09-000516 La`toya Mills vs. Bay St. Joseph Care And Rehabilitation Center Status: Closed Settled and/or Dismissed prior to entry of RO/FO on Thursday, March 17, 2011.

Summary: The evidence showed that Respondent discriminated against Petitioner based on her pregnancy when it abruptly terminated her after allowing her to perform normal unrestricted CNA duties for several days and after doctor's note with lifting restrictions.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LA`TOYA MILLS , )

)

Petitioner , )

)

vs. ) Case No. 09 - 0516

)

BAY ST. JOSEPH CARE AND )

REHABILITATION CENTER , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this

matter, before Diane Cleavinger, Administrative Law Judge,

Division of Adm inistrative Hearings on July 8 , 2010, in Port

Saint Joe, Florida .

APPEARANCES

For Petitioner: Cecile M. Scoon, Esquire

25 East 8th Street

Panama City, Florida 32401

For Respondent: Ashley N. Richardson, Esquire

Brian Duffy, Esquire

Post Office Drawer 229

Tallahassee, Florida 32302

S TATEM ENT OF THE ISSUE

The issue in this proceeding is whether Petitioner was the

subject of an unlawful employment practice by Respondent based

on her sex.

PRELIMINARY STATEMENT

On May 8, 2008, Petitioner, LaÓToya Mills , (Petitioner),

filed an Employm ent Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR). The Complaint alleged

that Respondent, Bay St. Joseph Care and Rehabilitation Center

(Respondent or Bay ), discriminated against her on the basis of

her sex in violation of Section 760.10, Florida Statutes.

Specifically, the Complaint alleged that Petitioner was

discriminated against and suffered an adverse employment action

when Respon dent terminated her employment due to her pregnancy.

The Complaint did not raise any issue in regards to retaliation

or handicap.

FCHR investigated PetitionerÓs Complaint. On October 30,

200 8, FCHR issued a de termination of Cause and notified

Petitioner of her right to file a Petition for Relief. Although

Petitioner told the invest igator about alleged retaliation by

Bay, she did not formally amend her Employment Complaint of

Discrimination to include retaliation and FCHR did not

investigate or make any determination based on retaliation or

handicap.

Thereafter, Petitioner filed a P etition for Relief with

FCHR on June 1, 2009. The Petition was based on the same

allegations as the earlier Complaint and attempted to raise the

issue of retaliation . FCHR forwarded the matter to the Division

of Administrative Hearings. However, since t he issue of

retaliation was not investigated by FCHR and did not result in

any agency action by FCHR, the Division of Administrative

Hearings has no jurisdiction over the issue of retaliation.

At the hearing, Petitioner testified i n her own behalf and

pr esented the testimony o f one witness . Petitioner also offered

twenty - one exhibits into evidence , of which Exhibits one through

twenty were admitted . Responden t presented the testimony of one

witness and offered three exhibits into evidence of which

Exhib its one and two were admitted .

After the hearing, Petitioner submitted a Proposed

Recommended Order and a Response on August 16 and 27, 2010,

respectively. Respondent filed a Proposed Recommended Order on

August 17, 2010.

FINDINGS OF FACT

1. Bay is a nursing home and rehabilitation center for

those in medical need of such services. It is located in Port.

St. Joe, Florida. The facility has a number of residents

staying at the facility who require help with mobility, standing

and walking. T he payroll services for Bay are performed by

Signature Payroll Services, LLC, which is affiliated with Bay

through a parent company.

2. Bay offers all employees a package of employment

benefits, including disability benefits. Section 7.2 of the

Stak eholder Handbook states:

Short & Long Term Disability

In the event Stakeholders become disabled

due to sickness, pregnancy or accidental

injury, the company offers disability

insurance . . .

Short Term Disability provides for 60% of

the Stakeholder's gro ss weekly wages up to a

maximum of twenty four (24) weeks post

fourteen (14) days of accident/injury.

