16-007588 Sonya D. Ruttlen vs. Washington Rehabilitation And Nursing Center Services Status: Closed Recommended Order on Tuesday, April 18, 2017.

Summary: Petitioner failed to meet her burden of proving that Respondent engaged in a discriminatory employment practice based on her religion.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SONYA D. RUTTLEN,

Petitioner,

vs. Case No. 16 - 7588

WASHINGTON REHABILITATION AND

NURSING CENTER SERVICES,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held March 14

and 15, 2017, in Chipley, Florida, before Yolonda Y. Green, a

duly - designated Administrative Law Judge of the Division of

Administrative Hearings (ÐDivisionÑ).

APPEARANCES

For Petitioner: Sonya D. Ruttlen, pr o se

109 Pace Lane

Dothan, Alabama 36305

For Respondent: Helen Price Palladeno, Esquire

Ogletree, Deakins, Nash,

Smoak & Stew art, P.C.

100 North Tampa Street, Suite 3600

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Respondent subjected Petitioner to an unlawful

employment practice on the basis of her religion in violation of

section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Son ya Ruttlen (ÐMs. RuttlenÑ or ÐPetitionerÑ),

filed a Complaint of Employment Discrimination with the Florida

Commission on Human Relations (ÐFCHRÑ) on October 27, 2015. The

complaint alleged that Respondent, Washington Rehabilitation and

Nursing Center (ÐW ashington CenterÑ or ÐRespondentÑ),

discriminated against her on the basis of religion by not

granting her an interview for a chaplain position and hiring an

external applicant following her comment that Ð [ s ] he needed to

anoint herself with oil before ente ring the building, to avoid

all the negativity.Ñ Following its investigation of the

allegations, FCHR issued a determination of ÐNo Reasonable CauseÑ

regarding PetitionerÓs complaint on November 23, 2016.

On December 23, 2016, Petitioner filed a Petition for Relief

requesting an administrative hearing regarding FCHRÓs ÐNo

Reasonable CauseÑ determination pursuant to section 760.11(7).

FCHR referred the matter to the Di vision on December 23,

2016, and on December 27, 2016, this matter was assigned to the

u ndersigned. The undersigned issued a Notice of Hearing, setting

the final hearing for February 21, 2017. On January 13, 2017,

Petitioner filed a Motion to Continue Final Hearing. The

undersigned granted the motion and scheduled the final hearing

for Mar ch 14 and 15, 2017. RespondentÓs Second Motion to

Continue Final Hearing was denied for lack of good cause.

Prior to the hearing, Petitioner filed two Mo tions to Amend

her Petition to Add E vidence and a Motion to Amend Evidence.

Respondent did not oppos e PetitionerÓs motions. O n February 9,

2017 , t he un dersigned granted PetitionerÓs m otions.

The final hearing convened on March 14, 2017, and concluded

on March 15, 2017. At hearing, Petitioner testified on her own

behalf and offered six witnesses: Lani ce Bonds, former C haplain

of a nursing facility in Graceville, Florida ; Savannah Fredrick,

former C haplain of Washington Center; Shauna Gibson, former

employee of Washington Center; Jane Giles, former employee of

Washington Center; Hannah (Brewer) Williams , former employee of

Washington Center; and Kim Salter Pothoff , former Director of

Nursing of Washington Center . Petitioner offered Exhibits P - 1,

P - 2b, P - 2c, P - 3, P - 4, P - 6, P - 6b, P - 7, P - 8b, P - 8c, P - 9, P - 11,

P - 11b, P - 12b , and P - 13. All of PetitionerÓs offered exhibits

were admitted in evidence.

Respondent offered the testimony of three witnesses: Alice

Finch, Human Resources Director of Washington Center; Bret Brown,

Administrator of Washington Center; and Jeremy Clifton, Chaplain

of Washington Cente r. Respondent offered Exhibits R - 1, R - 2, R - 4

through R - 16, R - 18 , and R - 22, which were admitted.

The proceeding was recorded by a court reporter but neither

party ordered a written transcript of the final hearing. The

parties timely filed Proposed Recom mended Orders, which have been

carefully considered in the preparation of this Recommen ded

Order. Petitioner filed a m otion regarding service of

RespondentÓs Proposed Recommende d Order upon Petitioner. Finding

no violation of the undersignedÓs instructio ns, the motion is

denied.

