06-003879 Loyda R. Michael vs. Delta Health Group Status: Closed Recommended Order on Wednesday, November 28, 2007.

Summary: Petitioner failed to prove that white or non-hispanic employees were treated disparately and better. Respondent showed that Petitioner was fired for a legitimate reason, her departure from the appropriate scope of CNA practice and Respondent`s policy.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LOYDA R. MIC HAEL , )

)

Petitioner, )

)

vs. ) Case No. 0 6 - 3879

)

DELTA HEALTH GROUP , )

)

Respondent. )

)

RECOMMENDED ORDER

In accordance w ith notice this matter came on for formal

administrative proceeding and hearing before P. Michael Ruff,

duly - designated Administrative Law Judge of the Division of

Administrative Hearings . The hearing was conducted July 2 4 ,

2007, in Pensacola , Florida. T he appearances were as follows:

APPEARANCES

Petitioner: R. John Westberry, Esquire

1308 Dunmire Street, Suite B

Pensacola, Florida 32504

Respondent: Mark E. Levitt , Esquire

Allen, Norton & Blue, P.A.

324 South Hyde Park Avenue, Suite 101

Tampa , Florida 33606

STATEMENT OF THE ISSUE S

The issues to be resolved in this proceeding concern

whether the Respondent committed an unlawful employment practice

by termination of the Petitioner for discriminatory reasons ,

based upon he r national origin ( Panamanian/ Hispanic).

PRELIMINARY STATEMENT

This cause arose when a Charge of Discrimination was filed

by the above - named Petitioner with the Florida Commission on

Human Relations (Commission) in which she alleged that she had

been disc riminated against by termination from employment, by

Delta Health Group, Inc., the Respondent. The Petitioner , in

essence , alleged that she was terminated from her position as a

certified nursing assistant based upon her national origin and,

incorporated within that charge, are allegations that other co -

employees , similarly situated , who were not of her protected

group ( Panamanian/Hispanic ) were given disparate and more

favorable treatment for similar conduct. The Commission

investigated the matter and ul timately issued a "No Cause

Determination" on August 28, 2006. The Petitioner thereafter

filed a timely Petition for Relief to contest the No Cause

Determination and the matter was referred to the Division of

Administrative Hearings and ultimately the und ersigned

Administrative Law Judge.

The cause came on for hearing as noticed on July 24, 2007,

in Pensacola, Florida. The Petitioner presented one witness ,

herself, and the Respondent presented four witnesses and nine

exhibits. The Petitioner's E xhibits one through seven and nine

were admitted into evidence and Respondent 's E xhibit eight was

excluded as irrelevant . The Respondent moved for an award of

attorney's fees and costs based upon Sections 120.595 and

57.105, Florida Statutes (2006). That motion is treated in the

conclusions of law, infra .

Upon conclusion of the proceeding a transcript thereof was

ordered and the parties elected to submit proposed recommended

orders , requesting an extended period, 30 - days post - transcript,

for their submission, which was granted . The Proposed

Recommended Orders were timely filed and have been considered in

the rendition of this Recommended Order.

FINDINGS OF FACT

1 . The Petitioner is a n Hispanic female of Panamanian

origin . She began working for the Delta He alth Group, the

Respondent, as a Certified Nursing Assistant (CNA) on or about

May 5, 2000. She was gen erally described by her supervisors as

being a good worker.

2 . During times pertinent hereto , the Petitioner worked on

an evening shift at the Respond ent's nursing care facility. One

of the residen ts assigned to her care was L .M. , an elderly

person. The Petitioner cared for Ms. M . for approximately one

year.

3 . The Respondent is an employer with more than 15

employees. During times pertinent to thi s case it operated a

nursing care facility located in the vicinity of Destin,

Florida, at which the Petitioner was employed as a CNA. The

Respondent , in its nursing facility operation , is closely

regulated by the State of Florida, Agency for Health Care

A dministration and , as to its licensed personnel (CN A 's, RN's,

LPN's, etc.) are subject to licensure and practice standards and

regulations of the Department of Health , Board of Nursing, etc.

