06-000594 Deanna L. Eftoda vs. Healthsouth Rehabilitative Hospital. Status: Closed Recommended Order on Friday, September 22, 2006.

Summary: Respondent`s wage tables and policy were scrupulously followed. Age and retaliation discrimination was not proven.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEANNA L. EFTODA, )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 0594

)

HEALTHSOUTH REHABILITATIVE )

HOSPITAL, )

)

Respondent. )

)

RECOMMENDED ORDER

Upon due notice, a disputed - fact hearing was held on June 6

and 7, 2006, in Tallahassee, Florida, before Ella Jane P. Davis,

a duly - assigned Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Deanna L. Eftoda, pro s e

2112 Mistletoe Court

Tallahassee, Florida 32301

For Respondent: Laywick Duffie, Esquire

Wesley E. Stockard

Qualified Representative

Hunton & Williams, LLP

Bank of America Plaza

600 Peachtree Street

Su ite 4100

Atlanta, Georgia 30308

STATEMENT OF THE ISSUE

Whether Respondent Employer committed an unlawful

employment practice by discrimination on the basis of age and /or

retaliation 1/ against Petitioner, in violation of Chapter 760,

Florida Statute s.

PRELIMINARY STATEMENT

On May 3, 2005, Petitioner filed a Charge of Discrimination

with the Florida Commission on Human Relations (FCHR), alleging

that Respondent, HealthSouth Rehabilitation Hospital of

Tallahassee, discriminated against her based on her age and by

retaliation. On January 10, 2006, FCHR issued its

Determination: No Cause.

Petitioner timely filed a Petition for Relief. Therein,

she has raised issues under several federal statutes, but only

violations pursuant to Chapter 760, Florida Sta tutes, may be

considered in this forum. ( See Conclusions of Law.)

The cause was referred to the Division of Administrative

Hearings on or about February 15, 2006. The course of this case

thereafter is adequately documented by the docket and Orders

enter ed herein, and will not be reprised in detail here.

Assorted motions, oral and written, were ruled - upon on the

record at the commencement of the disputed - fact hearing on

June 6, 2006, and are memorialized by the Transcript. Those

rulings also will not b e repeated here.

At hearing, Petitioner testified on her own behalf;

presented the oral testimony of Catherine Taylor, Jackie

Chaires, Lezlie Wachman, Deborah Mahara n e e’ Mandar, Kimberly

Outlaw, and Lynn Streetman; and had Exhibits P - 1 through P - 4, P -

6 through P - 9, P - 11 through P - 16, P - 19 th r ough P - 20, and P - 22

th r ough P - 34, admitted in evidence. Exhibits P - 17 and P - 18 are

composites and were also admitted in evidence. Exhibits P - 10

and P - 21 were withdrawn. Respondent presented the oral

testimony of A nne McElreath, Barbara Roberts, Kimberly Outlaw,

Jackie Chaires, and Lynn Streetman, and had Exhibits R - 1, and R -

3 through R - 49, admitted in evidence.

A Transcript was filed on June 29, 2006. On July 5, 2006,

a Post - Hearing Order was entered, explaining how to prepare

proposed recommended orders. Respondent’s timely filed Proposed

Recommended Order, filed on July 14, 2006, has been considered.

Petitioner filed no proposal.

FINDINGS OF FACT

1. Petitioner, Deanna L. Eftoda, was born on August 26,

1949.

2 . Respondent, HealthSouth Rehabilitation Hospital of

Tallahassee (HealthSouth), is a healthcare facility providing

both in - patient and out - patient rehabilitation services in

Tallahassee, Florida. As such, it employs personnel designated

as "exempt" and " non - exempt," pursuant to the federal Fair Labor

Standards Act.

3. Generally speaking, "exempt" employees are salaried

employees, in managerial posts, who do not receive over - time pay

by the hour, and "non - exempt" employees are regular, non -

managerial empl oyees, who are paid a set amount per hour up to

40 hours per week and time and a - half per hour for every hour

above 40 hours that they work in the same 40 - hour week. There

are some exceptions to this federal compensation scheme which

are immaterial to thi s case.

4. At all times material, a “Nursing House Supervisor” or

“RN House Supervisor” were interchangeable job titles.

5. Petitioner was initially hired by Respondent on

January 26, 2004, as an "RN - Baylor Nurse." The RN - Baylor

position was a non - exe mpt position, and in that position,

Petitioner's hourly pay rate was $28.00. Petitioner's hourly

rate of $28.00, was very high for an RN - Baylor Nurse, but

Petitioner's credentials are exceptional.

6. Within days of her hire, Petitioner was asked whether

she would take an RN House Supervisor position. Petitioner

accepted the RN House Supervisor position, and a corrected

personnel action form reflecting this change was prepared on

January 30, 2004. Petitioner signed an acknowledgement of her

acceptance of the House Supervisor position on February 22,

2004.

7. Every House Supervisor employed by Respondent during

Petitioner's period of employment was an exempt employee. The

RN House Supervisor position that Petitioner accepted was an

exempt position. Nurs ing House Supervisors traditionally worked

the evening and night shifts, when there was no member of the

hospital administration on duty. Without a member of the

hospital administration on duty, the Nursing House Supervisor

was the highest ranking managem ent employee at the facility.

8. While Petitioner was employed with Respondent as an

RN/Nursing House Supervisor, Respondent simultaneously employed

“Charge Nurses.” The duties of a Charge Nurse were similar to

the duties of a Nursing House Supervisor. However, unlike

Nursing House Supervisors, Charge Nurses traditionally worked

the day shift, during which higher - ranking members of the

facility’s administration were simultaneously on duty. In 2004,

Respondent also employed a Charge Nurse on the weekend day

shift(s) when at least one administrator was present for several

hours. (This anomaly seems to be at least one element which

confused Petitioner and led to this case.) Even so, unlike RN

House Supervisors, all Charge Nurses were classified by

Respond ent Employer as filling non - exempt positions. Every

Charge Nurse employed by Respondent during Petitioner's

employment was classified as a non - exempt employee, eligible to

earn time - and - a - half for overtime.

