11-004540 Rachel Lynn Bivins vs. West Florida Hospital Status: Closed Recommended Order on Tuesday, December 4, 2012.

Summary: Petitioner failed to prove her charge of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RACHEL LYNN BIVINS , )

)

Petitioner, )

)

vs. ) Case No. 11 - 4540

)

WEST FLORIDA HOSPITAL , )

)

Respondent. )

_______________________________ )

RECOMM ENDED ORDER

An administrative hearing was conducted in this case on

June 20, 2012 , in Pensacola , Florida , before James H. Peterson,

III, Administrative Law Judge with the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Rachel Lynn Bivin s, pro se

4344 Langley Ave nue, Apartment 121 - D

Pensacol a, Florida 32504

For Respondent: Thomas M. Findley , Esquire

Messer, Caparello & Self, P.A.

Post Office Box 15579

Tallahassee, Florida 32317

S TATEMENT OF THE ISSUE

Whet her Respondent , West Florida Hospital (Respondent or

the Hospital ) , violated the Florida Civil Rights Act of 1992, as

amended, sections 760.01 Î 760.11 and 509.092 , Florida Statutes, 1/

by discriminating against Petitioner , Rachel Lynn Bivins

(Petitioner) , in her employment with the Hospital based upon

Petitioner's race.

PRELIMINARY STATEMENT

On March 15, 2011, Petitioner filed a charge of

discrimination (Charge of Discrimination) with the Florida

Commission on Human Relations (Commission) . A fter investigatin g

PetitionerÓs allegations, the Commission 's executive director

issued a Determination of No Cause on August 11 , 20 11 , finding

that " no reasonable cause exists to believe that an unlawful

employment discrimination practice occurred . . . ." An

accompanyin g Notice of Determination notified Petitioner of her

right to file a Petition for Relief for an administrative

proceeding within 35 days of the Notice.

On September 8, 2011 , Petitioner timely filed a Petition

for Relief and , on September 9, 2011 , the Commi ssion forwarded

the petition to the Division of Administrative Hearings for the

assignment of an administrative law judge to conduct a n

administrative hearing . On November 1, 2011, an Order Granting

Respondent's Motion to Bifurcate Hearing Regarding Liabi lity

Issues and Remedy Issues was granted. Following a number of

continuances, the final hearing on liability was held on

June 20, 2012.

During the administrative hearing , Petitioner called one

witness, testified on her own behalf , and introduced two

exhi bits which were received into evidence as Exhibits P1 and

P2. Respondent called three witnesses and offered 17 exhibits

which were received into evidence as Exhibits R1 through R17.

The p roceedings were recorded and a T ranscript was ordered.

The parties were given 30 days from the filing of the T ranscript

within wh ich to submit their respective proposed recommended

o rders. The one - volume T ranscript of the hearing was filed on

July 13, 2011 . Thereafter , the parties timely filed their

Proposed Recommended Orders which were considered in the

preparation of this Recommended Order.

FINDINGS OF FACT

1. Respondent is a hospital in Pensacola, Florida.

2. Petitioner worked for the Hospital as a Housekeeper in

the Environmental Services (EVS) Department from O ctober 6,

2009, until her termination on January 3, 2011. Petitioner is

black.

3. The following typed statement appears in the

"Particulars" section of the Charge of Discri mination form which

Petitioner filed with the Commission after her termination :

I worked for the Respondent as a Housekeeper

since October 2009. From August 2010

through December 2011, Charles Randolph

(White, Hous e keeping Supervisor) denied my

request for paid time off nine out of eleven

times. On January 2011, I called out sick

and on January 03, 2011 Rando l ph and Jeff

Lantot [sic] (White, Director of

Housekeeping) terminated my employment. I

believe I was retali ated and discriminated

against because of my race, Black.

In November 2010, I requested paid time off

befor e Charlene Lew is (White, Housekeeper),

but Randolph denied my request and granted

her one week off. On January 3, 2011, I

attempted to provide a copy of my doctor's

excuse to Randolph and Lantot [sic] ;

however, they said that they already had a

copy. In 2010, Chrystal Simpkins (White,

Housekeeper) and Maria Alacon (White,

Housekeeper) called out at least seven times

each and were not terminated.

I believe I was discriminated against in

violation of Title VII of the Civil Rights

Act of 1964, as amended.