The operative regulations include, as to AHCA, requirements to

r eport any incident involving harm or injury to a nursing home

resident, as well as departures from nursing home operational

regulation standards and nursing practice standards . There are

extensive charting and record - keeping requirements with regard

to a ll care and incidents involving residents.

4 . On or about the evening of January 2, 2006, the

Petitioner was caring for Ms. M . , when Ms. M . told her she

wanted to wear some earring s that her grandson had given her.

She asked the Petitioner to help her place the earrings in her

ears. The Petitioner asked Ms. M. if her ears had been pierced

and Ms. M. apparently told her that they had been. The

Petitioner put the earrings in Ms. M. 's ears as requested. One

went in easily, but the left earring felt some what tight. Ms.

M. wore the earrings to dinner that night.

5 . At bedtime , the Petitioner asked her if she wanted to

remove the earrings , but Ms. M. wanted to keep them in. She did

ask the Petitioner to remove the earring from her left ear and

purported ly asked her to put a string through the hole. The

Petitioner maintains that the pierced hole in Ms. M. 's left ear

was not opened well enough , and was "clogged - up and dirty."

6 . The Petitioner concedes that she put a string through

Ms. M. 's left ear by tying it to the left earring and passing

the string through the hole , through use of the earring , as

Ms. M. purportedly requested. The evidence is conflicting

somewhat on this . The Respondent's version of events , it

purports to have glea n ed from Ms. M. , was to the effect that the

Petitioner used a needle which she sterilized with a cigarette

lighter before passing it through Ms. M. 's ear with the string.

The Respondent relies on the out - of - court statement purportedly

made by Ms. M. , the resident , to its investigating personnel

concerning the facts surrounding the piercing (or not) of the

ear in question , how the string was inserted , and for what

purpose. A hearsay objection was raised about testimony which

relied on this statement and the Respondent reli es on the

hearsay exception for elderly or disabled adults contained in

Section 90.803(24), Florida Statutes. 1/

7 . Starla Lindaas, LPN, came on duty on January 3, 2006,

and noticed the string in Ms. M. 's left earlobe. Ms. Lindaas

stated that Ms. M. tol d her that the Petitioner had pierced her

ears. When she examined Ms. M. 's ears, however, she did not

notice any redness, irritation, discharge or other issues

indicating that any medi c al problem was occurring.

8 . The Risk Manager, Connie Hamilton, knew of and

investigated the so - called ear piercing incident, but did not

report it to the Department of Children and Family Services , or

the Agency for Health Care Administration , because the

Petitioner caused no abuse , neglect , or harm to the resident,

nor d id she intend to do so.

9 . The Petitioner was interviewed during the investigation

of the incident by the Respondent , on January 3, 2006. The

Petitioner related the version of events concerning the ear

issue as first described above. The resident , Ms . M. ,

purportedly described them to the Respondent's supervisory

personnel as involving the Petitioner "piercing" her ear or

ears , by the use of a needle for piercing of her earlobe ,

inserting the string , or both. CNA's are allowed to place

earring s in pi erced earlobes for residents , if the ears are

already pierced. They are not authorized , and it is beyond

their scope of practice , to carry - out ear piercing , however. In

any event, the Respondent elected to rely on the version of

events related by the res ident in her statement, which therefore

amounted , in the view of the Respondent , to the Petitioner

acting beyond the scope of her CNA practice. She was therefore

terminated from her employment on January 3, 2006.

10 . The Petitioner's salary at the tim e of her termination

was $31,825.14 annually. During the year of her termination ,

after her termination , she earned from part - time employment

$5,513.28 and also received $6,999.00 in unemployment

compensation benefits.

