09-006129 Patricia A. Keaton vs. Council On Aging Of West Florida Status: Closed Recommended Order on Thursday, April 1, 2010.

Summary: Petitioner did not prove that Respondent discriminated against her based on age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PATRICIA A. KEATON, )

)

Petitioner, )

)

vs. ) Case No. 09-6129

)

COUNCIL ON AGING OF WEST )

FLORIDA, )

)

Respondent. )

)

RECOMMENDED ORDER

On March 5, 2010, a duly-noticed hearing was held by video

teleconference with sites in Tallahassee and Pensacola, Florida,

before Suzanne F. Hood, Administrative Law Judge with the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Patricia A. Keaton, pro se

3824 North 10th Avenue, Apt. B

Pensacola, Florida 32503

For Respondent: Russell F. Van Sickle, Esquire

Beggs & Lane

Post Office Box 12950

Pensacola, Florida 32591-2950

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner based on her age in violation of the Florida Civil

Rights Act of 1992, as amended, Section 760.10, Florida Statutes

(2009).

PRELIMINARY STATEMENT

On May 9, 2009, Petitioner Patricia A. Keaton (Petitioner)

filed an Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR). The charge alleged that

Respondent, Council on Aging of West Florida (Respondent), had

discriminated against her based on her age.

On September 30, 2009, FCHR issued a Determination: No

Cause. On November 3, 2009, Petitioner filed a Petition for

Relief and Request for Administrative Hearing with FCHR. On

November 6, 2009, FCHR referred the petition to the Division of

Administrative Hearings.

On November 17, 2009, the undersigned issued a Notice of

Hearing by Video-Teleconference. The notice scheduled the

hearing for February 12, 2010.

On February 12, 2010, Petitioner filed a Consent Motion for

Continuance of Final Hearing. The undersigned subsequently

rescheduled the hearing for March 5, 2010.

At the hearing, Petitioner presented the testimony of

Minnie Watkins and testified on her own behalf. Petitioner did

not offer any exhibits as evidence. Respondent presented the

testimony of Patricia Bryan, Judy Tatum, Jim Shaffer, Sandy

Holtry, and Rosa Sakalarois. Respondent’s Exhibits 2-11 were

offered and admitted into evidence.

A Transcript of the proceedings was filed on March 10,

2010. Respondent timely submitted a Proposed Recommended Order

that has been carefully considered in the preparation of this

Recommended Order. As of the date that this Recommended Order

was issued, Petitioner had not filed proposed findings of fact

and conclusions of law.

All references hereinafter to Florida Statutes are to the

2009 codification unless otherwise indicated.

FINDINGS OF FACT

1. Petitioner, a 62-year-old African-American female began

working for Respondent on July 7, 1989. Petitioner initially

worked in Respondent's Adult Day Care Center (the Center) as an

on-call Activity Nursing Assistant. At the time of her

termination on February 2, 2009, she was a full-time Activity

Nursing Assistant.

2. Respondent is an employer as defined by the Florida

Civil Rights Act of 1992, as amended, Sections 760.01-760.11 and

509.092, Florida Statutes (FCRA).

3. Respondent currently employs over 15 people. It

provides services to elderly clients in the Center. The main

purpose of the Center is to provide a structured day for the

clients in a calm, soft-spoken and friendly environment.

4. At all times relevant here, Sandy Holtry was the

Director of the Center. Ms. Holtry was Petitioner's supervisor.

5. Patricia Bryan is a volunteer at the Center. The

record does not establish Ms. Bryan's exact age, but it appears

that she is somewhat younger than Petitioner.

6. During Petitioner's 2008 birthday party at the Center,

Ms. Bryan asked Petitioner how old she was. After Petitioner

revealed her age, Ms. Bryan responded that she wished she looked

as good as Petitioner did.

7. In another incident, Ms. Bryan asked Petitioner if “she

felt the same today as the day before.” This question was in

reference to Petitioner’s birthday the day before.

8. On another occasion, Ms. Bryan told Petitioner that

when she retires, she could work for a florist shop. Ms. Bryan

made this comment because Petitioner was really good at creating

floral arrangements.

9. Judith Tatum is a 58-year-old nurse who has worked for

the Center for five years. On one occasion, Ms. Tatum remarked

that she could not have worked at the Center for as long as the

Petitioner did. On other occasions, Ms. Tatum asked the

Petitioner if she was planning to work until she turned 65 years

of age.

10. Petitioner does not contend that her supervisor or

anyone other than Ms. Bryan and Ms. Tatum has made any age-

related comments to her while she was employed by Respondent.

Petitioner's claim that Respondent always hired younger people

is not supported by specific evidence relating to the

individuals hired and their date of hire.

11. Respondent has many employees who are older than

Petitioner. Respondent has an 88-year-old employee and several

employees who are in their seventies.

