05-001014 Bridgette W. Williams vs. Sacred Heart Health System, Inc. Status: Closed Recommended Order on Tuesday, January 17, 2006.

Summary: Petitioner presented a prima facie case of discrimination. Respondent failed to follow its own procedures in handling her workers` compensation claim. The reasons put forth in explanation for its actions were not credible or worthy of belief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGETTE W. WILLIAMS, )

)

Petitioner, )

)

vs. ) Case No. 05 - 1014

)

SACRED HEART HEALTH )

SYSTEM, INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A formal hearing was held in this case on November 16 and

17 , 2005, in Pensacola, Florida, before the Division of

Administrative Hearings, by its designated Administrative Law

Judge, Stephen F. Dean.

APPEARANCES

For Petitioner: R. John Westberry, Esq uire

Holt & Westberry, P.L.

1108 - A North 12th Avenue

Pensacola, Florida 32501

For Respondent: Eric M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Pensacola, Florida 32501

STATEMENT OF TH E ISSUE

Whether Respondent committed an unlawful employment

practice by discriminating against Petitioner on the basis of

her race, in violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner, Bridgett W. Williams ("Petitioner "), filed a

Charge of Discrimination against Respondent, Sacred Heart

Hospital ("Respondent"), alleging that Respondent discriminated

against her because of her pregnancy and race. The Florida

Commission on Human Relations, (FCHR) investigated the complai nt

and made a no cause determination that it communicated to the

Petitioner by letter dated February 11, 2005. The Petitioner

filed a timely Petition for Relief with FCHR, and the FCHR

referred the case to the Division of Administrative Hearings to

conduc t a formal hearing. After filing her Petition, the

parties stipulated that Petitioner does not have a claim for

pregnancy discrimination and Petitioner has dropped that claim.

A final hearing was held on November 16 and 17, 2005, on the

issue of race dis crimination.

The Petitioner testified on her own behalf, and introduced

Petitioner's Exhibits One through Five. The Respondent

presented the testimony of Joyce Trawicki, Gail Ewing, Janna

Armentrout, and Kathleen Reynolds. The Respondent introduced

Resp ondent's Exhibits One through Eight. A Transcript of the

hearing was ordered and filed with the Division of

Administrative Hearings on December 5, 2005. The Petitioner

filed a Proposed Recommended Order on December 19, 2005, and

Respondent filed a Propos ed Recommended Order on December 16,

2005, both of which were read and considered.

FINDINGS OF FACT

1. Petitioner is a 28 - year - old black female. She is

married and has four children.

2. On February 13, 2003, Petitioner was hired by Sacred

Hearth Heal th Systems, Inc. (Sacred Heart) , as a l aboratory

t echnician a ssistant. She was hired by Kevin Guy , the

phlebotomy supervisor , for a clerical position in accessions.

At the time of her hire, Petitioner was not current on her

hepatitis shots.

3. Petition er was assigned to accessions, a term for the

clerical receiving of data, entering and performing tests on

specimens or referring specimens to the right department for

testing.

4. Petitioner occasionally would perform phlebotomy

services (drawing blood) . This usually occurred when the lab

was short - staffed. There were laboratory technicians whose

primary duties consisted of phlebotomy services.

5. In September 2003, Petitioner took a medical leave of

absence from Sacred Heart because of kidney stones. While being

treated for kidney stones, it was learned that Petitioner was

approximately six weeks pregnant.

6. Petitioner was off work from September 2003, until

January 19, 2004.

7. Petitioner returned to work on January 19, 2004, to her

same positi on in accessions.

8. On January 20, 2004, Petitioner was asked by Craig

Wright, the daytime supervisor of the Core Lab, to take over

Erin Curet's duties. Ms. Curet was a white female. Ms. Curet's

duties required her to go out to nursing homes and to th e

Pensacola Development Center, a facility for patients with

developmental disabilities. Ms. Curet ha d a back problem which

was not a work - related injury, and had ask ed for a reassignment

of duties.

