The Issue Whether Davita Healthcare Partners, Inc., is liable to Petitioner for employment discrimination based on race in violation of the Florida Civil Rights Act of 1992.
Findings Of Fact Respondent, Davita Health Care Partners, Inc. (Davita), is a subsidiary of Total Renal Laboratory, which treats patients with end-stage renal disease who require kidney dialysis treatment. Davita processes lab specimens for patients receiving kidney dialysis services. Processing lab specimens involves performing laboratory tests on the tissue, blood, and other specimens taken from patients. Petitioner, who is African-American, has been employed by Davita since July 2007. Petitioner’s current position is Compliance Specialist in the Compliance Department, which she has held since March 2016. Petitioner previously held the position of Payer Rules Specialist II within the Payer Rules team in Patient Accounting.3/ The general job description of the Payer Rules Specialist II was to ensure that Davita was billing compliantly based on the payer’s rules and regulations. The Payer Rules team consisted of four teammates, Petitioner, Pamela Maniec, and two additional employees. Ms. Maniec held the position of Payer Rules Specialist III and became the “team lead” in mid-2015. As team lead, Ms. Maniec was responsible to assign, and oversee completion of, tasks for the other teammates. The Payer Rules team was responsible for ensuring the accuracy of certain information on which Davita bases its patient billing. For example, government payers, such as Medicare, issue bulletins specifying what types of tests will be covered and how frequently the tests may be ordered. If Davita issued bills to Medicare patients charging for tests which were not covered, or tests that had been ordered too frequently, Medicare would deny the claim and Davita would not be paid. Moreover, frequent billing errors may result in investigations of Davita by government payers. The Payer Rules team was responsible to ensure that the current version of government-payer rules was updated in Davita’s billing system. For Medicare billings, two sets of rules are most critical: National Coverage Determinations (NCDs), which specify covered tests from Federal Medicare; and Local Coverage Determinations (LCDs), which track state-specific rules governing covered tests. NCDs and LCDs are published quarterly by the Centers for Medicare and Medicaid Services (CMS) and are available for download through the CMS website. The Payer Rules team was charged with the responsibility to review NCDs and LCDs quarterly and upload any changes to the Davita billing system. The Payer Rules team was also responsible for uploading changes in the “CodeMap medical necessity” database to the Davita billing system. The Codemap database contains a list of testing procedures which may only be performed with specific associated diagnoses. The team was responsible for reviewing the quarterly CodeMap updates and uploading the data to the Davita billing system. Finally, the Payer Rules team was responsible for Correct Coding Initiatives updates, or CCIs. CCIs are published by CMS within days of the quarterly NCDs and LCDs, and “edit” the information in those publications related to what types of test can and cannot be billed together. Q4 2015 CodeMap Issue Davita’s Patient Accounting Supervisor is Fleurette Dakin-Davis, who is African-American and who supervises the Payer Rules team, including Petitioner. In late December 2015, Karen Jacobs, Director of Patient Accounting, asked Ms. Dakin-Davis why the fourth quarter 2015 CodeMap file (Q4 2015), which had been received in late September, had not been uploaded to the Davita billing system. Ms. Dakin-Davis replied that she would look into it. Ms. Dakin-Davis approached Ms. Maniec and inquired about the delay in uploading the Q4 2015. Ms. Maniec indicated she would ask the Petitioner what was taking so long. Ms. Maniec asked Petitioner about the delay in the Q4 2015 update, and Petitioner explained she had not uploaded the Q4 2015 because of discrepancies between that file and recently- updated diagnosis codes known as the ICD-10. On January 5, 2016, Ms. Maniec sent an email to Ms. Dakin-Davis, with copies to Ms. Jacobs and Karen Corn, the Patient Accounting Manager, relaying her conversation with Petitioner and Petitioner’s explanation for the delay. In the email, Ms. Maniec’s email noted, “This was an error on Christine’s part.” On January 12, 2016, Ms. Dakin-Davis and Ms. Corn met with Petitioner and discussed the error in not uploading the Q4 2015, the potential impact the error had on patient billing, and the expectations going forward. Ms. Dakin-Davis described this “discussion” with Petitioner as a “verbal warning.” That same date, Ms. Dakin-Davis completed a corrective action form, providing written documentation of Petitioner’s verbal warning for failing to timely upload the Q4 2015. In the section titled “Expectations Moving Forward,” Ms. Dakin-Davis noted, as follows: It is expected that the medical necessity file will be updated within the first two weeks of file receipt. It is expected that if you are unable to perform a task due to other priorities, that this is communicated to both the team lead and supervisor. The following day, January 13, 2016, Ms. Corn sent the following email to Petitioner, copying Ms. Dakin-Davis and Ms. Maniec: Christine--per our conversation yesterday afternoon new goals were established for 2 processes you are responsible for and are listed below. The goals will ensure we have reviewed and submitted any applicable changes in a timely manner. This will prevent any future misses for these updates on our team. NCD/LCD & LMRP review and update: The LMRP file will be saved on the network and an email will be sent to Christine on a quarterly basis when the file is available. Christine will pull the NCD/LCD list directly from CMS.GOAL: The LMRP & NCD/LCD’s will be reviewed, edits suggested, a QA performed and final edits suggested within the first 2 weeks after the file is available. NCCI Edits: NCCI edits are published within the last several days of a Qtr. up until the first few days of every new Qtr. Christine will pull the updated list directly from CMS on a quarterly basis.GOAL: NCCI edits will be reviewed, edits suggested, a QA performed and final edits completed by the 7th calendar day of every new quarter. If you are unable to meet the goals specified due to other priorities, it is expected you communicate this with both the team lead and Supervisor prior to the due date. Although the payer bulletins may be reallocated to compliance at a later date, I will be setting up some time to further discuss this process. If we currently do not have one, we will need to establish a schedule to ensure these are being reviewed and actions are taken timely. Davita procedure does not require that the employee be given a copy of, or even sign, a documented “verbal warning.” Petitioner was not provided a copy of the January 12, 2016, verbal warning. At final hearing, Petitioner testified that she was unaware of the written verbal warning until that document was revealed during the FCHR investigation of her Charge of Discrimination. The written verbal warning was not placed in Petitioner’s human resources file. This documentation of the verbal warning was placed only in the manager’s file. Petitioner received no suspension, demotion, reduction in pay, or change in job duties based on the written verbal warning. January CCI Edit Error On January 20, 2016, Susan McNeice, an employee in a different team, brought to Ms. Maniec’s attention some denials of Medicare claims which appeared to be a CCI edit issue. Ms. McNeice asked Ms. Maniec to review the system data to determine the source of the error. Ms. Maniec reviewed the edits in the system and could not find any discrepancy. She then brought the denial to Petitioner’s attention and requested Petitioner to review the text file she would have uploaded for the prior quarter. After her review, Petitioner told Ms. Maniec that she had uploaded the wrong file into the Davita billing system. Ms. Maniec informed Petitioner she would have to report the error to Ms. Dakin-Davis. In response, Petitioner said to Ms. Maniec something to the effect of, “Don’t open your mouth until I have looked at it more.” Petitioner does not deny asking Ms. Maniec to hold off on reporting the error to management, but testified that she only wanted the time to figure out how the error occurred and calculate the financial impact on billing prior to reporting the error. Petitioner proceeded to investigate how the error occurred, as well as its impact on Davita’s billings. At around 2:30 p.m. that day, Petitioner emailed Ms. Dakin-Davis, her supervisor, explaining that Ms. McNeice had brought some payer denials to the team’s attention, and that she had investigated and discovered that the October 2015 CCI edit upload was incorrect. Further, Petitioner related that she had isolated the particular diagnosis codes affected and was running a query to determine how many incorrect bills were generated. In her email, Petitioner stated, as follows: This appears to have