9. Petitioner’s salary was not increased when s he accepted

the RN House Supervisor position, because her base salary

(calculated at $28.00 per hour) was commensurate with the salary

of other RN House Supervisors already being paid as managerial

employees at straight salary.

10. On the other hand, beca use Petitioner worked as an

RN/Nursing House Supervisor on a “Baylor,” or weekend, shift,

Respondent paid Petitioner a special compensation for being

scheduled to work every weekend, with no weekends “off.” This

special compensation took the form of Respo ndent’s paying

Petitioner as if she had worked 36 hours per week, even though

she was only scheduled for 32 actual hours of work per week.

11. Petitioner believes that she worked a minimum of four

additional hours per week, because it was her practice to come

on shift an hour early and leave an hour late to set up and wind

down the area and staff under her supervision as Nursing House

Supervisor. She “guessed” there were some weeks when, between

this practice and meetings she was required to attend, she

w orked 32 hours above the usual 40 hours per week. Her “best

guess” was that she was working “two (additional) hours per

eight - hour shift,” plus attending meetings which were not held

during her shift(s), beyond her scheduled 32 hours, but

Petitioner neve r worked straight eight - hour shifts. ( See

Findings of Fact 12 - 15, and 25 . )

12. A Nursing House Supervisor working the Baylor shift,

or an RN - Baylor Nurse, normally worked two twelve - hour shifts on

the weekend and one eight - hour shift during the week. Wh en

Petitioner was hired by Respondent in January 2004, she was

completing a second doctoral degree. In order to accommodate

Petitioner's work on her dissertation, Respondent had offered

Petitioner an irregular shift pattern consisting of two sixteen -

hour shifts on the weekends. Petitioner had accepted this

scheduling accommodation.

13. As RN House Supervisor, Petitioner was required to

attend occasional mandatory meetings for Nursing Supervisors and

other nursing staff. These meetings were held during the week,

and usually, but not always, between 5:00 and 6:00 p.m. This

meeting time was more convenient for employees regularly working

the weekday shift immediately before 5:00 p.m. or coming on

shift immediately after 6:00 p.m., than for staff on other

shifts, but no age or retaliation component existed with regard

to Petitioner or anyone else on other shifts. Petitioner also

was required once or twice to attend several hours of computer

classes in a single day and other training, but so was everyone

e lse on staff. Because the meetings were not on the weekends

during the hours Petitioner would normally work, Petitioner’s

attendance at the mandatory weekday meetings upset Petitioner's

personal plans for study, research, and writing her doctoral

disserta tion, but there is no evidence she was singled out for

this inconvenience.

1 4 . Petitioner claimed herein that she was entitled to be

paid overtime for coming to "work" for meetings and classes.

Because her Nursing House Supervisor position was an exempt

position, Petitioner was not paid overtime for attending these

mandatory meetings and classes, but no other exempt employees

were paid overtime for attending these meetings and classes

outside of their normal working hours, either.

1 5 . Respondent's policy does provide that if a Nursing

House Supervisor works an additional shift as a "floor nurse,"

separate and apart from his/her regularly scheduled shifts as a

House Supervisor, then that Nursing House Supervisor can be

granted additional pay for that addit ional shift during which

he/she works as a floor nurse, even though the House Supervisor

position is that of an exempt employee. In order to be granted

this additional pay, the Nursing House Supervisor must fill out

an "Additional Pay for Exempt Employees " request form and submit

the form to management for prior approval. The mandatory weekly

meetings that Petitioner was required to attend as a part of her

Nursing House Supervisor duties did not qualify as a full

additional shift, for any employee. Petit ioner received a

memorandum dated April 12, 2004, explaining this. In fact, When

Petitioner filled out the correct form for work as a floor

nurse, she was paid at the $27.50 per hour rate for a floor

nurse. She was not paid when she filled out such a for m for

mandatory staff meetings, classes, and training sessions.

1 6 . Petitioner represented that throughout her employment

by Respondent, she repetitively and persistently inquired about

how her pay was being calculated and why the Employer did not

calcu late it the way she thought it should. She also claims to

have repeatedly requested a different calculation of her pay and

leave accruals on the basis of her beliefs and desires, but at

the time she made no formal claim or discrimination complaint

related to these inquiries and requests. In her testimony, e ven

Petitioner described what she was doing as “negotiating” her

salary.

1 7 . Throughout her employment by Respondent, Petitioner

was cited by management for performance problems, including but

not li mited to difficulty in dealing with staff; poor management

style; poor judgment in dealing with her supervisors and

subordinates; creating confusion and chaos for staff on her

scheduled shift by her confrontational manner; failing to

properly address perfo rmance concerns with staff on her

scheduled shift; and failure to take responsibility for her own

actions.

1 8 . Giving Petitioner the benefit of the doubt, some of

her friction with management and staff may have arisen because

of her complaining that eva luators did not observe her for an

entire shift; because she mis - read management’s instructions on

how to code her timesheets as a requirement to falsify them;

because she perceived that Respondent’s staffing levels

occasionally fell below matrix , and she then created turmoil by

calling in extra staff, whereas her superiors did not share her

interpretation of the matrix requirements or the staffing events

themselves; because she blamed the preceding shift for

cleanliness issues; because she perceived hersel f undervalued

for her extensive nursing experience; because she perceived

herself personally opposed and ridiculed by a nurse of lesser or

equal rank (Mandar); and because she did not believe that her

superiors backed her up sufficiently and/or did not aff ord her

the appropriate discretion in her interactions with

subordinates. Petitioner objected to Respondent’s chain of

command, which had her reporting to Ms. Roberts, Nurse Manager.

Petitioner felt she should report directly to the Director of

Nursing, her “two - up” supervisor. However, none of these

disputes rose to the level of a protected activity under Chapter

760.10(7), Florida Statutes ( see Finding of Fact 35), or related

to Petitioner's age in any way.

19 . From Respondent's perspective, its adm inistration

received a myriad of complaints from Petitioner's supervisors,

peers, and subordinates, regarding Petitioner's management style

and performance. Some of Respondent's employees threatened to

quit if they were forced to continue to work under Pe titioner's

supervision. Petitioner testified that in July 2004, she had

polled her subordinates and asked them to indicate that they had

“no problems” with her management style. Then she presented the

list of subordinates to her superiors. This could ha ve

legitimately been viewed by Respondent’s management as

Petitioner’s insubordination to them and/or intimidation of the

polled subordinates by Petitioner.