9. Petitioner told Wright and Richmond that she did no t

mind helping out ; however, she told Craig Wright that she was

having a little nausea and there may be days that she could not

go.

10. Craig Wright told Petitioner that it would not be a

permanent change in Petitioner's duties. He had interviewed

peopl e for Ms. Curet's position and Petitioner would not have to

help out very long. Petitioner agreed to help out until someone

could be hired for the position.

11. Petitioner and Erin Curet switched duties. Petitioner

took Erin Curet's position collecting labs in nursing homes and

Erin Curet took Petitioner's position in accessions.

12. On January 29, 2004, Petitioner and Paige Richmond

were drawing labs at a nursing home. One of the patients became

combative and knocked Petitioner over. Petitioner fel l into a

wheelchair and hit her back.

13. Petitioner began having lower abdominal pains and felt

she had pulled something in her back.

14. Petitioner reported the incident to Craig Wright, the

supervisor on duty , and also completed an Incident Report.

Mr. Wright spoke with Jana Armentrout the Associate Health

Coordinator, and it was decided that Petitioner should be

referred to Labor and Delivery .

15. Petitioner was sent to Labor and Delivery for

assessment of a workers' comp ensation injury, because of her

abdominal pains. Petitioner told Labor and Delivery that she

had fallen in a nursing home and pulled something in her back.

She also told them her stomach was hurting.

16. Labor and Delivery put monitor strips on Petitioner,

but they did not exa mine her back.

17. Dr. Bennett the Labor and Delivery physician told

Petitioner to go home drink fluids and take Tylenol.

18. There are handwritten notations on the bottom of the

Employee Incident Report that state "Per employee 1/29/04 - no

further ca re required." The note was written by Jana

Armentrout . Petitioner states that she did not tell

Ms. Armentrout or anyone else that "no further care was

required."

19. Petitioner returned to work at her same duties within

a very short while at Sacred Hea rt . Employee Health Department

did not receive a medical report from L abor and D elivery. It

was standard protocol for Employee Health to receive a medical

report on an injured employee from their workers' compensation

doctor.

20. After Petitioner retur ned to work in the nursing

homes, she told Craig Wright that her back was still hurting.

Petitioner ultimately requested that she be returned back to her

normal clerical position in accessions because of back pain.

Mr. Wright told Petitioner that he coul d not pull her off her

nursing home duties, but that he was trying to hire someone.

21. Mr. Wright told Petitioner that he could not take her

off nursing homes unless he has something in writing from her

doctor.

22. Petitioner requested Dr. Todd Staina ker, her O B /G YN

physician to write a letter to be given to Craig Wright.

Dr. Stainaker prepared a letter, dated February 20, 2004, which

Petitioner gave to Mr. Wright.

23. Dr. Stainaker's letter states in part, "I believe at

this time that she [ Petition er ] should not be traveling out to

different areas due to her problems and should just be at

clerical work if possible." The letter continued, "If there are

any questions, please do not hesitate to contact me."

24. Craig Wright told Petitioner to take t he Dr.'s letter

to Gail Ewing in Human Resources.

25. Ms. Ewing is the Director of Associate Health and

Wellness. She oversees short - term and long - term disability,

family medical leave, general wellness and workers'

compensation.

26. Petitioner delive red Dr. Stainaker's letter to Gail

Ewing as instructed. Ms. Ewing subsequently told Petitioner

that she had called Wright and that Wright and Joyce Trawicki,

the Laboratory Director , told her that they could not

accommodate Petitioner's request at this ti me. Petitioner was

able to do light duty work to include drawing blood .

27. Ms. Ewing testified that the note that Petitioner

provided by Dr. Stainaker was vague and needed to be clarified

as to whether she could return to work because of the

restrictio ns placed on her by her obstetrician. Ms. Ewing

referred Petitioner to Kathy Reynolds .

28. Petitioner was sent home on February 24, 2004. On

that date she completed a Leave Request Form that requested

maternity leave. Kathy Reynolds , the Disability Co ordinator in

the Human Resources Office , told Petitioner what information to

put on the form.