11 . T he Petitioner adduced testimo ny concerning a number

of instances of what she maintains were disparate treatment

occurrences , which she claims amount to national origin

discrimination against her status as a Panamanian. She, in

essence, claims that the comparator employees , who were a ll

white, or non - Hispanic, were treated disparately by being

treated more favorably in purportedly similar instances of

employee misconduct and discipline. This testimony applies to

both one element of her prima facie case of discrimination based

upon nat ional origin, regarding disparate treatment as compared

to other employees not of her protected classification, as well

as to an attempt to establish an ongoing pattern or

pervasiveness of discrimination against Hispanics , as it relates

to her attempt to e stablish discriminatory intent or motivation

underlying the employment action of which she complains. This

evidence relates to her ultimate burden of persuasion and her

burden to show that the employer's reasons were pretextual.

12 . In this connection , in May 2004, the Petitioner was

reprimanded ("written - up") for cutting a resident's hair , some

three months after the event . She maintained that the nurse

supervising her asked her to cut the resident's hair. S he was

written - up for cutting the resident 's hair , because it is

against policy at the Respondent's facility and beyond the range

of practice for a C NA . A beautician is used for all haircutting

and similar cosmetic duties at the facility. The Petitioner

maintains that one Megan Teibo, a white fe male, also cut a

resident's hair. The Petitioner states that she reported

Ms. Teibo to her supervisors , and to the facility's management ,

but that Ms. Teibo was not disciplined.

13 . The Petitioner also contends that it was common

practice for employees to be tardy arriving at work for their

shift because of the very heavy traffic between Ft. Walton and

Destin , the location of the Respondent's facility. She

testified that it was routine for employees to call ahead and

inform the supervisors that the y wo uld be late for work. The

Petitioner maintains that she had to do this a number of time s

and yet she was written - up for being tardy , while other

employees who are white were not so reprimanded. Additionally,

in February 2004 she was out sick for six days . She had a

doctor's excuse justifying her missing work for illness. When

she returned to work, however, she contends she was written - up

by the administrator and that four or five non - Hispanic

employees who where out sick for six or seven days were not

w ritten - up. Additionally, Sandy Port, a nurse , was out sick and

had a doctor's excuse and was not purportedly written - up.

14 . The Respondent's witnesses maintain that all

employees , regardless of race or national origin, etc . , were

treated the same . I f they were tardy they were counseled or

written - up depending on the situation and the same was true if

they were absent from work . T hey were counsel ed or "written - up"

depending on the circumstances such as repetitiveness and

severity .

15 . In this conne ction, the Petitioner only testified to

these matters based upon her own opinion and undocumented,

uncorroborated conversations she maintained she had with her co -

workers, thus purportedly learning that those others who were

absent or tardy were not reprim anded or disciplined for it. She

offered no evidence, as for instance, obtained through discovery

of the Respondent's employee records, that any non - Hispanic ,

non - Panamanian employees were treated differently for similar

conduct involving tardiness (magni tude or degree, etc) and were

treated more favorably. The same is true with regard to the

category of absences from work for sickness or other reasons.

Thus the record testimony in favor of the Petitioner is only the

Petitioner's ow n unsupported opinion concerning these matters.

The testimony adduced by the Respondent demonstrates that the

Petitioner could not have known directly of any circumstances or

details regarding the other employees ' disciplinary situation s

regarding their tardiness or absence re cords , because she had no

access to their records. Thus her testimony is only based o n

her own subjective opinion and , at most , out - of - court hearsay

declarations by non - present, non - appearing, declarants.

16 . In July 2004 , according to the Petitioner, the

Respondent's facility needed CNA's to work the morning shift ,

which was shorthanded. The Petitioner asked her administrator

if she could move from the evening shift to the morning shift

and he told her that there were no openings at that time. She

c ontends that w hite , non - Hispanic employees were, however,

allowed to move to those positions , while she was not.

17 . In June or July of 2005, Caroline Gatewood, a resident

of the Respondent's facility , suffered a fall. Nurse Toni

Acosta grabbed her or p icked her up without doing an assessment.

