04-000464 Marie A. Erickson vs. Memorial Hospital Of Tampa Status: Closed Recommended Order on Tuesday, June 6, 2006.

Summary: There was no evidence of age discrimination or constructive discharge.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIE A. ERICKSON , )

)

Petitioner , )

)

vs. ) Case No. 04 - 0464

)

MEMORIAL HOSPITAL OF TAMPA , )

)

Respondent . )

)

RECOMMENDED ORDER

On April 13 and 1 4, 2006, an administrative hearing in this

case was held in Tampa, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Thomas W. Caufman, Esquire

Gallagher & H oward, P.A.

505 East Jackson Street, Suite 302

Tampa, Florida 33602

For Respondent: Robert W. Horton, Esquire

Alonda McCutcheon, Esquire

Bass, Berry & Sims, PLC

315 De aderick Street, Suite 2700

Nashville, Tennessee 37238

STATEMENT OF THE ISSUE S

The issues are whether Marie A. Erickson (Petitioner)

timely filed her Charge of Discrimination against Memorial

Hospital of Tampa (Respondent) in this case, and whether the

Respondent discriminated against the Petitioner on the basis of

age when the Respondent proposed to demote the Petitioner from

charge nurse to a staff nurse position, which the Petitioner

asserts constituted constructive discharge.

PRELIMIN ARY STATEMENT

By a complaint filed September 26, 2001, with the Florida

Commission on Human Relations (FCHR), the Petitioner alleged

that she had been " constructively discharged " by, and had

resigned from employment with, the Respondent on August 17,

2000, on the basis of age. The complaint stated that the

Petitioner " was not given a reason for the actions taken. "

By Determination of No Cause dated July 21, 2003, FCHR

notified the Petitioner that a " no cause " determination had been

made, and advised her of the right to file a Petition for

Relief. On August 22, 2003, Petitioner filed a Petition for

Relief, which FCHR forwarded in February 2004 to the Division of

Administrative Hearings (DOAH) for further proceedings. The

hearing was initially scheduled t o commence on April 12, 2004,

and was rescheduled without objection to June 18, 2004 , at the

request of the Respondent.

On May 28, 2004, the Respondent filed a Motion to Dismiss

the case asserting that the Petitioner had not timely filed her

complaint of discrimination pursuant to the deadline set forth

at S ubs ection 760.11(1), Florida Statutes (2000) , which requires

that a complaint of discrimination be filed within 365 days of

the date of the alleged discriminatory act.

Initial review of the case fi le indicated that the

Petitioner resigned her employment (the " constructive

discharge " ) on August 17, 2000. A letter dated September 5,

2001 , from an FCHR investigator to the Petitioner , stated " [t]he

information you have provided us to - date is not suffic ient for

the filing of a complaint of discrimination. " A second letter

to the Petitioner from the FCHR investigator dated September 18,

2001, apparently accompanied a draft of an amended complaint of

employment discrimination prepared for use by the Petit ioner and

directed the Petitioner to review, sign, and return the

complaint. T he Charge of Discrimination was filed on

September 26, 2001. On June 6, 2004, by Recommended Order of

Dismissal, jurisdiction in the case was returned to FCHR.

By an Order date d September 22, 2004, FCHR concluded that

the complaint had been timely filed, and remanded the matter

back to DOAH, directing the a dministrative l aw j udge to proceed

accordingly.

The case was reopened , and the hearing was scheduled to

commence on Januar y 12, 2005; however, the Respondent appealed

the FCHR Order of Remand to the State of Florida Court of Appeal

for the Second District, and the case was placed in abeyance

pending resolution of the appeal.

On February 22, 2005, the Respondent filed a Rene wed Motion

to Dismiss, asserting that the adverse employment action to

which the Petitioner complained occurred in April 2000, and

therefore the Petitioner ' s complaint had not been timely filed.

The Petitioner filed a Response in Opposition to the Motion on

March 14, 2005. Because FCHR had issued an Order stating that

the filing of the complaint was timely, and because the appeal

of the FCHR Order was pending, the Renewed Motion to Dismiss was

denied by Order dated March 30, 2005.

On December 16, 2005, the parties filed a status report

that indicated the District Court had declined to hear the

appeal and requested that the case be rescheduled for hearing.

The hearing was subsequently conducted on April 13 and 14, 2006.

At the hearing, the Petitioner p resented the testimony of

four witnesses, testified on her own behalf, and had Exhibits

numbered 1 through 6 admitted into evidence. The Respondent

presented the testimony of one witness and had Exhibit s numbered

1 through 23, 25 through 29, 33, 35 throug h 36, 39 through 41,

43, and 48 through 56 admitted into evidence.

