05-003537 Mary A. King vs. Healthsouth Corporation Status: Closed Recommended Order on Friday, March 24, 2006.

Summary: Petitioner offered no competent evidence to show that the elimination of her position was based on either race or age discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARY A. KING, )

)

Petitioner, )

)

vs. ) Case No. 05 - 3537

)

HEALTHSOUTH CORPORATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to N otice, this c ause was heard by Linda M. Rigot,

the assigned Administrative Law Judge of the Division of

Administrative Hearings, on February 7, 2006, in Tallahassee,

Florida.

APPEARANCES

For Petitioner: Mary King, pro se

1039 Idlewild Driv e

Tallahassee, Florida 32311

For Respondent: Laywick Duffie, Esquire

Wesley E. Stockard, Esquire

Hunton & Williams, LLP

Suite 4100

600 Peachtree Street, Northeast

Atlanta, Georgia 30308 - 2216

STATEMENT OF THE ISSUE

The issue present ed is whether Respondent HealthS outh

Corporation engaged in an unlawful employment practice as to

Petitioner Mary A. King, and, if s o, what relief should be

granted to Petitioner, if any.

PRELIMINARY STATEMENT

On May 17, 2005, Petitioner Mary A. King filed with the

Florida Commission on Human Relations an Employment Complaint of

Discrimination, alleging that Respondent HealthS outh Co rporation

had discriminated against her based upon her race and her age.

On September 14, 2005, the Commission issued its Notice of

Determination: No Cause, finding that there was no reasonable

cause to believe that an unlawful employment practice had

oc curred. Petitioner thereafter filed her Petition for Relief,

and on September 26, 2005, this matter was transferred to the

Division of Administrative Hearings to conduct an evidentiary

proceeding.

At the final hearing, Petitioner testified on her own

be half and presented the testimony of Julia Ford . Respondent

presented the testimony of Donna Crawford, Barbara Roberts,

Cynthia Cox, and Lynn Streetman . Additionally, Respondent's

E xhibits numbered 1 and 3 - 11 were admitted in evidence. Only

the Responden t submitted a proposed recommended order after the

conclusion of the final hearing in this cause. That document

has been considered in the entry of this Recommended Order.

FINDINGS OF FACT

1. Petitioner Mary A. King is a black female born on

April 5, 1952.

2. Respondent HealthS out h Corporation operates HealthS outh

Rehabilitation Hospital of Tallahassee, located in Tallahassee,

Florida.

3. Petitioner w as initially employed by HealthS outh in

1995 as a nurse tech or certified nursing assistant (CNA) in the

nursing department.

4. In 1998 she suffered a back injury while performing her

regular CNA duties. She received treatment for the injury and

returned to work with lifting limitations placed on her by her

doctor. The limitations were inconsistent w ith her duties as a

CNA and are still in effect.

5. In 1999 Petitioner requested a transfer to the position

of patient transporter aide due to her lifting limitations and

concerns over her back injury. Her transfer request was

granted , and she began to w ork as a patient transporter in the

physical therapy department. She was pleased with the transfer.

6. As a patient transporter, Petitioner was responsible

for transporting patients to and from the locations in the

hospital where they received treatment. She was not directly

involved in the administration of treatment to patients.

7. Subsequently , Petitioner was transferred from the

physical therapy department to the occupational therapy

department. Her position and job duties remained the same; the

o nly change was in the types of patients Petitioner transported.

8. On September 1, 2004, new federal regulations went into

effect. These regulations directly impacted all in - patient

rehabilitation hospitals, limiting th e types of patients that

HealthS out h could accept.

9. The new regulation s had a severe impact on HealthS outh,

causing a dramatic drop in the patient census. The 76 - bed

facility had an average daily census of 65, and occasionally up

to 76, prior to the effective date, but only a patient census in

the 30s and 40s after the effective date of the new regulations.

10. With the dramatic drop in patient census, HealthS outh

ha d to dramatically reduce costs. Lynn Streetman, Administrator

of HealthSouth Rehabilitation Hospital of Tallahassee, lo oked at

a variety of way s in which costs could be reduced, including re -

structuring contracts with outside vendors, reducing orders of

medical supplies, reducing or substit uting pharmaceutical

orders, discontinuing the use of P.R.N. or as - needed staff, and ,

ultimately, reducing the workforce at the h ospital.