All statutory citations are to Florida Statutes (2014), when

the alleged discriminatory act occurred, unless otherwise

indicated.

FINDING S OF FACT

1. At all times relevant to this matter, Ms. Ruttlen worked

and still works for Washington Center. Ms. Ruttlen identifies as

Christian, has practiced Pentecostal beliefs, and serves as a

member and minister at Greater Beulah Baptist Church in Dothan,

Alabama .

2 . Ms. Ruttlen has been employed at Washington Center since

2003. Durin g her employment, she has been e mployed as a

Certified Nursing A ssistant (ÐCNA") and Activities Assistant.

3 . Respondent is one of the largest employers in Washington

County a nd employed at least 15 persons at all times relevant to

this matter. The W ashington Center is one of several facilities

owned by Signature HealthCare, LLC (ÐSignatureÑ) .

4 . The crux of this case rests with a comment Ms. Ruttlen

made during a meeting , and Washington CenterÓs Administrator not

granting her an interview for a v acant chaplain position.

5 . Bret Brown is a Christian and attends First Baptist

Church Chipley, a large ch urch with more than 700 members located

in Chipley, Florida. He has been employed as the Administrator

of the Washington Center for more than six ye ars. His job

responsibilities include overseeing reside ntial care, compliance

with federal regulations, and supervising department managers

(which includes the only chaplain position).

6. In late 2014 and/or early 2015, Washington Center

launched a ne w resident program called the ÐHolistic Care

Program.Ñ Overall, the Program was designed to put more staff on

the floor caring for residents.

7 . Before the Program was impl emented, a resident would

have a CNA, an activities employee, and a housekeeper al l taking

care of the residentÓs needs. T he CNA would be in charge of

p ersonal care, vital signs, serving meals, and set ting up medical

equipment; the activities employee would do activities with the

resident; and the housekeeping employee would ensure the

residentÓs room was clean and in order.

8 . Under the Holistic Care Program the housekeeping staff

and activities employees would be trained to become CNAs (if

needed), and each reside nt would be assigned a CNA to perform all

the tasks. Mr. Brown testi fied that CNAs getting to know the

residents and having more hands on care is better for the

residents. Ms. Finch testified the upside was that a resident

would have more one - on - one care and the CNA would be assigned

fewer residents.

9 . Mr. Brown testi fied that as a result of the Holistic

Progra m everyone at Washington Center, including the

administrators, would be trained to assist in resident care and

everyone would be responsible for it. He admitted he was not a

trained CNA yet.

10 . After some tim e had passed, it became clear that the

staff were unhappy with the Holistic Program. Staff complained

that the number of residents assigned to each CNA increased

instead of decreased. The leadership staff was not trained to be

CNAs as initially promised.

11 . Ms. Gibson, a CNA who worked at Washingt on Center for

five years, testified that staff members complained about the

Holistic Program because everyone was not helping with resident

care as previously discussed with staff.

12. These inconsistencie s created tension in the facility.

The circumstances reached a boiling point when a CNA asked an

administrator in training to answer a residentÓs call light , a

request that went unheeded .

13 . In an effort to quell the growing tension at the

facility, i n January or February 2015, Mr. Brown held staff

meetings to address the specific duties of staff and managers

under the Holistic Program, set the ex pectations for everyone,

and tried to end the negativity in the facility.

14 . During the first staff m eeting, Mr. Brown asked if

anyone had something to say, and Ms. Ruttlen responded to

Mr. Brown with Ð[T]hereÓs so much negativity in the building,

itÓs sad,Ñ and Ðbecause of it, I have to anoint myself every day

to cover myself so that the negativity wonÓt rub off on me and I

become part of it.Ñ

15 . At a second staff meetin g for the 3 :00 p.m. - 11 :00 p.m.

shift (where Ms. Ruttlen was not present), Mr. Brown stated ÐIf

you think our building is so negative that you have to anoint

yourself with oils to come to work, why would you work here? Why

would you put yourself through that?Ñ

16 . Mr. Brown testified that Ms. RuttlenÓs comment that

Washington Center was a Ðnegative placeÑ bothered him; not the

fact that she anointed herself with oil.