2 0 . Respondent’s Nurse Manager and Petitioner’s direct

supervisor, Barbara Roberts, felt that she was being required to

spend an inordinate amount of her time dealing with Petitioner's

problems.

2 1 . As a result of these problems, Petitioner was placed

on probation on September 10, 2004.

2 2 . Petitioner challenged this probation, and a review was

con ducted by Respondent's management. Despite the fact that the

complaints concerning Petitioner's management style and

performance came from various sources, Petitioner complained

that Ms. Roberts was unfairly disciplining and harassing her.

Respondent's m anagement concluded that the attention Petitioner

had received from Ms. Roberts was not improperly motivated, but

was a result of personality conflicts between Petitioner and

other employees.

2 3 . Some of the allegations against Petitioner were

substanti ated, but investigation into an allegation that

Petitioner had coerced or threatened employees into working,

only produced limited supporting documentation. In the absence

of additional documentation, Lynn Streetman, Hospital

Administrator, concluded that probation was not the correct

level of discipline for Petitioner. (P - 22) Ms. Streetman

recommended that Petitioner's supervisor, Ms. Roberts, chalk the

problems up to differences in management style and downgrade

Petitioner’s probation citation to a "wr itten warning."

2 4 . On September 30, 2004, the probation citation was

replaced with a written warning citation.

25. Also on September 30, 2004, six months after

Petitioner’s initial hire and approximately five and a - half

months after she accepted the e xempt Nursing House Supervisor

position, Ms. Roberts sent Petitioner a memorandum informing her

that it was no longer operationally feasible to continue the

irregular pattern of two sixteen - hour shifts on the weekend (R -

3) . 2/ Respondent's reason for this change was that for four

hours of each day that Petitioner was scheduled to work, there

was an overlapping period when two supervisors were on duty, and

this duplication of supervisory personnel resulted in an

unnecessary expense for Respondent. Ms. Robe rts' memorandum

informed Petitioner that it was operationally necessary for

Petitioner to begin working the traditional Baylor - RN's two

twelve - hour weekend shifts and one eight - hour shift during the

week, beginning with the October 16 - 17, 2004, weekend. T his

managerial decision obviously inconvenienced Petitioner for

purposes of completing her doctoral dissertation, and she

contends the decision was “retaliatory . ” However, the change

had been in discussion with management before September 30,

2004.

26. I mmediately after her probation was down - graded to a

written warning, Petitioner asked for a weekend off, which was

granted. Because she took a weekend off at that time,

Petitioner had one less weekend to use later in December 2004.

( See Finding of Fact 3 6.)

27. Approximately October 17 - 18, 2004, when her new shift

arrangement was beginning, Petitioner's supervisors again sought

to put her on probation, due to a series of complaints by staff

similar to the previous ones. Ms. Roberts and other superiors

b elieved Petitioner distorted common conversations and created

chaos on her shift by misinterpreting in her conversations with

her subordinates the instructions her superiors had given her.

28. In accord with its policy, Respondent launched a

second inves tigation into Petitioner's alleged misconduct.

29. On December 11, 2004, prior to conclusion of the

second investigation, Petitioner sent an e - mail to Ms. Roberts

and to Respondent's Human Resources Director, Jackie Chaires,

requesting that her status be changed from full - time Nursing

House Supervisor to "PRN," or "as needed," status. Petitioner's

e - mail stated,

I believe I have 'too many irons in the

fire.' With my dissertation and numerous

meetings outside my 32 hours, I find myself

run down. To reme dy this situation I am

willing to wait until January 17, 2005 for

this transition to begin. Please advise as

to the salary changes.

30. Petitioner believed that by giving four weeks’ notice

before the date she wanted to “go PRN” she would be entitled to

a payout of “personal time off” (PTO). However, due to

subsequent events, she was not entitled to an "in cash" payout

of PTO. ( See Findings of Fact 59 - 60 . )

31. Respondent's policy provided that at any time an

employee moved to a new position, he/she wa s placed on a 90 - day

mandatory probation to assess his/her performance in that new

position. Because Petitioner was to be placed on a mandatory

90 - day probation at the time that her status changed to PRN,

there was no need to also place Petitioner on prob ation due to

the conclusions of the second investigation into her alleged

misconduct. However, Ms. Streetman instructed Ms. Chaires and

Ms. Roberts to meet with Petitioner to go over the various

performance problems that Petitioner was experiencing, and t o

inform Petitioner that continued poor performance in these areas

during her PRN probationary period could result in disciplinary

action up to, and including, termination. This meeting took

place on December 15, 2004, and led to a rebuttal by Petitioner

on December 29, 2004 . ( See Finding of Fact 34.)

32. Petitioner previously considered moving to PRN status

during February 2004. Petitioner also claimed that in March or

April 2004, she had requested to be moved back to an RN - Baylor

Nurse position, and t hat Ann McElreath, Director of Patient Care

Services/Director of Nursing, told her that she could not make

such a move without suffering a 45 - percent decrease in

compensation. Ms. McElreath testified that she did not remember

any such request from Petitio ner, and that she never told

Petitioner that Petitioner would suffer a 45 percent decrease in

pay if she moved back to a Baylor - RN position. Ms. McElreath

further testified that she would have no reason to make such a

statement to Petitioner, because she was not involved in any way

in setting salaries.

33. In light of the differential between part - time and

full - time pay schedules, as discussed hereafter ( see F indings of

Fact 38 and 58), and the complexity of Respondent Employer’s

other pay categories, c oupled with the complexity of Baylor

status, one can see how Petitioner misunderstood her situation,

but her testimony evidences a clear misunderstanding of how

Respondent calculated salaries, as well as a misunderstanding of

the effect of designating exem pt and non - exempt positions.

