Perkins's chain of command, but the two women interacted frequently on the job.
The controversy had to do with who was responsible for completing a "facesheet" for a newly admitted stroke victim. Ms. Craig was at first dismissive when Ms. Perkins asked her for information about the patient, then loudly and ostentatiously announced to Ms. Perkins, "Don't worry about it, I'll do it, I'll do it." Ms. Perkins was upset because Ms. Craig seemed to be going out of her way to embarrass Ms. Perkins in front of patients and coworkers. However, Ms. Perkins's email did not allege that that Ms. Craig said anything that could be termed racially insensitive.
Ms. Phillips testified that she looked into the matter and concluded that Ms. Craig had behaved inappropriately. Ms. Phillips did not believe it was a "big deal" but did believe that Ms. Craig owed an apology to Ms. Perkins.
Ms. Craig brought apple cider to Ms. Perkins as a peace offering. Ms. Perkins testified that she accepted the apology but made it clear she didn't like the situation.
Ms. Perkins testified that at some point in 2017, Ms. Craig and another co-worker, Lauren Dye, had called her "the n-word"2 and "black bitch." Under cross examination, Ms. Perkins could remember no further details about this 2017 incident. She claimed that she had made a contemporaneous written report of the incident to Ms. Phillips but that Baptist did not produce that email in response to her discovery request. Ms. Perkins stated that she had not kept copies of all her emails to her supervisors.
2 All witnesses in this proceeding employed the euphemism "n-word" instead of the actual term of offense. It should be understood by the reader that Ms. Perkins's allegation is that Ms. Craig used the actual term of offense, not the euphemism.
Ms. Phillips had no recollection of Ms. Perkins ever accusing Ms. Craig of using racist terms. She stated that she received no emails or other documents from Ms. Perkins complaining about anything to do with her race.
Ms. Craig testified at the hearing and flatly denied ever calling
Ms. Perkins "n-word" or "black bitch." Lauren Dye no longer works at Baptist and was not called as a witness.
Starting in late 2017 and running well into 2018, Baptist undertook the process of implementing "Allscripts," a new electronic patient records program. From all accounts, the implementation was slow and decidedly less than smooth.
In the early morning hours of May 17, 2018, Baptist's information technology ("IT") department conducted a planned downtime for the Allscripts program. Ms. Craig was the designated point person on the floor. According to the plan, when the program was ready to go back online, an IT person named Scott would call Ms. Craig, who would relay the information to the Patient Access Coordinators and other personnel.
Ms. Craig was cautioned that staff should not begin data entry before the "all clear" came down from IT. If someone logged in too soon, the Allscripts program might appear to be working but actually still be offline.
In an email to Ms. Phillips, sent at 4:41 a.m. on May 17, 2018, Ms. Craig described events as follows:
We survived downtime, with only a few minor irritations…
Now, fast forward to the phone call I was waiting on from Scott. He called the office, not my cell. And of course, I was in triage. Latonya came to find me and her exact words were "IT called and Allscripts is back up." I asked her, who called? Allscripts? IT or Scott? She rolled her eyes and said IT. I tried to explain to her that was not the process as I understood it. As I'm trying to find contact info for Scott to check, she apparently told Iyonna and some nurses that Allscripts was up. Then she came
back up to me with a sticky note with Scott's name and number on it. She said Scott from IT called back and you need to call him (which I did and input the now 7 patients from downtime). Scott said it would be a few minutes and we would get the all clear. In the meantime, Latonya and Iyonna are already logged back in because they refused to listen to anything I was saying. My biggest question is, if Scott called and asked for me, would it have been so much trouble for her to transfer [the] call to me or come get me while he was on the phone? But as usual she had to get involved in something that she should never have been involved in.
After we got the all clear, I went to the office to make sure she heard the announcement back there. And no surprise she has been logged in the whole time. I suggested she might want to log out and back in since she had been logged in before the all clear. I'm not sure it really made any difference.
Ms. Phillips discussed the incident with Ms. Perkins on May 17, 2018. Ms. Perkins stated she intended to take the matter to Baptist's Human Relations ("HR") department. At 9:06 p.m. on May 17, 2018, Ms. Phillips sent an email to Ms. Perkins, offering to meet with her to discuss her issues with Ms. Craig, in lieu of going to HR as a first resort.
At 9:16 p.m., Ms. Perkins responded as follows, in relevant part:3
It doesn't matter who I talk to first, I just need a resolution, before the situation gets out of hand again. This keeps happening over and over again, and it needs to stop. I'm sure you probably know, but I just can't keep tolerating this type of behavior, when I'm trying to communicate with you on a professional level. It's a lot of things happening in the ER, you probably don't even know that applies to certain people and not all, because
3 In her written submissions, Ms. Perkins had a habit of using semicolons where commas were appropriate. Rather than distracting the reader by exactly transcribing Ms. Perkins's writings with repeated insertions of "[sic]," the undersigned has elected to correct the punctuation.
of the leadership. The earlier the better with me. Thanks!
The next day, May 18, 2018, Ms. Perkins submitted a lengthy "Employee Complaint Letter" to Sara Colley, Baptist's Vice President of HR. The memorandum provided as follows, in relevant part:
I'm writing this letter to you to make a formal complaint against Ms. Kimberly Craig, Emergency Room Registration Team Lead, regarding her inappropriate comments, and verbal attacks in front of other co-workers and patients that are personal, which go beyond the bounds of professional conduct. These inappropriate attacks have been going on since December of 2017. I have written, and notified my supervisor about her disruptive behavior, but she still continues to create a hostile working environment, not only with me, but with others as well.
[At this point, Ms. Perkins inserted a copy of her December 5, 2017, email to Ms. Phillips regarding the incident with Ms. Craig regarding the facesheet]
From this above complaint, after she had spoken with Amanda Phillips, my supervisor, (two or three days later), Kimberly apologized and hugged me for her verbal attack and disruptive behavior that occurred in front of the staff and patients. At that time, I told her that this was not acceptable, and I didn't like it, and that I did accept her apology.
* * *
What does a person do when their co-worker continuously makes statements about their weight, and how their clothes fit them, making them feel very uncomfortable?[4] She (Kim) might think she was being funny, but the comments were very unprofessional—maybe even offensive, or racist. I
4 Ms. Perkins had recently undergone gastric bypass surgery and had lost a considerable amount of weight.
have been subjected to this type of inappropriate behavior from Kim more than 3 or 4 different times, since the beginning of March 2018. I tried to ignore them, but can't continue to tolerate this type of abusive behavior. The only power I see that is inherent in any type of racist language is its intent to disrespect the person. Some of these remarks include:
"Girl, What kind of drugs are you on to lose that amount of weight?" "You need to sell me some of them drugs, your [sic] literally wasting away."
"Whatever crack you're on, you need to stop taking them, because your pants are falling off."
On May 17, 2018, the Company experienced approximately an hour or so worth of downtime. As a Patient Access Coordinator, my main location is in the office in the Emergency Room answering phones, and admitting patients for all three hospitals. During downtime, I received a call from Scott, an IT worker, to let me know that we need to get our patients in the system, [who] came in during downtime. He asked me how many patients we approximately had, and I told him to give me his phone number and I will go get that information and call him back immediately. I went up to the Triage area where Kimberly was to get that information, and professionally stated "IT wants to know how many patients approximately came in during downtime?" Kimberly then looked at me aggressively and stated "Was that IT on the phone?" "Was that Scott on the phone?" repeatedly, bucking her eyes. I stated again, "The IT person, Scott just called and wanted to know how many people we approximately had?" She finally told me six.