29. At the time that Petitioner completed the L eave

R equest F orm , she was only having problems with her back.

Petitioner told Craig Wright that she did not kno w how much

longer she could do nursing homes because her back was hurting

her when she leaned over to take blood from patients who were on

lowered, floor level beds.

30. Kathy Reynolds also told Petitioner that she could go

out on long - term disability. Petitioner did not request

disability. She told Kathy Reynolds that she was not having

problems with her pregnancy and that it was not fair that she

was being sent home.

31. Petitioner asked Kathy Reynolds why her case could not

be handled as workers' c ompensation . Reynolds said it was

because she had problems with her pregnancy and that she was

having complications.

32. Petitioner was never approved for long - term disability

benefits. Sedwick, the hospital ' s benefits coordinator , denied

Petitioner's claim because there was nothing in her medical

records to indicate a problem with her pregnancy.

33. From January 29, 2004 through June 9, 2004, Petitioner

received no treatment for her back, because the diagnostic tests

could not be performed because of her pregnancy. This was

communicated by Dr. Stalmaker to Petitioner when she initially

complained.

34. HR39 is the hospital's policy for managing work -

related incidents. The policy provides that for all work -

related incidents an incident report must be completed, the

incident must be reported to a manager or supervisor and to

Employee Health, initial care is to be provided by either the

Sacred Heart Medical Group or the hospital's emergency

department. All of the required actions were taken by

Petit ioner and Respondent.

35. As long as an incident report is completed, the

employee is still referred , even if initially the employee does

not want treatment. If the employee wants treatment at a later

time, his or her supervisor would send the employee to Employee

Health. Petitioner knew she could not receiv e treatment because

the doctor c ould not take X - ray s o f her back for diagnosis.

36. If the employee's treating physician does not know

whether the injury is work related or not, Gail Ewing, the

Dir ector of Associate Health and Wellness would confer with the

doctor to clarify. According to Ewing, if the doctor does not

know if it ' s work related , the incident would probably be

covered under workers' comp ensation .

37. If an injured employee is pregn ant and has problems

after being seen by her Ob/Gyn, the Employee Health Office would

refer the employee to the hospital workers ' comp ensation doctors

for further evaluation. That was not done for Petitioner.

38. Joyce Trawicki testified that phlebotomy is an

essential function of the laboratory technical assistant's job.

To support her contention, Msawicki relies upon the

hospital's Job Description/Performance Assessment Form for

Technical Assistants.

39. Despite Msawicki's contention that ph lebotomy was

an essential function of Petitioner's job, the lab hired two

employees, Lisa Kuhn and Brett Wiehold, who did not have

phle bo tomy skill s when they were hired.

40. Petitioner did not tell anyone at the hospital that

she could not do phlebotomy services. Her doctor did not say

she could not do phlebotomy. She could do phlebotomy as long as

it did not involve leaning over as she had to do in nursing

homes. She could have drawn blood in other areas of the

hospital.

41. Msawicki never aske d Petitioner if she could do

something other than clerical work.

42. The hospital routinely accommodated employees with

workers' comp ensation injuries.

43. The hospital accommodated two laboratory technical

assistants, both white females .

44. Paige R ichmond was a L ab oratory T ech nical Assistant

who covered nursing homes. She began having problems with her

back. She was sent to the workers' comp ensation doctor. Joyce

Trawicki and Craig Wright accommodated Ms. Richmond by putting

her in a position tha t did not require her to go out to nursing

homes to collect samples. She was placed in a doctor ' s office.

45. Erin Curt was a l aboratory t echnical a ssistant who

also collected samples from nursing homes. She began having

back problems. Her physician p rovided a note asking that she

not be required to collect blood specimens from demented or

combative patients . Ms. Curet was given Petitioner 's job in

accessions and Petitioner took her job collecting from nursing

homes.

46. Joyce Trawicki, the l ab d ire ctor , talked to Ms. Curet

about her accommodation. She did not talk to Petitioner.

Trawicki did not talk to Petitioner about her leave request.