She started pushing the resident , apparently trying to get her

back to her room according to the Petitioner. The incident was

reported to the Director of Nursing , and Ms. Acosta was

suspended for several days dur ing an internal investigation

conducted by the Director of Nursing. The results of that were

reported to the Agency for Health Care Administration.

Ultimately, however, the nurse was determined to have not been

at fault , and was restored to duty and paid for the days she had

been suspended without pay. Thus no discipline was actually

imposed against her.

18 . The Petitioner maintained that about one month after

that incident nurse Acost a was accused of verbally abusing the

same resident , but no action was taken against her. Ms. Acosta

is a w hite female. The Petitioner merely stated her opinion or

her subjective , hearsay - based knowledge regarding the situation ,

and had no corroborative evidence to show that Ms. Acosta was

actually determined to have be en guilty of any misconduct about

either the pushing incident or the alleged verbal abuse one

month later. Thus , it was not persuasively established that

Ms. Acosta was disparately and more favorably treated than the

Petitioner. In fact, it was not shown that the employees ,

Acosta and the Petitioner , were similarly situated , by

committ ing similar purported acts of misconduct , concerning

which they were allegedly disparat e ly disciplined , or no t

disciplined , for that matter.

19 . In March 2005 , the Petiti oner was verbally accosted by

a cook at the facility by the name of Mark. He apparently

became angry and yelled at the Petitioner , using obscenities

directed at her. She reported the conduct to the Assistant

Director of Nursing , the Director of Nursing , and the

Administrator. She maintains that no action was taken against

the cook. Here again she is testifying of her own subjective

knowledge or belief . She did not establish that she was aware

of all facts concerning whether counseling or other discipli nary

action may have been taken against the cook . In any event, even

if no action was taken, it was not established that the

Respondent condone d such conduct or allowed it to recur , once

the Respondent knew of it. Such an isolated incident does not

const itute the condonation of discriminatory conduct by a co -

employee, on the part of a supervisor.

20 . Finally, in October 2005 the Petitioner had to go to

Panama for several weeks for the funeral of her father and her

brother. When she returned to work s he maintains that she was

written - up for a tardy instance " for three minutes ," which

occurred approximately a month before that. She maintains that

employees "Todd , " "Shauna , " "Art," and "Deena" had come to work

late and were not written - up. Here again this is her

unsupported , subjective opinion without reference to any

documentation from the Respondent's employee records , for

instance. In fact, witness Nicole Coffield, for the Respondent ,

rebutted this testimony by establishing that these employees ,

in deed , were disciplined for their tardiness. Moreover, it was

not shown that their degree or repetitiveness of tardiness , or

the other circumstances surrounding it , were the same or similar

to the Petitioner's. It was thus not established that these

purpo rted comparator employees indeed were similarly situated to

the Petitioner in the circumstances of their conduct and any

discipline (or the degree thereof).

21 . Additionally, the Petitioner recounted an instance in

which she was accused of stealing cas h donations, and was

suspended for several days. She was accused of taking a

"donation bucket" from a nurses station, and the money it

contained, for her personal use. The matter was investigated

and the Respondent concluded it by accepting the Petitione r's

explanation. She had taken the money, with her supervisor's

approval, to buy flowers or a gift for a co - worker, who was

absent and gravely ill. The Petitioner was exonerated by the

Respondent, restored to duty, and paid for the days she was

suspended . The suspension during the pendency of the

investigation was a routine practice according to the

Respondent's established, normal policy concerning disciplinary

procedures.

22 . In summary, the Petitioner admitted putting the string

through the resident 's ear and that she did not ask her

supervisor for permission. The Respondent investigated the

report purportedly made by Ms. M. , the resident. The

investigation was conducted by the Director of Nursing, the Risk

Manager, and the Director of Human Resour ces. The Petitioner

was suspended pending the results of the investigation ,

according to the Respondent's regular stated policy.

23 . In its investigation the Respondent determined to

accept the version of events attributed to the statement or

statement s of Ms. M. , the resident , as corroborated by the

testimony of Ms. Lindaas , the LPN. Whether or not the

resident's statement was true and whether or not it is

inadmissible hearsay, the Respondent established that it relied

upon that report in deciding the outcome of its investigation .