I then came back to the office and called Scott to let him know the exact number given to me. After talking with Scott, I then walked back up to Triage and gave Kimberly his number. She then asked me, "Why Scott didn't call her phone?" (Shaking her
head, while she was talking.) I replied "I didn't have any knowledge about the agreement or arrangement you made with Scott, about him calling your phone. I don't come in till 9:00 PM." I then walked away.
Less than five to ten minutes, Kimberly came back to the office where I was sitting, to tell me in a negative tone, that the system is back up now, and I need to reboot my computer. I had then told Kimberly that I was already aware and knew at that time that the system was back up, and already had access to work on patients. The janitor was in the office at that time, cleaning the floor, witnessing the facial expressions, hand movements, and disrespectful tone of Kimberly. I tried to tell her that I already knew, but she kept saying "It just came up just now!" "Just now!" "Just now!" while repeating herself three to four times (bucking her eyes). Finally, she then went back up to Triage, where the other registration workers were, to gossip about me. This is not the first time Kimberly has talked about me to other coworkers, in various departments, belittling and creating animosity with others.
Also on Thursday, May 17, 2018, Kim was supposed to be working with the registrars on the floor; instead, she was live chatting with Lauren Dye, a registrar, in the office, posting black women Graphic Interchange Formats [GIF] with the saying "The LORD is testing me," and "Girl Bye" (laughing). Gossiping, and slandering about an employee to others in the workplace is very disrespectful, unproductive, and can really break a team down, damaging the reputation of an employee, with all the intentions to harm the employee on various levels. I'm trying to remain professional, and make ethical decisions/choices on how to handle these situations, but it's getting more and more difficult each and every day.
I have been a loyal employee of this company for approximately 4 years, with exceptional and role
model reviews/evaluations; never been late; and been the top collector, as an Emergency Room registrar for almost two years with collections as high as $8,000.00 in one month. I value my job, and my performance speaks for itself. I am submitting this complaint because I want the inappropriate comments, racial remarks, and verbal attacks in front of other co-workers and patients to stop. I do have a witness that is willing to come forth, if needed. I trust that you will investigate this promptly….
At the hearing, Ms. Perkins produced two photographs that look over the shoulder of a woman seated in front of a computer screen. Ms. Perkins testified that the woman was Ms. Craig and that the offending GIFs of a black woman were on the computer screen. Ms. Perkins testified that
Ms. Craig turned and pointed at her and said she looked like the heavyset woman in the GIFs. Ms. Perkins stated that she heard Ms. Craig and
Ms. Dye refer to her as a "black gorilla" and an "ape" while they looked at the GIFs.
Ms. Perkins did not explain why her letter of May 18, 2018, failed to include the allegation that she was called a "black gorilla" and an "ape" by Ms. Craig and Ms. Dye.
Ms. Perkins's complaint letter was sent on Friday, May 18, 2018. At 7:46 a.m. of the next business day, Monday, May 21, 2018, Ms. Colley of HR emailed Ms. Perkins to inform her that HR was beginning an investigation of her allegations. HR employee Carol Brownell was assigned to investigate.
In an email to Ms. Brownell dated May 21, 2018, Ms. Phillips responded to and commented on the allegations made by Ms. Perkins. Her comments were as follows, in relevant part:
In regards to the December [2017] email—This was during go live [with Allscripts] when everyone was very frustrated and tired. Everyone was on edge. I told Kim to resolve this with her and apologize. Kim apologized to her and brought her hot apple
cider. Latonya actually cried during the apology. [Corporate Director of Patient Access] Amy Purvis was there to witness.
In regards to the weight comments—Latonya has never mentioned these to me. Latonya has not made a complaint about anyone to me since this last email in December….
In regards to the downtime on 5/17, I should have communicated with Latonya on what was going to happen that night. I told only Kim thinking they could all work together to figure it out. Scott, our IT director, was supposed to call Kim directly to tell her the system was ready for her to put patients back in. The system was not actually "up" yet, even though it may have seemed that way. Kim was to put the patients back into the system then IT would give the all clear that it was back up. The way Kim described it to me is that Latonya was trying to take charge all night and not take direction from her. Although I wasn't there, this was the back and forth.
In regards to "live chatting" she is talking about instant messaging through Lotus Notes. There are many different "GIFs" that people use to be silly. I do not know how Latonya would even see what she is writing, they don't sit next to her. This seems to be mere speculation.
In regard to this statement, "Finally, she then went back up to Triage, where the other registration workers were, to gossip about me." Again, speculation unless she has a witness.
… Latonya is not the stellar team member she makes herself out to be. There have been many HR issues with her in the past, one including GRC.[5] She is passive aggressive and I believe is blowing
5 These initials were not explained at the hearing. In September 2015, Ms. Perkins received a write up and "coaching" regarding her hostility and "obvious lack of commitment to her coworkers and attitude" that appears to be the only formal disciplinary action taken against her prior to the events leading to her dismissal.
this up. I absolutely can talk to Kim about the weight comments. I think she is stretching it a little far by bringing racism in because of a drug comment. No other ER team members have come to me about Kim….
In an email to Ms. Brownell, dated May 24, 2018, Ms. Phillips described the actions she had taken during the intervening days:
--Amanda met with Kim on 5/23 to discuss the complaint, there are obvious tensions between Kim and Latonya. Amanda advised Kim to only speak to Latonya in regards to work related issues and in a professional tone. Amanda also told Kim that she needed to make sure she was leading by example and separating her friendships while at work and make sure everything is very professional. Also to make sure that she is not talking about other team members in front of staff.
-- Kim stated she did not state she was taking drugs to lose weight. She said it is very obvious to everyone that Latonya has lost a lot of weight and the whole department is complimenting her on her weight.
-- Carol and Amanda spoke with Latonya on 5/24 to address the complaint. It was stated to Latonya that the issues have been addressed and that Kim will only be speaking to her on a professional level from here on out, nothing personal. Amanda advised Latonya that when issues like this arise in the future, she needs to know about them. It is important that they are addressed immediately and not wait 6 months to tell someone.
-- Latonya made a comment that Kim goes outside and smokes multiple times during the shift. Amanda and Carol discussed that Amanda would be showing Kim the smoking policy.
The documentation and testimony from witnesses established the accuracy of Ms. Phillips's observation; there clearly was a personality conflict
between Ms. Perkins and Ms. Craig. The only allegations made by
Ms. Perkins that could even be arguably called racial were the comments about her weight and the GIFs sent by and to Ms. Craig on her work computer.
Ms. Perkins argued that comments about using drugs to lose weight and "crack" were demeaning racial comments playing on the stereotype that black people are drug dealers and are more prone than others to use drugs such as crack. Ms. Perkins's testimony also made it clear that she was sensitive about her weight, which she considered a private matter and not a subject for public comment by her coworkers.
Ms. Craig credibly denied making any comments about drugs. It is plain that Ms. Perkins's coworkers were trying to compliment her on her weight loss, however clumsily they went about it. Ms. Perkins's sensitivity about her weight led her to view any comment on the subject in a negative light.
The photographs submitted by Ms. Perkins show that the GIF she found offensive was a popular meme from the situation comedy "Community." The African-American actress Yvette Nicole Brown, in character as Shirley Bennett, says, "The Lord is testing me." This meme was ubiquitous at the time and there is nothing racist about it.