4. On the sam e Charge of Discrimination form , out of the

ten boxes provided to designate the bases for the alleged

discrimination, Petitioner checked only the box indicating

ÐRACEÑ as the basis for her claim.

5. Petitioner was hired by t he Hospital after her

interview with the Hospital's EVS Department director, Jeff

Lanctot . Mr. Lanctot , who is white, made the decision to hire

Petitioner . The interview worksheet prepared by Mr. Lanctot

contains positive written remarks regarding Petitioner's

interview.

6. Petitione r began working for the Hospital on October 6,

2009 , on an as - needed (PRN) basis. She worked the evening

shift. The "team lead" for Petitioner's shift was Michael

Johnson. Michael Johnson is black.

7. Petitioner Ó s direct supervisor was Charles Randolph ,

the operation manager for the EVS Department. Mr. Randolph was

responsible for managing the evening crew of housekeepers at the

Hospital, including Petitioner . Contrary to the statement in

the Charge of Discrimination, Mr. Randolph is not white. He is

black.

8. The Hospital has a number of policies, including, but

not limited to, a "Meal Period Policy" and an "Attendance and

Tardiness Po licy."

9. The Hospital 's Meal Period Policy requires that non -

exempt employees, such as Petitioner, clock in and ou t for meal

periods, and also requires that employee s take at least 30

minutes for the meal period. This is to comply with federal

wage and hour law, because meal periods of less than thirty

minutes must be counted as working time and be paid.

10. Under t he Hospital's Attendance and Tardiness Policy,

an employee's unscheduled absence is considered an Ðoccurrence,Ñ

without regard to whether or not the employee had a good excuse

for being absent. Each time an employee is tardy or fails to

work as scheduled is also considered an Ðoccurrence.Ñ Six

ÐoccurrencesÑ within a 12 - month rolling calendar year, or three

ÐoccurrencesÑ within a 30 - calendar - day period, is considered

Ðexcessive.Ñ

11. T he evidence indicated that the HospitalÓs Meal Period

Policy and its A ttendance and Tardiness Policy are applied

consistently, regardless of race. When hired, Petitioner went

through an orientation process and was given an employee

handbook which set forth the HospitalÓs policies. As a result,

Petitioner was aware of both the Hospital's Meal Period Policy

and its Attendance and Tardiness Policy.

12. Shortly after starting her job at the Hospital,

Petitioner began to receive disciplin e for her violation s of the

Hospital's policies.

13. On December 29, 2009, within three months of starting

her job, Petitioner was given a w ritten w arning for violating

the HospitalÓs Meal Period Policy on December 6, 14 , and 26,

2009. Petitioner admitted that she understood the Meal Period

Policy, and also admitted that the w ritten w arning she received

on December 29, 2009, was not racially motivated.

14. Just a few weeks later, on February 1, 2010 ,

Petitioner again violated the HospitalÓs Meal Period Policy.

Petitioner was given a ÐFinal/Last Chance AgreementÑ

disciplinary action for rep eating the same p olicy violation for

which she had r eceived the written w arning on December 29 , 2010 .

15. Petitioner also violated the Hospital's Attendance and

Tardiness Policy. On January 28, 2010, Mr. Randolph met with

Petitioner to counsel her about her absences and tardiness .

Despite the verbal counseling, Petitioner c ontinued to be late

and absent from scheduled workdays .

16. On June 24, 2010, Mr. Randolph met with Petitioner and

presented her with a written w arning for violation of the

Attendance and Tardiness Policy, because Petitioner was absent

for eight work days within a nine - month period, and had six

tard ies within the past 30 days. Recent absences noted on the

written w arning included absences on March 3, March 8, March 27

through April 5, April 26 , and May 14 , 2010 . 2/

17. At the final hearing, Petitioner offered the excuse of

her absences noted in the June 24, 2010, written warning, by

advising that she had severely injured her finger on March 27 ,

2010 . The first t wo absences noted on the written warning,

however, predated her injury , and the April 26 and May 14

absences occurred well after her injury. Also , Petitioner Ó s

doctor Ós note regarding her finger injury stated that she would

be out of work for only two days , but she was out for m ore than

a week . Moreover, under the Hospital's Attendance and Tardiness

Policy, it did not matter that Petitioner's absences from

March 27 through April 5 may have be en excused because the

p olicy is based on ÐunscheduledÑ absences, no t ÐunexcusedÑ

absenc es. In addition, the Hospital only counted Petitioner's

extended absence from March 27 through April 5 , as only one

" occurr ence. "

18. The evidence indicates that Petitioner's absences

noted on the June 24, 2010, written warning were accurate. At

the t ime the written warning was issued, Mr. Randolph again

verbally counseled Petitioner regarding her absences.