34. On December 29, 2004, Petitioner sent a memorandum to

Ms. Roberts, Ms. Chaires, Ms. Streetman, and Ms. McElreath,

requesting to rescind her request to move to PRN status and

requesting to finish another six months as House Nursing

Supervisor; complaining about “harassment” by Ms. Roberts due to

Ms. Roberts’ telephone calls reminding Petitioner to attend

meetings and Ms. Roberts’ “insulting” Petitioner’s professional

abilities by not seeing/taking Petitioner’s side of many i ssues

with staff. Petitioner requested to begin “dispute resolution.”

At no point in this memorandum did Petitioner mention anything

about alleged discrimination on the basis of age.

35. At no point during any investigation, nor at any other

time, did Petitioner allege that she was being discriminated

against based on her age. She did allege harassment by her

immediate supervisor, Ms. Roberts, but this was in the nature of

challenging Respondent’s basic chain - of - command decisions;

Ms. Roberts ' not per mitting her sufficient discretion; and

Petitioner’s belief that only Petitioner could interpret Center

for Disease Control (CDC) requirements regarding cleanliness and

restrictions on the employment of coughing personnel and

Occupational Safety and Health Act (OSHA) staffing requirements

with regard to scheduling additional staff and instructing staff

concerning these issues. Yet, Petitioner has never posed any

complaint directly alleging violations of any federal or state

regulation besides her “exempt” v ersus overtime issues, which

she raised for the first time, herein.

36. Petitioner wanted to take off December 31, 2004, and

January 1, 2005 (New Year’s Eve and New Year’s Day), and she had

been authorized in advance to do so. However, that

authorizatio n was rescinded when management discovered that she

had already used the three weekend leaves to which she was

entitled and that there might be staffing problems for the

weekend period requested. ( See Findings of Fact 26 and 54 - 57.)

Petitioner had alread y made arrangements for her personal

activities, and badgered management b y e - mail to give her one or

the other day off. Management ultimately let her have one of

the days off, despite its “only three weekends” policy.

37. Due to Petitioner’s on - going pe rformance problems ;

management’s continuing concerns about her ability to

effectively function as Nursing House Supervisor raised in the

second misconduct investigation ; and the patient safety concerns

raised by her admission that she felt she had too many demands

on her time, Respondent's management declined to allow

Petitioner to rescind her request to move to PRN status. On

January 5, 2005, Ms. Chaires told Petitioner, and on January 10,

2005, Ms. Chaires sent Petitioner a formal acknowledgement, of

Res pondent's acceptance of Petitioner's request to move to PRN

status, effective January 17, 2005.

38. On January 12, 2005, Ms. Chaires sent Petitioner an e -

mail communication outlining the Respondent Employer’s pay rates

for PRN status/service. Because P etitioner would be moving from

a full - time House Nursing Supervisor position to a part - time PRN

position, Ms. Chaires informed Petitioner that there would be a

reduction in her salary from $28.00 per hour to $21.00 per hour.

Ms. Chaires testified that it was customary for an employee

moving from a full - time House Supervisor position to a PRN

position to experience a reduction in pay.

39. Petitioner claimed she was discriminated against

because she received no merit increase at the end of 2004. She

believ es the lack of merit increase constituted retaliation for

her obtaining the rescission of probation on September 30, 2004.

Actually , Respondent’s employees undergo performance evaluations

approximately every October. According to Respondent's policy,

if an employee is on probation at any time during the third -

quarter (July, August, September) of the calendar year, that

employee is not eligible for a merit increase in connection with

that year's October performance review. Respondent considered

Petitioner ineligible for a merit raise at the end of 2004,

because she had been on probation in September 2004; because

there was a second investigation into Petitioner's performance

and alleged misconduct that continued at least until

December 15, 2004; and becaus e Petitioner had requested to

change her status to PRN.

40. Because Petitioner’s probation was rescinded on the

last day of September 2004, she technically was not barred from

a merit increase due to being on probation in the third quarter ,

but she cont inued to be in the turmoil of some sort of

disciplinary investigation until at least December 15, 2004.

Respondent may have not followed the letter of its policy, but

it maintained that policy’s spirit and purpose in not rewarding

with a merit increase an employee who was subject to discipline

at any moment . Petitioner also has not demonstrated that she

was eligible for a merit increase based on meeting or exceeding

performance standards. There is no credible evidence that the

lack of an evaluation, the contents of an evaluation, or the

lack of a 2004 merit increase in pay for Petitioner, constituted

discrimination against her on the basis of her age or in

retaliation for any protected activity.

41. On January 14, 2005, a Friday, Petitioner had a friend

phone Ms. Roberts on her behalf. The friend informed

Ms. Roberts that Petitioner had undergone surgery that same day

and would not be able to work as scheduled on the upcoming

weekend. When Ms. Roberts inquired as to what kind of surgery

Petitioner had u ndergone, the speaker would not give that

information to Ms. Roberts. Ms. Roberts informed the caller

that Petitioner should call Respondent to discuss her expected

recovery time and her availability to return to work.

42. Petitioner, who testified that she had listened to the

foregoing conversation, described Ms. Roberts as “rude,” and the

phone call may, indeed, have been acrimonious, in that the

caller insisted on Petitioner’s right to medical privacy and

Ms. Roberts wanted some detailed explanation wh y Petitioner was

unable to report for work and why Petitioner was giving such

short notice for her weekend shift(s), if she had not been in an

accident and if she had elected the surgery in advance .

43. At hearing, Petitioner’s explanation for her inabi lity

to work her last House Supervisor shift(s) covering January 14,

15, and 16, 2005, was that she had elected minor surgery with

the intent to return to work her regular shift, but the

procedure had turned out to be more debilitating than she had

expecte d, so she could not return to work as scheduled.

44. Also by date of January 14, 2005, Petitioner submitted

an application for PRN employment with a different health care

provider, Interim Healthcare. This date was a little more than

a month after Petiti oner had requested PRN status with

Respondent; a little more than two weeks after Petitioner had

sought to rescind that request; and two days after Respondent

had declined in writing Petitioner's PRN rescission request. It

was three days prior to Petition er's scheduled move to PRN

status with Respondent on January 17, 2005, pursuant to her

accepted request. There was nothing to prohibit Petitioner from

signing - up for PRN work with multiple health care providers.