It is found that if Ms. Craig and Ms. Dye had actually pointed at this GIF and called either Ms. Brown or Ms. Perkins a "black gorilla" or an "ape," then Ms. Perkins would have included that allegation in her May 18, 2018, letter to Ms. Colley. It is not plausible that such an inflammatory accusation simply slipped her mind when she was recounting past slights and indignities she claimed to have suffered.
Finally, it is noted that Baptist's HR Department acted immediately upon receiving Ms. Perkins's letter, investigated the matter, and resolved it in a manner appropriate to the substance of the complaint, which did not
include the overtly racist statements that Ms. Perkins later claimed had been made by Ms. Craig and Ms. Dye.6
Ms. Perkins alleged that in July 2018, she overheard Ms. Craig call her "that black bitch" and that in September 2019, Ms. Craig said in reference to Ms. Perkins, "Is that n-word still here?" Ms. Craig again vehemently denied using such language. Ms. Perkins's immediate supervisor, Kristi Brown, testified that she knew nothing of these allegations. Likewise, Ms. Phillips and Ms. Purvis knew nothing of them. Ms. Perkins was not shy about communicating her complaints to her supervisors and the management of Baptist. Again, it is not credible that Ms. Perkins would have kept silent about such flagrantly racist comments.
On December 4, 2018, Ms. Perkins sent an email to Ms. Phillips, Ms. Purvis, Ms. Colley, and Ms. Brownell to explain her responses to two items on her annual performance evaluation. The first item was that
Ms. Perkins had refused to initial a "severe weather statement" by which the employee indicates their understanding that they may be required to report for work at the hospital during a hurricane or other severe weather event.
The second item was Ms. Perkins's answer of "yes" to a question whether she was aware of any situations that may violate Baptist's Code of Conduct.
Ms. Phillips testified that employees are required to submit a written explanation if they mark "yes" on the performance evaluation's question about compliance issues. In this instance, Ms. Perkins was also asked to explain why she would not initial the severe weather statement.
In her December 4, 2018, email, Ms. Perkins explained that Baptist had adopted a new Severe Weather Plan in April 2018. She had not seen the new plan and declined to indicate her willingness to work during a storm
6 Ms. Phillips testified that Ms. Craig was demoted from ER team lead to registrar in about June 2018. Ms. Phillips did not state whether the demotion was related to the conflict with Ms. Perkins, and no such inference can be made.
before she had received training as to the duties she might be required to undertake.
Both Ms. Phillips and Lindsey Eaves, Baptist's Director of HR, testified that no training was required for the severe weather statement. It was simply an acknowledgment by employees that they were on standby to work during hurricanes.
As to the second item, Ms. Perkins referred to "major issues" raised by her December 5, 2017, email and the May 18, 2018, letter to Ms. Colley. She wrote that "nothing has been done" about these issues. She wrote that "it has continued to escalate each and every day." Ms. Perkins wrote that she had experienced "Supervisors and Managers abusing their authority; Retaliation; Discrimination; Hostile working environment." She stated that all of these experiences were inconsistent with Baptist's Code of Conduct.
Ms. Eaves testified that she was concerned about Ms. Perkins's statements. Within a day or two after December 4, 2018, Ms. Eaves met with Ms. Perkins.
Ms. Eaves had started working at Baptist in July 2018, after the investigation of Ms. Perkins's May 18, 2018, letter. Prior to the meeting, she went through the investigative file to be able to answer any questions
Ms. Perkins had. Ms. Eaves testified that Ms. Perkins made no new allegations at their meeting. They rehashed the issues raised in Ms. Perkins's earlier submissions.
Ms. Perkins testified that she could recall no details of her meeting with Ms. Eaves.
Ms. Eaves testified that Ms. Perkins requested a second meeting to include Andy Terry, Vice President for Revenue Management. Mr. Terry was the executive at the top of Ms. Perkins's chain of command at Baptist.
The meeting was held on January 3, 2019, and included Ms. Perkins, Ms. Eaves, and Mr. Terry. Ms. Perkins spoke again about her December 2017
and May 2018 complaints, again alleging that Ms. Craig's comments about her losing weight could be construed as a racial comment.
At this meeting, Ms. Perkins for the first time disclosed to Baptist personnel that she had been called a "black bitch" by a coworker. However, she declined to say who made the comment. Ms. Eaves told her there was little that HR could do by way of investigation or corrective action without the name of the culprit. Ms. Perkins steadfastly declined to disclose the name.
Ms. Perkins introduced an exhibit purporting to be a Charge of Discrimination that she filed with the U.S. Equal Employment Opportunity Commission ("EEOC"). The document bears a date stamp of December 11, 2018, indicating it was filed at the EEOC's local office in Mobile, Alabama.7 Baptist never received and, therefore, never responded to this Charge of Discrimination. Ms. Perkins testified that she never heard back from the EEOC on this Charge of Discrimination. She stated that she never followed up with the EEOC because Mr. Terry had promised that Baptist would conduct a full investigation of her charges.
Finally, Ms. Perkins alleged that Ms. Phillips made a single age- related comment to her. Ms. Perkins testified that she asked Ms. Phillips why she did not get an interview for a scheduling manager position.
Ms. Phillips responded by telling her that Baptist was looking for someone younger who was not drinking Ensure all the time.
Ms. Phillips credibly denied making such a comment to Ms. Perkins. Ms. Phillips testified that she was unaware Ms. Perkins had even applied for a scheduling manager position. Ms. Perkins offered no documentation that she had applied for the position and could not recall when she applied for it other than some time in 2019.
7 This document is not the charge of discrimination that initiated the instant proceeding.
ADVERSE EMPLOYMENT ACTIONS
Ms. Perkins alleged that she was not interviewed for the scheduler manager position and "did not even get looked at" for an Allscripts trainer position. As noted above, Ms. Perkins could not say when she applied for the scheduler manager position. She offered no documentary support for her statement that she applied for the job. She offered no evidence as to who else applied for the position, who was interviewed for the position, or the qualifications of the other applicants compared to her own. Ms. Phillips credibly testified that she was not aware that Ms. Perkins had ever applied for a scheduler manager position.
Ms. Perkins's reference to a trainer position referred to training employees for the implementation of Allscripts. On November 7, 2016, Ms. Phillips sent an email to everyone in her work group that stated as follows, in full: "I need to know who has a degree and/or a professional
certification. Please provide me with the type of degree (associates, bachelor, PhD., etc.) and the major. Please respond to me whether you have something or not." Ms. Perkins believed that this was a solicitation of qualifications for the trainer position and asserted that her qualifications were not fairly considered.
Ms. Phillips testified that her email had nothing to do with Allscripts training. Management was creating a spreadsheet for all employees in her division that listed the degrees and certifications of all the employees. More than four years after the fact, Ms. Phillips vaguely recalled that the purpose was tied to pay raises. She was certain it had nothing to do with competition for a job.
Ms. Phillips further testified that that there was no formal "Allscripts trainer" position at the hospital. There was no competitive process for such a position. About eight months before the "go live" on Allscripts, Baptist's management designated 12 employees as "Allscripts adoption coaches" to assist the other employees in learning the new program. Ms. Phillips had
nothing to do with who was selected to coach. Ms. Phillips stated it was a temporary assignment that became longer as management kept pushing back the implementation of Allscripts. Ms. Phillips testified that her November 7, 2016, email was sent out at least a year before the Allscripts adoption coaches were selected.
