04-001617 Maggie Beach-Gutierrez vs. Bay Medical Center Status: Closed Recommended Order on Monday, October 25, 2004.

Summary: Evidence did not show Respondent discriminated against Petitioner based on national origin (German/Turkish). Comments about accent insufficient and performance problems did occur.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MAGGIE BEACH-GUTIERREZ, )

)

Petitioner, )

)

vs. ) Case No. 04-1617

)

BAY MEDICAL CENTER, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on July 26, 2004, in Panama City, Florida, before the Division of

Administrative Hearings, by its designated Administrative Law

Judge, Diane Cleavinger.

APPEARANCES

For Petitioner: Maggie Beach-Gutierrez, pro se

5807 Butler Drive, Apartment 4

Callaway, Florida 32404

For Respondent: L. Taywick Duffie, Esquire

Price H. Carroll, Esquire

Hunton & Williams, LLP

600 Peachtree Street, Suite 4100

Atlanta, Georgia 30308

STATEMENT OF THE ISSUES

The issue to be resolved in this proceeding is whether Petitioner was constructively terminated from her employment with Respondent because of her national origin.

PRELIMINARY STATEMENT

On April 7, 2003, Petitioner, Maggie Beach-Gutierrez, filed a Charge of Discrimination with the Florida Commission on Human Relations (FCHR). The Charge of Discrimination alleged that

Respondent, Bay Medical Center, constructively terminated

Petitioner by creating a hostile work environment based on her

national origin.

On March 24, 2004, FCHR entered a Determination of No Cause

on Petitioner's Charge of Discrimination. Petitioner was advised

of her right to contest FCHR's determination, by filing a

Petition for Relief.

On April 28, 2004, Petitioner filed her Petition for Relief.

The petition alleged the same facts as alleged in her original

Charge of Discrimination. The petition was forwarded to the

Division of Administrative Hearings.

At the hearing, Petitioner testified in her own behalf and

offered six exhibits into evidence. Respondent presented the

testimony of six witnesses and offered sixteen exhibits into

evidence.

After the hearing, Petitioner and Respondent filed Proposed

Recommended Orders on August 26, 2004, and August 30, 2004,

respectively.

FINDINGS OF FACT

1. Petitioner is a female of German and Turkish descent and

has a somewhat heavy German accent.

2. In 1995, Petitioner was employed with Bay Medical

Center, a hospital in Panama City, Florida. Petitioner was

employed as a unit secretary for one of the hospital units. She

voluntarily resigned that position in 1997. In March of 1998,

Petitioner was again employed by Bay Medical Center as a unit

secretary. She was a member of a secretarial float pool and

floated from one unit of the hospital to another as needed.

Later, due to a hospital reorganization, the unit secretarial

position was reclassified to a Clerical Support Associate (CSA)

position. The CSA position included more duties than the unit

secretary position and had a higher wage.

3. As a CSA, Petitioner was responsible for providing

essential clerical support as required by patient’s and clinical

staff. Her duties included entering physician orders into the

hospital’s computer system, scheduling tests and procedures for

patients, charging and crediting patient bills, greeting patients

and visitors, chart maintenance, and otherwise assisting as

needed.

4. Petitioner eventually, was assigned as a full-time CSA

in the Critical Care Unit (CCU). The CCU was a very small unit

with only eight open beds and was the least active unit in the

hospital at that time relative to the duties of a CSA. The lower

activity resulted in less work and less stress for the CSAs

assigned to the CCU. Because of the light workload and low-

stress environment for CSA’s, P.J. Dotson, Petitioner's

supervisor in the CCU, used the CCU to train new CSAs. Because

Petitioner had experience with the work, she occasionally helped

train new CSAs.

5. At some point, Ms. Dotson determined that the CSAs in

the CCU were only performing two and a half to three hours of

clerical work during an eight-hour period. The small amount of

productivity by the CSAs was unacceptable. In order to increase

the CSAs’ productivity, Respondent changed the job role of the

CSAs in the CCU, including Petitioner's, and added basic patient

care tasks. Some of the new tasks included feeding patients and

helping patients on and off bedpans. Additionally, the CSAs'

hours changed to require them to come in earlier.

6. On December 12, 2000, Petitioner was disciplined by

Ms. Dotson for complaining to a physician about Respondent's

decision to change the job requirements of the CSAs in the CCU.

The physician was Respondent's "customer," not Petitioner's

supervisor and Ms. Dotson felt that it was inappropriate for

Petitioner to discuss her employment situation with a

"customer." Ms. Dotson’s position was a reasonable position by

an employer.