45. Because Petitioner did not show up for her last three

scheduled shifts (two days) as Nursing House Supervisor,

Respondent's policy required Petitioner to provide a doctor's

note releasing her to return to work before Respondent would

place her on PRN duty. Petitioner never provided Respondent

with a doctor's note releasing her to return to work.

Petitioner's testimony, that Ms. Chaires had told Petitioner on

some previous occasion that as an "exempt" employee Petitioner

did not need a doctor’s note for her absences, is not credible

upon the r ecord as a whole. It also is immaterial whether

Petitioner's absence for her last three shifts/two days equate

with "three consecutive days' absence," per Respondent’s policy

on doctors’ notes, because more than three days passed without

any word from Pet itioner in response to Ms. Robert’s January 14,

2005, instructions by telephone.

46. Respondent’s witnesses maintain that after January 14,

2005, Petitioner never initiated contact with Respondent in any

way to discuss her availability for work, and tha t Ms. Streetman

first phoned Petitioner in March 2005, to determine whether she

was returning to work as a PRN. Petitioner claims that

Respondent did not call her for any PRN work until May 2005, and

therefore, in effect, Respondent constructively termina ted

Petitioner’s employment.

47. There also is some divergence in testimony whether or

not Respondent mailed Petitioner a package of materials with

instructions that she must complete and return those materials

before Respondent would call her for PRN d uty, in March or at

any other time.

48. However, there is no dispute that during May 2005,

Ms. Streetman, as acting interim Human Resources Director for

Respondent, had telephone contact with Petitioner to coordinate

Petitioner’s return to work as a PRN nurse.

49. During this conversation, Petitioner informed

Ms. Streetman that she would not return to work for Respondent

as a PRN nurse under any circumstances. Petitioner stated that

she would only work for Respondent if: Petitioner were returned

to the position of full - time House Supervisor; Petitioner would

only work a 16 - hour shift on the weekends; and Ms. Streetman

would set up a meeting with herself, Petitioner, Ms. Roberts,

and a corporate representative of Respondent to discuss the

resolution o f various issues Petitioner wanted addressed. These

issues were much as set out previously. ( See Findings of Fact

17 - 19 and 35 - 39.) Age does not seem to have been one of

Petitioner’s issues. Petitioner also indicated that she had not

received the PRN p acket of information that Respondent maintains

it had sent her.

50. Ms. Streetman immediately forwarded a copy of the PRN

package to Petitioner.

51. Although Petitioner provided a copy of a current CPR

card to Respondent in May of 2005, she did not pr ovide a

doctor's note releasing her to return to work, her executed PRN

paperwork acknowledging her duties and responsibilities as a PRN

nurse, or an executed acknowledgement of Respondent's HIPPA

policies and procedures, all of which Respondent required b efore

putting Petitioner on its PRN status/phone list.

52. On or about May 24, 2005, Ms. Streetman once again

contacted Petitioner and informed her that she was unable to

bring Petitioner back to work under the conditions that

Petitioner had previously outlined, but Respondent was willing

for Petitioner to work as a PRN nurse. Once again, Petitioner

informed Ms. Streetman that she would not return to work as a

PRN nurse under any circumstances. Accordingly, at that time,

Ms. Streetman terminated Petiti oner.

53. During her employment with Respondent as a Nursing

House Supervisor, Petitioner accrued PTO, in accordance with her

position and length of service. As a Nursing House Supervisor,

Petitioner should have accrued PTO at the rate of 7.69 hours of

a ccrued PTO per two week pay period, which corresponds to the

PTO accrual schedule for staff employees. However, due to a

clerical error by Ms. Chaires, Petitioner actually had been

allowed to accrue PTO at a rate of 9.54 hours of accrued PTO per

two - week pay period, which corresponds to the PTO accrual

schedule for department head employees, even though as Nursing

House Supervisor, Petitioner was not a department head.

54. Respondent's policy in 2004, permitted all Baylor, or

weekend, employees of Respond ent to expend PTO hours on no more

than three weekends per year. Because Petitioner worked a

Baylor, or weekend, schedule as Nursing House Supervisor,

Petitioner was limited to using PTO for three weekends per year.

Petitioner signed off on, and acknowle dged, this three weekend

limitation.

55. Although this policy limited the weekend days on which

Petitioner was entitled to use her accrued PTO, Petitioner was

entitled to use her accrued PTO for any weekday shifts for which

she was scheduled after Septe mber 30, 2004, when Ms. Roberts

informed her that it was operationally necessary for her to work

at least one eight - hour shift during each week.

56. During 2004, Petitioner used 171 hours and 15 minutes

of PTO, and all three of her allotted weekends off as a Baylor

employee of Respondent. ( See Findings of Fact 26 and 36.)

57. Later in 2005, Respondent re - examined its PTO leave

policy. In order to compete for staff with other local health

care providers, Respondent changed the number of allowed weeke nd

PTO days for its Baylor employees from three to four weekends.

However, this increase in the number of weekend leaves permitted

for Baylor employees did not affect Petitioner, because her

request to move from full - time Nursing House Supervisor to PRN

n urse had been granted, effective January 17, 2005, and the new

leave policy was not retroactive.

58. A PRN nurse occupies a part - time position. As a PRN

nurse, Petitioner was not eligible to accrue or use PTO.

59. On January 22, 2005, Petitioner’s PTO b alance was 4.37

hours, meaning Petitioner had 4.37 hours of PTO available for

use. The dollar value of Petitioner’s remaining PTO hours

amounted to $83.09.

60. According to Respondent's policy, an employee was

eligible for a cash payout for his/her unuse d PTO hours upon

voluntary resignation (including a voluntary employment status

change) and/or involuntary lay - off if: (1) the employee had

successfully completed his/her 90 - day probationary period; (2)

the employee provided Respondent with proper notice; and (3) the

employee worked a minimum of four hours on his or her final

scheduled day of work. Whether Petitioner successfully

completed her probationary period as a Nursing House Supervisor

is not at issue in this case. Sufficient notice of status

chan ge is not at issue in this case. ( See Findings of Fact 29 -

30.) Petitioner did not receive a cash payout for her 4.37

unused PTO hours on January 17, 2005, when she moved from a

full - time Nursing House Supervisor position to a PRN nurse

position, because she did not work the required four hours on

her final scheduled day of work as a Nursing House Supervisor.