47. Petitioner took her doctor's letter to Ewing and Ewing

contacted Wright and then Joyce Trawicki . Wright and Trawicki

told Ewing that Petitioner's request for a change in assignments

could not be accommodated at that time.

48. Petitioner was able to perform clerical duties and to

perform phlebotomy duties under conditions in which she did not

have to bend do wn to take blood. She presented the same

complaint and limitation that Curet had previously presented

when Curet was assigned Petitioner's duties, only Curet's

limitation was not the result of an on - the - job injury.

49. It was clear that the Respondent di d not treat

Petitioner's case as work man s ' compensation related. The

Respondent's explanation was that Petitioner did not present it

as a workmans ' compensation issue; however, I conclude that

Petitioner did present the issue as a workmans ' compensation

i ssue, and that Respondent failed to recognize it as such. The

most likely reason for this failure was the unclear line of

supervision and authority in the laboratory and failure in

communication between administrators at the facility.

50. Ewing referred Pet itioner to Kathy Reynolds, the

d isability c oordinator, to handle Petitioner's case as a

disability related to Petitioner's pregnancy. This path was

apparently selected because of a belief that Petitioner's

disability insurance would cover her because o f her having

previously been out of work because of her pregnancy.

51. Petitioner did not want to go on disability leave, a nd

told Reynolds she did not want to go home and thought it was

unfair. Reynolds advised Petitioner that her case was being

handl ed the way it was because it was related to her pregnancy.

52. Ultimately, Petitioner's disability insurer did not

approve her disability request because there was nothing in her

medical records to substantiate a problem with her pregnancy.

53. Petitione r's OB/GYN, Dr. Stalnaker, could not diagnose

or treat Petitioner's back condition because radiological

studies could not be done while she was pregnant. Therefore, it

was only after her baby was born that Petitioner's back injury

could be assessed. Dr. Stalnaker communicated this to

Petitioner soon after she raised the matter of her back pain

with him, shortly after her on - the - job injury.

54. Respondent's handling of Petitioner's case was

contrary to its policies on workmans ' compensation injuries.

55 . Respondent routinely accommodates employees with light

duty in workmans ' compensation cases. Paige Richmond was

accommodated by taking her off of collecting blood at the

nursing homes, and putting her in a doctor's office. Respondent

accommodated Cure t, whose case was not workman's compensation

related. Respondent treated Petitioner disparately.

56. Respondent's contention is that phlebotomy was part of

Petitioner's duties and she could not perform them. The

evidence does not support either of Respo ndent's conclusions.

57. Notwithstanding its protestations to the contrary,

evidence was received that there were persons hired who did not

perform phlebotomy routinely, to include Petitioner, when she

was first hired. Further, Dr. Stalnaker's medical letter stated

that she could not go to the nursing facilities, and suggested

that she do clerical work. Neither the doctor nor the

Petitioner said th at Petitioner could not do phlebotomy.

Further, the doctor invited the recipient(s) of the letter to

inqu ire if they had questions. This was not done.

58. On May 5, 2004, Petitioner was terminated from her

job. Before Petitioner was sent home she earned $8.50 per hour,

plus a $1.00 per hour shift differential.

59. After her termination, Petitioner calle d the hospital

and scheduled and exit interview. An appointment was scheduled

with Pat Brown, the hospital's Director of Human Resources.

Petitioner complained about her treatment.

60. After Petitioner was terminated, she was unemployed

from May 2004 to December 2004.

61. In December 2004, Petitioner began working for United

Way. She worked there until May 2005. Her rate of pay was

$9.25 per hour.

62. Petitioner was employed for three weeks in July 2005

at American Fidelity Insurance company.

63. Petitioner was unemployed from July 2005, until

August 2, 2005, when she was hired by AmSouth Corp oration

Center. She works approximately 20 your per week. Her rate of

pay is $10.50 per hour.

CONCLUSIONS OF LAW

64 . The Division of Administrative Hearings has

jurisdiction over the parties and subject matter of this case

pursuant to Section s 120. 569 and 120. 57(1) , Florida Statutes.