happened by the ‘duplicates’ being uploaded instead of deleted from the file after the process file was complete for upload. The process calls for the duplicate to be removed. In order to prevent this from happening in the future an additional QA step was added to the process for the file to be QA after upload. In response to Petitioner’s email, Ms. Dakin-Davis wrote, “The current P&P states that once the data is uploaded, a QA of the upload is supposed to be done. What additional QA are you referring to?” In reply, Petitioner wrote, “We normally QA prior to upload. I’ll double check the P&P.” The “P&P” is a reference to Davita Policy PAP 1006: CCI Edits. The purpose of the policy is to “Maintain the most current CMS CCI edits for accurate billing. Ensure compliance with all federal billing guidelines.” The Policy sets out the procedural steps for downloading CCI edits from the CMS website, manipulating the data, saving it as a text file, and uploading it to the Davita billing system. The final step in the process is to “[p]erform a quality check on the newly updated data confirming accurate uploading.” Petitioner is the author of PAP 1006, which she created in 2013. Ms. Dakin-Davis was justifiably surprised at Petitioner’s apparent unfamiliarity with the post-upload QA requirement. It is easy to understand how Petitioner’s suggestion that a post-upload QA step be added to the P&P could be seen as an effort to conceal her error. Ms. Maniec reported the error to Ms. Dakin-Davis in her office following lunch. Ms. Dakin-Davis instructed Ms. Maniec to document the issue, which Ms. Maniec did by email to Ms. Dakin- Davis the following day, January 21, 2016. Ms. Dakin-Davis forwarded Ms. Maniec’s email to Ms. Jacobs. Ms. Jacobs and Ms. Dakin-Davis met with Petitioner that same day and confronted her about the statement, “Don’t open your mouth until I look at it further,” that she had made to Ms. Maniec. Ms. Jacobs and Ms. Dakin-Davis construed this statement as an effort by Petitioner to conceal her CCI edit error. Ms. Jacobs counseled Petitioner about appropriate language to be used with other teammates, as well as the importance of reporting any error, no matter the dollar amount, to the Director. On February 1, 2016, Ms. Corn issued Petitioner a Final Written Warning regarding the incident, using the company’s Universal Corrective Action Form. The following description of the incident is particularly relevant: 1/20/2016 - [I]t was discovered via another team receiving denials that the CCI edit changes that were made in October 2015 were incorrect. The changes to the CCI edits are the responsibility of Christine to complete and QA once the changes are made to the [Accounts Receivable] AR system. The team lead discovered the error and went to Christine to review her process as the data was incorrect in the AR system. Christine’s reply to the team lead was “don’t open your mouth until I have looked at it more.” The lead’s reply was that these type of errors effect appropriate billing and will be reported immediately to the leadership team. The Supervisor was made aware of the issue by the team that receives the denials, Supervisor questioned Christine about the error and why the final QA was not performed on the data that is part of the formal policy and procedure. Christine’s reply was that she was not aware a final QA was expected. Supervisor pushed back as Christine was the teammate that wrote the P&P detailing a final QA is expected. 1/21/2016 - Director of [Patient Accounting] and Supervisor had a verbal conversation with Christine in regards to her comment “don’t open your mouth until I have looked at it more.” Director asked Christine if she ever made that comment to the team lead. She stated that she cannot confirm that she used those exact words and meant that she wanted to identify the dollar impact before it should be shared. Director counseled her on being aware of her language when she communicates to other teammates. Director also informed Christine that regardless of the dollar amount of an error, she, Director, should be informed of any error that pertains to billing. The expectation is for Christine to be transparent and disclose immediately when an issue is identified. In the section of the Corrective Action Form titled “Expectations Moving Forward,” Ms. Corn noted: Immediately and on a sustained basis it is our expectation that you perform your job duties at a satisfactory level to include the following: It is expected that all tasks assigned to Christine are completed within the appropriate time frame and the policy and procedure for each is followed. It is expected that if you are unable to perform a task due to other priorities, that this is communicated to both the team lead and supervisor. It is expected that Christine demonstrate our core value of integrity and immediately disclose an issue when it is identified. Going forward, any behaviors not demonstrating our core values, and most specifically integrity, will not be tolerated. In addition, it is our expectation that you adhere to all Davita Policies, Procedures and Guidelines and exemplify the Core Values. Ms. Corn presented the Final Written Warning to Petitioner in her office with Ms. Dakin-Davis present. Petitioner refused to sign the acknowledgment section of the corrective action. Neither party introduced Davita’s disciplinary policy into evidence. There is enough record evidence to find that Davita follows a progressive discipline program. There is no reliable record evidence of the effect on an employee’s status based on issuance of a final written warning.4/ Petitioner received no change in job duties or salary, demotion, or suspension, based on the final written warning. Petitioner received a merit pay increase in 2016 following the issuance of the final written warning. Petitioner speculated that her pay increase would have been higher without the final written warning on her record. Responsibility for the Errors Petitioner’s case centers on her argument that both Petitioner and Ms. Maniec, who is Caucasian, were equally responsible for the Q4 2015 upload and the CCI edits, but only Petitioner was disciplined for the errors. Petitioner maintains that she was selectively disciplined based upon her race. Ms. Maniec is the Payer Rules team lead, responsible for assigning and overseeing tasks of the Payer Rules teammates. With regard to the Q4 2015, Petitioner argued that she and Ms. Maniec had agreed not to upload the Q4 2015 because of conflicts with the diagnosis codes in the ICD 10, which would be corrected by the next quarterly update. Ms. Maniec denied that she had ever agreed to hold off on uploading the Q4 2015. Neither Petitioner nor Ms. Maniec had authority to decide not to upload the Q4 2015. That is a decision that would have had to be made by management. Ms. Maniec testified, credibly, that her responsibility with both the Q4 2015 and the CCI edits was quality assurance, not initial data download and manipulation. Petitioner’s testimony that she and Ms. Maniec had agreed together not to upload the Q4 2015 was simply not credible. Petitioner had the responsibility to perform the Q4 2015 update and failed to do so. With respect to the CCI edits, Ms. Maniec was responsible to perform a QA check of the data file following Petitioner’s manipulations, but prior to the upload. On October 6, 2015, Petitioner emailed Ms. Maniec, “I have completed the October 2015 NCCI edits for upload, can you please QA.” Petitioner attached a file titled “NCCI New/October 2015.” On October 13, 2015, Ms. Maniec replied, “I have QA’d the data and agree with your findings. The file is ready for upload.” That same day, Petitioner replied, “Upload is complete. See you next quarter.” PAP 1006 requires a final QA to be performed on the “newly updated data confirming accurate uploading.” Petitioner did not refute testimony that the final QA on the uploaded data was Petitioner’s responsibility. Petitioner did not prove that Ms. Maniec was responsible for QA of the final uploaded data, or that Ms. Maniec was otherwise responsible for the CCI edit error that created the incorrect billings. Petitioner did not perform the final QA, even though she authored the policy requiring it. Furthermore, when confronted with the error, Petitioner suggested that she was adding a final QA step to the process to prevent similar errors in the future. Ms. Dakin-Davis’ met this suggestion as suspect given Petitioner’s familiarity with the policy. Petitioner’s Transfer In March 2016, Davita dissolved the Payer Rules team for reasons unrelated to the instant case. Each of the Payer Rules teammates was allowed to transfer to another position with Davita. Petitioner transferred to the Compliance Department in her current position of Compliance Specialist.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed against Respondent. DONE AND ENTERED this 16th day of May, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of May, 2017.
The Issue The issue is whether Respondent violated the Florida Civil Rights Act, as amended, as alleged in Petitioner's Employment Charge of Discrimination (Complaint) filed on March 17, 2016.