Petitioner missed her final three scheduled shifts as a Nursing

House Supervisor in January of 2004, and she did not work on the

day that her employ ment with Respondent was terminated. whether

one counts the status change date of January 17, 2004 or the

final termination date in May 2005. ( See Findings of Fact 45

and 52.) Therefore, Petitioner was not eligible for a PTO

payout under Respondent Empl oyer’s policy at the time her status

changed to PRN nurse, January 17, 2005.

61. Between January 14, 2005, and November 2005,

Petitioner did not apply for any type of work so as to mitigate

potential damages. After January 14, 2005, she had PRN status

wi th Interim Healthcare, but she did not accept work from

Interim until November 2005. During that period, she only

attended classes and lived on her student loans. Petitioner had

previously acquired at least a J.D. (law degree), two nursing

degrees, and p ossibly another doctorate. With these

credentials, she was certainly not “unemployable” during the

interim of January - November 2005.

62. Petitioner never complained to Ms. Roberts, her direct

supervisor, that Petitioner believed that she was being

discri minated against on the basis of her age. In 2004,

Petitioner would have been 55, and Ms. Roberts would have been

51 years of age. Ms. Roberts never treated Petitioner any

differently than any other Nursing House Supervisor.

Ms. Roberts was not actively aware of Petitioner's age at any

time during her employ ment .

63. Petitioner never complained to Ms. McElreath, then -

Director of Nursing and Petitioner's “two - up” supervisor, that

Petitioner believed she was being discriminated against on the

basis of her age. Ms. McElreath would have been 50 to

Petitioner's 55 years of age at all times material.

64. Petitioner never complained to Ms. Chaires, Director

of Human Resources, that Petitioner believed she was being

discriminated against on the basis of her a ge. No decision that

Ms. Chaires made concerning Petitioner was motivated by

Petitioner's age.

65. Petitioner never complained to Ms. Streetman,

Respondent's a dministrator, that Petitioner believed she was

being discriminated against on the basis of he r age.

Ms. Streetman would have been 49 years of age, at all times

material. No decision that Ms. Streetman made concerning

Petitioner was motivated by Petitioner's age.

CONCLUSIONS OF LAW

66. The Division of Administrative Hearings has

jurisdiction ove r the parties and subject matter of this cause,

pursuant to Sections 120.57(1), 120.569, and 760.11, Florida

Statutes.

67. Petitioner has asserted that she was discriminated

against on the basis of her age and in retaliation. She does

not seek re - employ ment with Respondent or any other employment

emoluments except for $30,620.00, which she represents

constitutes the amount she would have earned if she had been

paid overtime as a Charge Nurse, including the merit increases

she believes she was entitled to , for 450 hours, which she has

calculated she worked, at “time and a half for overtime.”

68. Petitioner contends that due to her age and/or in

retaliation, (1) Respondent promoted her in February 2004, to

the exempt position of Nursing House Supervisor so as to prevent

her from earning overtime pay and simultaneously unjustly denied

her a promotional pay increase; (2) Respondent unjustly

disciplined her with regard to her performance and denied her a

2004 merit increase in retaliation for successfully chal lenging

that discipline on September 30, 2004; (3) Respondent removed

the accommodation for her doctoral dissertation (all her hours

being on a weekend, instead of a straight Baylor configuration)

and switched her to a straight Baylor configuration on

Sept ember 30, 2004, because she successfully challenged her

probation discipline so that probation was reduced to a written

warning on September 30, 2004. Petitioner also peripherally

faults Respondent for not telling her back in 2004, that she

could only use three weekends, and for letting her use her last

available weekend approximately September 30, 2004; (4)

Respondent cut her pay when she moved from full - time Nursing

House Supervisor to PRN status at her request; (5) Respondent

denied her request to resci nd her PRN status; and (6) Respondent

constructively terminated her by not calling her for PRN work

after January 17, 2005.

69. Petitioner’s construction of the facts for her first

allegation cannot carry the day. First, Petitioner's

January /February 20 04, promotion to Nursing House Supervisor

cannot form the basis of any case of discrimination under

Chapter 760, Florida Statutes. Petitioner's relief as to this

issue is time - barred. Petitioner accepted the promotion in

January / February of 2004, and did not file her Charge of

Discrimination with FCHR until May 3, 2005, Therefore, any

allegation of discrimination by Petitioner based solely on her

promotion to Nursing House Supervisor is time barred. See

Maynard v. Pneumatic Prods. Corp. , 256 F.3d 1259, 1263 (11th

Cir. 2001), holding that under the Age Discrimination in

Employment Act (ADEA), a Florida resident must file a charge

with the appropriate agency within 300 days of the alleged

unlawful employment practice. See also Freney v. University of

Flor ida , DOAH Case No. 03 - 1233 (RO: July 10, 2003; FO:

December 26, 2003); Perry v. Dept. of Business and Professional

Regulation , DOAH Case No. 83 - 1140 (RO: July 1, 2003; FO:

February 26, 2004) and cases cited therein concerning the 365 -

day time bar, pursuant to Section 760.11(1), Florida Statutes.

70. Assuming arguendo , but not ruling, that the Employer's

salary payments and policy as to overtime and leave pursuant to

Petitioner's promotion could extend the statute of limitation s

as to all of her post - promot ion complaints, Petitioner still

cannot prevail. Petitioner admitted she voluntarily accepted

the position of Nursing House Supervisor, signed an

acknowledgment of that acceptance in February 2004, and

continued to work in the position of Nursing House Su pervisor

for almost a year without complaining to any of her supervisors

about her age discrimination or that her promotion was any form

of retaliation. See Faragher v. City of Boca Raton , 524 U.S.

775, 118 S. Ct. 2275 (1998).

71. Even treating all six o f Petitioner’s concerns without

regard to the statute of limitation s , she cannot prevail.

72. Under the provisions of Section 760.10(1), Florida

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

(a) To discharge or to fail or refuse to

hi re 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.