19. On July 8, 2010, Mr. Randolph met with Petitioner and

presented her with a ÐFinal/Last Chance Agreement DocumentationÑ

disciplinary action bec ause she had another unscheduled absence

on July 1, 2010 . At the time of her July 1, 2010, absence ,

Petitioner had already exceeded the number of unscheduled

absences allowed by the HospitalÓs Attendance and Tardiness

Policy. Once again, Mr. Randolph cou nseled Petitioner regarding

her absenteeism. Petitioner understood that a ÐLast ChanceÑ

disciplinary action meant that if there were any more

occurrences, she would be terminated.

20. Petitioner admitted that her absence on July 1 was

unrelated to her f inger injury. She also admitted that she had

no evidence that the July 8 ÐFinal/Last ChanceÑ disciplinary

action was motivated by her rac e.

21. Mr. Randolph's counseling sessions with Petitioner on

January 28, 2010, June 24, 2010 , and July 8, 2010, were, in

effect, a form of progressive discipline , conducted with the

hope that Petitioner might improve her attendance and

punctuality.

22. N otwithstanding the prior Written Warning on June 24 ,

and the ÐLast ChanceÑ disciplinary action on July 8 , as well as

t he fact that Petitioner had already exceeded the allowable

number of unscheduled absences , Petitioner continued to violate

the HospitalÓs Attendance and Tardiness Policy.

23. Petitioner had two more unscheduled absences, one on

November 12, 2010 , and anot her on January 1, 2011. Petitioner

admitted that she had no evidence to show she worked on

November 12, 2010, and acknowledged that she did not work on

Jan uary 1, 2011 .

24. Although Petitioner claimed that the January 1, 2011,

absence was for a medical r eason, she had not requested or

obtained advance approval from EVS Management to be out of work

on that date, thus , under the Hospital's policy, her absence

constituted another ÐunscheduledÑ absence.

25. Petitioner was aware that if she had six occurrence s

of unschedul ed absences within a rolling 12 - month period, she

could be terminated.

26. Because Petitioner had a total of eight occurrences of

unscheduled absences during the previous rolli ng 12 - month

period, and because she had received prior disciplina ry actions

for violation of the Hospital's Attendance and Tardiness Policy,

Mr. Lanctot decided to terminate Petitioner Ó s employment.

27. Before actually terminating Petitioner , Mr. Lanctot

had his clerical staff confirm that Petitioner had in fact been

s cheduled to work, and failed to work the number of times

reflected on the prior disciplinary actions. His staff checked

and confirmed the number of Ðoccurrences.Ñ Mr. Lanctot also

conferred with Karen Oliver, the Vice President of Human

Resources for the Hospital. Ms. Oliver reviewed all of the

documentation from a Human Resources perspective and concluded

the termination was justified.

28. After conferring with Ms. Oliver, Mr. Lanctot met wit h

Petitioner on January 3, 2011 , to advise her of his decisio n to

terminate her employment. During this termination conference,

Mr. Lanctot explained to Petitioner that he was terminating her

employment for violation of the Attendance and Tardiness Policy .

29. Petitioner was terminated that same day, January 3,

2012. At the time of her termination, she had worked for the

Hospital for one year and three months.

30. EVS Department Director Jeff Lanctot made the decision

to terminate PetitionerÓ employment. As he had explained to

Petitioner, t he basis for her ter mination was her violation of

the HospitalÓs Attendance and Tardiness Policy.

31. At the final hearing, Petitioner acknowledged that ,

during her termination conference, Mr. Lanctot advised her that

the reason he decided to terminate her employment was due to her

excessive unscheduled absences in violation of the Hospital's

policy .

32. At no time prior to or during the termination

conference did Petitioner make any complaint of race

discri mination.