Findings Of Fact The record in this case is somewhat sketchy. Petitioner is a 51-year-old African-American female. In 2015, Petitioner was a client of Career Source Central Florida, a temporary employment agency which has a contract with Manpower, a staffing agency, to place clients in jobs on a temporary basis. Respondent is a corporation which provides a variety of services in the mental health field. The company employs persons of all national origins. One source of employees is persons referred by Manpower. Ms. Guzman is Respondent's Mental Health Targeted Case Manager Program Manager/Executive Consultant who interviewed Petitioner for a temporary position with her company. On October 19, 2015, Petitioner was hired by Respondent for 90 days as an intern in human resources. Under the terms of employment, Respondent could terminate Petitioner at any time, even the first day, if she was not performing in a satisfactory manner. If Petitioner was deemed to be a good candidate for employment, Respondent had the option to employ her on a permanent basis after her probationary period ended. Petitioner acknowledges that during her tenure with Respondent, her salary was paid by Manpower. However, Manpower was not named as a co- respondent in the Complaint. When she interviewed for the position, Petitioner was told by Ms. Guzman that the organization was bilingual, all employees were required to speak English, but she would hear a lot of Spanish being spoken. Petitioner informed Ms. Guzman this would not be a problem. She also informed Ms. Guzman that she did not speak Spanish. Ms. Guzman told her this would not be a problem. On December 8, 2015, Ms. Guzman informed Petitioner she was being terminated. According to Ms. Williams, she was told by Ms. Guzman that she was being terminated because she could not speak Spanish and her rate of pay did not match her level of experience. She was also told her job performance was less than satisfactory. Ms. Williams was upset because she had not been previously warned that her job performance was less than satisfactory or that speaking Spanish was a requirement. She also observed several other employees, including one medical doctor, who did not speak Spanish, but were allowed to use other employees as interpreters, when needed. According to Ms. Guzman, the reason for Petitioner's termination was poor job performance, and not her inability to speak Spanish. For example, Ms. Guzman noted that Petitioner had difficulty in spelling English words and she frequently needed assistance from other employees in completing her job- related tasks. Discharging Petitioner for this reason was consistent with her original terms of employment. There was no evidence, direct or circumstantial, that Petitioner was terminated because she was an African-American or because of her national origin, or that Respondent's decision to terminate Petitioner was motivated by unlawful discriminatory intent. Petitioner is currently employed by the Osceola County School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief, with prejudice. DONE AND ENTERED this 27th day of March, 2017, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of March, 2017.
The Issue Whether Petitioner was terminated from her position with the Respondent as a Certified Nurses Assistant (CNA) on or about July 1, 1995, on the basis of her race (white), in violation of Section 760.10(1)(a), Florida Statutes (1995).
Findings Of Fact The Respondent is an employer as that term is defined under the Florida Civil Rights Act of 1992. Petitioner was employed by Respondent as a CNA at Park Lake Nursing and Rehabilitation Center during the relevant period of time from April through July, 1995. Petitioner is a white female and a licensed CNA. Kay Vermette (“Vermette”), a white female, was the Director of Nursing at Park Lake and the department head over the entire nursing staff during Petitioner’s tenure. Vermette hired Petitioner as a CNA on April 18, 1995. Petitioner worked as a CNA at Park Lake for less than ninety (90) days when she was terminated by Vermette for verbal abuse of a resident on July 1, 1995. Joyce Donahue (“Donahue”), Assistant Director of Nursing at Lake Park during Petitioner’s tenure, was the second in charge of the entire nursing staff. Donahue, a white female, has been a Registered Nurse (RN) since April, 1990. On June 29, 1995, Mary Taylor (“Taylor”), a Licensed Practical Nurse, reported to Donahue she heard a loud voice and crying coming from the room of resident Matteye Samuels (“Samuels”). Taylor is black. Samuels was a black female and an elderly resident at Park Lake who needed assistance to perform all normal activities of daily living (ADL) and could not walk without assistance. As Donahue and Taylor approached Samuels’ room, they overheard a loud voice which they recognized as Petitioner’s and loud crying coming from another person. When Donahue and Taylor entered the room, they heard the resident crying in the bathroom area, where she sat on the toilet with only a robe draped over her, crying and trembling. Petitioner was very excited and pacing and was talking in a rapid, jarring, and incoherent fashion. Donahue and Taylor dressed Samuels and took her to the nurses’ station. Petitioner told Donahue that Samuels had thrown her around the room. Petitioner yelled at Samuels, “[y]ou are not a Nigger. I am not a Honky. Those aren’t really Jews. Those aren’t irate Indians,” while in Samuels’ room. When Donahue entered, Petitioner was pacing back and forth by the bed saying, “Nigger, Honky, Jews . . . this is enough of this.” Donahue told Petitioner to leave the room and wait in the employee break room. Donahue reported this incident to her superior, Vermette. Due to the severe nature of the incident, it was investigated immediately. Petitioner was placed on administrative leave, pending the investigation’s outcome. During the investigation, several witnesses came forward with information confirming the verbal abuse. Each witness provided a statement concerning her recollection. As an eyewitness to the verbal abuse of Samuels by Petitioner, Taylor and Sterling Brown, CNA, provided a written statement detailing her knowledge of the events. Donahue reported her findings to her supervisor, Vermette, both verbally and in writing. Vermette prepared a three-page, hand-written report which included the findings of her investigation, all of which confirmed the verbal abuse of Samuels by Petitioner. Verbal harassment of a resident is a Category I violation of Respondent’s disciplinary code. It subjects an employee to immediate suspension, followed by investigation. When an investigation confirms that a Beverly employee commits a Category I offense, the employee is subject to immediate termination. Petitioner received and signed the June 29, 1995, Associate Memorandum, which reflects that she was suspended while Respondent investigated the verbal abuse claims. The allegations of verbal abuse were investigated by Donahue, a white female, among others. The findings of the investigation and the proposed discipline (termination) were approved by Malley, the white female administrator. Petitioner was terminated by Vermette, a white female, who was the person who had, in fact, hired her. The three individuals who investigated the allegations of verbal abuse are white, as Petitioner. Petitioner’s statement regarding her treatment prior to the incident on June 29, 1995, and her version of the events that occurred on June 29, 1995, are not credible.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order which DENIES the Petition for Relief. DONE AND ENTERED this 18th day of August, 1997, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 COPIES FURNISHED: Jayne E. Griffith, pro se 2018 Gairloch Street Orlando, Florida 32817 Deborah Gibson, Esquire Jackson Lewis 390 North Orange Avenue Suite 1285 Orlando, Florida 32801 Filed with the Clerk of the Division of Administrative Hearings this 18th day of August, 1997. Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue Whether the Respondent’s predecessor engaged in discriminatory employment practices by retaliation against Petitioner by discharging him, and giving him poor employment references thereafter because of a claim of discrimination Petitioner had filed with the Human Relations Commission alleging racial discrimination in denying Petitioner a promotion.