73. Section 760.10(7), Florida Statutes, renders it an

unlawful employment practice for an employer to:

. . . discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice

under this section, or because that person

has made a charge, testified, assisted, or

participated in any manner in an

investigation, proceeding, or hearing, under

this section.

74. Similarly, the ADEA makes it "unlawful for an employer

to fail or refuse to hire or to dischar ge any individual or

otherwise discriminate against any individual with respect to

his compensation, terms, conditions, or privileges of employment

because of such individuals age."

75. Although this forum has no jurisdiction to resolve

ADEA cases, FCHR a nd the Florida courts have determined that all

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes. See

Brand v. Fla. Power Corp. , 633 So. 2d 504 (Fla. 1st DCA 1994);

Florida Department of C ommunity Affairs v. Bryant , 586 So. 2d

1205 (Fla. 1st DCA 1991).

76. The Supreme Court of the United States established in

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

Department of Community Affairs v. Burdine , 450 U.S. 248 (1981),

th e analysis to be used in cases alleging unlawful

discrimination and which are persuasive in cases 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).

77. Pursuant to this analysis, Pe titioner 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,

nondiscriminatory reason for the action taken again st

Petitioner. Once this nondiscriminatory reason is offered by

Respondent Employer , the burden then shifts back to Petitioner

to demonstrate that the reason offered by the Respondent is

merely a pretext for discrimination.

78. When pursuing a claim of age discrimination under the

burden - shifting analysis as described in McDonnell - Douglas and

Hicks , an employee must affirmatively demonstrate that age was a

motivating factor in the alleged adverse employment action.

Chapman v. AI Transp. , 229 F.3d 1012, 1024 (llth Cir. 2000).

The court stressed in Chapman that "[w]hen a plaintiff alleges

disparate treatment, liability depends on whether the protected

trait (under the ADEA, age) actually motivated the employer's

decision - making process and had a determin ative influence on the

outcome." Id. (quoting Reeves v. Sanderson Plumbing Prods.,

Inc. , 530 U.S. 133 (2000)) . To prove an age discrimination

claim, a plaintiff can establish a prima facie case of age

discrimination through either direct evidence of dis crimination

or circumstantial evidence of discrimination. Damon v. Fleming

Supermarkets of Fla. , 196 F.3d 1354, 1358 (11th Cir. 1999).

Direct evidence of age discrimination is evidence which reflects

"a discriminatory or retaliatory attitude correlating to the

discrimination or retaliation complained of by the employee."

Carter v. Three Springs Residential Treatment , 132 F.3d 635, 641

(11th Cir. 1998). As the court noted in Damon , at pages 1358 -

1359, "In other words, the evidence must indicate that the

complained - of employment decision was motivated by the decision -

maker's ageism. As a result, 'only the most blatant remarks,

whose intent could be nothing other than to discriminate on the

basis of age' will constitute direct evidence of

discrimination . " T his quot es Early v. Champion Int'l Corp. , 907

F.2d 1077, 1081 - 82 (11th Cir. 1990)).

79. To establish a prima facie case of age discrimination

by circumstantial evidence, Pe titioner must establish: (1)

t hat she was a member of a protected age group; (2) that she was

subjected to adverse employment action; (3) that she was

qualified to do the job; and (4) that she was replaced by, or

otherwise lost a position to, a younger individual or suffered

from disparate treatment because of membership in the pro tected

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

2002); see also Chapman v. AI Transport , supra .

80. At all times material, Petitioner’s supervisors were

of ages similar, but not identical, to her own. All credibly

denied age - based di scrimination against Petitioner. Petitioner

has provided no comparators of an age similar to her own who

were either Baylor/weekend employees or PRNs an d who suffered

the same wage and leave disparities she allegedly suffered . S he

has presented no Baylor /weekend employees or PRNs of a younger

age who were employed on any different basis; who received pay

on any different basis; or who accrued leave and were permitted

to use that accrued leave on any different basis , than was

Petitioner. The evidence here in shows differences in salary

classification s based on exempt and non - exempt status, but it

does not show any relationship between those classifications and

the age of any employee, including Petitioner. Thus, Petitioner

has failed to present a prima fac ie case of discrimination based

on her age.

81. Assuming arguendo , but not ruling, that a prima facie

case of age discrimination has been shown, Respondent’s

witnesses presented not just plausible, but credible , reasons

for the Employer’s pay, overtime, a nd leave policies, and

demonstrated that these policies had universal application among

its employees, regardless of age. Any prima facie case of age

discrimination has been credibly rebutted , and Petitioner has

not demonstrated t hat Respondent’s reasons were pretextual.

82. Moreover, Petitioner did not report any alleged

discrimination on the basis of age to her direct supervisor, her

“two - up” supervisor, the Hospital's Director of Human Resources,

or the Hospital Administrator, prior to filing her Char ge of

Discrimination with FCHR. Since Petitioner failed to use

reasonable care to avoid the harm alleged, Respondent cannot be

held vicariously liable for any alleged discrimination. See

Faragher v. City of Boca Raton, supra .

83. To establish a retaliat ion claim, Petitioner must at

least show she participated in some protected activity and that

a nexus existed between that protected activity and some

employment action by the Employer. A t law , a prima facie case

is established by showing that (a) she eng aged in statutorily

protected expression; (b) she suffered an adverse employment

action such as demotion and/or assignment to a position with

less responsibility; and (c) the adverse employment action was

causally related to the protected activity. See Ha rper v.

Blockbuster Entertainment Corp. , 139 F.3d 1385, 1388 (11th Cir.

1998).

84. With regard to the alleged retaliation, “negotiating”

salary, overtime, and leave issues is not a protected activity.

Preparing one’s doctoral dissertation in uninterrupte d blocks of

week day time is not a protected activity. Moreover, informal

conversations, inquiries , and even disputes , over normal terms

of employment or day - to - day business decisions by one’s

superiors, without something more, do not constitute protected

activity. The courts and this forum are not in the business of

second - guessing business decisions of employers. "An employee's

feelings and perceptions of being discriminated against are not

evidence of discrimination. See Bickerstaff v. Vassar College ,

196 F.3d 435 (2nd Cir. 1999). "Courts do not sit as a super -

personnel department that re - examines an entity's business

decisions." See Chapman v. A.Iansportation , 229 F.3d 1012

(11th Cir. 2000); Cofield v. Goldkist,Inc. , 267 F.3d 1264, 1269

(11th Ci r. 2001).