33. At the final hearing, while sugges ting that her

promo tion to full - time employment was inconsistent with the

Hospital's assertions that she was excessively absent,

Petitioner admitted that she had no evidence that her

disciplinary actions or termination were based on racial

prejudice.

34. Petitioner also fai led to demonstrate that a non -

minority employee , with a substantially similar employment

situation and disciplinary record as her own, was treated more

favorably. Although Petitioner claimed that a non - minority

employee named Crystal Simpkins received pre ferential treatment ,

Petitioner did not introduce admissible, non - hearsay, evidence

to show the dates or time period s of Ms. SimpkinsÓ alleged

unscheduled absences and tardi ness .

35. Petitioner admitted that she had never looked at

Ms. SimpkinsÓ employm ent file. Petitioner also admitted that

Ms. Simpkins worked a different shift than Petitioner and that

Ms. Simpkins had a different supervisor than Petitioner .

36. According to t eam l ead Daisy Machuca, who was called

as a witness by Petitioner, Petitione r was Ðmissing a lotÑ of

workdays and the Hospital applied its Attendance and Tardiness

policy consistently to all its employees. Ms. Machuca's

testimony in that regard is credited.

37. There is no evidence that Mr. Randolph, who is black,

or Mr. Lancto t, who hired Petitioner in the first place, or

anyone else at the Hospital, ever said anything to Petitioner

that was racially discriminatory.

38. Petitioner failed to introduce any evidence to

indicate that, following her termination, she had been replac ed

by a non - minority or someone who was not black .

39. There was no credible evidence adduced at the final

hearing showing that t he Hospital has not applied its policies

consistently to all of its employees, regardless of race. And,

the Petitioner failed to show that the Hospital terminate d her

employment because of her race. Rather, the evidence shows that

t he Hospital terminated Petitioner based on her violation of the

HospitalÓs Attendance and Tardiness Policy.

40. In addition to her claim that she was terminated

because of her race, Petitioner claims that the Hospital

discriminated against her with regard to its "Paid Time Off"

policy. The Hospital 's Paid Time Off (PTO) p olicy provides

guidelines for requesting advance approval for all scheduled

ab sences. The primary factors used by the Hospital in deciding

whether to approve PTO requests are the operational needs of the

department, scheduling needs, the order in which the request s

are received, employee PTO usage, and the length of service if

two or more requests are received at the same time.

41. In order to request PTO in the Environmental Services

Department, where Petitioner worked, an employee on the evening

shift was required to physically hand the PTO Request form to

Mr. Randolph.

42. If Mr. Randolph denied the request, the employee could

then bring the request to Mr. Lanctot and ask that he review

Mr. RandolphÓs denial of the request.

43. The Hospital maintains PTO request forms as part of

its personnel records for its employees . The Ho spitalÓs records

show that Petitioner submitted four requests for paid time off,

and she was approved for three of her four requests.

44. According to Hospital records, Petitioner submitted

her first request on May 18, 2010, to be off on June 11 and 12.

That PTO request was ap proved by Mr. Randolph. Petitioner

submitted a second request on Au gust 19, 2010, to be off

August 27 through August 29. Mr. Randolph initially disapproved

this PTO request. However, Petitioner spoke to Mr. Lanctot

about it, and M r. Lanctot decided to approve the request.

Petitioner admitted this PTO re quest was ultimately approved.

45. Petitioner submitted a third PTO request , which was

undated, to be off from December 4 through December 8, 2010.

Mr. Randolph denied this PTO re quest because two other

housekeepers had already requested and been granted time off

during that time. Mr. Randolph explained his reasoning to

Petitioner at the time of his denial of her request.

46. Petitioner suggest s that denial of her third, undated

PTO request was improper because another employee received the

time off but her PTO request was denied. While suggesting that

the other employee received preferential treatment, Petitioner

did not personally review the PTO Requests in the HospitalÓs

files , and thus had not seen the actual PTO request submitted by

the other employee. Review of the actual PTO file shows that

the other employee 's PTO request was not even for the same time

frame as Petitioner 's PTO request. Petitioner otherwise failed

to sho w that her third PTO request was denied because of her

race.

47. Petitioner submitted her fourth PTO request on

November 29, 2010, requesting to be off December 12 and 13.