7. After the disciplinary action, Petitioner declined the

upgraded CSA position because she did not want to change her

working hours and did not want to do hands-on patient care.

Rather than terminating Petitioner's employment, Respondent

allowed Petitioner to transfer to the EKG department to work as

an EKG technician which position also included some clerical

tasks.

8. Petitioner served as an EKG technician for two months.

During those two months, Petitioner experienced numerous

performance problems and was disciplined several times by

Ms. Dotson. Petitioner admits she simply was not very good at

direct patient care and performed poorly as an EKG technician.

9. On February 20, 2001, Ms Dotson issued Petitioner a

Notice of Corrective Action based on a number of issues that had

arisen beginning around January 15, 2001. The Notice states,

"During week two, we started experiencing several problems with

the paper work [Petitioner] was doing. Files were not in

correct order (alphabetical), Cardiology Associates were

complaining about paperwork, [and] the unsigned copies of Echo

reports were not getting to M.D.s for their signature.” These

problems were detrimental to efficient and timely patient care

in an area of health care, cardiology, where efficiency and

timeliness of care are very important. Due to these concerns,

Ms. Dotson changed Petitioner's orientation schedule and

established specific times to achieve performance goals.

However, the changed schedule did not help resolve Petitioner's

performance problems. After Petitioner was fully trained to

perform an EKG procedure, Petitioner "developed the inability to

perform this task" within a few weeks. Petitioner also

improperly double-billed a large number of Respondent's

patients. The double billing was a major oversight on

Petitioner's part that could have been seriously detrimental to

Respondent's ability to serve Medicare and Medicaid patients if

the problem had not been discovered and resolved by Ms. Dotson.

10. On March 8, 2001, Petitioner received a final written

warning because her work-related problems persisted. At that

time, Ms. Dotson informed Petitioner that she needed to find a

different position within Bay Medical Center, resign, or be

terminated. Ms. Dotson also took this opportunity to coach

Petitioner on how to sell herself to other managers, so

Petitioner could acquire another position. One of the areas

Ms. Dotson discussed with Petitioner was her communication

skills. Ms. Dotson explained that she needed to communicate

better because she has an accent, does not articulate well and

often speaks with her hands in front of her mouth thereby making

it difficult for others to understand her. In addition,

Ms. Dotson explained to Petitioner that she demonstrated a

somewhat negative attitude and failed to take responsibility for

her mistakes. These traits were concerns for managers in the

various departments throughout the hospital. These traits were

also demonstrated at the hearing. There was no evidence that

any action taken by Ms. Dotson was done for discriminatory

purposes or that the reasons given for such action were

pretextual. Indeed, Petitioner admitted that Ms. Dotson did not

discriminate against her.

11. However, because of these traits, Petitioner had a

difficult time finding another position within Bay Medical

Center, even though there was a high turnover rate among CSAs

throughout the hospital. Eventually, Petitioner was accepted by

Ms. Pat Owens to serve as a CSA on Three South, a

medical/surgery unit at Bay Medical Center. Indeed,

Petitioner’s transfer to Three South was against hospital policy

since Petitioner was slated for termination from her earlier

position and had received her final warning. However, in order

to help Petitioner, the transfer was allowed.

12. Although Petitioner had served as a CSA in CCU

previously, the working atmosphere of Three South was very

different. Three South was, as Petitioner described it, a

"very, very busy floor." Three South had 39 beds and over 200

physicians on staff. However, during Ms. Owen’s time as manager

of Three South, Ms. Owens did not formally discipline Petitioner

regarding her job performance. Ms. Owens did not testify at the

hearing.

13. Petitioner admits that she made mistakes while

Ms. Owens was her supervisor. She testified that there were

"minor things" that Ms. Owens would make her redo. However,

under these facts, the fact that Ms. Owens chose not to

discipline Petitioner formally is not evidence of

discrimination.

14. The hospital was not satisfied with the way Three

South was being managed by Ms. Owens. The unit staff were not

following various hospital protocols impacting patient care.

Numerous complaints were made by both patients and doctors

regarding the quality of care being delivered by the unit staff.

Therefore, in April, 2002, Ms. Andi Bush was hired as the

manager of Three South. She was hired in order “to get Three

South into shape.” Ms. Bush also became Petitioner's supervisor

and demanded considerably more performance and compliance with

protocols of all the employees on Three South.

15. After Ms. Bush became manager, Petitioner claims that

Ms. Bush commented on Petitioner's accent and that "[Ms. Bush's]

hearing would be perfect if anybody else would talk to her. But

whenever I said something to her or tried to quote her [sic]

about something, all of a sudden she had this major problem."