Since the Respondent relied on the statement after corroborating

it by Ms. Lindaas's reporting of the events, it established that

it had a reasonable basis at the time for believing that the

relevant events involving the Pet itioner occurred in that way.

24 . The Respondent thus determined that the Petitioner had

departed from the proper practice and appropriate conduct of a

CNA and that this was a "category one offense " under the

Respondent's corporate polices and disciplina ry procedures. A

category one offense requires suspension pending an

investigation , and then either termination , or restoration of

employment , with payment for the suspended period of time,

depending on whether the allegations are determined true or not.

In this instance , based largely on Ms. M. 's statement ,

corroborated by the statements of other personnel , who had

observed or conversed with Ms. M. , the Respondent determined

that the Petitioner had not merely placed the earrings in the

resident's ear, bu t had actually pierced the resident's ear with

a needle. This was an inappropriate departure from the

standards of conduct and practice of a CNA , which the Respondent

established was a category one violation in its disciplinary

policy, for which she was t herefore terminated.

CONCLUSIONS OF LAW

25 . The Division of Administrative Hearings has

jurisdiction of the subject matter of and the parties to this

proceeding. § § 120.569 and 120.57(1), Fla. Stat. (200 6 ).

26 . Section 760.10(1)(a), Florida Statut es (2006) ,

provides that:

(1) It is an unlawful employment practice

for an employer:

(a) To discharge or fail or refuse to hire

any individual or otherwise to discriminate

against any individual with respect to

compensation, terms, conditions, or

privil eges or employment, because of such

individual's race, color, religion, sex,

national origin, age, handicap, or marital

status.

27 . Chapter 760, Florida Statutes, the "Florida Civil

Rights Act , " is essentially a reflection of Title VII of the

Federal Civ il Rights Act of 1964. Florida courts have therefore

used the same analysis when considering claims under the Florida

Act as is used in decisions employed in resolving claims under

Federal Title VII. See Harper v. Blockbuster Entertainment

Corp. , 139 F.3 d 1385, 1387 (11th Cir. 1998); Castleberry v.

Chadbourne, Inc. , 810 So. 2d 1028 (Fla. 1st DCA 2002).

28 . In order for the Petitioner to establish a prima facie

case of national origin discrimination under Title VII or

Chapter 760, Florida Statutes, she mu st prove that: 1) she is

a member of a protected class (Panamanian national origin;

Hispanic); 2) that she was qualified for her former position of

CN A ; 3) that she suffered an adverse employment action; and 4)

that she was either replaced by a person ou tside her protected

class or was treated less favorably tha n a similarly situated

individual outside her protected class (that is a person

similarly situated in terms of the conduct that person committed

when compared to the conduct and other circumstances of the

Petitioner's disciplinary situation). See St. Mary's Honor

Center v. Hicks , 509 U.S. 502, 526 (1993) .

29 . The Petitioner is a member of a protected class by

virtue of her Panamanian national origin and Hispanic eth n ic

category. There is no quest ion also that she suffered an

adverse employment action because the Respondent terminated her

for the incident in question. She also demonstrated that, aside

from the incident at issue , that she was generally qualified and

performed adequately in the posi tion as CNA. Thus, the

establishment of her prima facie case , in essence , depends on

whether she demonstrated the fourth element referenced above ,

that she was either replaced by a person outside her protected

class after her termination , or that she was treated less

favorably , in a disciplinary sense , from individuals outside her

protected class who were similarly situated in terms of the

conduct they may have committed when compared to that for which

the Petitioner was disciplined.

30 . In this regard, c oncerning the specific conduct

involved in the alleged ear - piercing incident, there was no

other comparator employee shown to have committed similar

conduct , involving a departure from practice standards, who was

disparately disciplined. There was no evid ence to show that the

Petitioner was replaced by a new employee from outside her

protected category.