Ms. Purvis testified that she was involved in the selection of the coaches. She stated that management identified "super users" from various areas to test the new system prior to implementation. When implementation began, the super users were transitioned into helping to teach the other employees how to use the system. The Allscripts coach was not a job position and management did not request volunteers. People were selected based on their skills with the system and were asked to take on the role during the installation and implementation of Allscripts.
Ms. Perkins testified that she was denied training that was afforded to other employees in similar positions.
Respondent's witnesses testified that Ms. Perkins did not have any known deficiencies that required additional formal training. In fact,
Ms. Perkins's supervisors had such confidence in Ms. Perkins's technical abilities that they asked her to help train new employees.
Ms. Phillips testified that when the Patient Access Coordinator position was created, Ms. Perkins and the other persons starting the new position received some classroom training. After the initial training, however, the position continued to evolve and employees were expected to pick things up on the job. Ms. Phillips described it as a "learn as we grow type position." People were not sent back to the classroom every time something new about the system was learned.
To illustrate the alleged training disparity, Ms. Perkins entered into evidence a series of emails concerning the hospital's labor and delivery ("L&D") processes. In fact, the documents indicate that L&D was a minor part of Ms. Perkins's job and that her managers answered Ms. Perkins's
questions and relayed joint updates on L&D processes to Ms. Perkins as well as the other Patient Access Coordinators.
On November 21, 2017, at 1:40 a.m., Ms. Perkins wrote an email to Ms. Phillips stating that this was her first time admitting a mother for L&D but that a fellow employee named Meredith had told her how to do it.
Ms. Perkins stated that she was "ready now." Ms. Phillips responded at 8:45 a.m.: "I'm glad Meredith was able to show you. Truly we were only helping direct access out that one day and I didn't know they were going to keep sending them. But now that you know how to do it, you can continue if they contact you. Let me know if you have any others [sic] questions."
This exchange illustrates what actually seemed to be behind
Ms. Perkins anxiety about training: she worked alone on the third shift and feared that the daytime Patient Access Coordinators were learning and teaching each other new things that she was missing out on. In her email to Ms. Phillips, she wrote, "If it's anything new that the coordinators are learning in the day, please keep me inform[ed]; otherwise, I will not know and will be totally lost when any of the other departments are in need of me carrying out my duties."
Similarly, in a subsequent L&D-related email to Ms. Phillips on January 3, 2018, Ms. Perkins wrote, "I just started doing L&D approximately 2 to 3 weeks ago, since we started going live. Remember I didn't have the extra help from upper staff during the night, and occasionally was told about various updates briefly sometimes in the mornings on my way out the door."
The next day, Ms. Phillips responded, in relevant part, "I want to clarify a few things. Although you didn't always have a leader with you during go live, we had full support for the access coordinators during the go live process. I think what you were missing in those [L&D accounts] is that you didn't make them inpatient and that is what the order said to do."
On the evening of January 4, 2018, Ms. Perkins responded, "I appreciate all the help I can get to assure me I'm on the same page as
everyone else. I would love for you to come and sit with me for a few hours to make sure I'm doing things the right way…."
Despite Ms. Perkins's anxiety, her supervisors uniformly testified that she was not missing any relevant training and that her technical abilities were more than adequate. As Ms. Perkins herself testified, management more than once asked her to help train new employees and never suggested that her performance of these training duties was lacking. Job performance was never an issue with Ms. Perkins. She was never disciplined for not knowing how to perform the functions of her position. There was no evidence that Ms. Perkins was treated any differently than the other Patient Access Coordinators in terms of training.
Ms. Perkins claimed that her manager was performing unusually strict scrutiny of her work product, singling her out for criticism. However, the only specific instance of such alleged scrutiny put forward by Ms. Perkins was an email exchange between her and Ms. Phillips on February 6, 2018. Ms. Phillips asked Ms. Perkins why she changed the date and time on a certain patient. She stated that the change eliminated the original ER date and time and she had to make a correction to the account. Ms. Perkins responded that she did not change the date and time on that patient.
Ms. Phillips answered, "You are right. I'm sorry."
Ms. Perkins alleged that she was hindered in performance of her job duties because she was denied access to some areas of the hospital. However, the only evidence provided by Ms. Perkins establishes that when she was unable to enter the Cath Lab and asked for access, Ms. Phillips promptly responded and approved her request.
Ms. Perkins alleged that she was treated differently than other employees in her department regarding allowing employees to rearrange their work schedules to enable them to take college courses. On May 9, 2018, Ms. Phillips sent an email to Ms. Perkins asking her if she would switch certain shifts with fellow employee Tracy Butler, a Caucasian female.
Ms. Butler was starting clinicals for nursing school and needed someone to trade a Monday for a Sunday night shift during the upcoming semester.
Ms. Perkins responded that she was willing to make a permanent schedule change under which she would work every Sunday through Wednesday and Ms. Butler would work every Thursday through Saturday. Ms. Perkins wrote, "I just hate having gaps between my off days. If you approve that, I will be okay with that. That will help me as well with me in school to finish up my masters. I'm able to do that transition now, if you approve everything." Ms. Perkins's request was approved.
In August 2018, Ms. Perkins's department moved to a "shift bidding" system of scheduling. Every six weeks, the employees would bid for shifts, with the most senior employees getting preference. Ms. Perkins testified that she was second to last in seniority in her department. The result of shift bidding was that Ms. Perkins was moved from the late-night shift to the morning shift.
The shift change had an impact on Ms. Perkins, as she detailed in an email to Ms. Phillips, dated August 8, 2018:
…[Y]ou reached out to me a couple of months ago to help a co-worker out with her school schedule to keep her in school, in which [sic] I did. I moved appointments and several of my things around for the whole year to make this happen, including school, doctor appointments with my stepson (which [sic] is disabled), and VA appointments with my husband. If I cancel any doctor appointments (which is on a continuous basis) now, I probably won't be able to go or get in as needed. Why? Because I don't know what shift I will have to after we bid. These doctor's visits are much more serious than you think (personal paperwork can be provided). And of course, you know it's impossible to manage any school schedules on a 6 week basis like that. My husband just paid $3,000 (out of pocket) for my schooling this term, and now I might have to drop out? I can't afford to loose [sic] like this. PDOs? I still will have to use PDO's if I don't
get the night position. I just hope and pray you can do the same for me, if I don't get the night position, so I can continue to go to school, and go to all necessary visits as well…. I fill in and help everyone in this department, when asked to; but this time, I'm asking you and everyone in this department to help me out for a change.
Suggestion: Is it okay if I ask everyone in the department if I can bid out for shift 7? Just a suggestion? Thanks!
Ms. Phillips agreed to allow Ms. Perkins to switch shifts if she could find a volunteer. At the hearing, Ms. Perkins testified that it had always been Ms. Phillips's practice to actively help employees who needed a switch for school or vacation, but that she would not do it for Ms. Perkins.
Ms. Phillips testified that she saw no difference in her treatment of Ms. Perkins and Ms. Butler. In both situations, she was willing to allow a schedule switch if there were two employees who voluntarily agreed to it. No one was required to change their schedule.