This alleged evidence is not convincing. Ms. Bush wears a

hearing aid and relies on "lip-reading" because she has a

significant amount of hearing loss due to nerve damage. She

often has difficulty hearing others' words and asks others to

repeat themselves. This difficulty was demonstrated at the

hearing. In addition, Petitioner did not provide any details

about the times Ms. Bush allegedly commented on her accent.

There is no evidence in the record about how often or in what

context any such comment allegedly happened. Given the facts

that Ms. Bush is hearing impaired and reads lips and that

Petitioner often speaks with her hands in front of her mouth,

has an accent and does not enunciate her words, comments by

Ms. Bush regarding Petitioner’s accent do not support a finding

of discrimination.

16. Ms. Bush, unlike her predecessor, enforced the

hospital protocol’s and demanded that her staff comply with

those protocols. It was clear that Ms. Bush's job, as the new

manager of Three South, was to impose accountability and

discipline on that unit. Indeed, Petitioner testified that,

during Ms. Bush's initial meeting with the employees on Three

South, Ms. Bush made it clear that she believed Three South was

a "mess" and that "she was going to straighten it out."

Petitioner failed to provide any evidence that Ms. Bush applied

the rules or issued discipline inconsistently among the

employees or that employees of other nationalities were treated

better than her. There is no comparator evidence in the record

to demonstrate that Ms. Bush's discipline of Petitioner was for

discriminatory purposes.

17. Under Ms. Bush's administration, Petitioner was

disciplined on several occasions for various performance issues.

On May 23, 2002, Petitioner was issued a written warning for

failing to enter a physician's order. The order requested a

consultation with a cardiologist to determine what treatment the

patient needed. Because Petitioner did not enter the order, the

consultation was delayed for over 24 hours. When the

consultation was eventually performed, the cardiologist

determined that the patient needed a pacemaker. Petitioner's

mistake could have had dire consequences for the patient

involved. Petitioner does not deny that she failed to enter the

order but claims that she was told by her co-workers that she

did not need to enter the order because the patient was going to

be transferred to a different floor. However, Petitioner knew

that other co-workers could not instruct her not to follow the

hospital’s protocol for entering a physician’s order in a timely

manner. The discipline she received was clearly not pretextual

and was appropriate for her failure to enter the physician’s

order.

18. On June 5, 2002, Petitioner received a written warning

for excessive absenteeism. Again, Petitioner does not deny that

she was excessively absent. Instead, Petitioner alleges that

her absences "weren't really more extensive than anybody

else's." Petitioner later admits, however, that these other

employees were also punished for their tardiness and

absenteeism. Petitioner provided no other evidence that

Respondent applied its attendance policy inconsistently among

the employees. Given these facts, the evidence is insufficient

to demonstrate that Petitioner’s disciplinary action was

discriminatory or pretextual.

19. On July 3, 2002, Petitioner was suspended following

two different incidents. First, Petitioner placed several

documents in the wrong patient's chart. Second, Petitioner

failed to properly consult a physician regarding a patient care

issue. Both of these incidents could have had detrimental

impact on the health and safety of Respondent's patients.

Petitioner offered no evidence to dispute the accuracy of the

report of these incidents.

20. On August 7, 2002, Ms. Bush held a corrective action

meeting with Petitioner to discuss the following incidents:

(1) Petitioner's repeated failure to enter consultations into

the computer; (2) Petitioner's repeated failure to consult

physicians in a timely manner; (3) a patient complaint that her

call light was not being answered during Petitioner's shift;

and (4) Petitioner’s failure to file a stack of documents as she

was assigned to do, but instead twice sent them to medical

records to file. Petitioner denies making these mistakes, but

her denial is based on her lack of memory for the events.

Indeed, Ms. Bush based the disciplinary action on complaints and

witness statements she received form a variety of sources.

Again there was no evidence that the Ms. Bush’s actions were

discriminatory or pretextual.

21. Finally, on August 14, 2002, Petitioner was given her

annual performance appraisal. Petitioner was rated as

"unsatisfactory" based on her record of discipline and the real

potential of her performance failures to adversely impact

patient care. Based on her previous performance problems and

the performance appraisal, Petitioner was told that she could no

longer work as a CSA at Bay Medical Center. Indeed, Ms. Dotson

who was consulted regarding Ms. Bush’s decision, concurred that

Petitioner should not be transferred to any CSA position or

position involving patient care due to past mistakes which were

potentially detrimental to a patient’s health. Respondent gave

her two weeks to find a different position within the hospital,

resign, or be terminated.