31 . In view of the reasons delineated in the above

findings of fact concerning the Petitioner's lack of knowledge

of sufficient of the circumstances and d etails of the other

employees ' instances of absence or tardiness , or concerning the

alleged hair cutting incident by another employee , and so forth,

it has not been shown that the other employees subjectively

referenced in the Petitioner's testimony , conce rning her opinion

that they receive d more favorable , disparate treatment , were in

fact similarly - situated comparat ive employees. Thus, in the

final analysis , the above - referenced fourth element of the

Petitioner's prima facie case has not been persuasivel y

established.

32 . Even had a prima facie case been established, the

Respondent advanced a legitimate , non - discriminatory business

reason for the employment action taken. A rgument was made that

the statement by the resident, Ms. M. , was hearsay and

inadm issible and , as referenced in the above endnote , the

hearsay exception contained in Section 90.803(24), Florida

Statutes, does not apply to such attempted evidential use of Ms.

M. 's statement . The fact remains , however, that the Respondent

could still rel y , in the employment decision, upon that

statement and the observances and the reporting of Ms. M. 's

version of events by the co - employee or supervisor. It was

based on this type of reporting and statement during its

investigation that the Respondent arri ved at a good - faith belief

that the events had actually occurred as Ms. M. purportedly

re lated them ( involving actual ear piercing instead of mere

insertion of the earring and the string in "already pierced"

ears ) . Put another way , even though Ms. M. 's st atement and the

statements of certain witnesses relying on it and testifying at

hearing, might be hearsay, the statements still served at the

time of the termination decision as a reasonable basis for the

employer's decision concerning the investigation an d the

termination.

33 . If the employer establishes a legitimate , non -

discriminatory reason for the adverse employment action (in

effect that it reasonably believed that the Petitioner departed

from the requirements of practice of a CNA by using a needle and

actually piercing the resident's ears ) then the burden shifts

back to the employee to show that the purported non -

discriminatory reason is not the real reason for the employment

action , but really was a pretext for discrimination. See Combs

v. Planta tion Patterns , 106 F.3d 1519, 1528 (11th Cir. 1997).

In the fac e of a legitimate , non - discriminatory reason for the

termination , the Petitioner must introduce probative evidence

showing that the asserted reason is merely a pretext for

discrimination. Br ooks v. County Commission , 446 F.3d 1160,

1163 (11th Cir. 2006). In proving pretext "a plaintiff is not

allowed to recast an employer's proffered non - discriminatory

reasons or substitute her business judgment for that of the

employer. Provided that the p roffered reason is one that might

motivate a reasonable employer, an employee must meet the reason

head - on and rebut it, and the employee cannot succeed by simply

quarreling with the wisdom of that reason." Carter v. Diamond

Back Golf Club, Inc. , 2006 WL 229304, 6 (M.D. Fla. 2006)

(quoting Chapman v. Aansport , 229 F.3d 1012, 1037 (11th Cir.

2000). The issue is not whether the employment decision was

prudent , or even fair , to the employee in question, but rather

whether an unlawful discriminatory animu s motivated the employer

in making the decision. See Damon v. Flemming Supermarkets of

Florida, Inc. , 196 F.3d 1354, 1361 (11th Cir. 1999).

34 . Put another way , it does not matter whether the

Petitioner was actually innocent of the charges placed against

her by her employer in arriving at the termination decision.

The relevant inquiry rather is whether the Respondent reasonably

believed that she engaged in those acts which led to the adverse

employment action. " An employer who fires an employee under th e

mistaken but honest impression that the employee violated a work

rule is not liable for discriminatory conduct." Id. at 1363.

The employer need not prove the underlying facts , only that it

honestly and reasonably believed that the misconduct had been

e ngaged in by the Petitioner. Thus the resident's statement s

even if hearsay, are still such that the Respondent could rely

on in reaching its decision. Thus , the hearsay argument

concerning the resident's statement in this case is immaterial

in terms of arriving at a decision as to whether a legitimate ,

non - discriminatory reason has been established by the

Respondent , because the hearsay statement does not have to be

admitted for purposes of establishing the tru th of the

statement, but rather only that it was the primary motivating

factor for the employer's decision.