Both Ms. Brown and Ms. Phillips testified that Baptist does not have a policy of working around the school schedules of its employees. Ms. Phillips's willingness to allow employees to voluntarily switch schedules was allowed but not necessarily encouraged by Baptist.
Ms. Perkins alleged disparate treatment because Ms. Phillips actively solicited her to switch schedules with Ms. Butler, whereas Ms. Phillips passively granted Ms. Perkins the ability to poll her coworkers and seek her own volunteer to change schedules. Ms. Phillips's response to the alleged disparity was to note that in each instance she simply did what the employee requested. Ms. Perkins never asked Ms. Phillips to find a volunteer for her.
TERMINATION OF EMPLOYMENT
The sequence of events leading to Ms. Perkins's dismissal from employment at Baptist began on October 23, 2019. Ms. Perkins sent an
instant message to her direct supervisor, Ms. Brown, asking if she could come in and sit with another Patient Access Coordinator "to go over some things" off the clock. At the final hearing, Ms. Perkins testified that she wanted to learn the new L&D process. Her request to Ms. Brown, however, was not specific.
Ms. Brown responded that if her request was work related,
Ms. Perkins would have to clock in. She also stated that questions related to workflow or the processes used by the Patient Access Coordinators should be referred to her or Ms. Phillips rather than other Patient Access Coordinators. She wrote, "Because you never know—if you have a question, others could have the same question and that would allow us the opportunity to make it clear with everyone!" Baptist naturally wanted uniformity of work product among the Patient Access Coordinators and so preferred to address any issues with the team as a whole. Both Ms. Phillips and Ms. Purvis testified that Ms. Brown's response was appropriate and conformed to Baptist's policies.
Ms. Brown's response was not acceptable to Ms. Perkins, who responded, "I really think it is unfair for others to sit with me and learn from me and I can't have the same rights to sit with others as they do. I helped trained [sic] 5 individuals this job, but can't get help when I need it." She complained that when she worked the night shift she did not get the same training opportunities as the morning staff. She also complained that she "was being questioned about how my process is different than my other coworkers." Therefore, she should be allowed to sit with a coworker or the Baptist training team "to ensure myself that I am on the same page I have given my all here at Baptist and very much hurt on how I'm being treated."
At this point, Ms. Brown and Ms. Phillips still had no idea what Ms. Perkins was specifically referencing in terms of training. Every
supervisory employee who testified at the hearing stated that there were no real problems with Ms. Perkins's work product. She was a good Patient
Access Coordinator and was often asked to assist in training new hires. The problem was her hypersensitivity and defensiveness regarding anything she interpreted as criticism of her work. As indicated in Findings of Fact 61 and 62 above, she translated a simple mistake by Ms. Phillips into intensive scrutiny of her work.
In an effort to understand what Ms. Perkins wanted, Ms. Brown and Ms. Phillips met with her on October 23, 2019, to discuss the issues she had raised in her exchange with Ms. Brown. However, instead of discussing specific training that she felt she needed, Ms. Perkins related personal allegations about other employees that she claimed to have heard from Jamie Berryman, another Patient Access Coordinator whom Ms. Perkins was helping to train.
According to Ms. Perkins, Ms. Berryman had told her that Patient Access Coordinators Jessie Suarez and Harlie Diamond talked about how Ms. Perkins was training people incorrectly; that Ms. Suarez said she kept the office door open because Ms. Perkins's perfume "hurts her head"; that Ms. Suarez and Ms. Diamond took bets on when an employee named Tracy would get to work; that Ms. Phillips and Ms. Brown avoided the Patient Access Coordinator room when certain people were working; and that
Ms. Phillips and Ms. Brown were creating a "paper trail" on Ms. Perkins, who would be "fired next, just like Beverly." Ms. Perkins testified that Beverly was a white employee who had recently been fired by Baptist.
Ms. Perkins testified that Ms. Berryman had told her that these things were said and done on days when Ms. Perkins was not at work.
Ms. Perkins stated that when she found out that her managers were creating a paper trail to justify her firing, she went to them in good faith to learn why this was happening.
Ms. Perkins stated that she initially mentioned Ms. Berryman's statements in the meeting with Ms. Brown and Ms. Phillips in order to inform them that other employees were disparaging her training methods.
Ms. Perkins testified that she was then asked whether Ms. Berryman had told her anything else and that she then unburdened herself of the other allegations.
Ms. Phillips testified that there was no "paper trail" on Ms. Perkins aside from a verbal coaching she had received in November 2018 for failing to assist a registrar during a shift change.
Ms. Phillips and Ms. Brown decided they needed to investigate the allegations. They interviewed Ms. Berryman, who denied saying these things to Ms. Perkins. Both Ms. Phillips and Ms. Brown testified that Ms. Berryman was extremely upset and cried throughout their meeting. Ms. Berryman told them that Ms. Perkins was constantly "picking around" at topics to get information or to make Ms. Berryman feel uncomfortable. Ms. Phillips testified that she believed Ms. Berryman.
Ms. Phillips and Ms. Brown also separately interviewed Ms. Suarez and Ms. Diamond. Ms. Suarez told them that she had not accused
Ms. Perkins of teaching Ms. Berryman incorrectly. Ms. Suarez and
Ms. Diamond were also assisting in training Ms. Berryman, and they did tell Ms. Berryman to alert Ms. Brown if she noted any discrepancies between what they were teaching her and what Ms. Perkins was teaching her.
Ms. Suarez denied saying anything about Ms. Perkins's perfume. The closest thing she could think of was telling Ms. Berryman about an unpleasant lotion smell she encountered in her first job at a skating rink. Ms. Diamond stated that she had not seen Ms. Perkins since August.
Ms. Berryman was not called as a witness. The undersigned credits Ms. Perkins's testimony that Ms. Berryman was the source of the allegations that she transmitted to Ms. Phillips and Ms. Brown. This does not translate into a finding that Ms. Perkins exercised good judgment in passing on office gossip to her superiors and creating needless tension in the workplace.
Ms. Perkins continued to beat the drum regarding her lack of training. At a department meeting chaired by Ms. Brown on November 14, 2019,
Ms. Perkins stated that she wanted additional training. She stated that it was unfair that Ms. Suarez, who had previously been on a training team, knew more than she did. Ms. Brown testified that she was unaware of any training that Ms. Perkins had not received and that Ms. Perkins again failed to specify what training she believed she needed.
After the meeting, Ms. Suarez told Ms. Brown that she did not appreciate being singled out for criticism by Ms. Perkins at the meeting. On November 15, 2019, Ms. Suarez filed a written statement complaining about Ms. Perkins's singling her out at the meeting, making false statements about her at the October 23, 2019, meeting with Ms. Phillips and Ms. Brown, and asking her uncomfortable personal questions at work regarding her opinions on marriage and having children.
Ms. Phillips and Ms. Brown believed that something needed to be done about the tense atmosphere in the Patient Access Coordinator room. They went to HR representative Chris Cockrell, who was hired in October 2019 in the position formerly held by Ms. Brownell. They told Mr. Cockrell that they had believed the training issue with Ms. Perkins had been resolved by the October 23, 2019, meeting, but that she was continuing to complain and disrupt the workplace.
On November 18, 2019, Mr. Cockrell met with Ms. Perkins. Also present at the meeting were Ms. Purvis and Ms. Phillips. Mr. Cockrell testified that he asked Ms. Perkins to give her side as to the comments she made at the meetings on October 23 and November 14. She denied being the source of disparaging comments about fellow employees and continued to complain that she was not being given the same training opportunities that others were.