17 . In January 2 015, Savannah Fredrick told M r. Brown she

intended to retire by March 2015. Despite Mr. BrownÓs efforts to

convince her to stay, Ms. FredrickÓs last day was in March 2015.

18 . Ms. Ruttlen testified that she spoke to Mr. Brown on or

about January 19, 2015 , about her desire to be the new c haplain

when Ms. Fredrick retired and that she would be licensed on

August 16, 2015. Mr. Brown denies this, stating that the first

he heard of Ms. RuttlenÓs desire to be the c haplain was when she

signed up for the open p osition in early March 2015.

19 . Ms. Ruttlen sent a contemporaneous text message to her

then supervisor advising that she spoke to Mr. Brown about the

position, which is consistent with her testimony at hearing.

Therefore, Ms. RuttlenÓs account of this point is found to be

more credible.

20 . On March 9, 2015, at the request of Mr. Brown,

Ms. Finch posted two internal job posting sign - up sheets for the

chaplain position; one by each time clock. 1 / Ms. Finch stated

that she typically posted the interna l postings and also removed

them but sometimes managers would remove the posting.

21 . Ms. Finch testified she attached the job description

for the chaplain position to the postings.

22 . According to the c haplain job description, the relevant

job requir ements are:

ÐBachelors Degree in Theology, Divinity,

Counseling or related field; AND/OR ordained

by a local ministry organization or qualified

by specific educational training in the

ministry field or a combination of education

and related experience may be acceptable.

Minimum of two (2) years related experience.

Active member of community

ch aplain/ministerial association. . . .Ñ

23 . B oth Ms. Ruttlen and Hannah Williams signed the

internal job posting.

24 . Neither Ms. Ruttlen nor Ms. Williams (rel igion unknown)

were granted an interview for the position.

25 . After the inte rnal vacancy was posted, the position was

then advertised by Washington Center Ós home office externally on

various websites. This is consistent with SignatureÓs Internal

J ob Po sting Policy which states Ð When a position becomes

available, a notice will be place d on the Company bulletin board

or specified location for three (3) days. As deemed necessary,

the position may be immediately posted externally.Ñ

26 . The internal sign - up sheet was provided to Mr. Brown .

Mr. Brown also collected resumes and applications from external

candidates once the position was posted externally. The resumes

and applications he collected were dated from March 12, 2015 , to

May 11, 2015.

27 . Mr. C lifton submitted his application on May 3, 2015,

two months after Ms. Ruttlen signed the sign - up sheet. According

to his resume, Mr. Clifton earned a bachelorÓs degree in theology

in 2003 and an associate degree in C hurch Administration/

R eligious E ducati on in 1999 ; he had five years (at the time) work

experience in congregational care which included ministering in

the church. Mr. Clifton lives in Chipley, Florida , near the

Washington Center .

28 . Ms. Ruttlen did not submit an a pplication for the

position . 2 / However, she offered her resume at hearing.

According to her resume, Ms. Ruttlen earned her Gospel Ministry

License on August 16, 2015, ap proximately two weeks after

Mr. Brown filled the position. She had experience as a minister

since January 2014, which amounted to only 20 months of relevant

experience. Ms. Ruttlen lives in Dothan, Alabama.

29 . Mr. Brown did not interview applicants for the vacant

chaplain position until June or July 2015, approximately three

months after he received the internal job posting sign - up sheet.

He interviewed two of the external applicants. One of those

applicants was Mr. Clifton . Mr. Brown interviewed Mr. Clifton

with Tim Hill, SignatureÓs Regional Chaplain. Mr. Brown could

not recall the name of the other applica nt.

30 . After the interview with Jeremy Clifton, Mr. Hill

recommended to Mr. Brown that Mr. Clifton be hired. Mr. Brown

testified that Mr. Clifton was the best candidate for the job as

he met all requirements on the job description; met Mr. BrownÓs

prefe rence for a local resident who knows the community; and has

connections in Chipley.

