10-005016 Kenneth D. Cravey vs. Lakeside Behavioral Health Care Status: Closed Recommended Order on Wednesday, December 15, 2010.

Summary: Petitioner did not present a prima facie case of age discrimination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KENNETH D. CRAVEY , )

)

Petitioner , )

)

vs. ) Case No. 10 - 5016

)

LAKESIDE BEHAVIORAL HEALTH )

CARE , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a final hearing was conducted in this

case on September 13, 2010, in Orlando, Florida, before Jeff B.

Clark, a duly - designated Administrative Law Judge of the

Division of A dministrative Hearings .

APPEARANCES

For Petitioner: Kenneth D. Cravey, pro se

1201 Lavanham Court

Apopka, Florida 32712

For Respondent: Deborah L. La Fleur, Esquire

Matthew A. Klein, Esquire

GrayRobinson, P.A.

301 East Pine Street, Suite 1400

Post Office Box 3068

Orlando, Florida 32802 - 3068

STATEMENT OF THE ISSUE

Whether Respondent discriminated against Petitioner on the

basis of his age as stated in the Petition for Relief, in

violation of Subsection 760.10(1), Florida Stat utes (2010).

PRELIMINARY STATEMENT

On November 24, 2009, Petitioner, Kenneth D. Cravey , filed

a n Employment Complaint of Discrimination based on age with the

Florida Commission o n Human Relations ("FCHR") . On June 3,

2010, FCHR advised Petitioner that it had made a "Determination :

No Cause" after an investigation of his complaint. On July 6,

2010, Petitioner filed a Petition for Relief from an Unlawful

Employment Practice with FCHR , alleging that Respondent,

Lakeside Behavioral Health C are, treated him di sparately and

discharged him from employment based on age.

On July 9, 2010, FCHR referred the matter to the Division

of Administrative Hearings for assignment of an Administrative

Law Judge to conduct a hearing on the allegations of employment

discriminati on made by Petitioner. On July 12, 2010, an Initial

Order was sent to both parties requesting mutually convenient

dates for a final hearing. Based on the response of the

parties, a final hearing was scheduled on September 13, 2010.

The hearing was held o n September 13, 2010, as scheduled.

Petitioner testified on his own behalf. Respondent presented

six witnesses: Laura Gailey, Vicki Garner, Dr. Joe Clemens,

Eric Krauskopf, Kelley Aubin and Maureen Nicholas - Chance. Joint

E xhibits 1 through 49 were stip ulated into evidence and marked

accordingly.

The T ranscript of the hearing was filed with the Divi sion

of Administrative Hearings on October 26, 2010. Both parties

timely submitted Proposed Recommended Orders.

All statutory references are to Florida Stat utes (2010),

unless otherwise noted.

FINDINGS OF FACT

Based upon the testimony and evidence received at the

hearing, the following facts were established by clear and

convincing evidence:

1. Respondent is a mental health facility and employs more

than 15 persons.

2. Petitioner was hired as an Assessment Specialist II

on February 18, 2008. At the time he was discharged, he was

51 years old.

3. An Assessment Specialist II performs mental health

assessments of individuals brought to Respondent's facili ty by

law enforcement, hospital transfers, or walk - ins. As part of

his job duties, Petitioner also provided crisis intervention,

diagnostic impression , and referral information as part of an

initial assessment to clients who sought services at

Respondent' s facility.

4. Completion of the assessments are important , because

the doctors review them to assist them in determining the

direction to take for treatment.

5. Respondent observed that PetitionerÓs monthly average

productivity, measured in assessme nts performed per shift, was

well below that of the other a ssessment s pecialists who worked

the same shift as Petitioner and that his assessments were of

poor quality. In response, PetitionerÓs supervisors counseled

him, provided Petitioner with written w arnings , and , eventually ,

placed Petitioner on a 30 - day Performance Improvement Plan.

Petitioner was informed that he had to increase his productivity

to a goal of an average of three assessments per shift.

6. Other a ssessment s pecialists were also discip lined

and/or terminated for low productivity and poor quality of

assessments. These employees were also told to average three

assessments per shift during their performance evaluations , and

while they sometimes did not achieve that goal, their

performance showed significant improvement, as compared with

Petitioner.

7. At the conclusion of the 30 days provided under the

Performance Improvement Plan, PetitionerÓs productivity had only

slightly improved and not to the goal of three assessments per

shift. As a result, Respondent terminated PetitionerÓs

employment on February 17, 2009.

8. The consensus among the witnesses was that the quality

of Petitioner's mental health assessments was poor and his

productivity was unacceptabl y low. This consensus is acc epted

as credible and was the basis for Petitioner's discharge.

9. Petitioner was disciplined for selling personal items

while at work and claims disparate treatment. The basis for his

discharge is poor performance, not selling personal items while

at wo rk.

10. Evidence was presented by both parties regarding the

fact that Petitioner was not promoted within Respondent's

organization; the Petition for Relief is silent regarding this

issue. The evidence on this subject indicated that Petitioner

submitted his application three days after the period for

applications closed.

CONCLUSIONS OF LAW

11. The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of these

proceedings. § 120.57(1), Fla. Stat.

12. Subsection 760.10(1), Florida Statutes, in relevant

part, makes it an unlawful employment practice for Respondent to

discriminate against Petitioner because of Petitioner's age.