The parties were invited during a telephone conference

conducted on April 10, 2005 , and again at commencement of the

administrative hearing, to address the matter of timeliness,

specifica lly the assertion by the Respondent that the employment

action of which the Petitioner complained occurred during

April 2000, in post - hearing proposed recommended orders.

The Transcript o f the hearing was filed on May 3, 2006.

The Respondent filed a P roposed Recommended Order on May 15,

2006.

FINDINGS OF FACT

1. The Petitioner was born on May 28, 1939. Beginning in

1981 and at all times material to this case, the Petitioner, a

registered nurse, was employed in the Respondent ' s psychiatric

unit. The unit was typically referred to as " Four East, "

indicative of the physical location of the unit within the

hospital facility.

2. Prior to her employment in 1981 at Four East, the

Petitioner had been employed as a nurse by the Respondent from

1973 to 197 6.

3. In 1990, the Petitioner was promoted to the position of

" charge nurse " for the Four East night shift.

4. The charge nurse was responsible for supervision of

other nurses working in the unit on the same shift. In addition

to performing typical nurs ing duties including rounds, the night

shift charge nurse was responsible for completing unfinished

tasks from previous shifts. The night shift charge nurse was

responsible for obtaining and reviewing reports from previous

shifts, including patient char ts and nursing notes, and for

reconciling conflicting information.

5. The night shift charge nurse was also responsible for

transcribing physician medication orders onto individual patient

Medication Administration Records (MARs). MARs specifically

ide ntify medications to be provided to each patient, including

dosages, frequencies, and times of administration. Generally,

one nurse transcribed the information from physician orders to

the MAR , and a second nurse reviewed and verified the

transcription. Each MAR included space for the nurse who

administered medication to a patient to document each

administration.

6. In March 1999, Jackie Larson became the " Nurse Manager "

for the Respondent and was the Petitioner ' s immediate

supervisor. By that date, the Petitioner was 59 years of age.

7. At the direction of physicians, nurses were directed to

observe some patients with greater frequency than others. Soon

after becoming the nurse manager, Ms. Larson became aware that

the Petitioner had reduced the fre quency of observation for a

specific patient without obtaining consent or direction from the

patient ' s physician. Ms. Larson verbally counseled, and issued

a written reprimand to, the Petitioner on March 18, 1999, for

the incident.

8. In May 1999, Ms. Larson completed a performance

appraisal of the Petitioner with generally favorable comments,

although Ms. Larson wrote that the Petitioner could be

" scattered and difficult to follow with respect to her train of

thought. " Ms. Larson also noted a tendenc y by the Petitioner to

shift responsibility for errors or uncompleted tasks to other

staff members.

9. Ms. Larson ' s May 1999 performance appraisal was

consistent with those of previous supervisors. The evidence

fails to establish that the Petitioner ' s age was considered by

Ms. Larson in any manner when evaluating the Petitioner ' s

performance in May 1999.

10. By June 1999, Ms. Larson had discovered several errors

in patients ' charts and in MARs that had not been identified and

corrected by the night s hift. Ms. Larson was also concerned

that the " cardex, " an index card system used to provide medical

information for each patient, was not being maintained.

11. When Ms. Larson called the situation to the

Petitioner ' s attention, the Petitioner complaine d that the night

shift was being given too much responsibility and asked whether

she was the only one being held responsible. Ms. Larson replied

that all responsible parties were being advised of the problem,

but that the night shift was tasked with the r eview of charting

by earlier shifts, including the cardex files.

12. The evidence establishes that other employees were

also counseled regarding patient records issues. The evidence

fails to establish that the Petitioner ' s age played any role in

Ms. La rson ' s attempts to correct performance issues in the unit.

13. On November 3, 1999, Ms. Larson issued to the

Petitioner a written reprimand related to two issues. First,

Ms. Larson was concerned about a patient who had been admitted

without certificati on of insurance coverage and who had remained

uncertified for three days after admission. The Petitioner had

worked two of the three days and had not discovered that the

patient ' s insurance certification had not been completed.

Second, Ms. Larson was con cerned about an undiscovered error in

transcribing a physician ' s medication order onto an MAR which

resulted in the patient receiving less medication that the

physician had prescribed. Ms. Larson believed that the

Petitioner should have discovered both is sues as part of her

responsibility to review patient documentation.

14. The Petitioner ' s response was to suggest that the

nurses on duty at the times of the incidents should be held

responsible. She also inexplicably suggested that she should

have been g iven two written reprimands, rather than combining

the incidents into one document.