31 . Neither Mr. Brown nor Mr. Hill interviewed Ms. Ruttlen

for the position. Mr. Hill was not informed that internal

applicant s were interested in the position.

32 . Mr. Brown speculated that Ms. Ruttlen may not still be

interested in the position after she was reclassified as a part -

time employee, w hich occurred on April 28, 2015, since the

c haplain job was a full - time position. However, the job

description did n ot indic ate it was a full - time position.

Mr. Brown testified that he attempted to persuade Ms. Fredrick to

s tay on part - time and Mr. Bonds, a former chaplain, test ified

that he was asked to work p art - time as the chaplain at a

Signature facility located in Gracevi lle , Florida. 3 / Thus, the

undersigned is not persuaded that the position required the

applicant to be a full - time employee.

33 . Mr. Clifton started working as th e Chaplain of

Washington Center on July 28, 2015. Ms. Ruttlen became aware of

this on the sa me date and was concerned that she was treated

unfairly.

34. Ms. Ruttlen was aware of Washington CenterÓs n on -

d iscrimination policy and discrimination complaint reporting

procedure , which were both in the employee handbook . 4/ In

pertinent part, those po licies state :

Ð[R]eligion, gender, sexual orientation,

national origin, age, disability, marital

status, amnesty, genetic information or

status as covered veterans in accordance

with applicable federal, state and local

lawsÑ and ÐStakeholders have the ri ght to

work in a professional atmosphere . . . and

prohibits discriminatory practices,

including harassment, on the basis for an

individualÓs race, color, national origin,

religion, gender, sexual orientation, age,

disability, status as a veteran, genetic

information or any other legally protected

status.Ñ

* * *

The reporting requirements and complaint

procedures that include reporting offenses

to the StakeholderÓs supervisor, Human

Resources, any ombudsman, or utilizing the

CareLine (toll free hotline).

35 . Consis tent with the reporting policy , on August 10,

201 5, Ms. Ruttlen approached her supervisor to inquire why she

was not intervi ewed for the c haplain position. Ms. RuttlenÓs

supervisor told her to ask Mr. Brown.

36 . Ms. Ruttlen met with Mr. B rown on August 10, 2015.

Mr. Brown explained to Ms. Ruttlen he had forgotten she signed

the internal job posting.

3 7 . Ms. Ruttlen testified she did not believe Mr. Brown,

rather, she believes he did not interview her because he

disapproved of her anoint ing herself with oils.

38 . Ms. Finch, Ms. Frederick , and Ms. Potthoff all

testified that Mr. Brown knew of and app roved of beds and rooms

in the f acility being anointed with oils by Ms. Frederick and

Christa Wesley (former marketing director) . They did so and

prayed to keep the beds full and keep Washington Center busy.

39 . Dissatisfied with Mr. BrownÓs response, o n August 10,

2015, Ms. Ruttlen called Washington Center Ós home office in

Louisville, Kentucky , to complain of discriminatory treatment .

40 . Ms. Ruttlen reported her claim of religious

discrimination to Shannon Cucksey, the Signature Regional Human

Re sources Consultant, and Mr. Cox. Both stated an investigation

would happen.

41 . On August 18, 2015, and September 1, 2015, Ms. Ruttlen

sent e mail s to Mr. Cox, concerning her lack of interview, that

she was never acknowledg ed during the interview process, that she

felt she was treated unfair ly , and she had not received a

response to her emails.

4 2 . On September 17, 2015, Ms. Ruttlen received a phone

call from Billy Colly of Washington Center Ós home office.

M r. Colly explained the results of the investigation: that

Mr. Brown had f orgotten she signed up for the c haplain position.

U ltimate F inding of F act

43 . Based on the evidence offered at the hearing,

Petitioner did not demonstrate by a preponderance of the evidence

that Washington Center discriminated against her on the basis of

her religion.

CONCLUSIONS OF LAW

4 4 . Pursuant to sections 120.569 and 120.57(1 ), Florida

Statutes (2016), the D i vision has jurisdiction over the subject

matter and parties to this proceeding.

45 . Section 760.10(1)(a), Florida Statutes, makes it

unlawful for an employer to take adverse action against an

individual because of that employeeÓs religion.