11. Streetman began reducing the workforce through

a ttrition. As positions at the h ospital became vacant, they

were not filled if they were not crit ical to the functioning of

the h ospital and if there would not be a negative impact on

patient care. Although reducing the workforce through attrition

helped, more workforce reductions we re necessary to respond to

the h ospital's declining patient census.

12. In order to determi ne what positions to elimina te ,

Streetman preliminarily reviewed all positions throughout the

facility and developed a list of position s she thought could be

elimina ted with minimal impact on the h ospital's operations.

The criteria she used included whether the position was a

clinic al or non - clinical position, whether the position was

ess ential to the operation of the h ospital or merely a luxury

position, whether the duties of the position could be

effectively abso rbed by other positions in the h ospital, and

what impact the eliminati on of the position would have on

patient care.

13. Streetman next met in dividually with members of the

h ospital's senior management team to discuss the position s in

their respective departments that she had preliminarily

identified as appropriate for elim ination. She obtained input

from the team members as to whether it would be appropriate to

eliminate those positions and what impact the ir elimination

would have on the functioning of their respective departments.

14. After she met with the team member s to discuss the

reduction in force and consider their input, Streetman made the

decision to eliminate 13 positions at the hospital in December

2004 and January 2005. Three positions were eliminated in

December, and ten were eliminated in January. Street man was the

person responsible for making the final decision about which

positions to eliminate.

15. Of those employees affected by the reduction in force,

6 were black and 7 were white. Of those employees affected by

the reduction in force, 6 were over 40 years of age, and 7 were

under 40 years of age.

16. Each employee whose position was eliminated as a part

of the reduction in force was informed that he or she wou ld be

eligible to purchase insurance benefits through COBRA for up to

18 months after his or her employment with the hospital ended,

each was paid for any accrued paid time off, and each eligible

employee received severance benefits in accordance with an

identical formula: one week of pay for every year of service up

to a maximum of ten years. With the exception of a part - time

employee who was not eligible, all employees affected by the

reduction in force received benefits, paid time off payments, or

severance payments in accordance with these policies.

17. One of the positions selected for e limination was that

of patient transporter. When Streetman was emp loyed by

HealthSouth, there had been three patient transporters. Two of

the three positions had already been eliminated through

attrition, and Petitioner was the only remaining patient

tra nsporter. Since Petitioner's position was eliminated,

HealthSouth has not hired anyone as a patient transporter.

18. Petitioner's position was selected for elimination

because it was not essential to the operation of the hospital,

was not responsible for any direct patient care, and was a

luxury position for the facility. As verification that the

elimination of Petitioner's position would not have a negative

impact on the level of patient care at the hospita l, Streetman

considered that therapists at the hospital had already been

assisting in the transportation of patients to and from

treatment and that the previous reduction of two patient

transporters through attrition did not negatively impact patient

care at the hospital. Petitioner's job duties were absorbed

into the daily work routine of therapists in the outpatient

therapy department. Therapists simply transported their own

patients rather than have Petitioner (and the other transporters

who had previously been phased out through attrition) perform

this function for them.

19. Petitioner was informed of the decision to eliminate

her position on November 30, 2004, by Donna Crawford, Director

of Clinical Services, and Cindy Cox, Occupational Therapy Team

Leader. Crawford informed Petitioner that Peti tioner's position

was being eliminated, that Petitioner would receive severance

pay in accordance with her years of service, that Petitioner

would be paid for all of her accrued paid time off, and that

Petitioner was welcome to apply for any other open pos i tion at

the hospital for which she was qualified. Crawford also told

her that Petitioner was welcome to discuss any open positions

with Jackie Chaires, Human Resources Director at the hospital.

20. Petitioner was paid 360 hours of severance pay (nine

weeks pay for nine years of service), was compensated for all

accrued paid time off, and was sent a letter informing her of

her right to purchase insurance under COBRA for up to 18 months

after her employment with Respondent had ended. Petitioner also

app lied for and received unemployment benefits as a result of

her job being eliminated.