Mr. Lanctot approved this PTO Request. In fact, Mr . Lanctot

could not recall ever personally denying any of Petitioner Ó s PTO

requests. Both Mr. Randolph and Mr. Lanctot credibly testified

that they did not destroy any PTO requests that were submitted

to them by Petitioner .

48. Petitioner also claims that there were other PTO

requests which she submitted that were denied. Those alleged

requests, however, were not in the HospitalÓs records. In

support of her claims, Petitioner presented copies of PTO

requests with her handwriting only, which were not from the

HospitalÓs records. Mr. Randolph denied that Petitioner had

given any of these other requests to him, as required.

49. There are s everal inconsistencies on the copies of PTO

requests that Petitioner alleges that she presented for approval

but are not reflected in the Hospital's files. On some of

Petitioner Ó s copies , there were requests for days off that

predated the date of the purported PTO request . Another one of

the copies included a request for leave on the same date as one

of the four official PTO Request forms from Petiti oner in the

Hospital's files , but the signature and other writing on

Petitioner's copy was starkly different than the HospitalÓs

official copy.

50. In addition, the only writing appearing on

Petitioner Ó s copies is Petitioner Ó s own handwriting , and her

c opies contain no writing by any other Hospital employee .

Further, t he PTO request forms are required to be approved or

denied in writing by a supervisor, before they become effective.

Petitioner presented no records indicating the requests in her

copies were ever approved or not .

51. Considering the evidence, it is found that t he only

PTO requests submitted by Petitioner are the four PTO r equests

introduced by the Hospital in Exhibit R10.

52. There is no evidence that any of Petitioner's PTO

requests we re denied because of Petitioner's race. The evidence

presented by Petitioner was otherwise insufficient to show that

t he Hospital failed to appl y its PTO p olicy , or any other

policy, consistently to all of its employees, regardless of

race.

53. The Hospi tal has an Equal Employment Opportunity (EEO)

Policy that prohibits all unlawful forms of discrimination,

harassment , and retaliation. The EEO policy provides four

alternative ways to make a discrimination complaint: (i) report

complaint to the immediate supervisor, (ii) report complaint to

a member of management, (iii) report complaint to the Human

Resources Department , or (iv) call a confidential 1 - 800 Ethics

Line number.

54. Employees are notified of the HospitalÓs EEO policy

during orientation and dur ing annual Code of Conduct trainings.

The HospitalÓs EEO Policy is also set forth in the Employee

Handbook and posted on posters th roughout the Hospital.

55. Petitioner was familiar with the HospitalÓs EEO

Policy . However , she never utilized the Hospita lÓs policy for

making a complaint of race discrimination to anyone at the

Hospital at any time while she was employed by the Hospital.

She also never called the HospitalÓs confidential 1 - 800 Ethics

Hotline number displayed in the Employee Handbook and on posters

throughout the Hospital. In fact, she never made any written

complaint in any form to anyone about racial discrimination

during her employment. And, at no time during her employment

did Petitioner ever complai n of race discrimination to

Mr. Lanct ot, Mr. Randolph, or the Hospital's Director of Human

Resources, Karen Oliver. 3/

56. The first time that Petitioner made any written

complaint of race discrimination was after her termination, when

she filed her Charge of Discrimination with the Commissio n .

57. Inasmuch as Petitioner never made any complaint of

race discrimination prior to her termination of employment, it

necessarily follows that Mr. Lanctot , w ho made the decision to

terminate Petitioner Ó s employment , had no knowledge of any such

compl aint at the time he made the decision to terminate her

employment.

58. In sum, Petitioner failed to show that the Hospital

discriminated against Petitioner by treating her differently or

terminating her because of her race, and she also failed to show

tha t the Hospital retaliated against her based on her filing a

complaint of race discrimination , or because she engaged in any

other protected activity .

CONCLUSIONS OF LAW

59. The Division of Administrative Hearings has

j urisdiction over the parties and subj ect matter of this

proceeding p ursuant to section 120.569 and s ubsection 120.57(1),

Florida Statutes , and Florida Administrative Code Rule

60Y - 4.016(1).

60. The State of Florida, under the legislative scheme

contained in s ections 760.01 Î 760.11 and 509.092 , Florida

Statutes, known as the Florida Civil Rights Act of 1992 (the

Act), incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1 964, as amended. 42 U.S.C. § 2000e, et seq.