35 . The Respondent demonstrated that it followed its

stated policies in good faith by conducting an investigation.

The Respondent's investigation showed that the resident reported

that the P etitioner pierced her ear. The investigation further

showed that , when the LPN on duty examined the resident , she had

a string through her ear. The Petitioner admitted that she put

the string through the resident's ear. The Petitioner asserted

that the resident asked her to put the earring in her ear. The

Petitioner did not ask permission from her supervisor before

placing the string in the resident's ear. Standing alone , that

omission is a violation of the Respondent's policy. Based upon

the statemen ts from staff, the examination of the resident, and

conversation with the Petitioner, the Respondent , in its

investigation , reasonably concluded that the Petitioner had

actually pierced the resident's ear. Moreover, the Respondent

reasonably concluded tha t the Petitioner violated corporate

policy and acted outside the scope of a CNA's practice. This

was the sole reason for the termination , and , as the Petitioner

offered no persuasive evidence regarding pretext , her claim of

discrimination must fail.

36 . Although the instances cited in the Petitioner's

evidence : concerning being disciplined for tardiness and

absence , concerning the donation collection bucket for an ill

co - worker , the hair cutting incident , and the incident s

occurring with the cook and c oncerning Nurse Acosta, were part

of the Petitioner's attempt to establish an ongoing pattern of

discrimination against persons of her national origin, by a

pattern of disparate and more favorable treatment accorded to

people who were not Panamanian or His panic in the employer's

work force, the Petitioner did not establish that those

employees were truly similarly situated . S he did not adduce

probative evidence that they had committed the same or similar

conduct and yet were disciplined in a less severe wa y. See

Burke - Fowler v. Orange County, Florida , 447 F.3d 1319, 1323

(11th Cir. 2006). The Petitioner did not establish any

employees who were outside of her protected class who were

accused of the same category of offense , of the same severity,

and who di d not suffer a similar investigation and discipline.

37 . T he Petitioner attempted to demonstrate that employees

outside of her protected class were treated differently than she

was with respect to the enforcement of the tardiness and

absenteeism polices. There was no persuasive evidence , however,

other than the Petitioner's opinion, that would show that those

employees , as to the tardiness or absenteeism they may have

committed , were similarly situated in terms of severity,

rep etition , etc., to the Petiti oner , in terms of whether or not

they were "written - up" at all or the severity of the discipline

that might have been imposed . The evidence is simply

insufficient to establish , based only upon the Petitioner's

subjective opinion, that they were indeed sim ilarly situated in

terms of their conduct to the Petitioner, nor even that their

discipline was actually disparate from that of the Petitioner's.

38 . The Petitioner also testified regarding other

unrelated incidents. For example, she described a June 2 005

incident were she was suspended pending an investigation

regarding the donation collection bucket maintained at her place

of work. This was a collection being made to assist a seriously

ill co - employee. The Petitioner's testimony actually shows that

the Respondent adhered to its stated policy, the Petitioner was

indeed suspended pending an investigation, but then she was

retu r ned to work , with pay for the suspension days, following

the investigation because the investigation revealed that the

Petition er was correct . She had not stolen any money , but had

done what she and her supervisor had agreed to do about her

obtaining custody of the donation collection bucket in order to

buy flowers or a gift for the ill employee.

39 . The Petitioner also descri bed in her testimony the

alleged incident involving the derogatory remarks allegedly made

by the cook concerning the Petitioner's national origin.

Significantly, the alleged remarks were not made by a member of

management of the Respondent. Moreover, the Petitioner

maintains that she reported this incident to the Director of

Nursing , but this could not be the case because the individual

named by the Petitioner was no longer employed by the Respondent

after 2004 and certainly not by March 2005. Moreover, as found

above , there was no showing that the Respondent or any of its

supervisory staff condoned or allowed any such derogatory or

offensive conduct by the cook or any other person employed by

the Respondent to recur .