Findings Of Fact The Petitioner is Fitzgerald Wesley, a black male. The E-Z Serve is a corporation employing more than 15 employees which purchased Sunshine Jr. Food Stores, which was a corporation also employing more than 15 employees. E-Z Serve admits having assumed liability for Sunshine’s actions. Petitioner was employed by Respondent at Store 322 as an Assistant Manager, and was discharged by the Respondent on or about September 23, 1993. Petitioner performed a range of services for Respondent in store number 322 and was being trained to handle the responsibilities of managing this store. When the store’s manager left, Petitioner thought he would be considered for the promotional opportunity; however, he was not promoted to the opening which was filled by a white male. Feeling he had been discriminated against, the Petitioner filed a Charge of Discrimination with the Commission on Human Relations raising the issue of racial discrimination in denying him the promotion. This case was forwarded to the Division of Administrative Hearings, Case No. 93-5059, and was ultimately closed for failure to prosecute. On or about September 23, 1993, the new manager of Store 322, Greg Grubbs, discharged the Petitioner without stating a reason for the action.1 The Petitioner applied for a similar position at a Suwannee Swifty convenience store down the street from Store 322. This store was managed by Kimberly Littman. Ms. Littman testified at the hearing. She was manager of the Suwannee Swifty store at which Petitioner applied for employment. Because of his prior experience, Ms. Littman was interested in hiring him. She contacted Greg Grubbs, who was the manager of Store 322 and the person who had discharged Petitioner. Ms. Littman asked Mr. Grubbs about the Petitioner’s work history. Mr. Grubbs advised Ms. Littman that Petitioner was a hard worker and did his job well, but Mr. Grubbs stated that Petitioner was prejudiced against customers. Ms. Littman concluded that Mr. Grubbs meant the Petitioner was prejudiced against White customers because the Petitioner was Black. Mr. Grubbs said he would not re-hire the Petitioner because he was prejudiced against customers. Notwithstanding the negative comment of Mr. Grubbs, Ms. Littman hired the Petitioner who went to work for her within three days of his discharge by Respondent. Petitioner’s wage was slightly lower; however, Petitioner did not have exact information regarding his wage loss. Petitioner represented himself and presented no evidence regarding his costs in presenting his case. Petitioner presented no evidence of mental anguish. Petitioner referenced other positions for which he applied; however, he did not present evidence that other potential employers had spoken with Mr. Grubbs. Petitioner eventually left the employment of Suwannee Swifty after being robbed two times. The Petitioner filed a Charge of Discrimination with the Commission of Human Relations on March 28, 1994, based upon retaliation. In was investigated and a “no cause” determination was made.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Commission on Human Relations enter a final order finding that the Respondent engaged in retaliation against the Petitioner and direct the Respondent to take action to prevent any re-occurrence of this conduct with other employees; however, in the absence of any demonstrated injury or costs of litigation, the Petitioner not be awarded any damages or costs. DONE AND ENTERED this 13th day of March, 1998, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of March, 1998.
The Issue The issue is whether Respondent committed an unlawful employment practice contrary to Section 760.10, Florida Statutes (2007),2 by discriminating against Petitioner based on her national origin.
Findings Of Fact The Omni, advertised as "Omni Orlando Resort at ChampionsGate," is a golf resort located in the Orlando tourist corridor near Walt Disney World. The Omni is an employer as that term is defined in Section 760.02, Florida Statutes. Petitioner, Suhra Merdanovic, is a Bosnian female, and her first language is Bosnian. She speaks and understands English, but is more fluent and comfortable using her native language. Ms. Merdanovic was employed by the Omni from approximately August 22, 2006, to October 9, 2006. Ms. Merdanovic worked in the kitchen of the Broadway Deli, a sandwich shop located in the resort. The Broadway Deli was one of several restaurants in the Omni complex. During the brief period of Ms. Merdanovic's employment, the Broadway Deli did not have a full-time manager. Ms. Merdanovic reported to Silvio Rosalen, the sous chef at Teri's Restaurant, near the Broadway Deli in the Omni complex. Mr. Rosalen reported to Robert Fohr, the assistant food and beverage manager for the Omni. The Omni has established a policy that prohibits harassment in the workplace. The policy defines harassment as: ny unwelcome verbal, non-verbal, physical or other conduct or behavior relating to an individual's race, religion, color, sex, national origin, age, disability or any other categories protected by state, federal or local law, that is made a term or condition of employment, is used as the basis for employment or advancement decisions, or has the purpose or effect of unreasonably interfering with work or creating an intimidating, hostile or offensive work environment. The policy "strictly prohibit[s]" employees, supervisors, and members of management from harassing other employees, supervisors, or members of management. The policy directs an employee who has a complaint of harassment to report that complaint to any manager or supervisor, the human resources director, the general manager, or the regional vice president of operations. The complaint triggers a formal investigation, usually conducted by the human resources director. The Omni's harassment and equal employment opportunity policies are set forth in the Omni's Associate Handbook, which is provided to all employees. The handbook is reviewed during an orientation session that all newly hired Omni employees must attend. Ms. Merdanovic attended an orientation session on August 26, 2006, and testified that she was familiar with the harassment policy. The Omni calls the first 90 days of employment an "introductory period." The Associate Handbook describes the introductory period as follows: During this time you will have a chance to see whether you like your job and Omni Hotels will have an opportunity to evaluate your performance and suitability for your position. If Omni Hotels concludes that your job performance and/or suitability have been unsatisfactory, you may be dismissed at any time during the introductory period at Omni Hotels' complete discretion. You may also be dismissed at any time after the introductory period at the sole discretion of Omni Hotels. Both during and after the introductory period, all associates are associates at will. If an employee's manager determines within the first 90 days of employment that an employee's job performance and/or "suitability" is unsatisfactory, the manager will meet with the employee to review the manager's concerns. After this meeting, the employee's job status is "suspended pending investigation" while the manager confers with the human resources department to review the issues. If the manager and the human resources department agree that the employee should be terminated, then human resources will advise the employee of the decision. Ms. Merdanovic testified that two Hispanic co-workers, Erica Torres and Charlotte Ruiz, harassed her because of her nationality. Ms. Torres asked her what she was doing in America and refused to go into the kitchen with her. Both women made jokes and laughed about Ms. Merdanovic being from Bosnia. Ms. Merdanovic testified that her co-workers also disliked her, because she refused to give them free food from the Broadway Deli's kitchen. Ms. Merdanovic did not complain to a manager, supervisor, or any other Omni employee about the harassment she claimed to have experienced. Mr. Rosalen testified that he received numerous complaints about Ms. Merdanovic's job performance from her co- workers. The co-workers told him that Ms. Merdanovic failed to follow instructions, argued with guests and co-workers, interrupted co-workers who were trying to explain how to complete job tasks, gave guests the wrong order at least twice, and failed to comply with the posted work schedule. Mr. Rosalen personally observed Ms. Merdanovic's performance deficiencies on several occasions. The guest complaints were most significant to Mr. Rosalen. On one occasion, the guest had ordered a turkey sandwich, but was served a pastrami sandwich by Ms. Merdanovic. Rather than correcting the order immediately, Ms. Merdanovic attempted to convince the guest to keep the pastrami sandwich by telling him it was good and he would like it. On a second occasion, a guest ordered a milkshake and was served iced coffee.3 At the hearing, Ms. Merdanovic testified that she was unaware of any complaints about sandwiches. She stated that she has worked in kitchens for years and understands how to make sandwiches in a deli. She did complain that she was never trained to operate the "front of the store" equipment such as the milkshake machine or coffee machine, yet was expected to somehow be able to operate them. Mr. Rosalen orally counseled Ms. Merdanovic on multiple occasions regarding her performance deficiencies, but he never observed any improvement. Pursuant to the process for terminating employees during their introductory period, Mr. Rosalen and Mr. Fohr decided to meet with Ms. Merdanovic to discuss her performance deficiencies and to advise her not to return to work until she heard from human resources. After this meeting, Mr. Rosalen and Mr. Fohr would meet with the human resources director to discuss whether to terminate Ms. Merdanovic's employment. Mr. Rosalen and Mr. Fohr prepared a "Problem/Solution Notice" form, dated October 2, 2006, that set out the performance deficiencies and possible corrective actions for Ms. Merdanovic. This notice was intended to be the outline for discussion during the meeting with Ms. Merdanovic. Under the heading "Specific Nature of Problem" were various categories, including absenteeism, tardiness, violation of company policies, and unsafe actions. Ms. Merdanovic's problem was categorized as "Performance Below Standards." The specific performance problems were set out as follows: There have been numerous complaints about Suhra Merdanovic's job performance from several of her co-workers. These complaints include: Does not follow training of food preparation techniques and quantities. Does not follow food, coffee and drink recipes. Does not know what all the ingredients are to be able to make recipe. Looses [sic] tickets for orders. Has