21. After Crawford advised her that her position had been

eliminated, Petitioner went to talk with Jackie Chaires , a black

female . Petitioner told Chaires that she did n ot understand why

she had been laid off and asked about any available positions.

During that conversation, in an attempt to console Petitioner

according to Chaires ' affidavit but as a n act of discrimination

according to Petitioner's testimony, Chaires sug gested that

Petitioner could also retire and let Petitioner's husband take

care of her.

22. At no time did Chaires suggest that Petitioner's

husband's situation, his income, or Petitioner's age were

factors in HealthSouth's decision to eliminate her posit ion as

part of its reduction in force. Moreover, Chaires was not

involved in any way in the selection of Petitioner's position

for elimination.

23. At some point after being informed that their

positions were eliminated, Petitioner, along with Kim Spen cer,

another employee affected by the reduction in workforce,

inquired as to whether there were positions available in the

nursing department. However, there were no positions available

in that department, and both Petitioner and Spencer were

informed tha t their requests could not be accommodated. Spencer

is a white female.

24. HealthSouth has a written policy prohibiting employees

from giving letters of recommendation. At some point after

being info rmed that her position was eliminated, Petitioner

aske d Cynthia Cox, her direct supervisor, for a letter of

recommendation. Cox agreed to give her one even though she was

uncertain as to the correct procedure, but after ascertaining

from the human resources department that a recommendation would

be against c orporate policy, Cox told Petitioner she could not

give her the letter and told Petitioner that it was against

corporate policy. That policy is clearly stated in the

hospital's employee handbook, which Petitioner had been given.

25. At no time prior t o her filing her charge of

discrimination with the Florida Commission on Human Relations

did Petitioner inform any of her supervisors that she felt she

was being discriminated against in any way based on either her

race or her age.

26. Patsy Kitchens is a white female who is the same age

as Petitioner. HealthSouth terminated her employment at the

same time as it terminated Petitioner's employment as part of

the same reduction in force.

CONCLUSIONS OF LAW

27 . The Division of Administrative Hearings has

jurisdiction over the subject matter hereof and the parties

hereto. §§ 120.569 and 120.57(1), Fla. Stat.

28 . Section 760.10(1)(a), Florida Statutes, provides that

it is an unlawful employment practice for an employer to

discharge or otherwise discrimina te against an individual on the

basis of race or age. Petitioner asserts that she was fired by

HealthSouth with no explanation and for no valid reason based

only upon her race and/or age. Petitioner has failed to prove

her allegations.

29. Petitioner be ars the burden of proof established by

the Supreme Court of the United States in McDonnell Douglas v.

Green , 411 U.S. 792 (1973), and in Texas Dept. of Community

Affairs v. Burdine , 450 U.S. 248 (1981). Under this well -

established case law, Petitioner bea rs the initial burden of

establishing by a preponderance of the evidence a prima facie

case of discrimination. If a prima facie case is established,

the burden to go forward shifts to the employer to articulate a

legitimate, non - discriminatory reason for the employment action.

The employee then has the burden of showing that the business

reason is pretextual and that a discriminatory reason more

likely than not motivated the decision.

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

must prove th at (1) she is a member of a protected class, (2)

she was qualified for her position, (3) she suffered an adverse

employment action, and (4) she was treated less favorably than

similarly - situated employees who were not members of her

protected class. Holif ield v. Reno , 115 F.3d 1555 (11th Cir.

1997). Petitioner has failed to establish a prima facie case of

discrimination by failing to prove the fourth element of the

analysis .

31. Petitioner offered no evidence that she was terminated

due to her race. Of the 13 employees laid off by HealthSouth in

December 2004 and January 2005 due to the reduced census due to

the new federal regulations, six, including Petitioner, were

black, and seven were white. There is no evidence that race was

a factor in selecting positions for elimination , or that it was

even considered .