22. Respondent, through its personnel department, tried to

assist Petitioner to find a position within the facility. After

reviewing the printout of available positions with Petitioner

the only positions that were open, and for which Petitioner was

qualified, were in Dietary, Housekeeping, and Laundry.

Petitioner did not offer any evidence of any other positions

outside those areas that were available and for which she was

qualified. Petitioner refused to apply to any of these

positions and, instead, resigned on August 28, 2002. The

evidence did not demonstrate that her resignation was forced or

caused by any discriminatory actions by Respondent. Again,

Petitioner failed to provide any evidence that Respondent

discriminated against her and the Petition For Relief should be

dismissed.

CONCLUSIONS OF LAW

23. The Division of Administrative Hearings has

jurisdiction over the subject matter of and the parties to this

proceeding. § 120.57(1), Fla. Stat.

24. Under the provisions of Section 760.10, Florida

Statutes, it is an unlawful employment practice for an employer:

(1)(a) To discharge or refuse to hire any

individual, or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or

privileges of employment because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

25. FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes. 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); Cooper v. Lakeland Regional Medical

Center , 16 FALR 567 (FCHR 1993).

26. The Supreme Court of the United States established in

McDonnell-Douglas Corporation v. Green , 411 U.S. 792 (1973), and

Texas Department of Community Affairs v. Burdine , 450 U.S. 248

(1981), the analysis to be used in cases alleging discrimination

under Title VII such as the one at bar. This analysis was

reiterated and refined in St. Mary's Honor Center v. Hicks , 509

U.S. 502 (1993).

27. Pursuant to this analysis, Petitioner has the burden of

establishing by a preponderance of the evidence a prima facie

case of unlawful discrimination. If a prima facie case is

established, Respondent must articulate some legitimate, non-

discriminatory reason for its employment action. If the employer

articulates such a reason, the burden of proof then shifts back

to Petitioner to demonstrate that the offered reason is merely a

pretext for discrimination. As the Supreme Court stated in

Hicks , before finding discrimination, "[t]he fact finder must

believe the Plaintiff's explanation of intentional

discrimination." 509 U.S. at 519.

28. In Hicks , the Court stressed that even if the fact

finder does not believe the proffered reason given by the

employer, the burden at all times remains with Petitioner to

demonstrate intentional discrimination. Id.

29. In order to establish a prima facie case, Petitioner

must establish that:

(a) She is a member of a protected group;

(b) She is qualified for the position;

(c) She was subject to an adverse

employment decision;

(d) She was treated less favorably than

similarly-situated persons outside the

protected class; and

Canino v. EEOC , 707 F.2d 468, 32 FEP Cases 139 (11th Cir. 1983);

Smith v. Georgia , 684 F.2d 729, 29 FEP Cases 1134 (11th Cir.

1982); Lee v. Russell County Board of Education , 684 F.2d 769, 29

FEP Cases 1508 (11th Cir. 1982), appeal after remand, 744 F.2d

768, 36 FEP Cases 22 (11th Cir. 1984).

30. If Petitioner fails to establish a prima facie case of

discrimination, judgment must be entered in favor of Respondent.

Bell v. Desoto Memorial Hospital, Inc. , 842 F. Supp. 494 (M.D.

Fla. 1994).

31. As indicated earlier, if a prima facie case is

established, a presumption of discrimination arises and the

burden shifts to Respondent to advance a legitimate, non-

discriminatory reason for the action taken against Petitioner.

However, Respondent does not have the ultimate burden of

persuasion but merely an intermediate burden of production. Once

this non-discriminatory reason is offered by Respondent, the

burden shifts back to Petitioner. Petitioner must then

demonstrate that the offered reason was merely a pretext for

discrimination.

32. In the instant case, Petitioner alleges that she was

constructively terminated because of discrimination based on her

national origin. Petitioner's national origin is German/Turkish

and as such, she belongs to a protected class. Petitioner

voluntarily left her employment with Respondent. However, the

evidence did not show that Petitioner was forced to terminate her

employment because of her national origin. Additionally,

Petitioner did not establish that similarly situated non-

protected employees were treated more favorably.

33. Petitioner also alleges two types of adverse employment

actions--(1) hostile work environment and (2) constructive

discharge. However, Petitioner has failed to proffer any

evidence that supports these allegations.

34. To prove that a workplace constitutes a hostile work

environment, Petitioner must show that "the workplace is

permeated with discriminatory intimidation, ridicule, and insult

that is sufficiently severe or pervasive to alter the conditions

of the victim's employment and create and abusive working

environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 114 S.