46 . The civil rights act defines ÐemployerÑ as Ðany person

employing 15 or more employees for each working day in each of 20

or more calendar weeks in the current or preceding calendar year,

and any agent of such person.Ñ £ 760.02(7), Fla. Stat.

47 . Washington Center meets the definition of an employer .

Ms. Ruttlen was employed by Washington Center.

48 . Petitioner filed a complaint alleging Respondent

discriminated against her on the basis of her religion .

49 . Section 760.11(1) provides, in pertinent part, that

Ð [a]ny person aggrieved by a violation of ss. 760.01 - 760.10 may

file a complaint with the [FCHR] within 365 days of the alleged

violation.Ñ Petitioner timely filed her complaint.

50 . Section 760.11(7) provides that upon a determination by

the FCHR that t here is no reasonable cause to believe that a

violation of the Florida Civil Rights Act of 1992 has occurred,

Ð[t]he aggrieved person may request an administrative hearing

under ss. 120.569 and 120.57, but any such request must be made

within 35 days of th e date of determination of reasonable cause.Ñ

Following the FCHR determination of no cause, Petitioner timely

filed her Petition for Relief from Unlawful Employment Practices

and Request for Administrative Hearing requesting this hearing.

51 . Chapter 7 60, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as placed on

its federal prototype.Ñ Brand v. Fla. Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v. GlobeGround

N. Am ., LLC , 18 So. 3d 17 (Fla. 3d DCA 2009); Fla. State Univ. v.

Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't of Cmty.

Aff. v. Bryant , 586 So . 2d 1205 (Fla. 1st DCA 1991).

52 . Petitioner has the burden of proving by a preponderance

of the evidence that Respondent committed an unlawful employment

practice. See St. Louis v. Fla. Int'l Univ. , 60 So. 3d 455 (Fla.

3d DCA 2011); Fla. Dep't of Tran sp. v. J.W.C. Co. , 396 S o. 2d 778

(Fla. 1st DCA 1981).

53 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d at 22.

54 . Direct evidence is evidence that, if believed , would

prove the existence of discriminatory intent without resort to

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11th Cir. 1997). It is well established that ÐÒonly t he

most blatant remarks, whose intent could be nothing other than to

discriminate . . .Ó will constitute direct evidence of

discrimination.Ñ Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11th Cir. 1999)(citations omitted).

55 . Pe titioner did not present any direct evidence of

employment action based on religion . The comments from Mr. Brown

regarding Ms. Ruttlen anointing herself are easily construed to

relate to Mr. Brown being bothered that Ms. Ruttlen believed

Washington Center was a Ðnegative place,Ñ rather than related to

her religion.

56 . Petitioner presented no statistical evidence of

discrimination by Respondent in its personnel decisions affecting

Petitioner.

57 . In the absence of any direct or statistical evidence of

d iscriminatory intent, Petitioner must rely on circumstantial

evidence. In McDonnell Douglas Corporation v. Green , 411 U.S.

792 (1973), and as refined in Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981), and St. Mary's Honor

Center v. Hicks , 509 U.S. 502 (1993), the United States Supreme

Court established the procedure for determining whether

employment discrimination has occurred when employees rely upon

circumstantial evidence of discriminatory intent.

58 . Under McDonnell Douglas , Pe titioner has the initial

burden of establishing a prima facie case of unlawful

discrimination.

59 . To establ ish a prima facie case of religious

discrimination, Petitioner must demonstrate by a preponderance of

the evidence that: 1) she is a member of a protected class;

2) she was qualified for the position; 3) she was subjected to an

adverse employment action; and 4) her employer treated similarly -

situated employees outside of her protected class more favorably

than she was treated. Burke - Fowler v. Oran ge Cnty. , 447 F.3d

1319, 1323 (11th Cir. 2006).

60 . The first and third elements of the prima facie case

have been met by Petitioner. Ms. Ruttlen is Christian and she

was no t granted an interview for the c haplain position.

61 . Petitioner did not, howe ver, prove the second and

fourth elements, that she was qualified for the position and that

other similarly - situated employees were treated more favorably

than her.

62 . Petitioner did not present sufficient evidence from

which the undersigned could conc lude that Petitioner possessed

the basic qualifications necessary for the chaplain position.