40 . Thus, the Petitioner did not es tablish that she was

treated less favorably than any similarly situated individuals

outside her protected class. S he fail ed to establish this last

element of her prima facie case for national original

discrimination, but she also failed to establish that there was

an ongoing pattern in terms of disparate discipline for similar

conduct , as probative of a hostile working environment for

persons particular ly herself, of her protected class and,

therefore, that the Respondent's reason advanced for the

discharg e was pretextual . Thus, the Petitioner has failed to

establish a prima facie case of national origin discrimination;

has not established that the actual employment action at issue,

was done for discriminatory reasons ; and has not established

national orig in discrimination , indirectly and circumstantially,

based upon any pattern of such discriminatory conduct being

allowed or condone d in the work place . Thus, her claim has not

been established.

41 . The Respondent has moved for award of attorney's fees

and costs pursuant to Section s 57.105 and 120.595(1)(e)1 . ,

Florida Statutes (2006). The undersigned has considered the

motion, the charge and the Petition for Relief and the evidence

of record, as well as the candor and demeanor of the Petitioner

in advancin g this action. It is determined that the action was

not prosecuted for an improper purpose, to harass, to cause

delay or for frivolous purposes. It is not a part of multiple

action s filed against the Respondent. It has not been

demonstrated that the Pet itioner, or her counsel, filed and

prosecuted this action under other than a reasonable, good faith

belief that the material facts necessary to establish the claim

would be proven and that the claim would be supported by

application of extant law to those facts. It was not shown that

the Petitioner or her counsel knew or should have known, under

the circumstances, that such would not be the case. The motion

is denied.

RECOMMENDATION

Having considered the foregoing Findings of Fact,

Conclusions of Law, the evidence of record, the candor and

demeanor of the witness es , and the pleadings and arguments of

the part ies , it is, therefore ,

RECOMMENDED t hat a final order be entered by the Florida

Commission on Human Relations dismissing the Petition in its

entirety.

DONE AND ENTERED this 28th day of November , 200 7 , in

Tallahassee, Leon County, Florida.

S

P. MICHAEL RUFF

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallah assee, 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 28th day of November , 200 7 .

ENDNOTES

1/ It is determined that this hearsay exception does not apply

to any out - of - court statement of Ms. M. It was not demonstrated

that she was subjected to abuse or neglect and even the

Respondent's witnesses ' testimony establishes that no abuse or

neglect occurred or was reported. Further, the re was obviously

no aggravated assault or other violent act, etc. , on the

declar a nt , elderly person , Ms. M. Accordingly, for this reason

the hearsay exception does not apply. The further reason that

it does not apply is that it cannot be found that the c ontent ,

circumstances and time of the statement provide sufficient safe -

guards of reliability because there is conflicting evidence on

Ms. M. 's mental state at the time. She was generally apparently

well - oriented to time, place, and person, etc., but also was

established by the evidence to suffer to some degree with

dementia. Accordingly, the statement being hearsay, no

sufficient establishment of reliability has been made to justify

its admissibility. As w i ll be seen, however, the admission of

Ms. M. 's statement or statements into evidence and the truth and

reliability of what they purport to contain is largely

immaterial ; rather, the use of them as a predicate for the

investigation and ultimate determination made by the employer -

Respondent is what is ma terial to a decision on the claims made

pursuant to Section 760.10, Florida Statutes .

COPIES FURNISHED :

R. John Westberry, Esquire

1308 Dunmire Street, Suite B

Pensacola, Florida 32504

Mark E. Levitt, Esquire

Allen, Norton & Blue, P.A.

324 South H yde Park Avenue, Suite 101

Tampa , Florida 33606

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 A palachee Parkway, Suite 100

Tallahassee, Florida 32301

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 shoul d be filed with the agency that

will issue the Final Order in this case.