become argumentative with employees and guests when told that the product is wrong. Has tried to convince guests that mistakenly prepared food is good and tried to get them to take it. Does not understand the schedule after repeatedly having it explained. Interrupts employees and does not let people finish talking when trying to explain how a task needs to be completed. Is not a team player. The notice set forth the following under the heading, "Expected performance or conduct/corrective action required": Suhra must adhere to the following guidelines: Must be receptive to and accept training in all facets of Broadway Deli culinary operations with a positive attitude. Must follow all standard recipes without deviation to achieve a consistent product. Must produce orders in timely fashion in accordance to [sic] the guest's specifications. Must never become argumentative with a guest and try to force a guest to take a product they do not want. Must get along with and assist teammates with all guest needs. The notice concluded that the "disciplinary action taken" would be "Suspension/Termination." On October 2, 2006, Mr. Rosalen and Mr. Fohr met with Ms. Merdanovic in Mr. Fohr's office to review the contents of the Problem/Solution Notice. When her supervisors began reviewing her performance deficiencies, Ms. Merdanovic interrupted to argue with them. Mr. Fohr pointed out that this was the same sort of conduct that led to this counseling session in the first place. Before Mr. Rosalen and Mr. Fohr could present her with the notice and commence the formal suspension/termination process, Ms. Merdanovic began to cry in a way that Mr. Rosalen described as "almost hysterical" for several minutes. Ms. Merdanovic then walked to the kitchen of the Broadway Deli. Mr. Rosalen followed her, both to make sure she was all right and to escort her off the Omni property. Ms. Merdanovic again began crying and saying that she could not breathe. She described her condition as "couldn't breathe, couldn't think, couldn't stay." Mr. Rosalen called in the Omni's security team, which also acts as the resort's first responder in medical emergencies. The entry of the security guards threw Ms. Merdanovic into a greater panic. Eventually, at Ms. Merdanovic's request, the Omni called an ambulance service, which transported her to Florida Hospital in Orlando. Ms. Merdanovic was diagnosed with high blood pressure and discharged after an overnight stay in the hospital.4 After the incident leading to Ms. Merdanovic's hospitalization, Mr. Rosalen and Mr. Fohr met with Lisa Borde- Christie, the Omni's human resources manager, to discuss their meeting with Ms. Merdanovic, the complaints about her from guests and co-workers, and Mr. Rosalen's observations of her performance deficiencies and his previous attempts to correct them. Ms. Borde-Christie agreed that Ms. Merdanovic was not meeting the Omni's performance expectations for her position. In light of Ms. Merdanovic's failure to improve her performance despite Mr. Rosalen's several attempts at verbal counseling, Ms. Borde-Christie, Mr. Fohr, and Mr. Rosalen agreed it was unlikely that Ms. Merdanovic's performance would improve in the future. They decided to terminate her employment. On October 9, 2006, Ms. Borde-Christie and Mr. Rosalen met with Ms. Merdanovic to tell her that her employment was terminated and to review the performance deficiencies that caused her termination. When Ms. Borde-Christie attempted to review the performance issues, Ms. Merdanovic became argumentative, stating that these issues were all lies and that her co-workers did not like her. Ms. Borde-Christie testified that Ms. Merdanovic said nothing about her national origin being an issue in the workplace. Ms. Merdanovic produced no credible evidence that her language or national origin played a role in the decision to terminate her employment. The Omni's management did not become aware of her allegations of harassment due to her national origin by her co-workers until Ms. Merdanovic filed her Employment Complaint of Discrimination, more than two months after her dismissal. The evidence produced at hearing demonstrated that the reasons for Petitioner's termination all related to her job performance.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that the Omni Hotel Resort did not commit any unlawful employment practices and dismissing the Petition for Relief. DONE AND ENTERED this 26th day of March, 2008, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 2008.
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et seq., Florida Statutes, as set forth in Petitioner's Charge of Discrimination dated September 4, 2001, and, if so, the penalties that should be imposed.
Findings Of Fact Respondent is a nursing home located in Miami Springs, Florida. At the times pertinent to this proceeding, Cathy Abello was Respondent's Director of Nursing (DON), and Barbara Fernandez was Respondent's Assistant Director of Nursing (ADON). The DON is responsible for the performance of the nursing staff and has primary responsibility for personnel decisions pertaining to the nursing staff. The ADON also has supervisory authority over the nursing staff and can hire or fire nursing personnel. At the times pertinent to this proceeding, Respondent employed between 50 and 55 registered nurses, six of whom have supervisory responsibilities. Respondent used three shifts of approximately eight hours each to provide 24 hour per day nursing coverage for its residents. The first shift began at 7:00 a.m. and ended at 3:00 p.m. The second shift began at 3:00 p.m. and ended at 11:00 p.m. The third shift began at 11:00 p.m. and ended at 7:00 a.m. The starting and ending times are approximate because there was usually an overlap between shifts to permit nurses coming on duty to coordinate patient care with the nurses going off duty. It was not uncommon for nurses to work more than one shift each day. In addition to the DON and the ADON, Respondent had a nursing supervisor for each shift. A nursing supervisor's duties include supervising the nurses and support staff during a shift, finding personnel to fill in for absences, and responding to emergencies. A nursing supervisor works under the supervision of the DON and the ADON. Petitioner is a registered nurse and had worked for Respondent for several years prior to May 2001. At the times pertinent to this proceeding, Respondent employed Petitioner as a nursing supervisor for the first shift. Respondent stipulated that Petitioner was qualified to do her job and performed her duties adequately with no disciplinary record. Petitioner failed to present evidence as to her date of birth. While her exact age was not established, the testimony of the witnesses who had known her and had worked with her for several years established that Petitioner was in her late fifties or early sixties at the times pertinent to this proceeding. In April 2001, Petitioner required a total knee replacement. Prior to her surgery, Petitioner was capable of performing her job. When she learned she required knee surgery, Petitioner requested and was granted medical leave. She began her medical leave in April 2001. It is inferred that Petitioner was incapable of performing her work for a period of time following her surgery. However, the duration of her incapacity and the extent of her recovery were not established by the evidence presented at the final hearing. When Petitioner went on medical leave in April 2001, Ms. Fernandez worked as ADON during the first shift and also worked the second shift. To accommodate Petitioner’s absence, Ms. Abello asked Ms. Fernandez to continue to perform her duties as ADON during the first shift and to assume Petitioner’s duties as nursing supervisor for the first shift. From the time Petitioner went on medical leave to the time of the final hearing, Ms. Fernandez discharged her duties as the ADON on the first shift and served as nursing supervisor for the first shift. Ms. Fernandez also continued to perform duties on the second shift. At the time of the final hearing, Ms. Fernandez was the nursing supervisor for the second shift. Ms. Abello was pleased with the manner in which Ms. Fernandez performed her dual responsibilities as ADON and as nursing supervisor for the first shift. Ms. Abello made a business decision to consolidate the positions of ADON and first shift nursing supervisor. Ms. Abello also decided to have Ms. Fernandez perform those consolidated responsibilities. Ms. Abello made the employment decision to make the nursing staffing more efficient and to reduce Respondent's overhead. Ms. Abello's articulated reason for the challenged employment decision is found to be legitimate and non-discriminatory. There was insufficient evidence to establish that the articulated reason for the challenged employment decision was a pretext for unlawful discrimination. At the time of the final hearing, Ms. Abello had worked with Ms. Fernandez for almost 14 years and had worked with Petitioner for approximately five years. Ms. Abello considered Ms. Fernandez’s professional qualifications to be superior to Petitioner’s. Ms. Fernandez and Petitioner are approximately the same age. 1/ Petitioner failed to establish that age was a factor in Ms. Abello’s decision to have Ms. Fernandez perform in the consolidated positions instead of having Petitioner perform those duties. The greater weight of the credible evidence established that age was not a factor in Ms. Abello’s decision. Petitioner was still on medical leave when Ms. Abello decided to have Petitioner’s responsibilities consolidated with Ms. Fernandez’s ADON responsibilities. Maria Cruz, acting on instructions from Ms. Abello, informed Petitioner by telephone that as of the end of May 2001, her position as nursing supervisor for the first shift would be eliminated and that her employment would be terminated. During that telephone conversation, Ms. Cruz told Petitioner that there was an open position as a nursing supervisor on the weekends and asked Petitioner to call her if she was interested. Petitioner never called Ms. Cruz about that or any other position Respondent might have open. The fact that Petitioner was still on medical leave when she was informed of Ms. Abello's employment decision arguably creates an inference that Petitioner had not recovered from her surgery. Assuming, arguendo, that Petitioner was disabled when Respondent terminated her employment, Respondent clearly established that it had a legitimate, non-discriminatory business reason for the challenged employment decision. The greater weight of the credible evidence established that any disability Petitioner might have suffered from her total knee replacement, whether temporary or permanent, was not a factor in the challenged employment decision.