15. The other employees involved in the referenced

incidents were also disciplined for the errors. Ms. Larson did

not reissue separate reprimands as invited by the Peti tioner.

The evidence fails to establish that Ms. Larson ' s imposition of

discipline was related in any manner to the ages of any

employees.

16. In January 2000, the Petitioner failed to transcribe

accurately onto a patient ' s MAR, medications that had be en

prescribed by the patient ' s physician which resulted in the

patient not receiving prescribed medication for several days.

On January 21, 2000, Ms. Larson issued a written reprimand to

the Petitioner for the incident. Another night shift employee

was a lso disciplined for failing to review the MAR that

contained the Petitioner ' s error.

17. At the time of the reprimand, the Petitioner asserted

that she had been ill for a few days and those tasks had not

been completed by persons whom she had asked.

1 8. There is no evidence that Ms. Larson ' s disciplinary

decisions relevant to this episode were related in any way to

the Petitioner ' s age.

19. On March 28, 2000, the Petitioner was disciplined for

an error in failing to accurately transcribe a physicia n - ordered

medication ( " Lasix " ) onto a patient ' s MAR. The physician became

aware of the error and instructed a staff nurse to report the

error to Ms. Larson.

20. After reviewing the matter, Ms. Larson told the

Petitioner that she could choose to be rea ssigned to work in a

staff nurse position on the night shift or in a staff nurse

position on another shift. Ms. Larson advised the Petitioner

that she could accept the reassignment without any reduction in

salary, and that she would be suspended if she de clined to

accept reassignment. The Petitioner declined to accept the

reassignment, and asked to meet with the Respondent ' s CEO, a

meeting that did not occur.

21. Ms. Larson shortly thereafter discussed the matter

with the Respondent ' s Human Relations ( HR) director, who

apparently had some concern about implementation of the

suspension option given Ms. Larson ' s concern about the

Petitioner ' s performance.

22. Subsequent to the discussion between Ms. Larson and

the HR director, the proposed suspension w as changed on

March 30, 2000, to termination. The Petitioner was advised on

that date that she could, again at her option, accept the

reassignment without salary reduction or resign from employment.

The Petitioner was asked to respond by April 7, 2000.

23. On April 4, 2000, the Petitioner ' s physician advised

her to take a medical leave of absence for a period of four

weeks, and the Petitioner relayed the information to the

Respondent. The Respondent approved the Petitioner ' s request

for the medical leave of absence.

24. Between March 30, 2000 and August 17, 2000, there was

minimal communication between the Petitioner and the Respondent,

other than regarding her medical leave of absence and return to

work.

25. On August 17, 2000, the Petitioner resigned from

employment with the Respondent.

26. The night shift charge nurse position was filled by an

employee approximately 35 - 40 years of age, and younger than the

Petitioner.

27. The Petitioner sought no significant employment after

her resignati on on August 17, 2000, and at the hearing, she

testified she has been physically unable to work.

28. The Petitioner testified that she believed she was

discriminated against because of her age, and that when

Ms. Larson was hired as the Respondent ' s Nurs e Manager she

sought to terminate the employment of a number of long - time

employees.

29. The Petitioner asserted that an undated memo from

Ms. Larson to the Four East staff indicated Ms. Larson ' s distain

for long - term employees and an intent to discrimi nate on the

basis of age. The memo addressed " attitude and morale " in the

unit, and suggested that employees consider whether they were

" negative, cynical, sarcastic, avoidant of change " and therefore

" could be part of the problem. " The memo further stat ed as

follows:

Ask yourself what you envision for this

unit. Do you want to be part of a dynamic

team of psych professionals who strive to

deliver a superior service - not merely a

mediocre, acceptable one. Or would you

rather we all just leave you alone, not make

waves, so you can slide off into retirement

sometime down the road.

30. The memo continued by asking employees to " develop a

sense of pride in your work " and take the " opportunity for

challenge, growth and improvement. " Ms. Larson concluded b y

asking the employees to " identify and commit yourselves to 4

things that will either improve the attitude and morale, or

directly improve the quality of work you deliver. "

31. Considered in its entirety, the memo indicates that

Ms. Larson sought to el evate the performance of the employees

under her supervision. The evidence fails to establish that

Ms. Larson ' s reference to employee ' s " sliding off into

retirement " indicated an intention to discriminate against

employees based on age. The reference was applicable to any

employee, regardless of age, working in the unit.

32. The evidence fails to establish that the Petitioner ' s

age was a factor in Ms. Larson ' s review of the Petitioner ' s job

performance. The evidence also fails to establish that the

Pe titioner ' s age was a consideration in the disciplinary actions

Ms. Larson imposed against the Petitioner.