Chapter 760, Florida Statutes, entitled the Florida Civil Rights

Act, adopts the legal principles and judicial precedent set

forth under Title VII of the Civil Rights Act of 1964, as

amended . 42 U.S.C. § 2000, et seq. ; King v. Auto, Truck, Indus.

Parts and Supply, Inc. , 21 F. Supp. 2d 1370 (N.D. Fla. 1998);

Carlson v. WPLG/TV - 10, Post - Newsw eek Stations of Florida , 956

F. Supp. 994 (S.D. Fla. 1996).

13. The United States Supreme Court has established an

analytical framework within which courts should examine claims

of discrimination, including claims of age discrimination. In

cases alleging discriminatory treatment, Petitioner has the

initial burden of establishing, by a preponderance of the

evidence, a prima facie case of discrimination. St. Mary's

Honor Center v. Hicks , 509 U.S. 502 (1993); Combs v. Plantation

Patterns , 106 F.3d 1519 (11th Cir. 1997).

14. Petitioner can establish a prima facie case of

discrimination in one of three ways: (1) by producing direct

evidence of discriminatory intent; (2) by circumstantial

evidence under the framework in McDonnell Douglas Corp. v.

Green , 411 U.S . 792, 93 S. Ct. 1817, 36 L.Ed. 668 (1973); or

(3) by establishing statistical proof of a pattern of

discriminatory conduct. Carter v. City of Miami , 870 F.2d 578

(11th Cir. 1989). If Petitioner cannot establish all of the

elements necessary to prove a p rima facie case, Respondent is

entitled to entry of judgment in its favor. Earley v. Champion

International Corp. , 907 F.2d 1077 (11th Cir. 1990).

15. To establish a prima facie case of discrimination,

Petitioner must show: that he is a member of a prote cted class;

that he suffered an adverse employment action; that he received

disparate treatment from other similarly situated individuals in

a non - protected class; and that there is sufficient evidence of

bias to infer a causal connection between his age a nd the

disparate treatment. Andrade v. Morse Operations, Inc. , 946

F. Supp. 979 (M.D. Fla. 1996).

16. Petitioner made a prima facie showing that due to his

age, he is a member of a protected class and that he suffered an

adverse employment action -- he was discharged. However,

Petitioner failed to make a prima facie showing that he received

dissimilar treatment from individuals in a non - protected class

or that there was any bias against Petitioner. Even if evidence

of bias did exist, it was insufficient to infer a causal

connection between Petitioner's age and the alleged disparate

treatment.

17. Petitioner's case is predicated on his allegation that

he was discharged because he failed to perform three mental

health assessments and that others, who similarl y did not

produce three assessments, were not discharged. This was

affirmatively denied by his supervisors , who report that his

mental health assessments were of low quality and that his

productivity was unsatisfactory. Other than his testimony

regarding his belief that he had been discriminated against

based on his age, Petitioner offered no other evidence -- direct,

circumstantial, or statistical -- of the alleged discrimination.

18. If Petitioner had satisfied his burden of establishing

a prima facie case of discrimination, an inference would have

arisen that the adverse employment action was motivated by a

discriminatory intent. Texas Department of Community Affairs v.

Burdine , 450 U.S. 248 (1981); McDonnell Douglas Corp. v. Green ,

411 U.S. 792 (1973). The burden would have then shifted to

Respondent to articulate a legitimate, non - discriminatory reason

for its action. Id.

19. Respondent articulated a legitimate,

non - discriminatory reason for its action. Respondent

demonstrated that Petitioner's perfor mance was inadequate.

20. Once Respondent successfully articulates a non -

discriminatory reason for its action, the burden shifts back to

Petitioner to show that the proffered reason is a pretext for

unlawful discrimination. Petitioner must provide suffic ient

evidence to allow a reasonable fact - finder to conclude that the

proffered reason is not the actual motivation for the adverse

employment action. Standard v. A.B.E.L. Services, Inc. ,

161 F.3d 1318 (11th Cir. 1998).

21. Petitioner may show that Respond ent's articulated

reason is a pretext by showing that the non - discriminatory

reason should not be believed; or by showing that, in light of

all the evidence, discriminatory reasons more likely motivated

the decision than the proffered reason. Id. Petitio ner did

neither. Petitioner failed to present any evidence showing that

Respondent either should not be believed or that discriminatory

reasons, rather than the proffered reason, more likely motivated

the adverse employment action.

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 finding that Respondent, Lakeside Behavioral

Health C are, did not discriminate against Petitioner, Kenneth D.

Crave n, and dismissing the Petition for Relief.

DONE AND ENT ERED this 15th day of December , 2010 , in

Tallahassee, Leon County, Florida.

S

JEFF B. CLARK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Bu ilding

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 Administrative Hearings

this 15th day of December , 2010 .

COPIES FURNISHED :

Larry Kra nert, 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 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

De borah L. La Fleur, Esquire

Matthew A. Klein, Esquire

GrayRobinson, P.A.

301 East Pine Street, Suite 1400

Post Office Box 3068

Orlando, Florida 32802 - 3068

Kenneth D. Cravey

1201 Lavanham Court

Apopka, Florida 32712

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.