Recommendation Based on the foregoing findings of fact and conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s Charge of Discrimination. DONE AND ENTERED this 6th day of November, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of November, 2002.
The Issue The issue in this case is whether Respondent unlawfully discriminated against Petitioner by discharging Petitioner from her employment because of her age in violation of Section 760.10(1), Florida Statutes (1997). (All chapter and section references are to Florida Statutes (1997) unless otherwise stated).
Findings Of Fact Petitioner is a member of a protected class. Petitioner was born on July 6, 1945, and was 40 years or older on August 19, 1995, when the alleged unlawful discrimination occurred. Respondent engaged in an adverse employment action. On August 19, 1995, Respondent discharged Petitioner from her employment as an Executive Housekeeper. Respondent engaged in the adverse employment because of Petitioner's age. Petitioner submitted direct evidence of age discrimination. On August 19, 1995, Petitioner's supervisor telephoned Respondent at her home. The supervisor told Respondent she had been laid off from her job. When Petitioner asked why, the supervisor stated that two younger employees, ages 26 and 27, could get more done than Petitioner because they were younger. Even if there were no direct evidence of age discrimination, Petitioner provided sufficient inferential evidence of age discrimination. When the supervisor telephoned Petitioner to inform her that she had been discharged, the supervisor stated that business was "slow" due to remodeling of the motel. However, there is sufficient inferential evidence to conclude that this explanation from the supervisor was a pretext for age discrimination. The Days Inn Central location on West Colonial Drive includes approximately 40 rooms. As the Executive Housekeeper, Petitioner supervised two younger housekeepers. Respondent did not discharge any employee except Petitioner and did not retain any employees who were 40 or older. Petitioner had been continuously employed by Respondent for more than 10 years. During that time, Petitioner was progressively promoted from housekeeper to executive housekeeper, had consistently received positive employment evaluations, and had consistently received progressive pay raises. Petitioner received treatment disparate from that of other similarly situated individuals in a non-protected class. There is sufficient evidence of bias to infer a causal connection between her age and the disparate treatment. Respondent failed to submit any evidence to rebut the inference. Soon after 1983, Petitioner began working for Respondent at the Days Inn on Lee Road as an assistant housekeeper. She started as an assistant housekeeper earning minimum wage. By 1986, Petitioner had been promoted to head housekeeper at the Midtown location and was earning $7.50 an hour for approximately 50 hours a week. Thereafter, Petitioner was promoted to Executive Housekeeper at the Central location and paid an annual salary of $18,500. Petitioner was unemployed from August 19, 1995, until July 1, 1996, or approximately 317 days. The per diem rate of compensation based on an annual salary of $18,500 is approximately $50.68. Total back pay for 317 days of unemployment at $50.68 per day is approximately $16,065.56. Respondent re-hired Petitioner on July 2, 1996, as a housekeeper at the Lake Buena Vista location. Respondent paid Petitioner $6.50 an hour for an average of 5.5 hours a day, or approximately $35.75 a day. Respondent continued that rate of compensation until July 12, 1999, or approximately 375 days. The difference in per diem compensation before and after her discharge is approximately $14.93 for 375 days, or $5,598.75. From July 12, 1999, to the date of hearing on September 1, 1999, approximately 50 days, Petitioner worked at the Days Inn on Sand Lake Road as a housekeeper. Respondent paid Petitioner $5.75 an hour for 7.5 hours a day seven days a week. The per diem rate of compensation was $43.13. The difference in per diem compensation before and after Petitioner's discharge is approximately $7.55 for 50 days, or $377.50. The total back pay is $22,041.81 plus any sum due Petitioner from the date of the hearing to the date that Respondent pays Petitioner all back pay and reinstates Petitioner to her former level of compensation. The total back pay of $22,041.81 is comprised of $16,065.56 for the 317 days from August 19, 1995, through July 1, 1996; plus $5,598.75 for the 375 days from July 2, 1996, through July 12, 1999; plus $377.50 for the 50 days from July 13, 1999, through September 1, 1999. Section 760.11(9) provides that no liability for back pay may accrue from a date more than two years "prior" to the filing of a complaint with the Commission. However, Section 760.11(9) does not limit Respondent's liability for back pay after a complaint is filed with the Commission. Respondent discharged Petitioner on August 19, 1995. Petitioner filed a complaint with the Commission on August 23, 1995. The amount of back pay determined herein does not accrue from a date more than two years prior to the filing of the complaint with the Commission. The amount of back pay accrues from a date after the filing of the complaint with the Commission. Section 760.11(7), in relevant part, authorizes the presiding Administrative Law Judge to recommend affirmative relief from the effects of an unlawful employment practice. Affirmative relief includes, but is not limited to back pay. In addition to a loss of income, Petitioner's discharge from her employment resulted in the loss of her residence, the repossession of her automobile, and a loss of good credit. However, Petitioner failed to submit evidence sufficient to establish a monetary value for those losses.
The Issue Whether Petitioner was discriminated against by the Respondent based on race, and/or retaliated against due to the filing of a charge of discrimination with the Florida Commission on Human Relations.
Findings Of Fact Petitioner, Ronald Wilson, is an African-American male. Petitioner was employed with TMH on June 21, 1999, as an environmental services technician. On January 19, 2001, Petitioner received a disciplinary corrective action for discourtesy to a hospital visitor who had complained about Petitioner’s rude and overbearing behavior towards her in a visitor’s waiting area. After admitting the essential facts, Petitioner was suspended for two days for this infraction. On June 27, 2001, Petitioner filed a charge of discrimination with the FCHR, alleging he was wrongfully suspended because of his race. On September 5, 2001, Petitioner was told that his loan application with TMH Federal Credit Union had been denied. Petitioner told a credit union employee, Grace Chambers, that “God doesn’t appreciate people being treated this way” and “Someone is going to have some bad luck,” or words to that effect, when she advised him that his application had been denied. Although Petitioner was speaking metaphysically and did not intend to threaten Ms. Chambers, Ms. Chambers was upset by Petitioner’s comment, perceived Petitioner's comment as a threat and reported it to her supervisor, Marion McCaskey, President of the TMH Credit Union. McCaskey and Chambers, in turn reported Petitioner's threat to Charles Garner, Director of Security at TMH. Ms. McCaskey also reported that Petitioner was known for being unduly persistent in obtaining approval for a loan to the point she had become uncomfortable, albeit not physically threatened, in dealing with Petitioner. Mr. Garner reported Petitioner's conduct to his supervisor, Ron Dorsey. On September 6, 2001, Mr. Dorsey filled out a disciplinary action form recommending Petitioner's discharge because of his comment to Ms. Chambers. Because of Petitioner’s disciplinary history of insubordination and discourtesy, the recommendation was approved by TMH Human Resources, and Petitioner was given notice of his discharge on December 11, 2001. TMH's policy prohibits discourtesy to visitors and other employees, and threats to co-workers. Both of these violations are grounds for discharge. Petitioner produced no evidence that any other non- minority employee was charged with breaking these rules and was treated better. Without such evidence, Petitioner failed to establish any direct evidence that his suspension and discharge were racially motivated. Likewise, Petitioner failed to establish any circumstantial evidence of racial discrimination, since Petitioner’s statements to Ms. Chambers could arguably be considered a threat directed towards her, and there was no evidence that Ms. Chambers’ reaction was not genuine. Petitioner produced no evidence that Dorsey, Garner, Chambers, or McCaskey had notice or knowledge of his charge of discrimination when he was discharged. Therefore, Petitioner has failed to establish that he was discharged on September 11, 2001, in retaliation for filing the charge of discrimination on June 27, 2001. Petitioner produced no evidence that he suffered any past or future wage loss as a result of his discharge from TMH.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of March, 2004, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Brian A. Newman, Esquire Pennington, Moore, Wilkinson, Bell & Dunbar, P.A. 215 South Monroe Street, Second Floor Post Office Box 10095 Tallahassee, Florida 32302-2095 Ronald Wilson 816 Cochran Drive Tallahassee, Florida 32304 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether Respondent is guilty of unlawful employment practices; to wit: disparate treatment due to Petitioner's race (Hispanic) and/or retaliation.