61. The Florida law prohibiting unlawful employment

practices is found in s ection 760.10 . This section prohibits

discrimination Ð against any individual with respect to

compensation, terms, conditions, or privi leges of employment ,

because of such individual's race, color, religion, sex,

national origin, age, handicap, or marital status.Ñ

§ 760.10(1 )( a), Fla. Stat.

62. Pursuant to s ubsect ion 760.10(1), it is an unlawful

employment practice for an employer to di scharge or otherwise

discriminate against an individual on the basis of race.

63. Florida courts have held that because the Act is

patterned after Title VII of the Civil Rights Act of 1964, as

amended, federal case law dealing with Title VII is applicable .

See , e.g., Fl a . Dep't of Cmty. Aff. v. Bryant, 586 So. 2d 1205 ,

1209 (Fla. 1st DCA 1991) .

64. As developed in federal case s , a prima facie case of

discrimination under Title VII may be established by statistical

proof of a pattern of discrimination, or on the basis of direct

evidence which, if believed, would prove the existence of

discrimination without inference or presumption. 4/ Usually,

howev er, direct evidence is lacking and one seeking to prove

discrimination must rely on circumstantial evidence of

discriminatory intent, using the shifting burden of proof

pattern established in McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973). See Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir. 1997).

65. Under the shifting burden pattern developed in

McD onnell Douglas :

First, [Petitioner] has the burden of

proving a prima facie case of discrimination

by a preponderance of the evidence. Second,

if [Petitioner] sufficiently establishes a

prima facie case, the burden shifts to

[Respondent] to Ðarticulate so me legitimate,

nondiscriminatory reasonÑ for its action.

Third, if [Respondent] satisfies this

burden, [Petitioner] has the opportunity to

prove by a preponderance that the legitimate

reasons asserted by [Respondent] are in fact

mere pretext.

U.S. Dep 't of Hous. & Urban Dev. v. Blackwell , 908 F.2d 864, 870

(11th Cir. 1990)(housing discrimination claim); accord

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17, 22 (Fla. 3d

DCA 2009)(gender discrimination claim)("Under the McDonnell

Douglas framework, a plaintiff must first establish, by a

preponderance of the evidence, a prima facie case of

discrimination.").

66. Therefore, in order to prevail in her claim against

the Hospital , Petitioner must first establish a prima facie case

by a preponderance of t he evidence. Id. ; § 120.57(1)(j), Fla.

Stat. ("Findings of fact shall be based upon a preponderance of

the evidence, except in penal or licensure proceedings or except

as otherwise provided by statute and shall be based exclusively

on the evidence of reco rd and on matters officially

recognized.").

67. "Demonstrating a prima facie case is not onerous; it

requires only that the plaintiff establish facts adequate to

permit an inference of discrimination." Holifield , 115 F.3d at

1562 ; cf. , Gross v. Lyons , 76 3 So. 2d 276, 280 n.1 (Fla.

2000)( " A preponderance of the evidence is ' the greater weight of

the evidence,' [citation omitted] or evidence that 'more likely

than not' tends to prove a certain proposition ." ).

68. Petitioner's Charge of Discrimination again st the

Hospital , in essence, alleges that Petitioner was subjected to

disparate treatment and terminated because of her race.

Petitioner's Charge of Discrimination also mentions retaliation.

Petitioner, however, failed to prove her allegations.

69. Peti tioner did not present any statistical or direct

evidence of discrimination , and otherwise failed to present a

prima facie case of discrimination based on disparate treatment.

70. In order to establish a prima facie case of race

discrimination based on di sparate treatment, a petitioner must

show that: (1) s he belongs to [a protected class] ; (2) s he was

subjecte d to adverse job action; (3) her employer treated

similarly - situate d employees outside her classification more

favorably; and (4) s he was qualified to do the job. Holifield ,

115 F.3d at 1562.

71. To demonstrate that similarly - situated employees

outside her protected class were treated more favorably ,

Petitioner must show that a ÐcomparativeÑ employee was

Ðsimilarly situated in all relevant respects, Ñ meaning that an

employee outside of Petitioner's protected class was "involved

in or accused of the same or similar conduct" and treated in a

more favorable way. Id.