Long Term Disability provides for 60% of the

Stakeholder's monthly wages up to one

hundred eight[sic] (180) days after

exhausting the Short Term Disabili ty

benefit.

Please see Human Resources to review

detailed summary plan documents for

maximums.

3. All new employees are offered the opportunity to enroll

in Bay's employment benefit package for 90 days after their

employment date. Each employee mu st affirmatively elect the

employment benefits they wish to have and must pay any premiums

for those benefits. After 90 days, an employe e can only make

changes to his or her benefit plan during the employee's annual

enrollment period.

4. In addition to the benefit plan, Bay also offers all

employees Famil y Medical Leave for up to 12 weeks and/or a

personal leave of absence when the employee is not eligible for

leave under other company policies. Leave is addressed in

section 8 of the Stakeholder Han dbook.

5. Petitioner is a Certified Nurse Assistant (CNA) . She

was employed by Bay on August 25, 2007. As a CNA, Petitioner

was responsible for the direct care of residents at Bay. Her

duties included lifting and moving residents as needed. Becau se

of her duties, Petitioner was required to be able to lift a

minimum of 50 pounds. Over that amount of weight, Petitioner

had extra help and devices to assist with lifting. Throughout

her employment, Petitioner was considered a diligent employee

that p erformed her duties well.

6. When Petitioner was hired, Bay offered her the

opportunity to enroll in all of the benefits in its employment

benefit plan, including disability insurance. Petitioner

elected to enroll in life, health, dental and vision insurance.

7. At the time of her hire, the only disability insurance

offered to any employee by Bay was insurance under a MetLife

group policy for Disability Income Insurance: Long Term Benefits

issued to Signature Payroll. There was no evidence o f any

short - term disability insurance benefit offered to any of Bay's

employees other than the MetLife policy described above. Given

that there was no short - term disability insurance available to

Bay's employees, it was not a discriminatory act for Respon dent

to not offer Petitioner short - term disability insurance. The

insurance was simply not part of the benefit package offered by

Bay at the time Petitioner was hired and Petitioner did not

elect to enroll in either short term or long - term disability

insu rance. Petitioner did not change her enrollment elections

during the 90 - day period after her employment. She was

therefore not eligible to add disability insurance to her

benefit plan until late 2008.

8 . In November or December 2007, Ms. Mills sometime s

worked with another CNA named Courtney Preston. At the time,

Ms. Preston was pregnant. When Petitioner asked for some help

lifting a resident, Ms. Preston told P etitioner that she was on

light - duty due to her pregnancy. The charge nurse for the unit,

who is the unit supervisor for any given shift, confirme d that

Ms. Preston was on light - duty. However, the charge nurse had no

authorit y to place an employee on light - duty. Additionally,

there was no evidence in Ms. PrestonÓs personnel file that she

had offic ially been placed on light - duty by anyone with the

authority to do so. At best, it appears that Ms. Preston was

simply being treated kindly by her fellow employees and was not

officially placed on light - duty by a person with authority to do

so.

9. Ms. Preston eventually lost her baby while Petitioner

was employed at Bay. The evidence was not clear as to the cause

of Ms. Preston's miscarriage. However, the evidence established

that Ms. Preston had a risky pregnancy of which the staff at Bay

w as aware. Later, Ms. Preston again became pregnant and again

had a risky pregnancy. She was counseled on several occasions

for her excessive absenteeism. In order to help Ms. Preston

with her absenteeism, she was offered on - call status with less

duty ho urs if she wanted it. E ventually, sometime after

April 30, 2008, Bay terminated Ms. Preston for excessive

absences caused, in part, by her pregnancy. On the other hand,

Ms. Preston was clearly accommodate d during both of her

pregnancies while she was emp loyed at Bay .

10 . I n January or February 2008 , Petitioner became

pregnant. On February 15, 2008, Petitioner visited her doctor

and was given a doctorÓs note to limit her lifting to no more

than 20 pounds even though she was not having any difficulty

p erforming her job duties . The evidence was unclear as to why

the doctor placed Petitioner under lifting restrictions since

the doctor, within one to two weeks, raised those restrictions

to not over a minimum of 50 pounds after Petitioner told him

about th e imp act the lower - weight restrictions had on her job

with Bay.