33. In May of 1999, Ms. Larson addressed performance

concerns with another employee, Tina Pearson, who worked as the

charge nurse on the evening sh ift and was approximately 37 years

of age. Ms. Larson offered Ms. Pearson the option of being

reassigned to a staff nurse position or resign. Ms. Pearson

accepted the reassignment and then later resigned from her

employment position.

34. The Petitione r testified that the tasks assigned to

the night shift charge nurse were excessive given staff levels,

but there is no credible evidence that Ms. Larson significantly

increased the work assigned to any of the shifts under her

supervision.

35. At the hea ring, the Petitioner asserted that some of

the records referenced in the disciplinary reports were

falsified by the Respondent and that she had correctly

transcribed the information onto the MARs. The original

documents were reviewed during the hearing , a nd none exhibited

any sign of alteration. There is no evidence that any of the

documentation relevant to this proceeding was falsified or

manipulated in any manner by any representative of the

Respondent, and the Petitioner ' s assertions in this regard are

rejected without reservation.

CONCLUSIONS OF LAW

36. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57(1), Fla. Stat. (2000).

37. S ubs ection 760.11(1), Florida S tatutes (2000) ,

provides a period of 365 days during which a party seeking

redress for an unlawful employment practice to file a complaint

with FCHR . T he Respondent disciplined the Petitioner on

March 30, 2000, and told the Petitioner to either accept a

d emotion in responsibility or face termination. The Respondent

asked the Petitioner to respond by April 7, 2000. The

Respondent took no further action against the Petitioner, who

thereafter went on a medical leave of absence and resigned on

August 17, 200 0. T he Petitioner filed the Charge of

Discrimination on September 26, 2001.

38. The period for filing a complaint commences on the

date a decision was made and communicated to the employee

regardless of the fact that the effect of the decision did not

occur until a later date . D ept. of Transportation v. F la. Comm.

on H uman Rel. , 867 So. 2d 489, (F la. 1st DCA 2004 ); St.

Petersburg Motor Club v. Cook . 567 So. 2d 488 (Fla. 2d DCA

1990) .

39. In this case, the employment decision was made and

communicat ed to the Petitioner on March 30, 2000. T he

Petitioner ' s filing of the Charge of Discrimination on

September 26, 2001 , is clearly beyond the statutory 365 - day

period , and the complaint must be dismissed. Even if the

August 17, 2000 , date of resignation i s considered (incorrectly)

to be the commencement of the 365 - day period, the Petitioner ' s

September 26, 2001 , complaint was not timely filed , and the

complaint must be dismissed.

40. The following c onclusions of l aw are set forth in the

event that FCHR determines that the Petitioner ' s complaint was

timely filed.

41. The Respondent is an employer as the term is defined

at Section 760.02, Florida Statutes (2000) .

42. Section 760.10, Florida Statutes (2000) , provides as

follows:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or to fail or refuse to

hire any individual, or otherwise to

discriminate against any individual with

respect to compensation, terms, conditions,

or privileges of employment, because of such

individu al ' s race, color, religion, sex,

national origin, age, handicap, or marital

status.

43. Florida courts interpreting the provisions of

Section 760.10, Florida Statutes (2000) , have held that federal

discrimination laws should be used as guidance when cons truing

provisions of the Florida law. See Brand v. Florida Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994); Florida

Department of Community Affairs v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991).

44. The Petitioner has the ultimate burden to estab lish

discrimination either by direct or indirect evidence. Direct

evidence is evidence that, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 578, 581 - 582 (11th Cir. 1989).

Blat ant remarks, whose intent could be nothing other than to

discriminate, constitute direct evidence of discrimination. See

Earley v. Champion International Corporation , 907 F.2d 1077,

1081 (11th Cir. 1990). There is no evidence of direct

discrimination on Respondent ' s part in this case.

45. Absent direct evidence of discrimination, Petitioner

has the burden of establishing a prima facie case of

discrimination. St. Mary ' s Honor Center v. Hicks , 509 U.S. 502

(1993); Texas Department of Community Affairs v . Burdine , 450

U.S. 248 (1981); McDonnell Douglas Corp. v. Green , 411 U.S. 792

(1973). In order to establish a prima facie case of age

discrimination, the Petitioner must show that she was:

(1) a member of the protected class; (2) qualified for the

posi tion; (3) subjected to an adverse employment action; and

(4) replaced by a person outside the protected class or

subjected to disparate treatment because of membership in the

protected class. Kelliher v. Veneman , 313 F.3d 1270, 1275 (11th

Cir. 2002 ); Ande rson v. Lykes Pasco Packing Co ., 503 So. 2d

1269, 1270 (Fla. 2d DCA 1986).