Mr. Cockrell asked her to be more specific and Ms. Perkins merely reiterated the sequence of events in October: she asked for more training and her supervisors asked her, "What kind of training?" The conversation was similar to earlier ones in that Ms. Perkins was unable to articulate any
specific training that she had been denied or what she felt she needed to learn. Mr. Cockrell testified that Ms. Phillips repeatedly tried to get
Ms. Perkins to say specifically what kind of training she thought she needed, to no avail.
Mr. Cockrell testified that he later met with Ms. Suarez and
Ms. Berryman. They each told Mr. Cockrell that Ms. Perkins had created a hostile environment in the workplace. People felt they were walking on eggshells. Ms. Perkins was part of a rumor mill and was constantly making statements that were disparaging and disruptive.
Mr. Cockrell, in consultation with Ms. Purvis and Ms. Phillips, issued a written "Final Warning" to Ms. Perkins on November 25, 2019. The Final Warning stated:
After investigation of recent incidents, [Ms. Perkins] has caused a disruptive and hostile working environment through her actions causing a number of her co-workers to not want to work with or around [Ms. Perkins]. She singled out an individual team member in a negative and hostile way, and has spread misinformation she claims to have heard from other team members (all of whom have refuted [Ms. Perkins]).
The Final Warning set forth the following "suggestions for improvement":
[Ms. Perkins] is expected to conduct herself in a respectful and cooperative manner. Engaging in actions that creates [sic] an environment that causes others not to want to work with her is unacceptable. Failure to do so going forward will result in termination of employment.
Ms. Purvis testified that the purpose of the Final Warning was to get Ms. Perkins's attention and make her understand Baptist's expectations, in order to move forward and have the department operate cohesively, smoothly, and productively. Ms. Phillips testified that the intent of the Final
Warning was to prod Ms. Perkins to move forward and stop bringing up grievances from years ago every time she was asked a question or sent an email.
When presented with the Final Warning, Ms. Perkins refused to sign it and walked out of the office.
On the afternoon of November 25, 2019, Ms. Perkins presented at the Baptist ER complaining of chest pains. She was admitted for "outpatient observation" and kept overnight. She was discharged with no indications of acute coronary syndrome but was given prescriptions for medications to relieve anxiety and headache. Ms. Perkins did not return to work until December 10, 2019. She was released to work without restrictions.
On December 10, 2019, Ms. Perkins's first day back at work,
Ms. Berryman went to Ms. Phillips's office. Ms. Berryman was crying and saying that she could not work in the Patient Access Coordinator room anymore. Ms. Perkins was not speaking to her. Ms. Berryman said "good morning" to Ms. Perkins, who did not respond. The tension in the room was palpable.
Jordan Chambers, a financial counselor, reported to Ms. Phillips on an incident she witnessed in the Patient Access Coordinator room.
Ms. Berryman was working at her desk with her back to the door and headphones on her ears. Ms. Perkins was working at her desk. A nurse came to the door and knocked but got no acknowledgement from either Ms. Perkins or Ms. Berryman. Ms. Chambers opened the door and spoke to the nurse long enough to figure out that he would need the help of a Patient Access Coordinator. Ms. Chambers announced to the room, "Hey guys, he needs your help." Ms. Berryman apparently could not hear because of her headphones.
Ms. Perkins did not react. Ms. Chambers stated that once she realized Ms. Perkins had no intention of helping, she tapped on Ms. Berryman's shoulder. Ms. Berryman immediately apologized to the nurse and assisted him.
Ms. Perkins testified that she did not assist the nurse because she was in the middle of helping someone else from L&D. She claimed that she waved her arm to get Ms. Berryman's attention but was unsuccessful. Ms. Perkins conceded that she could not reconcile her version of events with
Ms. Chambers's account.
In a written statement dated December 11, 2019, Ms. Chambers described Ms. Perkins as "detached and unobservant." She noted that other team members had commented to her about "tension in the air" and the change in Ms. Perkins's demeanor.
Also on December 10, 2019, Ms. Brown came into the Patient Access Coordinator room to greet everyone after Ms. Berryman had told her about the tension in the room. Ms. Brown said "hello" and received a greeting from everyone, including Ms. Perkins, who was working with her back to the door. Ms. Brown said, "Welcome back, LaTonya." Ms. Perkins said "thanks" without turning around. Ms. Brown stayed in the room to discuss work matters with the group for about 10 minutes. Ms. Perkins never turned around to acknowledge Ms. Brown and never engaged in the conversation.
Ms. Brown testified that her usual practice was to stop into the coordinators' room several times a day and often to stay for a while. She stated that on this day, she never went back because the tension in the room made it awkward for her to even be there.
Ms. Perkins conceded the accuracy of Ms. Brown's statement in every particular but one. Ms. Perkins testified that the conversation was not work related but was about Ms. Brown's son and her family. Ms. Perkins testified that she was not reacting well to one of the medications she was taking after her hospital visit. She was not feeling well and did not feel like engaging in chat about Ms. Brown's family. Ms. Perkins insisted that she was not angry and not intending any disrespect.
On the next morning, December 11, 2019, Ms. Phillips went into the coordinators' room. She said good morning to Ms. Berryman and Ms. Perkins.
She welcomed Ms. Perkins back to work and Ms. Perkins thanked her. Ms. Phillips started to speak about updates she intended to make when Ms. Perkins walked out of the room without a word. Ms. Phillips described Ms. Perkins's behavior as "pointed and unprofessional."
Ms. Perkins testified that the medicine she had been prescribed at the hospital made her sick. She stated she was "puking everywhere during the time I was off and I came back to work and I still wasn't feeling well." Ms. Perkins testified that she left the room because she needed to go to the bathroom and throw up.
Ms. Perkins claimed that other people in her department knew she was sick. She claimed that Ms. Phillips later asked her if she was feeling better. However, no other witness or contemporaneous document corroborated her story. Ms. Phillips is presumed capable of telling the difference between Ms. Perkins feeling ill and Ms. Perkins making a point of snubbing her. The greater weight of the credible evidence leads to the finding that Ms. Perkins was intentionally giving her coworkers the cold shoulder from the time she returned on December 10, 2019.
After receiving a written report from Ms. Phillips on December 10, 2019, describing Ms. Perkins's behavior since returning to work, Mr. Cockrell decided to recommend terminating her employment. He testified that he tried to make it clear to Ms. Perkins at the November 25, 2019, meeting that the number one priority was a cooperative work environment. He told her that people can be cordial and work together even if they are not best friends. It seemed to Mr. Cockrell that Ms. Perkins had returned to work and proceeded to do the exact opposite of what they had discussed.
On December 10, 2019, Mr. Cockrell wrote a memorandum to Ms. Eaves recommending Ms. Perkins's involuntary termination "due to failure to conduct herself in a respectful and cooperative manner."
Mr. Cockrell's memorandum specifically cited the failure to assist the nurse in the coordinators' room and the snub of Ms. Brown as evidence that
Ms. Brown "is not contributing to a cooperative working environment despite being given a final written warning just two weeks ago."
Ms. Eaves concurred with Mr. Cockrell's recommendation of termination. In a memo to Ms. Colley, the Vice President of HR, Ms. Eaves wrote, "Based on LaTonya's behavior today I am requesting termination. It's one thing to ignore her coworkers in the office, but the example [of the nurse] impacts patient care. Her behavior is making her coworkers and leaders uncomfortable and a team member once again cried today because of her passive aggressive behavior."