11 . On February 16, 2008, P etitioner gave a copy of the

doctorÓs note with the 20 - pound lifting restrictions to the

personnel department. On February 18, 2008, she discussed the

lifting res trictions with her supervisors, Cathy Epps and

Shannon Guy. They thought light - duty work could be arranged.

On February 20, 2008, she discussed the lifting restrictions

with David Kendrick, the corporate d irector of human resources,

who was visiting Bay that day. He also thought that some light -

duty work might be arranged. However, all of these supervisors

wanted other higher - level corporate officials to have input on

whether light - duty work was available. Eventually, the

corporate legal counsel and th e corporate risk manager were

consulte d on the issue of whether light - duty work was available.

12 . Petitioner did not receiv e light - duty work . Instead,

on February 21, 2008, Petitioner was called into a meeting with

Cathy Epps and Shannon Guy . Ms. Guy was very upset and

tearfull y told Petitioner that no light - duty was available and

that Petitioner was terminated . Ms. Guy was upset because

Petitioner was a good employee that she did not want to lose.

Ms . Epps also wanted to keep Petitioner as an em ployee. Ms. Guy

explained that someone from the corporate office decided

Petitioner was terminated because they were afraid Petitioner

was too much of a risk to employ since she could not meet the

minimum - lifting requirements and " as a CNA she would be ex pected

to assist residents, and . . . if we had a resident who was

falling and she would be presented with a choice of either go to

help the resident or run the risk of hurting herself or, . . .

not helping the resident and, . . . allowing something to

hap pen." Ms. Guy told Ms. Mills that she could return to work

once her pregnancy was over.

13. Importantly, Petitioner had been performing her normal

duties without any problems or need for assistance throughout

the several days that the corporate offi ce was making a decision

about whether light - duty work was available to Petitioner. This

activity alone shows Petitioner was still qualified for her job

since she continued to perform her job duties. During this

period, no one from the corporate office o r on the facility's

premises expressed any concern that Petitioner continued to

perform her regular job duties. Clearly, no one was relying on

the restrictions in the doctor's note. There was no evidence to

suggest that Petitioner would ignore any reside nt's needs while

she was pregnant or would try to protect herself more than any

other employee at the facility did.

14. As indicated, Petitioner was simply terminated. There

was no consideration given to whether she could still perform

her duties as she clearly could do. She was not offered any

leave time or even allowed to request leave as mentioned in

Section 8 of the Stakeholder Handbook. The abruptness of the

termination when Petitioner could still perform her job duties

and the failure to of fer leave were discriminatory acts on the

part of Bay against Petitioner based on her pregnancy.

15 . Around February 29, 2008, eight days after her

termination, Petit ioner called Dav id Kendrick to ask him about

receiving light - d uty. He told her that li ght - duty was available

only for employees injured on the job. This policy is neutral

on its face and there was no evidence that demonstrated the

restriction of light - duty work to employees who are injured on

the job had a disparate impact on pregnant wome n. Petitioner

told Mr. Kendrick that her doctor had raised her lifting

restrictions to 50 pounds. However, the new restriction did not

satisfy the corporate perception that she was too much of a risk

and could not perform her required duties even though she met

the minimum job qualifications and had been a good employee. In

ignoring the fact that she was qualified to perform her duties,

Mr. Kendrick's reasoning is further evidence of Respondent's

earlier intent to discriminate against Petitioner based so lely

on her pregnancy.

16. Mr. Kendrick also advised Petitioner that she could

not obtain the disability insurance employee benefit because she

had not been an employee for more than a year and had not

elected to enroll in the coverage during the 90 - day period from

when she was hired. There was no evidence that demonstrated

Bay's denial of disability insurance coverage to Petitioner was

a discriminatory act since Petitioner, like all of Bay's

employees, had been offered the insurance when she was hir ed,

had not selected the insurance as a benefit within 90 days after

her hire date , and could not make changes to her benefit plan

until sometime in late 2008.