72. As far as the verbal counseling, written warnings, and

final/last chance disciplin ary actions that Petitioner received

prior to her termination, Petitioner failed to present evidence

that similarly - situated employees outside Petitioner's protected

class were or would have been treated any differently .

73. Petitioner also failed to pres ent sufficient evidence

to show disparate treatment resulting in her discharge by

failing to identify another non - minority employee accused of

similar violations of the Hospital's Attendance and Tardiness

Policy who was not terminated , as was Petitioner .

7 4. Petitioner's proof of her allegation that the Hospital

unfairly denied her PTO requests was also lacking.

75. Therefore, Petitioner did not establish a prima facie

case of discriminatory discipline , discharge, or unfairness

based on disparate treatmen t.

76. When a P etitioner fails to present a prima facie case

the inquiry ends and the case should be dismissed . Ratliff v.

State , 666 So. 2d 1008, 1013 n.6 (Fla. 1st DCA 1996) .

77. Even if Petitioner had established a prima facie case

of discriminatory treatment or discharge , Respondent met its

burden of demonstrating that it had legitimate,

nondiscriminatory reason s for disciplining and then ultimately

discharging Petitioner.

78. The Hospital demonstrated that the disciplinary

actions taken against Pe titioner, including her termination,

were legitimate and based on Petitioner's violation s of the

Hospital's policies . T he Hospital also presented evidence

showing that most of Petitioner's PTO requests were granted, and

that the one denial was fair and in accordance with the

Hospital's protocol .

79. T he evidence demonstrated that the Hospital acted on

the Petitioner's repeated violations of policy without regard to

her rac e , and demonstrated that it had legitimate, non -

discriminatory reason s for taking th e actions that it did in

disciplining and terminating Petitioner. The evidence also

showed that the Hospital did not unfairly deny a ny of

Petitioner's PTO requests, and had a legitimate reason for the

one denial.

80. Petitioner offered no proof that the HospitalÓs

proffered reasons for disciplining or discharging her, or for

denying her PTO request, were pretexts for unlawful

discrimination based on Petitioner's race. In proving that an

employer ' s asserted reason is merely a pretext:

A plaintiff is not allowed to recast an

employer 's proffered nondiscriminatory

reasons or substitute [her] business

judgment for that of the employer. Provided

that the proffered reason is one that might

motivate a reasonable employer, an employee

must meet that reason head on and rebut it ,

and the employee cannot succeed by simply

quarreling with the wisdom of that reason.

Chapman v. AI Transport , 229 F.3d 1012, 1030 (11th Cir. 2000).

81. Although Petitioner felt that the reasons for her

discipline and termination must ha ve been discriminatory, the

evidence does not support her claim. PetitionerÓs speculation

as to the motives of the Hospital, standing alone, is

insufficient to establish a prima facie case of discrimination.

See , e.g. , Lizardo v. DennyÓs, Inc. , 270 F.3d 94, 104 (2d Cir.

2001) (Plaintiffs have done little more than cite to their

mistreatment and ask the court to conclude that it must have

been related to their race. This is not sufficient.Ñ).

82. For the foregoing reasons, it is concluded that

Petitioner failed to establish her claim of discrimination under

the theory of disparate treatment.

83. Petitioner also failed to demonstrate that the

Hospital unlawfully retaliated against her. Petitioner

presented n o direct evidence of retaliation . Thus, under the

same burden of proof analysis discussed above, Petitioner must

first establish a prima facie case . In order to demonstrate a

prima facie case of retaliation, Petitioner must show: (1) that

s he was engaged in statutorily - protected expression or conduct ;

(2) that s he suffered an adverse employment action ; and (3) that

there is some causal relationship between the two events.

Holifield , 115 F.3d at 1566.

84. Petitioner failed to establish a causal link between

any alleged protected conduct and the adver se employment

action s .

85. A s to whether Petitioner was engaged in statutorily -

protected conduct or expression , Petitioner asserted at the

final hearing, for the first time, that, prior to her

termination, she complained about a sexual comment made by her

supervisor . Her claim of retaliation , as set forth in her

Charge of Discrimination, however, is based on race, not gender

or sexual harassment. As noted in the Findings of Fact, above,

there is no evidence that Petitioner, prior to her discharge,

compla ined that she was being discriminated against because of

her race.