While HR was processing its termination recommendation,
Ms. Perkins's own chain of command was undertaking a similar process.
Ms. Purvis, as Director of Patient Access, wrote a memo, dated December 11, 2019, to her Executive Director, Tracy McCown, as well as Mr. Terry and Ms. Eaves, stating as follows:
As I understand it Latonya was placed on a final warning on November 25th for disruptive behavior. It was made abundantly clear that this behavior would not be tolerated and if it occurred again she would be terminated from employment. This was after several conversations with various parties in a thorough investigation and review of a lengthy series of issues documented during Latonya's tenure with [Baptist]. Latonya has returned to work since her leave immediately following that warning, only to continue the same behaviors. Latonya returned on Tuesday, December 10th. Within hours of her return, her co-worker, Jamie Berryman, was in Amanda's office in tears because of Latonya's demonstrated behaviors in their workspace. The small office that is shared by the team makes it all the more obvious when a negative behavior is being exhibited. It is my understanding witness fact sheets have been presented and request for a termination of employment with Latonya has been requested this week. Latonya has blatantly ignored a clinical team member coming in requesting help, which is part of
Latonya's essential job duty. The accusations of bullying made by Latonya against her supervisor and manager have crippled their ability to lead this team member and is rapidly destroying the team in total. To my knowledge, a decision was made not to ask Latonya about her statements made in respect to her leaders. However, I cannot in the same sense ask them to confront the demeanor Latonya is displaying in the same manner in which they would normally approach and attempt to make course corrections with another team member as a result. Latonya has refused to turn and acknowledge a conversation being held with her and her co-worker on topics directly related to her job, keeping her back turned and not speaking with Kristi on Tuesday. This was followed by Amanda going to the office and having a work related conversation with the team, to which Latonya got up and walked out of the room mid speech by Amanda. This disrespect is completely contradictory to our values and what we stand for as an organization. We are putting these direct leaders in a situation in which they cannot lead their team, creating more collateral damage as we continue to allow Latonya to violate every standard we have. I believe a suggestion in response to the termination was to ask Latonya if she was aware that these actions were disruptive. Latonya has stated in the previous conversations she is an adult and aware of her actions and what she needs. Latonya is doing the very thing she has been coached to not do and is detrimental to the department. I would have to suggest that to do what is right for the department is the responsibility of the manager, which Amanda is trying fervently to do in this request and needs the support of our organization. The time spent having these conversations has proven to be fruitless over the previous years and we absolutely need to support our leader directly tied to this function and the team in moving forward with terminating Latonya's employment. Let me know what else you need from me.
On December 12, 2019, Ms. McCown responded to Ms. Purvis's memo, indicating her agreement with the recommendation that Ms. Perkins's employment should be terminated.
Baptist terminated Ms. Perkins's employment on December 16, 2019.
Ms. Perkins presented no persuasive evidence that comparable employees outside of her protected group were treated differently than she. The sole instance that gave the undersigned pause was Ms. Phillips's extra assistance to Tracy Butler in changing her schedule to accommodate her nursing clinicals, as opposed to her allowing Ms. Perkins to find her own replacement. However, Ms. Phillips plausibly testified that in both instances she did what the employee asked. More importantly, there was no indication of a discriminatory motive behind Ms. Phillips's actions.
Ms. Perkins was the sole witness in her case. She was unable to produce either testimonial or documentary corroboration of her allegations. The testimony of all six of Baptist's witnesses was credible and consistent with the documentary evidence.
In summary, it is found that the decision to terminate Ms. Perkins's employment was based entirely on her own behavior. Her supervisors testified that Ms. Perkins was a good employee in every technical aspect of her job. They did not hesitate to use Ms. Perkins as a trainer for new employees. However, Ms. Perkins was defensive in the extreme when she perceived that she was being criticized. She carried grudges. Over the course of nearly two years, Ms. Perkins disrupted the smooth operation of the workplace to such a degree that Baptist finally saw no alternative to firing her.
Ms. Perkins offered no evidence to support her allegation that Baptist retaliated against her for engaging in protected activity.
Ms. Perkins offered no credible evidence disputing the legitimate, non-discriminatory reason given by Baptist for her termination.
Ms. Perkins offered no credible evidence that Baptist's stated reason for her termination was a pretext for discrimination based on her race or color.
Ms. Perkins offered no credible evidence that Baptist discriminated against her because of her race or age in violation of section 760.10.
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(1), Fla. Stat.
The Florida Civil Rights Act of 1992 (the "Florida Civil Rights Act" or the "FCRA"), chapter 760, prohibits discrimination in the workplace.
Section 760.10 states the following, in relevant part:
It is an unlawful employment practice for an employer:
To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.
* * *
(7) It is an unlawful employment practice for an employer, an employment agency, a joint labor- management committee, or a labor organization to discriminate against any person because that person has opposed any practice which is an unlawful employment practice under this section, or because that person has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this section.
Baptist is an "employer" as defined in section 760.02(7), which provides the following:
(7) "Employer" means any person employing 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year, and any agent of such a person.
Florida courts have determined that federal case law applies to claims arising under the Florida Civil Rights Act, and as such, the United States Supreme Court's model for employment discrimination cases set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), applies to claims arising under section 760.10, absent direct evidence of discrimination. See Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1387 (11th Cir. 1998); Paraohao v. Bankers Club, Inc., 225 F. Supp. 2d 1353, 1361 (S.D. Fla. 2002); Fla. State Univ. v. Sondel, 685 So. 2d 923, 925
n.1 (Fla. 1st DCA 1996); Fla. Dep't of Cmty. Aff. v. Bryant, 586 So. 2d 1205 (Fla. 1st DCA 1991).
"Direct evidence is 'evidence, which if believed, proves existence of fact in issue without inference or presumption.'" Rollins v. TechSouth, Inc., 833 F.2d 1525, 1528 n.6 (11th Cir. 1987)(quoting Black's Law Dictionary 413 (5th ed. 1979)). In Carter v. City of Miami, 870 F.2d 578, 582 (11th Cir. 1989), the court stated:
This Court has held that not every comment concerning a person's age presents direct evidence of discrimination. [Young v. Gen. Foods Corp., 840 F.2d 825, 829 (11th Cir. 1988)]. The Young Court made clear that remarks merely referring to characteristics associated with increasing age, or facially neutral comments from which a plaintiff has inferred discriminatory intent, are not directly probative of discrimination. Id. Rather, courts have found only the most blatant remarks, whose intent could be nothing other than to discriminate on the basis of age, to constitute direct evidence of discrimination.
Petitioner offered no evidence that would satisfy the stringent standard of direct evidence of discrimination.
Under the McDonnell analysis, in employment discrimination cases, Petitioner has the burden of establishing, by a preponderance of the evidence, a prima facie case of unlawful discrimination. If the prima facie case is established, the burden shifts to the employer to rebut this preliminary showing by producing evidence that the adverse action was taken for some legitimate, non-discriminatory reason. If the employer rebuts the prima facie case, the burden shifts back to Petitioner to show by a preponderance of the evidence that the employer's offered reasons for its adverse employment decision were pretextual. See Texas Dep't of Cmty. Aff. v. Burdine, 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981).