12. Petitioner was involved in an altercation with Tameka

Mullins, a 33-year-old employee at the Center on January 28,

2009. During this altercation, Petitioner and Ms. Mullins were

raising their voices during the Center's “quiet time.” The

altercation was loud enough to be heard through the closed door

of a nearby kitchen by another employee.

13. “Quiet Time,” usually takes place after lunch. It is

a state-required rest period that lasts for about 35 to 45

minutes. During "quiet time," the clients rest with the lights

turned off.

14. Ms. Tatum witnessed the loud altercation between

Petitioner and Ms. Mullins. She saw Petitioner and Ms. Mullins

office. The office was located off an open hallway between the

activity room and the kitchen.

15. Ms. Holtry was in the nearby kitchen when she heard

the loud commotion between Petitioner and Ms. Mullins.

Ms. Holtry attempted to calm both parties down, to no avail, and

then tried to get them into her office to discuss the incident.

16. After the incident, Ms. Holtry spoke to Ms. Rosa

Sakalarois, Respondent's Vice President of Human Resources.

Petitioner and Ms. Mullins were then sent home.

17. Several of the clients after the altercation were

upset, pacing, and appeared disturbed.

18. Ms. Holtry and Ms. Sakalarois conducted an

investigation. They interviewed every staff person working on

the day of the incident, including Petitioner and Ms. Mullins.

19. After the investigation, John Clark, Respondent's

President, Ms. Sakalarois, and Ms. Holtry met and reviewed

Petitioner’s and Ms. Mullins’ past performance evaluations and

prior disciplinary actions.

20. According to past evaluations, Petitioner received

numerous warnings from different project directors about

Petitioner's need to control her emotions when dealing with co-

workers and clients. Additionally, Respondent suspended

Petitioner on two prior occasions. Her first suspension was for

using loud and harsh tones with a former employee. Her second

suspension was for using loud and harsh tones towards two

clients. Respondent required Petitioner to attend anger-

management classes after the second suspension.

21. The Center requires that staff at all times behave in

a calm and professional manner due to the purpose and nature of

the program. Many of its daily clients have Alzheimer’s

disease. Therefore, any variation of the schedule is disruptive

to the clients. Because the clients are emotionally frail,

employees are encouraged to provide a calm, soft-spoken, and

friendly environment.

22. The Center has an annual Alzheimer training on the

different behaviors of Alzheimer patients and how to care for

them. The Center also provides on-going in-service training on

how to talk to the clients.

23. On February 2, 2009, Respondent decided to terminate

the employment of Petitioner and Ms. Mullins.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

Statutes.

25. It is unlawful for an employer to discriminate against

an individual based on the individual’s age. See

§ 760.10(1)(a), Fla. Stat. (2009).

26. The Florida Civil Rights Act (FCRA), § 760.01 -

§ 760.11, Fla. Stat., as amended, was patterned after Title VII

of the Civil Rights Act of 1964, 42 U.S.C Section 2000e et seq.

Federal case law interpreting Title VII is applicable to cases

arising under the FCRA. See Valenzuela v. Globeground North

America, LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009).

27. Petitioner has the burden of proving by a

preponderance of the evidence that Respondent discriminated

against her. See Valenzuela , 18 So. 3d at 22.

28. Petitioner can establish a case of discrimination

alleging disparate treatment through direct, statistical, or

circumstantial evidence. See Valenzuela , 18 So. 3d at 22.

29. Petitioner did not present any statistical evidence of

age discrimination. She also failed to present direct evidence

of intentional age discrimination under the FCRA.

30. Direct evidence of discrimination requires the

existence of discriminatory intent behind an employment decision

that can be established without any inference or presumption.

See Akouri v. State of Florida Department of Transportation , 408

F.3d 1338, 1347 (11th Cir. 2005). “An example of direct

evidence would be a management memorandum saying, Fire

[defendant]- he is too old.” See Damon v. Fleming Supermarkets

of Florida, Inc. , 196 F.3d 1354, 1358-9 (11th Cir. 1999).

31. Petitioner has not shown that the decision to

terminate her employment was due to her age and no other

motivating factors. Evidence that only suggests a

discriminatory motive, or that is subject to interpretation,

does not constitute direct evidence of discrimination. Id.

Here, Petitioner only offered evidence of conversations with

several employees with some reference to her age. However, none

of these conversations had any direct correlation to her

termination of employment.

32. In the absence of direct evidence of intentional

discrimination, an employee in a discrimination case has the

initial burden of proving a prima facie case of discrimination.

See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct.

1817, 36 L. Ed. 2d 668 (1973). If the employee proves a prima

facie case, the burden shifts to the employer to proffer a

legitimate non-discriminatory reason for the action it took.

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

248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981). The employer’s

burden is one of production, not persuasion, as it always

remains the employee’s burden to persuade the fact-finder that

the proffered reason is a pretext and that the employer is

guilty of intentional discrimination. See Burdine , 450 U.S. at

252-256.