32. Petitioner offered no evidence that she was terminated

due to her age. Of the 13 employees laid off by HealthSouth in

December 2004 and January 2005 due to the reduced census due to

the new f ederal regulations, two were older than Petitioner, one

was five months younger and, therefore, the same age, and the

rest were somewhat - to - much younger than Petitioner. There is no

evidence that age was a factor in selecting positions for

elimination, o r that it was even considered.

33. Petitioner seems to base her claims of race and age

discrimination on three alleged facts. First, Petitio ner claims

that the comment made by Ja ckie Chaires about Petitioner

retiring and letting her husband take care of h er shows that

HealthSouth discriminated against her on the basis of age. This

suggestion is without merit. Chaires had no involvement in the

decision to eliminate Petitioner's position, the comment was

made after the decision was made and communicated to Petitioner,

and the comment is capable of supporting m any interpretation s

ranging from compassion to env y .

34. Second, Petitioner claims that she was discriminated

against based upon her race since Patsy Kitchen s , a white

employee whose position was el iminated at the same time as

Petitioner's , was given 18 months of insurance but Petitioner

was not. Petitioner offered no competent evidence to support

this assertion. To the contrary , the uncontroverted evidence is

that all employees whose positions wer e eliminated were advised

of their right to purchase insurance under COBRA for 18 months.

35. Third, Petitioner claims that she was discriminated

against based upon her race since Patsy Kitchens was given a

letter of recommendation but Petitioner was no t. Again,

Petitioner offered no competent evidence to support this claim.

To the contrary , the uncontroverted evidence is that corporate

policy, as set forth in the employee handbook, prohibits giving

letters of recommendation. Cindy Cox, Petitioner's i mmediate

supervisor, at first told Petitioner she would give Petitioner a

letter of recommendation , but after checking with the human

resources department as to whether she could do so, told

Petitioner she could not because it was against corporate

policy.

36. Assuming arguendo that Petitioner has established a

prima facie case, which she has not, her claim still fails

because HealthSouth has articulated a legiti mate, non -

discriminatory reason for its actions, and Petitioner has failed

to meet her bu rden of showing that the reason HealthSouth gave

is a pretext for discrimination. The uncontroverted evide nce is

that because of new federal regulations, the hospital's

declining census, and its inability to reduce costs to the

appropriate level by other mean s, it was necessary for

HealthSouth to reduce its workforce.

37. Positions were selected for elimination based upon

whether the position was a clinical or non - clinical position,

whether the position was essential to the operation of the

hospital or mere ly a luxury position, whether the duties of the

position could be effectively absorbed by other positions in the

hospital, and what impact the elimination of the position would

have on patient care. Petitioner's position as a patient

transporter was selec ted for elimination because it was not

essential to the operation of the hospital, was not responsible

for any direct patient care, and was a luxury position for the

facility.

38. HealthSouth has cle arly shown a legitimate business

decision based on a n on - discriminatory reason for eliminating

Petitioner's position. On the other hand, Petitioner has failed

to offer any competent evidence to rebut or cast doubt on

Respondent's proffered legitimate, non - discriminatory reason for

the elimination on her posi tion and has, therefore, failed to

show that the proffered reason is pretextual .

39. An employer may terminate an employee for a good

reason, for a bad reason, for a reason based upon erroneous

information, or for no reason at all, as long as the terminat ion

was not based upon a discriminatory reason. See Dept. of

Corrections v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991),

and the cases cited therein. HealthSouth has articulated a good

reason for Petitioner's termination, and Petitioner has not

shown b y any direct evidence, statistical evidence, or even

circumstantial evidence , that the reason was discriminatory .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that a final order be entered finding th at

Petitioner failed in her burden of proof and dismissing the

petition filed in this cause.

DONE AND ENTERED this 24th day of March , 2006, in

Tallahassee, Leon County, Florida.

S

LINDA M. RIGOT

Administrative Law Judge

Division of Administrative 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 24th day of March, 2006.

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 100

Tallahassee, Florida 32301

Mary King

1039 Idlewild Drive

Tallahassee, Florida 32311

Laywick Duffie, Esquire

Wesley E. Stockard, Esquire

Hunton & Williams, LLP

Suite 4100

600 Peachtree Street, Northeast

Atlanta, Georgia 30308 - 2216

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 th e Final Order in this case.