46. If the Petitioner establishes the facts necessary to

demonstrate a prima facie case, the employer must then

articulate some legitimate, nondiscriminatory reason for the

challen ged employment decision. The employer is required only

to " produce admissible evidence which would allow the trier of

fact rationally to conclude that the employment decision had not

been motivated by discriminatory animus. " Burdine , 450 U.S.

at 257. Th e employer " need not persuade the court that it was

actually motivated by the proffered reasons . . . " Burdine , 450

U.S. at 254. This burden has been characterized as " exceedingly

light. " Perryman v. Johnson Products Co., Inc. , 698 F.2d 1138,

1142 (11th Cir. 1983).

47. Assuming the employer articulates a legitimate,

nondiscriminatory reason for the employment decision, the burden

shifts back to the Petitioner who then must establish that the

reason offered by the employer is not the true reason, but is

mere pretext for the decision. The question becomes whether or

not the proffered reasons are " a coverup for a . . .

discriminatory decision. " McDonnell Douglas , 411 U.S. at 805.

48. The ultimate burden of persuading the trier of fact

that there was i ntentional discrimination by the Respondent

remains with the Petitioner. Burdine , 450 U.S. at 253.

49. In this case, the evidence is insufficient to

establish the elements of a prima facie case of discrimination.

The Petitioner is a member of a protec ted group based on age.

50. The evidence establishes that the Petitioner was

subject to an adverse employment decision through the

Respondent ' s intention to demote the Petitioner to a position of

reduced responsibility, notwithstanding the fact that the

Petitioner ' s salary would have been unchanged . However, t he

evidence fails to support the Petitioner ' s assertion that she

was " constructively discharged. " In order to prevail on a

constructive discharge claim, an employee must show that the

employer mad e working conditions so difficult that a reasonable

person would feel compelled to resign. Webb v. Fla. Health Care

Mgmt. Corp. , 804 So. 2d 422 (Fla. 4th DCA 2001); Steele v.

Offshore Shipbuilding, Inc. , 867 F.2d 1311 (11th Cir. 1989);

McCaw Cellular Comm unications of Fla., Inc. v. Kwiatek , 763 So.

2d 1063 (Fla. 4th DCA 1999). The evidence in this case fails to

establish that a reasonable person presented with the same

option would have felt compelled to resign.

51. Further, the evidence fails to estab lish that the

Petitioner was qualified for employment as a charge nurse. The

performance issues that ultimately led to the March 2000

reassignment/termination proposal establish that the Petitioner

was unable to perform the responsibilities of the positio n.

52. The evidence establishes that a person outside the

protected class replaced the Petitioner, but fails to establish

that the Petitioner was subjected to disparate treatment because

of her membership in the protected class. Approximately ten

month s prior to presenting the Petitioner with the

reassignment/resign option, the Respondent imposed the same

disciplinary option against another charge nurse who was 37

years old at the time.

53. Assuming that the Petitioner demonstrated a prima

facie case of age discrimination, the burden would shift to the

Respondent to articulate some legitimate, nondiscriminatory

reason for the challenged employment decision. The Respondent

presented evidence sufficient to meet the burden. The

performance issues set f orth in the disciplinary records

establish sufficient grounds for the Respondent ' s decision to

reassign the Petitioner to a staff nurse position.

54. The Petitioner ' s evidence fails to establish that the

Respondent ' s imposition of discipline against the Petitioner was

pretext for discrimination based on age. The Respondent had

previously imposed identical discipline against a 37 - year - old

charge nurse working on a different shift. There is no credible

evidence that the Petitioner ' s age formed the basis for any

decision made by the Respondent regarding her employment

responsibilities.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby

RECOMMENDED that the Florida Commission on Human Relations

enter a f inal o rder dismissing the Petition for Relief filed by

Marie A. Erickson.

DONE AND ENTER ED this 6th day of June , 2006 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrat ive 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 June , 2006 .

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Robert W. Horton, Esquire

Alonda McCutcheon, Esquire

Bass, Berry & Sims, PLC

315 Deaderick Street, Suite 2700

Nashville, Tennessee 37238

Thomas W. Caufman, Esquire

Gallagher & Howard, P.A.

505 East Jackson Street, Suite 302

Tampa, Florida 33602

Helen A. Palladeno, Esquire

Ogletree, Deakins, Nash,

Smoak & Sweart, P.C.

600 North Westshore Boulevard ,

Suite 200

Tampa, Florida 33609

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written except ions within

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

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.