85. Petitioner claims two specific instances of

retaliation. She claims that she was returned to a straight

Baylor shift on September 30, 2004 , because she had bested

Ms. Roberts in their dispute over Petitioner's probation.

Although the event s share identical dates, Petitioner's premise

on motivation was adequately rebutted. Petitioner also claims

that she was retaliated against for the same reason by being

denied a 2004 merit increase. This premise also was adequately

rebutted. Respondent Employer herein demonstrated that

Petitioner's return to straight Baylor status was to avoid the

Employer having to pay four ho urs of overlapping service, for

two employees, per shift. Respondent also demonstrated that its

established and published policy forbade a merit increase to

someone on probation . O n this occasion , Petitioner's continued

involvement in disciplinary activity after September 30, 2004,

amounted to the same thing. Petitioner did not rebut this

evidence. Where an employer proffers a r easonable motivation

for its decision, it is not up to a court to question the wisdom

of the employer's reasons. See Lee v. GTE Florida, Inc. , 226

F.3d 1249, 1253 (11th Cir. 2000). Conclusory allegations of

discrimination, without more, are not sufficien t to raise an

inference of pretext or intentional discrimination [by the

employer] where the employer has offered extensive evidence of

legitimate, non - discriminatory reasons for its actions. See

Isenburgh v. Knight Ridder Newspaper Sales, Inc , 97 F.3d 43 6

(11th Cir. 1996). Even if an employer's view is mistaken, if it

is honestly believed, it is not discrimination. Ghosh v.

Indiana Dept. of Environmental Management , 192 F.3d 1087 (7th

Cir. 1999) .

8 6 . Even if Petitioner had established a prima facie ca se

with regard to either her age or retaliation premises, which she

has not, Respondent presented credible and unrebutted evidence

to refute her first premise . Petitioner was promoted in

February without a pay increase because she was already being

paid a t grade and nothing had occurred in the two weeks she had

been employed that an employer might want to retaliate against.

Petitioner was not granted a pay increase at the time she was

promoted to the position of House Supervisor , because her $28.00

per ho ur salary was very high for an RN - Baylor Nurse and that

salary was already commensurate with that of other House

Supervisors. It was not uncommon for an employee to be promoted

without a pay increase. Respondent demonstrated that all other

House Supervis ors employed by Respondent during the course of

Petitioner's employment were exempt employees and were not paid

for overtime, including mandatory meetings held outside their

working hours. Finally, Petitioner offered no evidence that the

decision to promo te her to the position of Nursing House

Supervisor without a corresponding pay increase was based on

anything other than legitimate, non - discriminatory reasons, much

less impermissible factors. Even so, Respondent proved its

decision was made due to staff ing and operational concerns and

because Petitioner was qualified and available to fill an

immediate staffing need. Respondent presented credible, and

unrebutted evidence with regard to Petitioner's second premise .

Petitioner was not unjustly disciplined . A n investigation

resulted in her probation being rescinded and another

investigation was halted short of probation because the same

result had been achieved by Petitioner’s voluntary choice to go

PRN. The reasons for Petitioner being denied a merit incr ease

were unrelated to any protected activity and were appropriate ,

pursuant to Respondent's policy. Petitioner demonstrated no

retaliation nexus and no entitlement to the merit increase.

Credible and unrebutted evidence was presented by Respondent

with r egard to Petitioner’s third premise , to the effect that

the removal of the accommodation for Petitioner by special

instead of regular Baylor shifts , was not retaliatory . Rather,

it was a business decision to avoid overlapping shifts and save

the Employer money . Respondent presented credible unrebutted

evidence as to Petitioner's fourth premise . I t was customary to

pay part - time, non - exempt PRN nurses at a lower wage per hour

than that paid to full - time, exempt Nursing House Supervisors.

Credible and unr ebutted evidence was presented with regard to

Petitioner’s fifth premise . M anagement had good business

reasons for not allowing Petitioner to rescind her election of

PRN status in light of her performance problems and her

admission that she was overwrough t, "with too many irons in the

fire . " This refusal to permit the recsission may have been in

response to Petitioner’s being an extremely difficult employee

to supervise or work with, but it was not in retaliation for any

protected activity. Credible and unrebutted evidence also was

presented with regard to Petitioner’s sixth premise , that she

was constructively terminated. Efforts were made to get

Petitioner to comply with management’s requirements for being

placed on its PRN phone list , and Petitioner r efused to

cooperate. Moreover, Petitioner's demands and her subsequent

choice to live on her student loans do not inspire a belief that

she ever seriously intended to work for Respondent as a PRN.

RECOMMENDATION

Based on the foregoing Findings of Facts and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief and

Charge of Discrimination.

DONE AND ENTERED this 2 2nd day of September , 2006, in

Tallahassee, Leon County, Florida.

S

___________________________________

ELLA JANE P. DAVIS

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) 92 1 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 2nd day of September , 2006.

ENDNOTES

1/ Although Petitioner did not check the box for “retaliation”

on her Charge of Discrimination, she used the term,

“retaliation” in the body of the Charge, and an allegation of

retaliation may be inferred within the verbosity of her Petition

for Relief.

2/ Respondent argues in its Proposed Recommended Order that this

memorandum was dated August 16, 2004, but the Exh ibit R - 3

clearly shows the date as September 30, 2004.

COPIES FURNISHED:

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Crawford, Agency Clerk

Florida Commissio n on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Deanna L. Eftoda

2112 Mistletoe Court

Tallahassee, Florida 32301

Laywick Duffie, Esquire

Wesley E. Stockard , Qualified Representative

Hunton & Williams, LLP

Bank of A merica Plaza

600 Peachtree Street

Suite 4100

Atlanta, Georgia 30308

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 Recomme nded Order should be filed with the agency that

will issue the final order in this case.