33. In order to prove a prima facie case of age

discrimination, Petitioner must show the following: (a) she is a

member of a protected group; (b) she was qualified for the job;

(c) she was subjected to an adverse employment action; and

(d) Respondent treated similarly situated employees of a

different age more favorably. See Turlington v. Atlanta Gas

Light Company , 135 F.3d 1428, 1432 (11th Cir. 1998).

34. Petitioner has not met her initial burden as to age

discrimination because she did not show that Respondent treated

similarly-situated employees of a different age more favorably.

To constitute a similarly-situated employee, the “quantity and

quality of the comparator’s misconduct [must] be nearly

identical to prevent courts from second-guessing employers’

reasonable decisions and confusing apples with oranges.” See

Maniccia v. Brown , 171 F.3d 1364, 1368 (11th Cir. 1999).

35. Similarly-situated employees must have “reported to

the same supervisor as the plaintiff, must have been subject to

the same standards governing performance evaluation and

discipline, and must have engaged in conduct similar to the

plaintiff’s, without such differentiating conduct that would

distinguish their conduct or the appropriate discipline for it.”

See Valenzuela , 18 So. 3d at 23, citing Gaston v. Home Depot

USA, Inc. , 129 F. Supp. 2d 1355, 1368 (S.D. Fla. 2001).

36. In this case, Petitioner and Ms. Mullins were involved

in a verbal altercation. Even though Ms. Mullins was many years

younger than Petitioner, Respondent terminated both of them. As

a result, Petitioner has not proven her prima facie case of

unlawful discharge due to age discrimination.

37. To the extent that Petitioner proved a prima facie

case of age discrimination, Respondent had a legitimate non-

discriminatory reason for discharging Petitioner from

employment. Petitioner’s verbal altercation with Ms. Mullins

constituted inappropriate behavior.

38. Petitioner and Ms. Mullins were discharged at the same

time for the same incident. Moreover, prior to the event

leading to her termination, Petitioner was disciplined on

several occasions for her anger-management issues and warned

about her behavior in the work place. Petitioner violated those

standards again on January 28, 2009. Therefore, Respondent’s

decision to discharge her from employment does not constitute

discrimination.

39. Petitioner also alleges that Respondent provided a

hostile working environment. To prove a case of hostile work

environment, Petitioner must establish: (1) that she belongs to

a protected group; (2) that she has been subject to unwelcome

harassment; (3) that the harassment was based on her age;

(4) that the harassment was sufficiently severe or pervasive to

alter the terms and conditions of employment and create a

discriminatory and abusive work environment; and (5) that the

employer is responsible for such environment under either theory

of vicarious or direct liability. See Miller v. Kenworth of

Dothan, Inc. , 277 F.3d 1269, 1275 (11th Cir. 2002).

40. Petitioner testified that the harassment was committed

by a volunteer and a nurse at the Center. The Petitioner has

not shown that the alleged conduct, if true, was so severe or

pervasive as to alter the terms and conditions of employment and

create a discriminatory and abusive environment.

41. To be actionable, alleged behavior must result in both

an environment “that a reasonable person would find hostile or

abusive.” See Miller , 277 F.3d at 1276, citing Harris v.

Forklift Systems, Inc. , 510 U.S. 17, 21-22, 114 S. Ct. 367, 370-

71 (1993).

42. In determining whether harassment objectively alters

an employee’s terms and conditions of employment, the following

factors must be considered: (a) the frequency of the conduct;

(b) the severity of the conduct; (c) whether the conduct is

physically threatening or humiliating, or a mere offensive

utterance; and (d) whether the conduct unreasonably interferes

with the employee’s job performance. See Miller , 277 F.3d at

1276, citing Harris v. Forklift Systems, Inc. , 510 U.S. at 23,

114 S. Ct. at 371.

43. Here, the alleged harassment consisted of isolated

statements which were not objectively offensive but rather

favorable in nature. Isolated statements do not create a

hostile working environment. See Miller , 277 F.3d at 1276-77.

Furthermore, before Petitioner was discharged from her

employment, she made no complaints to her supervisor about any

of the age-related comments. Therefore, Petitioner has not

proven that her employer knew or should have known of these

alleged comments.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is recommended that the Florida Commission on Human

Relations enter a final order dismissing the petition for

relief.

DONE AND ENTERED this 1st day of April, 2010, in

Tallahassee, Leon County, Florida.

S

SUZANNE F. HOOD

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1st day of April, 2010.

COPIES FURNISHED :

Russell F. Van Sickle, Esquire

Beggs & Lane

Post Office Box 12950

Pensacola, Florida 32591-2950

Patricia A. Keaton

3824 North 10th Avenue, Apt. B

Pensacola, Florida 32503

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

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 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.