The evidence shows that a t the time Ms . Ruttlen applied for the

c haplain position , she had not yet earned her Gospel Ministry

License and , at best, she had 20 mon ths of ministry experience

(the position required two years).

63 . Petitioner also did not prove that other similarly -

situated employees were treated more favorably than her.

Ms. Ruttlen offered evidence regarding Hannah Williams as a

similarly - situated employee. There was no evidence introduced

regarding Ms. WilliamsÓ religion. Ever if her religion were

known, Ms. Williams was also not granted an interview or hired

for the position.

64 . Petitioner has failed to prove by a preponderance of

the eviden ce that she was qualified for the c haplain position or

that Respondent treated similarly - situated employees outside her

protected class more favorably than her.

65 . If Petitioner had been able to prove her prima facie

case by a preponderance of the evid ence, the burden would shift

to Respondent to articulate a legitimate, non - discriminatory

reason for its employment decision. Tex. DepÓt of Cmty. Aff. v.

Burdine , 450 U.S. at 255; DepÓt of Corr. v. Chandler , 582 So. 2d

1183 (Fla. 1st DCA 1991). An employ er has the burden of

production, not persuasion, to demonstrate to the finder of fact

that the decision was non discriminatory. DepÓt of Corr. v.

Chandler , supra . This burden of production is "exceedingly

light." Holifield v. Reno , 115 F.3d at 1564; Turn es v. Amsouth

Bank, N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994).

66 . If the employer produces evidence that the decision was

non - discriminatory, then the complainant must establish that the

proffered reason was not the true reason but merely a pretext for

discrimination. St. Mary's Honor Ctr. v. Hicks , 509 U.S. at 516 -

518. In order to satisfy this final step of the process,

Petitioner must Ðshow[] directly that a discriminatory reason

more likely than not motivated the decision, or indirectly by

showing t hat the proffered reason for the employment decision is

not worthy of belief.Ñ DepÓt of Corr. v. Chandler , 582 So. 2d at

1186 (citing Tex. Dep't of Cmty. Aff. v. Burdine , 450 U.S. at

252 - 256). Ð[A] reason cannot be a pretext for discrimination

Òunless it is shown both that the reason was false, and that

discrimination was the real reason.ÓÑ Fla. State Univ. v.

Sondel , 685 So. 2d at 927, citing St. Mary's Honor Ctr. v. Hicks ,

509 U.S. at 515; see also Jiminez v. Mary Washington Coll. ,

57 F.3d 369, 378 (4t h Cir. 1995). The demonstration of pretext

Ðmerges with the plaintiff's ultimate burden of showing that the

defendant intentionally discriminated against the plaintiff.Ñ

Holifield v. Reno , 115 F.3d at 1565.

67 . In a proceeding under the Civil Rights Ac t, Ð[w]e are

not in the business of adjudging whether employment decisions are

prudent or fair. Instead, our sole concern is whether unlawful

discriminatory animus motivates a challenged employment

decision.Ñ Damon v. Fleming Supermarkets of Fla., Inc. , 196 F.3d

at 1361. As established by the Eleventh Circuit Court of

Appeals, Ð[t]he employer may fire an employee for a good reason,

a bad reason, a reason based on erroneous facts, or for no reason

at all, as long as its action is not for a discriminatory

reason.Ñ Nix v. WLCY Radio/Rahall CommcÓns , 738 F.2d 1181, 1187

(11th Cir. 1984). Moreover, Ð[t]he employerÓs stated legitimate

reason . . . does not have to be a reason that the judge or

jurors would act on or approve.Ñ DepÓt of Corr. v. Chandler ,

582 So. 2d at 1187.

68 . In determining whether RespondentÓs actions were

pretextual, the undersigned Ðmust evaluate whether the plaintiff

has demonstrated Òsuch weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence.ÓÑ

Combs v. Plantation Patterns, Meadowcraft, Inc. , 106 F.3d 1519,

1538 (11th Cir. 1997).

69 . Even assuming for purposes of argument that Peti tioner

did establish a prima facie case of religious discrimination,

Washington Center met its burden of articulating a legitimate,

nondiscriminatory reason for its failure to interview and hire

her.