Ct. 367,370 (1993). "The factors to consider are the frequency

and severity of the conduct, whether it is physically threatening

or humiliating, and to what degree it reasonable interferes with

plaintiff's job performance." Rojas v. State of Florida , 285

F.3d 1339, 1344 (11th Cir. 2002) (citing Allen v. Tyson Foods,

Inc. , 121 F.3d 642, 647 (11th Cir. 1997). "[S]imple teasing'…

offhand comments, and isolated incidents (unless extremely

serious) will not amount to discriminatory changes in 'terms and

conditions of employment," Faragher v. City of Boca Raton , 524

U.S. 775, 788, 118 S. Ct. 2275, 2283 (1998).

35. In this case, Petitioner failed to provide enough

evidence to establish that a hostile work environment existed.

First, Petitioner alleges that Ms. Bush made comments about her

accent. However, such comments cannot create an actionable claim

of hostile work environment unless they are so "commonplace,

overt and denigrating that they create an atmosphere charged with

hostility." Edwards v. Wallace Cmty. Coll. , 49 F.3d 1517, 1521

(11th Cir. 1995) (quoting EEOC v. Bederage Canners, Inc. , 897

F.2d 1067, 1068 (11th Cir. 1990)). Petitioner failed to offer

any evidence of the frequency, severity, or context in which the

statements were allegedly made. Petitioner also did not provide

any evidence that Respondent's comments or conduct was physically

threatening or humiliating. Second, the fact that Ms. Owens

never formally disciplined Petitioner is not evidence that

Ms. Bush disciplined Petitioner in order to harass her because of

her national origin. "Different supervisors may impose different

standards of behavior, and a new supervisor may decide to enforce

policies that a previous supervisor did not consider important."

Rojas , 285 F.3d at 1343. Moreover, Petitioner failed to provide

evidence of any comparators to prove that the discipline was

issued because of her national origin. See Mendoza v. Borden,

Inc. , 195 F.3d 1238, 1254 fn.3 (11th Cir. 1999)(Edmundson, J.,

concurring)("A claim of sexual harassment is a claim of disparate

treatment. The rule is that the plaintiff must actually prove

discrimination, normally by evidence showing directly that

similarly situated person's not of plaintiff's sex were treated

differently and better."). The evidence presented by Petitioner

is simply insufficient to establish a prima facie case for

hostile work environment.

36. To establish a case of constructive discharge,

Petitioner must establish that her working conditions were "so

difficult . . . that a reasonable person would have felt

compelled to resign." See Walton v. Johnson & Johnson Servs.,

Inc., 347 F.3d 1272, 1282 (11th Cir. 2001)(quoting Pipkins v.

City of Temple Terrace, Fla. , 267 F.3d 1197, 1201 (11th Cir.

2001)(internal quotations and citations omitted)). Petitioner

never transferred and never worked a day in another department.

She presented no evidence concerning the potential working

conditions she would have faced in a new position. Moreover,

there was no evidence that Petitioner’s job duties were onerous

or more onerous than other similarly-situated, non-protected

CSAs. Therefore, Petitioner has not met her burden to prove a

prima facie case of constructive discharge.

37. Moreover, even if Petitioner provided sufficient proof

to establish a prima facie case of discrimination based on

national origin, Respondent articulated many credible, non-

discriminatory reasons for it's actions regarding its decision to

require Petitioner to transfer to a non-clerical, non-patient

care position, or resign. That reason was Respondent's

legitimate concern that, based on Petitioner's history of

performance problems, including mistakes that directly impacted

patient care, Petitioner could detrimentally impact the standard

of care Respondent is required to give its patients if she

remained in a clerical or care position. Petitioner has failed

to offer any evidence to rebut Respondent's reason. Therefore,

Petitioner has failed to prove her claims of discrimination and

the Petition For Relief should be dismissed.

RECOMMENDATION

Based upon the Findings of Fact and Conclusions of Law, it

is

RECOMMENDED:

That the Florida Commission on Human Relations enter a final

order dismissing the Petition for Relief.

DONE AND ENTERED this 25th day of October, 2004, in

Tallahassee, Leon County, Florida.

S

___________________________________

DIANE CLEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 25th day of October, 2004.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Margie Beach-Gutierrez

5807 Butler Drive, Apartment 4

Callaway, Florida 32404

L. Taywick Duffie, Esquire

Price H. Carroll, Esquire

Hunton & Williams, LLP

600 Peachtree Street, Suite 4100

Atlanta, Georgia 30308

Cecil Howard, General Counsel

Florida Commission on Human Relations

325 John Knox Road

Building F, Suite 240

Tallahassee, Florida 32303-4149

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

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

this Recommended Order should be filed with the agency that will

issue the final order in this case.