Findings Of Fact Petitioner is an Hispanic female. At all times material, Petitioner was employed as a Registered Nurse, Nursing Supervisor, by Respondent. Respondent is a rehabilitative nursing facility in Gainesville, Florida, which qualifies as an "employer" under Chapter 760, Florida Statutes. Since the situations complained-of by Petitioner occurred, Petitioner has continued to be employed by Respondent with no breaks in service, no decreases in pay, no change in benefits, and no demotions in rank. At all times material, Respondent has employed Caucasians, Hispanics, African-Americans, and persons of Indian sub-continent descent. Petitioner signed on March 23, 2007, and on April 5, 2007, filed a Charge of Discrimination with FCHR. The Charge alleged that the Employer Respondent had perpetrated an unlawful employment practice upon Petitioner due to her race (Hispanic) and in retaliation. On July 25, 2007, FCHR entered and served a Determination: No Cause. On August 27, 2007, Petitioner timely filed a Petition for Relief. However, her Petition for Relief only alleged discrimination on the basis of retaliation. The retaliation named was that "my evaluation would be done in a group because of a meeting with Mr. Hamilton and Mr. Hawkins." There are no references whatsoever to race or national origin within the Petition for Relief. The Petition does not specifically allege pattern, or on-going discrimination. It does not specifically allege harassment or hostile work place. It suggests only that Petitioner feels that she does not get respect and is "attacked without evidence." Via her Petition, Petitioner seeks the remedy of ". . . that they [the employer] pay for all my therapies and medication and pay for the meetings I attended.” Early on September 5, 2006, Petitioner was standing in line to punch-in on her timecard at Respondent’s facility. Barbara Washington, an African-American CNA, was standing directly behind her. Petitioner shielded her social security number from Ms. Washington’s gaze. Later the same day, Petitioner was rolling a medicine cart down the hallway in Unit Two of Respondent's facility. Ms. Washington was taking a dinner break, seated in a position near the nursing station, which permitted her to view the patients assigned to her. Unfortunately, Ms. Washington's position did not permit Petitioner and the medicine cart to pass. Petitioner requested that Ms. Washington move, so as to let Petitioner and the medicine cart pass. Ms. Washington spoke sharply to Petitioner, either because Petitioner asked her to get out of the way of the medicine cart or for reasons of Ms. Washington's own related to the morning punch-in. During a later investigation by Director of Nursing (DON) Lisa Woods Streer, several versions of what Ms. Washington actually said were elicited. However, the best and most credible evidence on this particular point is Petitioner’s testimony that Ms. Washington loudly used profanity (“the F word”) directly to Petitioner. There is, however, no evidence that, whatever the exchange entailed, any patient was disturbed, upset, or even aware of the exchange, and there is no evidence that the statements from Ms. Washington had anything to do with Petitioner’s Hispanic origin or any type of employer “retaliation.” At least three hours later on September 5, 2006, after Ms. Washington had gone off-shift and was standing outside the facility waiting for a ride home, Petitioner handed Ms. Washington a disciplinary form, known as “a counseling slip.” At that point, Ms. Washington refused to sign the counseling slip and, screaming loudly, denunciated Petitioner with additional profanity similar to her earlier verbal abuse. This language was overheard by Yadira Chavala, who was inside the building making out reports. Ms. Chavala stood up and looked out the window so as to determine who was yelling the profanity. Ms. Chavala considered the volume and content of Ms. Washington's comments to be unprofessional and unacceptable, but she did not take it upon herself to report the incident to the DON, who was not present in the facility at that time of the evening. Again, there is no evidence that Ms. Washington was attacking Petitioner’s ethnicity or acting on behalf of the employer in her screams at Petitioner. Petitioner, however, reported to the DON both incidents of loud profanity and insubordination from Ms. Washington towards Petitioner, via a copy of the counseling slip she had given to Ms. Washington and a note slipped under the DON’s door. DON Lisa Woods Streer, found these items when she came on duty the next morning, September 6, 2006. Pursuant to Respondent’s protocol, Ms. Streer asked Unit Director Karen Derrico to take written statements from staff, concerning the med-cart incident which had occasioned the counseling slip from Petitioner. The general tone of the feedback that Ms. Derrico got was that everyone in the facility had heard about the medicine cart incident, but there were no clear and reliable eye witnesses. Ms. Washington did not immediately own-up to her conduct and told DON Streer that Petitioner had made Ms. Washington feel like a thief by covering Petitioner’s social security number when they punched-in together the morning of September 5, 2006. The DON viewed this comment by Ms. Washington as a counter-accusation of some kind (possibly a complaint of discrimination) against Petitioner, and so the investigation continued. At some point, Ms. Chavala came forward to describe what she had heard from inside the building when Ms. Washington was cursing in the patio/parking area. Petitioner did not like the taking of statements and considered the process to be an attack on herself. She also did not like the fact that she was called in for a meeting on September 13, 2006, but was informed after she had arrived that the meeting had been put off to the next day. By September 13, 2006, the decision to discipline Ms. Washington had been made, because by that time Ms. Chavala had come forward concerning the second incident, but because the DON felt that Petitioner “had backed Ms. Washington into a corner” Petitioner required some counseling. Upset that a meeting was to take place the next day, Petitioner telephoned Mr. McKalvane of Respondent’s Human Resources Department in Pensacola, to complain about how the September 5, 2006, situation was being handled. Petitioner testified, without corroboration, that Mr. McKalvane told her that he could not talk to her before the next day’s meeting, but would attend the meeting by speaker phone. On Thursday, September 14, 2006, a two-hour meeting was held at the facility. DON Streer; Administrator George C. Hamilton; Unit Director Derrico; Ruthie Moore, the facility’s Staff Development Coordinator; and Petitioner were present. Streer, Hamilton, and Derrico are Caucasians. Moore is African- American. Mr. McKalvane's race/national origin is not of record, but he did not appear at the meeting, even by telephone. Petitioner felt betrayed because Mr. McKalvane did not attend the September 14, 2006, meeting by telephone. At the September 14, 2006, meeting, Ms. Moore suggested that if Petitioner had known that Ms. Washington was upset, it might have been wise for Petitioner to wait until the next day to hand Ms. Washington her counseling slip. Petitioner was offended by this comment because she believed her delay of three hours after the medicine cart incident before issuing the counseling slip had been sufficient. At the September 14, 2006, meeting, DON Streer suggested that Petitioner might want to get with Ms. Moore for some in-service instruction on how to be a better supervisor. Petitioner was offended by this suggestion, because Petitioner perceived no fault in her handling of Ms. Washington. At no time has Petitioner ever been required by the employer to take supervisory in-service training as a result of the September 5-14, 2006, events. In fact, Petitioner has not taken such training or any similar one-on-one training or in- servicing with the employer, and she has not been penalized for not doing so. As a result of Petitioner’s counseling slip concerning the September 5, 2006, incidents with Ms. Washington, Ms. Washington was suspended from work for one day without pay, but Petitioner was not disciplined in any way concerning Ms. Washington’s accusations. Petitioner suffered no discipline or loss in pay, position, or benefits as a result of the September 5, 2006, or September 14, 2006, events. Petitioner submitted that the employer’s punishment of Ms. Washington was somehow discriminatory against Petitioner because it took management nine days to come to the one-day suspension of the person that Petitioner wanted to be disciplined. However, the only comparator that Petitioner was able to offer was a situation which occurred a year later, in 2007. On that occasion, an oral confrontation occurred between an