70 . Respondent offers two grounds which it asserts

est ablishes a legitimate nondiscriminatory reason for failure to

interview or hire Ms. Ruttlen. The first basis is that Mr. Brown

forgot Ms. Ruttlen signed the internal posting in March 2015.

71 . The second basis was that Ms. Ruttlen was not the most

qual ified at the time the position was filled. At the time

Mr. Brown fi lled the c haplain position, Ms. Ruttlen did not have

a BachelorÓs Degree in Theology, Divinity, Cou nseling or related

field and had not been ordained by a local ministry organization

or qu alified by specific educational training in the ministry

field or a combination of education and related experience as

required by the job description. Ms. Ruttlen obtained a license

to mi nister on August 16, 2015. Mr. Brown a nd Mr. Hill

determined that Mr. CliftonÓsÓ superior qualifications,

relationship with the community of Chipley, and proximity to

Washington Center made him the successful candidate.

72 . To meet the requirements of the pretext step,

Petitioner must produce sufficient evidence for a r easonable fact

finder to conclude that the employer's legitimate,

nondiscriminatory reason was Ða pretext for discrimination.Ñ

Laincy , 520 F. AppÓx. 780, 781 (11th Cir. 2013) (citing Vessels

v. Atlanta Indep. Sch. Sys. , 408 F.3d 763, 771 (11th Cir. 2005)) .

ÐProvided 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.Ñ Id. Rather, the

plainti ff must show Ðsuch weaknesses, implausibilities,

inconsistencies, incoherencies or contradictions in the

employer's proffered legitimate reasons . . . that a reasonable

factfinder could find them unworthy of credence.Ñ Id.

73 . Petitioner introduced no ev idence to persuade the

un dersigned that RespondentÓs non discriminatory reasons for not

interviewing her were mere pretext.

74 . The undersigned finds Mr. BrownÓs explanation that he

forgot that Ms. Ruttlen was interested in the position as a weak

explana tion. However, the internal job posting sign - up sheet was

posted on March 9, 2015 , and Mr. Brown did not begin interviewing

until three months l ater in June or July 2015. Mr. Brown

admitted he misplaced the sign - up sheet when shuffling papers on

and off his desk. While Mr. Brown may not have placed the sign -

up sheet in a place where he could find it, his story is

consistent and has not changed. Further, Mr. Clifton was more

than qualified for the position.

75 . Altho ugh failure to recall that Ms. Rutt len expressed

interest in the chaplain position may seem unfair to Ms. Ruttlen,

it does not amount to discriminatory practice.

76 . For the reasons set forth herein, Petitioner did not

meet her burden to prove a prima facie case of discrimination on

the basis of rel igion. Respondent demonstrated legitimate

non di scriminatory reasons for it s action s. RespondentÓs

legitimate non discriminatory reason was not a pretext.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECO MMENDED that the Florida Commission on Human

Relations enter a final order dismissing PetitionerÓs

Discrimination Complaint and Petition for Relief consistent with

the Findings of Fact and Conclusions of Law of this Recommended

Order.

DONE AND ENTERED this 18th day of April, 2017, in

Tallahassee, Leon County, Florida.

S

YOLONDA Y. GREEN

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

t hi s 18th day of April , 2017 .

ENDNOTE S

1/ One of the sign - up sheets for the c haplain position went

missing and was never produ ced.

2 / Ms. Finch testified that employees who seek trans fers to other

internal jobs do no t necessarily have to send in their

qualifications, as the Washinton Center already knows their work

background and education.

3 / Signature, the company that ow ned Washington Center, operated

a facility in Graceville, Florida.

4/ Washington Center refers to their employees as Stakeholders.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Talla hassee, Florida 32399

(eServed)

Vaquita Doss - Bunton, Esquire

Washington Rehabilitation and

Nursing Center Services

12201 Bluegrass Parkway

Louisville, Kentucky 40299

Sonya D. Ruttlen

109 Pace Lane

Dothan, Alabama 36305

(eServed)

Helen Price Pallad eno, Esquire

Ogletree, Deakins, Nash,

Smoak and Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 3 2399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will is sue the Final Order in this case.