07-001528 Pamela Guenther vs. Douglas C. Hall, M.D., P.A. Status: Closed Recommended Order on Friday, June 29, 2007.

Summary: Petitioner was subjected to unlawful employment discrimination. Recommend that Respondent pay Petitioner lost wages within 90 days and cease the unlawful practice of discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA GUENTHER , )

)

Petitioner , )

)

vs. ) Case No. 07 - 1528

)

DOUGLAS C. HALL, M.D., P.A. , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, Administrative Law Judge Don W. Davis of

the Division of Administrative Hearings (DOAH) conducted the final

hearing in this case on June 5, 2007, in Ocala, Florida. The

following appearances were entered.

APPEARANCES

For Petitioner: Pamela Guent her , pro se

801 Northwest 75th Terrace

Ocala, Florida 34482

For Respondent : No Appearance

STATEMENT OF THE ISSUE

The issue for determination is whether Pamela Guenther

(Petitioner) was subjected to empl oyment discrimination by

Douglas C. Hall, M.D., P.A., (Respondent), due to Petitioner's age

in violation of Section 760.10, Florida Statutes.

PRELIMINARY STATEMENT

Petitioner filed a Charge of Discrimination against

Respondent with the Florida Commission on Human Relations (FCHR)

on July 13, 2006. The Charge of Discrimination alleged

discrimination by Respondent against Petitioner with regard to

termination of her employment on the basis of age.

On January 9, 2007, the executive director of FCHR, as

aut horized by Florida Administrative Code Rules 60Y - 2.004(2)(e)

and 60Y - 5.004, determined that reasonable cause existed to

believe that an unlawful employment action had occurred.

Petitioner filed a Petition for Relief on January 29, 2007.

FCHR forwarde d the case to DOAH on March 30, 2007, where the

matter was given Case number 07 - 1528 and assigned to the

undersigned for further proceedings.

At the final hearing, Respondent did not appear and no

appearance by counsel or a qualified representative was made on

his behalf.

During the final hearing, Petitioner testified on her own

behalf, presented testimony of one witnesses and offered five

exhibits, all of which were admitted into evidence. No transcript

of the proceeding was provided.

Petitio ner filed a Proposed Recommended Order. At the time

of preparation of this Recommended Order, no post - hearing

submission had been filed on behalf of Respondent.

References to Florida Statutes are to the 2006 edition

unless otherwise designated.

FINDING S OF FACT

1. Petitioner was born April 7, 1955.

2. Respondent is a medical doctor who practices in Ocala.

3. In January 2006, Respondent hired Petitioner part - time

as the bookkeeper for Progressive Genomics, Inc. (PGI) , a

nutrition research company operated by Respondent in conjunction

with his medical practice. PGI and Respondent’s medical

practice in obstetrics and gynecology shared both facility and

staff.

4. Respondent was beset with financial trouble resulting

from insufficient bank funds and an Internal Revenue Service

(IRS) audit. In April 2006, Respondent sold the building

housing his medical practice and PGI. He simultaneously closed

PGI and relocated his medical practice to another location with

a specialty in cosmetic medicin e.

5. At the same time that Respondent closed PGI, he

discharged all older female employees, with exception of those

necessary to operation of his medical practice. Respondent then

hired new personnel, all under age 50 to replace the terminated

employ ees. Petitioner was also elevated from her part - time

position to full - time by Respondent as Respondent’s office

manager, giving her a power of attorney to use in her execution

of responsibility over business matters related to his practice.

This unique e xception (hiring of Petitioner) to Respondent’s

hiring practice of only hiring employees under age 50 was due to

influence of Petitioner’s daughter, who also worked for

Respondent.

6. Respondent required Petitioner, over Petitioner’s

objection, to work from her home , requiring her to work under

different and less favorable terms and conditions of employment

than the other employees. Additionally, the separation from co -

workers made Petitioner’s job more difficult.