17 . On or about April 28, 2008, Ms. Mills filed a

complaint with FCHR/EEOC alleging gender di scriminati on based on

sex due to her pregnancy .

18 . In early May 2008, Ms. Mills suffered a miscarriage

and lost her baby . Sometime around June 1, 2008, a few weeks

after her miscarriage, Ms . Mills returned to Bay and met with

Cathy Epps and Gayle Scarb orough. She asked to be rehired since

she was no longer pregnant. Both were aware of the Petitioner's

pending EEOC/FCHR complaint . Ms. Scarborough told Petitioner

that she could possibly be rehired if she dropped her EEOC

claim. Later, Ms. Scarborough called Ms Guy and spoke with her

about rehiring Petitioner . Ms. Guy asked David Kendrick, who

inquired further in the corporation. Ms. Guy does not recall

receiving a response to her inquiry. However, she later called

Petitioner asking if she would disp lay a negative attitude if

she were rehired and asking if she had dropped her EEOC claim.

Petitioner was so discouraged by the phone call that she did not

pursue getting rehired further.

19. Because she was not rehired by Bay, Petitioner was out

o f work for an extended period of time. She eventually was

hired and has continued her employment with a variety of

employers. She was and is required to travel some distance to

maintain her employment at greater expense than if she were

employed in Port St. Joe. Because she lives in Port St. Joe,

she wants to be reinstated to her earlier position. Petitioner

is entitled to reinstatement as a CNA and to back wages and

benefits until she is reinstated , less any unemployment

compensation, wages and benefit s earned during said period.

CONCLUSIONS OF LAW

20 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. See § § 120.569 and 120.57(1), Fla. Stat (2010 ).

21 . Section 760.10, Florid a Statutes, provides that it is

an unlawful employment practice for an employer

[t]o discharge or to fail to refuse to hire

any individual, or otherwise, discriminate

against any individual with respect to

compensations, terms, conditions, or

privileges o f employment because of such

individualÓs race, color, religion, sex,

national origin, age, handicap or marital

status.

§ 760.10(1)(a), Fla. Stat. (2009).

22 . FCHR and the Florida courts have determined that

federal discrimination law should be used as guidance when

construing provisions of Section 760.10, Florida Statutes

(2008) . See Albra v. Advan, Inc. , 490 F.3d 826 (11th Cir.

2007); Winn Dixie Stores v. Reddick , 954 So. 2d 723 (Fla. 1st

DCA 2007); Brand vs. Florida Power Corp. , 633 So. 2d 504, 5 09

(Fla. 1st DCA 1994); Florida Dept. of Community Affairs v .

Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991); and Scott v. Fla.

Dept. of Children & Family Services , 19 Fla. L. Weekly Fed .

D.268 , 2005 U.S. Dist. LEXIS 19261 (N.D. Fla. 2005).

23. Addition ally, Congress passed the Pregnancy Disability

Act of 1978, 42 USCA Section 2000e (k) which amended the

definition of sex discrimination to include pregnancy. The Act

states in relevant part:

The terms "because of sex" or "on the basis

of sex" include, but are not limited to,

because or on the basis of pregnancy,

childbirth, or related medical conditions;

and women affected by pregnancy, childbirth,

or related medical conditions shall be

treated the same for all employment related

purposes, including receip t of benefits . .

. . as other persons . . . . similar in

their ability or inability to work . . . .

As with earlier case law, FCHR and Florida courts have

determined that Section 760.10, Florida Statute s , includes the

definitions established by the 1978 Pregnancy Discrimination

Act. Carsillo v. City of Lake Worth , 995 So. 2d (Fla. 2009).

Therefore, discrimination based on sex includes discrimination

based on pregnancy and federal court decisions are applicable on

the issue. Id.