African-American female worker and a Caucasian female supervisor. There is no specific evidence concerning how similar the 2007 incident was to any of the September 5, 2007, incidents involving Ms. Washington and Petitioner. However, in the 2007 incident, the African-American female immediately admitted wrong-doing, and the very next day, the employer suspended her for one day without pay, just as the employer had suspended Ms. Washington for one day without pay in 2006, in response to Petitioner's counseling slip. Ms. Streer testified credibly that in 2007, the investigation and counseling period was shortened by the subordinate’s immediate admission of wrong-doing and lack of accusations against her reporting supervisor. Approximately September 20, 2006, Petitioner sent a 19- page, typewritten letter of complaint to Respondent’s corporate headquarters. The scope of this letter is not clear because it is not in evidence. Petitioner was supposed to be evaluated annually each September, but she did not receive her evaluation in September 2006. She reminded the DON in November 2006, that she had not yet been evaluated. Shortly thereafter, Petitioner received her annual evaluation which bears a date of October 5, 2006, signed on October 22, 2006, by Weekend Nursing Supervisor Sneha Rema, R.N. Supervisor, and signed-off on by DON Sterer on October 31, 2006.1/ Ms. Rema received no input for her 2006 evaluation from the DON or Administrator. By observation, Ms. Rema appears to be a member of one of the ethnic groups originating on the Indian sub-continent. She rated Petitioner as "exceptional" in categories "work quality," "work quantity/productivity," and "compliance & adherence to policies," and as "meets expectations" in categories "core values" and "leadership skills." Under the 2006, evaluation's heading, "Areas of Improvement, Developmental and/or Upcoming Objectives," Ms. Rema put this comment about Petitioner: May improve her leadership skills by attending seminars on interpersonal relationship and how to influence others to accomplish goals in constructive way and team building from a constructive point-of- view. Ms. Rema approaches evaluations with the belief that each employee has different levels of education and skills, should be encouraged to constantly improve, and can best improve if supervisors point out to the employee performance areas susceptible of improvement by the employee. This viewpoint was Ms. Rema’s sole motivation in making the foregoing comment. Ms. Rema views these types of comments as a way of pointing out goals, not failures. Contrariwise, Petitioner holds the personal belief that unless every single nurse received identical language on the foregoing part of his or her respective annual evaluation, regardless of that employee’s individual circumstances and regardless of who wrote the evaluation, then Petitioner has suffered a personal attack and discriminatory treatment by the employer. There is no evidence that the 2006, evaluation caused Petitioner any loss of pay, position, benefits, or hours. In fact, she received a raise. If the raise was delayed by one month, that information does not appear in the record. At some point between September 20, 2006, which was the date of Petitioner’s letter, and the end of November 2006, (the exact date is not of record), Mr. Ken Hawkins, a consultant of Respondent’s corporate personnel office in Tampa, journeyed to the facility and met with Petitioner to try to resolve her concerns. Mr. Hawkins race/national origin is not of record. The meeting was more acrimonious than harmonious and ended with Mr. Hawkins advising Petitioner that her concerns “were history” and he was not going to go over everything that had already been addressed. Petitioner was offended by Mr. Hawkins’ description of the events that concerned her as “history”; because she felt he yelled at her; and because she felt he had made her come to the facility for a live meeting when he could have just told her “no” over the phone. The two-hour September 14, 2006, counseling meeting and the brief meeting sometime after September 20, 2006, during which Mr. Hawkins told Petitioner he was not going to go over her concerns again are the meetings for which Petitioner feels Respondent employer should pay her. Sometime after her meeting with Mr. Hawkins, Petitioner filed a discrimination complaint with the City of Gainesville Office of Equal Opportunity. The date of this complaint is uncertain. However, it had to precede March 9, 2007, because on that date, in response to the city action, and in accord with Respondent’s Human Resources Office’s instructions, Administrator Hamilton wrote Petitioner and provided her with the Respondent’s 1-800 telephone number to report discrimination. Respondent has an anti-discrimination policy and also posts the 1-800 number in its facilities. Petitioner also filed an EEOC discrimination complaint, and the underlying discrimination complaint herein was filed with FCHR on April 5, 2007. Because her FCHR complaint was signed on March 23, 2007, the undersigned takes it that the EEOC complaint was filed at approximately that time. Petitioner has complained that, as a result of her September 20, 2006, letter to corporate headquarters, she was told, either by Ms. Streer or by Mr. Hawkins that she must be evaluated “in a group.” Her testimony on this issue as to who told her this vacillated, and the group rating was not confirmed by any other witness nor by the signatures on the 2006 and 2007 evaluations in evidence. Although Ms. Streer signs-off as the next level of management on evaluations, that action hardly constitutes "group rating." The evidence as a whole provides the overall sense that Petitioner has been, in the vernacular, “prickly” about what she perceives as situations of disparate treatment, none of which were supported by credible evidence in the instant case, and that as a result of Petitioner’s heightened sensitivity, none of Petitioner's on-site superiors want to expose themselves to old or new accusations by her, but the greater weight of the credible evidence is that in 2007, Theresa Volk, Unit Manager of Station One, supervised Petitioner for only two days per week, so Ms. Volk believed that Petitioner's supervisor for the remainder of the week should have input to Petitioner's 2007 evaluation. Ms. Volk’s name and that of Ms. Rema appear on the first page of Petitioner’s 2007 evaluation, but only Ms. Volk signed as her “evaluator” on October 9, 2007. In that 2007, evaluation, Ms. Volk rated Petitioner “exceptional” in “work quality” and “work quantity/productivity,” and “meets expectations" in “customer service,” “compliance & adherence to policies,” “core values,” and “leadership skills.” Under “areas for improvement,” she made a comment about wound care documentation intended for Petitioner’s improvement. After receiving her September 2007, evaluation, which had been signed by Ms. Volk on October 9, 2007, Petitioner suffered no loss in pay, position, or benefits, and, once again, received her annual raise. Petitioner testified that she got her 2007 raise “late” but did not quantify how late. Petitioner wrote Ms. Volk a letter treating Ms. Volk’s evaluation comment for improvement as a criticism related to a particular past incident, and was offended when Ms. Volk refused to stop the work she was doing to read Petitioner’s letter. Respondent has a policy which requires employees to request personal paid time-off 30 days in advance. Petitioner testified that under this system, she properly requested time off for October 20, 2007, and November 3, 2007, but that shortly before those dates, Ms. Streer told her she could have only one date or the other, but if Petitioner wanted to take off both days, Petitioner had to get a replacement for one day. While this much of Petitioner’s testimony is unrefuted, Petitioner was not persuasive that she ever got written approval of the dates, and she did not establish any connection between the denial of two days' leave and either her Hispanic heritage or as retaliation for her prior letter to corporate headquarters or as retaliation for any of her discrimination complaints in March or April 2007. Petitioner presented no evidence that she lost pay, position, promotion or benefits at any time, on the basis of retaliation or her Hispanic heritage. Petitioner testified that she had to go into therapy and pay for medications as a result of the stress that the foregoing incidents have caused her. She presented no corroborative medical testimony or evidence of any professional diagnosis and further presented no medical or pharmaceutical bills to establish any damages therefor.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Complaint of Discrimination and the Petition for Relief. DONE AND ENTERED this 30th day of May, 2008, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2007.