In order to prove a prima facie case of unlawful employment discrimination under chapter 760, Petitioner must establish that: (1) she is a member of the protected group; (2) she was subject to an adverse employment action; (3) Baptist treated similarly situated employees outside of her protected classifications more favorably; and (4) Petitioner was qualified to do the job and/or was performing her job at a level that met the employer's legitimate expectations. See, e.g., Jiles v. United Parcel Serv., Inc., 360 Fed. Appx. 61, 64 (11th Cir. 2010); Burke-Fowler v. Orange Cty, 447 F.3d 1319, 1323 (11th Cir. 2006); Knight v. Baptist Hosp. of Miami, Inc., 330 F.3d 1313, 1316 (11th Cir. 2003); Williams v. Vitro Servs. Corp., 144 F.3d 1438, 1441 (11th Cir. 1998); McKenzie v. EAP Mgmt. Corp., 40 F. Supp. 2d 1369, 1374-75 (S.D. Fla. 1999).
Petitioner has failed to prove a prima facie case of unlawful employment discrimination.
Petitioner is an African-American female over the age of 40 and is, therefore, a member of a protected group.
Petitioner was fired from her position with Baptist and was, therefore, subject to an adverse employment action.
As to the question of disparate treatment, the applicable standard was set forth in Maniccia v. Brown, 171 F.3d 1364, 1368-69 (11th Cir. 1999):
"In determining whether employees are similarly situated for purposes of establishing a prima facie case, it is necessary to consider whether the employees are involved in, or accused of, the same or similar conduct and are disciplined in different ways." Jones v. Bessemer Carraway Med. Ctr., 137 F.3d 1306, 1311 (11th Cir.), opinion modified by
151 F.3d 1321 (1998) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir. 1997)). "The most important factors in the disciplinary context are the nature of the offenses committed and the nature of the punishments imposed." Id. (internal quotations and citations omitted).We require that the quantity and quality of the comparator's misconduct be nearly identical to prevent courts from second- guessing employers' reasonable decisions and confusing apples with oranges. See Dartmouth Review v. Dartmouth College, 889 F.2d 13, 19 (1st Cir. 1989) ("Exact correlation is neither likely nor necessary, but the cases must be fair congeners. In other words, apples should be compared to apples.").[8] (emphasis added).
Petitioner offered no evidence as to disparate treatment of similarly situated employees outside of her protected classification, aside from allegations that a white employee, Tracy Butler, received preferential treatment regarding switching work schedules to accommodate her school schedule. The evidence established that supervisor Amanda Phillips solicited Ms. Perkins to change schedules with Ms. Butler because Ms. Butler asked her to make the request. Ms. Perkins did not ask Ms. Phillips to solicit a coworker to switch schedules; rather, Ms. Perkins asked Ms. Phillips to allow her to poll her coworkers and find her own replacement. Ms. Phillips allowed
8 The Eleventh Circuit has questioned the "nearly identical" standard enunciated in Maniccia, but has, in recent years, reaffirmed its adherence to it. See, e.g., Brown v. Jacobs Eng'g, Inc., 572 Fed. Appx. 750, 751 (11th Cir. 2014); Escarra v. Regions Bank, 353 Fed. Appx. 401, 404 (11th Cir. 2009); Burke-Fowler, 447 F.3d at 1323 n.2.
Ms. Perkins to do so. There was in fact no disparate treatment. In both situations, Ms. Phillips merely acceded to the employee's request. Having failed to establish the disparate treatment element, Petitioner has not established a prima facie case of employment discrimination.
The evidence demonstrated that Petitioner was not performing her job at a level that met her employer's legitimate expectations. Ms. Perkins was technically proficient at her position and qualified to perform her duties. However, she was insubordinate to her superiors and disruptive to the workplace. She had a chip on her shoulder and persistently sought out reasons to take offense with her coworkers.
Ms. Perkins allowed her personality conflict with Ms. Craig to metastasize into inflammatory and untrue accusations of racist statements by Ms. Craig and Lauren Dye. The evidence established that Ms. Craig was properly admonished when she was in the wrong in her dealings with
Ms. Perkins. Ms. Phillips ultimately instructed Ms. Craig to speak with Ms. Perkins only about work-related issues.
Ms. Perkins made repeated claims that she was being denied training by Baptist but stubbornly refused to be specific as to what kind of additional training she believed she needed. Her superiors made repeated efforts to understand her complaints and address the issues she seemed to be raising, but the meetings always turned into a rehash of old grievances and a generalized claim of unfair treatment.
Ms. Perkins's allegation that she was denied access to areas of the hospital was unfounded.
Ms. Perkins's behavior upon her return to work on December 10, 2019, on the heels of having received a written Final Warning on the last day she worked prior to her hospitalization, was grounds for termination.
Ms. Perkins's display of open contempt for her coworkers and supervisors made untenable her continued employment at Baptist. There was zero
evidence that the decision to fire Ms. Perkins was motivated by anything other than the morale and good order of the department.
Even if Petitioner had met the burden, Respondent presented ample evidence of legitimate, non-discriminatory reasons for Petitioner's termination. The factors set forth in the preceding paragraph, combined with Ms. Perkins's history of being a difficult employee, demonstrate that Baptist had more than adequate reason to terminate Ms. Perkins's employment because of her deleterious effect on the workplace.
As to Petitioner's retaliation claim, the court in Blizzard v. Appliance Direct, Inc., 16 So. 3d 922, 926 (Fla. 5th DCA 2009), described the elements of such a claim as follows:
To establish a prima facie case of retaliation under section 760.10(7), a plaintiff must demonstrate:
that he or she engaged in statutorily protected activity; (2) that he or she suffered adverse employment action and (3) that the adverse employment action was causally related to the protected activity. See Harper v. Blockbuster Entm't Corp., 139 F.3d 1385, 1388 (11th Cir.), cert. denied 525 U.S. 1000, 119 S. Ct. 509, 142 L.Ed.2d 422 (1998). Once the plaintiff makes a prima facie showing, the burden shifts and the defendant must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Wells v. Colorado Dep't of Transp., 325 F.3d 1205, 1212 (10th Cir. 2003). The plaintiff must then respond by demonstrating that defendant's asserted reasons for the adverse action are pretextual. Id.
Petitioner made no evidentiary showing that any employment or post-employment action by Baptist was causally related to any statutorily protected activity she took while an employee.
Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a
final order finding that Baptist Health Care Corporation did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case.
DONE AND ENTERED this 22nd day of March, 2021, in Tallahassee, Leon County, Florida.
S
LAWRENCE P. STEVENSON
Administrative Law Judge 1230 Apalachee Parkway
Tallahassee, Florida 32399-3060
(850) 488-9675
Filed with the Clerk of the
Division of Administrative Hearings this 22nd day of March, 2021.
COPIES FURNISHED:
Tammy S. Barton, Agency Clerk
Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020
Russell F. Van Sickle, Esquire Beggs & Lane
Post Office Box 12950 Pensacola, Florida 32591
LaTonya Jackson Perkins 3319 Milo Court
Pensacola, Florida 32526
Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110
4075 Esplanade Way
Tallahassee, Florida 32399-7020
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit written exceptions within 15 days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.
| Issue Date | Document | Summary |
|---|---|---|
| Mar. 22, 2021 | Recommended Order | Petitioner failed to prove that her dismissal from employment was because of her race or age and failed to prove that any actions taken by the employer were in retaliation for her exercise of protected rights. |