24 . The Supreme Co urt 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),

the analysis to be used in cases alleging discrimination under

Title VII. This analys is was reiterated and refined in

St. MaryÓs Honor Center v. Hicks , 509 U.S. 502 (1993). See also

Zappa v. Wal - Mart Stores, Inc. , 1 F. Supp. 2d 1354, 1356 (M.D.

Fla. 1998 ); Standard v. A.B.E.L. Svcs., Inc. , 161 F.3 d 1318

(11th Cir. 1998) ; and Walker v. Pru dential Property & Casualty

Insurance, Co. , 286 F.3d 1270 (11th Cir 2002).

25 . Under McDonnell Douglas , Petitioner 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, non -

discriminatory reason for the action taken against Petitioner.

Once this non - discriminatory reason is offered by Respondent,

the burden of production then shifts back to Petitioner to

demonst rate that the offered reason is merely a pretext for

discrimination. As the Supreme Court stated in Hicks , before

finding discrimination, Ð t he fact finder must believe the

plaintiffÓs explanation of intentional discrimination.Ñ Hicks ,

509 U.S. at 519. A dditionally, ÐDefendant Ó s burden . . . is

exceedingly lightÑ and ÐÒ is merely one of production, not

proof Ó .Ñ Perryman v. Johnson Products, Co. , 698 F.2d 1138 (11th

Cir. 1983).

26 . In Hicks , the Court stressed that even if the fact -

finder does not be lieve the proffered reason given by the

employer, the burden remains with Petitioner to demonstrate a

discriminatory motive for the adverse employment action. Id .

See also Texas DepÓt of Community Affairs v. Burdine , 450 U.S.

248 (1981).

27 . " Direct evi dence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

inference or presumption." King v. La Playa - De Varadero

Restaurant , No. 02 - 2502, 2003 WL 435084 (Fla. DOAH

2003)(Recommended Order).

28 . Howe ver, "[D]irect evidence of intent is often

unavailable." Shealy v. City of Albany, Ga. , 89 F.3d 804, 806

(11th Cir. 1996). For this reason, those who claim to be

victims of discrimination "are permitted to establish their

cases through inferential and ci rcumstantial proof." Kline v.

Tennessee Valley Authority , 128 F.3d 337, 348 (6th Cir. 1997).

29 . In order to establish a prima facie case of

discrimination, Petitioner must demonstrate that:

a. Petitioner is a member of a protected

class;

b. Pet itioner is qualified for the

position;

c. Petitioner was subject to an adverse

employment decision; and,

d. Petitioner was treated less favorably

than similarly situated persons outside the

protected class.

Maniccia v. Brown , 171 F.3d 1364 (11th Cir. 19 99); Canino v.

EEOC , 707 F.2d 468 (11th Cir. 1983); Smith v. Georgia , 684 F.2d

729 (11th Cir. 1982); Lee v. Russell County School Board , 684

F.2d 769 (11th Cir. 1984); and Holifield v. Reno , 115 F.3d 1555,

1562 (11th Cir 1997).

30 . In this case, Peti tioner has alleged that Respondent

unlawfully discriminated against her on the basis of her sex due

to her pregnancy . She did not allege that she was discriminated

against on the basis of a perceived handicap. As a pregnant

female, Petitioner is a member of a protected class.

31. Petitioner contends that after she brought the

doctorÓs note limiting her lifting, Respondent perceived

Petitioner as having a disability that altered a major life

f unction, i.e. her ability to stand or lift moderately heavy

objects , and based on that perception, Respondent treated

Petitioner as if she were disabled and fired her without

providing any reasonable accommodations. Taylor v. Phoenixville

Sch. Dist ., 184 F.3d 296, 314 (3rd Cir. 1999); ( en banc ).