65. The analysis of presentation of a prima facie case in

employment discrimination cases is set out in McDonnell Doug las

Corp. v. Green , 411 U . S . 792 (1973), along with the concept of

the shifting burden to present evidence. Essentially,

Petitioner must show that she is a member of a protected class

(she is black and female); she was subject to adverse employment

action (she was deprived of the opportunity to work and was

treated differently from other persons injured on the job);

similarly situated employees were treated more favorably (one

white employee exchanged duties with the Petitioner under almost

identical circu mstances only the white employee was n o t injured

on the job, another white employee was placed in a doctor's

office, and finally she was not given workmans ' compensation

temporary disability benefits because her case was not treated

as a workman's compensa tion case); she was qualified to do her

job and could have done her job if she had not been required to

lean over and work on patients who were at floor level.

66. Respondent presented the testimony attempting to

articulate some legitimate nondiscriminato ry reason for the

adverse employment action. I do not find the evidence

creditable. What appears to have happened is that Respondent

messed up the processing of Petitioner's workmans ' compensation

claim. There were several possible reasons for this : (1 ) poor

coordination and supervision, (2) she was pregnant when she was

injured, and (3) poor communication between the various

participants.

67. The Respondent attempted to place the burden on the

Petitioner for not pushing forward her workmans ' compens ation

claim more strongly. She filed out the initial report,

underwent examination by the employer's doctors, and provided a

medical excuse when requested after raising her inability to

lean over and take blood because of her back.

68. Although th e possible reasons for Respondent's failure

to treat Petitioner as it would have treated other employees are

not on their face discriminatory, they are not the reasons

articulated for its actions. The reasons articulated are not

credible. Further, I doub t that an honest, "We messed up!" is a

credible defense to the discriminatory impact of Respondent's

actions.

69. The FCHR found no cause in this case. The case was

difficult, and Petitioner could not have prevailed without the

assistance of couns el. Petitioner should recover reasonable

attorney ' s fees based upon the affidavit of counsel and of

attorneys practicing in the area. Petitioner was deprived of

her salary for 31 weeks (May to the end of November), at 40

hours per week, at $9.50/hour inc luding shift differential or a

total of $11,780. She was employed from December 2004 until May

2005 by United Way at $9.25/hour. This is a difference of 25

cents per hour for 40 hours/week for 26 weeks, or $260. She was

employed for three weeks in July 2005, but no salary data was

provided. She has been employed since August 2005 by Am South

Corporation at $10.50/week, but for only 20 hours per week.

Through the date of this order, that is 23 weeks at 20 hours per

week at $10.50/hour as opposed to 23 w eeks at 40 hours per week

at $9.50 per week, or a lost income of $3,910. Although

Petitioner suffered emotionally from the loss of her job during

her pregnancy, the facts do not reveal a matter of overt and

intentional discrimination against Petitioner th at would warrant

additional damages.

RECOMMENDATION

Based upon the foregoing findings of fact and conclusions

of law, it is

RECOMMENDED that the FCHR enter its final order directing

Respondent to cease the discriminatory conduct complained of by

P etitioner; directing Respondent to hire Petitioner upon

Petitioner's application for employment; awarding such damages

as the Commission determines is appropriate based upon the facts

above and awarding Petitioner reasonable attorney's fees; and to

that en d, the Commission should permit the parties to stipulate

to the amount of the attorney's fees within 45 days of the entry

of its order or failing to stipulate, refer the matter to the

Division for further proceedings to determine the award of

attorney's fe es.

DONE AND ENTERED this 17th day of January , 200 6 , in

Tallahassee, Leon County, Florida.

S

__

STEPHEN F. DEAN

Administrative Law Judge

Division of Administrative Hearings

The DeSoto B uilding

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 17th day of January , 20 0 6 .

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 10 0

Tallahassee, Florida 32301

R. John Westberry, Esquire

Holt & Westberry, P.L.

1108 - A North 12th Avenue

Pensacola, Florida 32501

Eric M. Drlicka, Esquire

Emmanuel, Sheppard & Condon

30 South Spring Street

Pensacola, Florida 32501

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.