7. Isolating Petitioner from her cow orkers was intentional

on the part of Respondent due to Petitioner’s relatively greater

age in comparison to the other workers.

8. Petitioner and Respondent had other disagreements in

the course of her employment as Respondent’s office manager.

Re spondent directed Petitioner to write checks with insufficient

funds to pay them. Respondent also directed Petitioner to

ignore IRS notices and write paychecks to staff without time

cards or other verification of hours worked.

9. Relying on what a ppeared to be the offer of permanent

employment by Respondent in April 2006, Petitioner sold her

bookkeeping business and, along with her partner, sold a coffee

shop business at the time she accepted Respondent’s offer and

went to work for him as his offic e manager.

10. Respondent was the employer of more than 15 people ,

and therefore was not exempt from requirements of the Florida

Civil Rights Act of 1992.

11. Respondent provided all of his employees with diet

pills to improve their appearanc e through prescriptions for the

drug “Adipec.” According to Petitioner, who was given one of

these prescriptions, Respondent sought “a certain age, a certain

weight, and a certain look” in his employees. At one time

Respondent had a picture of Respondent , surrounded by youthful

female employees, placed on a billboard to promote his medical

practice.

12. On June 20, 2006, Respondent told Petitioner in a

telephone conversation that her “services were no longer

needed.” A female individual, Laurie Jo hnson, who is 33 years

old, replaced her.

13. Petitioner seeks to be awarded back pay for her last

paycheck of $1,240 on which Respondent stopped payment, plus a

year’s wages in the amount of $26,000 at a rate of $500 per week

for 52 weeks.

CONCLUSIO NS OF LAW

14. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. §§ 120.569 and 120.57(1), and Chapter 760, Fla.

Stat.

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

Rights A ct of 1992," provides security from discrimination based

upon race, color, religion, sex, national origin, age, handicap,

or marital status.

16. The adverse effectuation of an employee’s

compensation, conditions, and privileges of employment on the

basis of age is an unlawful employment practice.

17. The burden of proof rests with Petitioner to show a

prima facie case of employment discrimination. After such a

showing by Petitioner, the burden shifts to Respondent to

articulate a nondiscriminatory reaso n for the adverse action.

If Respondent is successful and provides such a reason, the

burden shifts again to Petitioner to show that the proffered

reason for adverse action is pretextual. School Board of Leon

County v. Hargis , 400 So. 2d 103 (Fla. 1st DC A 1981).

18. The Supreme Court of the United States has recognized

that direct evidence of discrimination is extremely rare. As a

consequence, the Supreme Court in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973), articulated a method by which

compla inants, such as Petitioner in this case, might establish a

rebuttable presumption of discrimination. That method requires

that Petitioner show (a) that she is a member of a protected

class; (b) that she has been subjected to adverse employment

action; (c) that she was treated differently than employees not

a member of the protected class; and (d) that there is evidence

of a causal connection between Petitioner's protected status and

her disparate treatment.

19. Petitioner has offered credible evidence tha t

termination of her employment was based on her age. As a

consequence, it is concluded that Respondent's action in

termination of Petitioner’s employment was a pretext to the

exercise of employment discrimination on the basis of age.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED:

That a final order be entered directing that Respondent cease

the unlawful discriminatory practice of employment on the basis of

age, and awarding Petitioner awarded back pay for her last

paycheck of $1,240, plus a year’s wages in the amount of

$26,000; and that all amounts be paid to Petitioner within 90

days of entry of a final order.

DONE AND ENTERED this 2 9 th day of June , 2007 , in

Tallahassee, Leon County, Florida.

S

DON W. 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) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 9 th day of June , 2007 .

COPIES FURNISHED :

Cecil Howard, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Denise Cr awford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Pamela Guenther

801 Northwest 75th Terrace

Ocala, Florida 34482

Laurie Johnson

Douglas C. Hall, M.D., P.A.

2801 Southeast 1st Avenue

Ocala, Florida 34471

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

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

to this Recommended Order should be filed with the agency that

will issue the final order in this case.