86. Petitioner's assertion, for the first time at the

final hearing, that her complaint about her supervisor's sexual

comment somehow supports her claim for retaliation, is beyond

the scop e of her Charge of Discrimination . Therefore, her claim

of retaliation on that basis is not cognizable in this

proceeding. See Chambers v. American Trans Air, Inc. , 17 F.3d

998, 1003 (7th Cir. 1994)(Ð[T]o prevent circumvention of the

[FCHRÓs] investigato ry and conciliatory role, only those claims

that are fairly encompassed within a [timely - filed complaint]

can be the subject of [an administrative hearing conducted

pursuant to Sections 120.569 and 120.57, Florida Statutes]Ñ).

87. E ven if Petitioner had t imely asserted her complaint

about her supervisor's sexual comment in support of her claim of

retaliation, the Hospital advanced legitimate, non - retaliatory

reasons for Petitioner's disciplines and termination , as well as

the manner in which Petitioner's P TO requests were handled.

88. Like the disparate treatment analysis, above, in

claims asserting retaliation, once an employer offers a

legitimate, non - discriminatory reason to explain the adverse

employment action, a P etitioner must prove that the proffer ed

reason was pretext for what actually amounted to disc rimination.

Id. Rather than supported by credible evidence, the only

support Petitioner has for the Hospital 's alleged discriminatory

motives is based upon Petitioner's unsupported opinion which ,

st anding alone, is insufficient. See Lizardo , supra .

89. Petitioner did not carr y her burden of persuasion

necessary to state a prima facie case for her claims of

discrimination or retaliation under any theory advanced by

Petitioner . Even if s he had, the Hospital proved legitimate,

nondiscriminatory reason s for the di scipline and termination of

Petitioner's employment, which Petitioner failed to show were a

mere pretext for unlawful discrimination.

90. Therefore, it is concluded, based upon the evidence ,

that the Hospital did not violate the Flo rida Civil Rights Act

of 1992 , and is not liable to Petitioner for discrimination in

employment or unlawful retaliation .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMM ENDED that the Florida Commission on Human Relations

enter a Final Order dismissing PetitionerÓs Charge of

Discrimination and Petition for Relief consistent with the terms

of this Recommended Order.

DONE AND E NTERED this 18 th day of September, 2012 , in

T al lahassee, Leon County, Florida.

S

JAMES H. PETERSON, III

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 18 th day of September , 201 2 .

ENDNOTES

1 / Unless otherwise indicated, all references to the Florida

Statutes, Florida Administrative Code, and federal laws are to

the current version s which have not substantively changed since

the time of the alleged discrimination.

2 / Even though Petitioner was having trouble following the

Hospital's policies, Mr. Lanctot changed Petitioner's employment

status from PRN to full - time with benefits, b ecause Petitioner

was working a lot of hours.

3 / Although not mentioned in her Charge of Discrimination, at

the final hearing, there was evidence that, prior to her

termination, Petitioner complained to Ms. Oliver about her

supervisor, Mr. Randolph. Pe titioner recalled that it was in

late November or early December, 2011. According to Petitioner,

she complained because Mr. Randolph had asked Petitioner

something about her sex life. Ms. Oliver recalled that

Petitioner and a co - worker had met with her t o complain about

Mr. Randolph's management style; that he was overseeing them too

diligently. Ms. Oliver could not recall the exact timing of the

meeting, but estimated that it was several months before

Petitioner's termination. Aside from being beyond t he scope of

Petitioner's Charge of Discrimination, the evidence adduced at

the final hearing did not otherwise show that Petitioner's

discipline , termination , or the way she was treated as an

employee were in any way related to her complaint about

Mr. Rand olph.

4 / For instance, an example of direct evidence in an age

discrimination case would be the employer's memorandum stating,

ÐFire [petitioner] Î he is too old,Ñ clearly and directly

evincing that the plaintiff was terminated based on his age.

See Ear ly v. Champion Int'l Corp. , 907 F.2d 1077, 1081 (11th

C ir. 1990)).

COPIES FURNISHED :

Rachel Lynn Bivins

4344 Langley Avenue, Apartment 121 - D

Pensacola, Florida 32504

Thomas M. Findley, Esquire

Messer, Caparello & Self, P.A.

P.O. Box 15579

Tallahassee, Florida 32317

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

T allahassee, Florida 32301

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 tha t

will issue the final order in this case.