However, Petitioner did not allege in either her Complaint of

Employment Discrimination or Petition for Relief that she was

discriminated against based on a handicap/disability or

perceived handicap/disability. Therefore, the issue of handicap

and whethe r reasonable accommodations should have been provided

to Petitioner is not decided here and the cases cited by

Petitioner in that regard are inapplicable to the issue in this

case.

32. In this case, the fact that Respondent did not provide

Petition er with light - duty work because such work is restricted

to employees who are injured on the job is not indicative of

discrimination based on pregnancy. The Pregnancy D iscrimination

Act does not require preferential treatment to pregnant

employees. McQuee n v. Airtran Airways, Inc. , 2005 U.S. Dist.

LEXIS 37461 (N.D. Fla. Dec. 29, 20 05). Under Bay's policy,

light - duty work was restricted to emp loyees injured on the job.

Non - work - related injured emplo yees were not entitled to light -

duty work. Since Petitio ner was not injured at work , she was

treated t he same as Bay's other non - work - related injured

employee s and was not entitled to light - duty accommodation for

her pregnancy. Id .

33 . In McQueen , the federal court granted a Motion for

Summary Judgment a gainst the Plaintiff and dismissed her claim

of discrimination based on pregnancy. The court, prior to

trial, concluded that the lifting restrictions imposed by a

doctor on the Plaintiff during the term of her pregnancy

disqualified her for her job; and t hat she therefore, could not

establish a prima facie case of discrimination. However, unlike

McQueen , Petitioner in this case continued to perform her normal

job duties and neither party significantly relied on the

doctor's note to immediately limit Petit ioner's job duties.

Additionally, unlike McQueen , the restrictions in this case were

changed so that Petitioner met the minimum requirements for her

job. Finally, unlike McQueen , Petitioner was not offered the

option of leave as provided in the Stakehold ers Handbook.

34 . Moreover, the evidence was direct that Petitioner was

terminated because of her pregnancy. The fact that she was

permitted to perform her regular job duties while the corporate

office tried to decide what to do clearly establishes that

Petitioner could perform those duties. Additionally, the

evidence was clear that neither party relied on the doctor's

note as either mandatory or immediate. In fact, the

restrictions were raised within two weeks after the doctor had

written his note . Respondent's assertion that Petitioner was

not qualified per se for her job is simply not borne - out by the

facts of this case. Those same facts demonstrate that

Petitioner was discriminated against based on her pregnancy and

that Respondent's assertion that Petitioner was too much of a

risk was not credible.

35 . Finally, Petitioner contends that Respondent also

discriminated against her due to her pregnancy when it failed to

comply with its own policy manual and provide short - term

disability insurance . However, the evidence did not establish

such discrimination. As with all of its employees, Respondent

followed its benefit enrollment rules in determining

Petitioner's eligibility for disability insurance. Under those

rules, Petitioner was not entitle d to enroll in the disability

insurance plan. Without more, the application of neutral

benefit enrollment rules is not discriminatory.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is RECOMMENDED that the Florida C ommission on Huma n

Relations issue a Final Order requiring:

1. Reinstatement of Petitioner's employment with

Respondent with all seniority and benefits as if she had not

been terminated; and

2. Payment of lost wages to Petitioner from the date of

termination to reinstatement less any unemployment compensation,

wages and benefits she received during the same period.

DONE AN D ENTERED this 7th day of October , 2010, in

Tallahassee, Leon County, Florida.

S

DIANE C LEAVINGER

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admini strative Hearings

this 7th day of October , 2010 .

COPIES FURNISHED :

Sandra Adams, Esquire

Home Quality Management

2979 PGA Boulevard

Palm Beach Gardens, Florida 33410

Ashley Nicole Richardson, Esquire

McConnaughhay, Duffy, Coonrod

Pope & Weaver, P.A.

1709 Hermitage Boulevard, Suite 200

Tallahassee, Florida 32302

Cecile M. Scoon, Esquire

Peters & Scoon

25 East Eighth Street

Panama City, Florida 32401

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 1 00

Tallahassee, Florida 32301

Larry Kranert, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written except ions 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.