10-006215 Deborah Alexander vs. Health Central Hospital Status: Closed Recommended Order on Tuesday, February 1, 2011.

Summary: Petitioner failed to prove employer discriminated against her based on her age.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEBORAH ALEXANDER , )

)

Petitioner , )

)

vs. ) Case No. 10 - 6215

)

HEALTH CENTRAL HOSPITAL , )

)

Respondent . )

)

RECOMMENDED ORDER

Pursuant to notice, a formal administrative hearing was

conducted by video teleconference between Orlando and

Tallahassee, Florida, on December 9, 2010, before Administrative

Law Judge Claude B. Arrington of the Division of Administrative

Hearings (DOAH).

APPEARANCES

For Petitioner: Larry H. Colleton, Esquire

The Colleton Law Firm, P.A.

Post Office Box 677459

Orlando, Florida 32867

For Respondent: Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32 789

STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful employment

practice alleged in the Petition for Relief filed by Petitioner

with the Florida Commission on Human Relations (FCHR) and, if

so, the relief , if any, that should be granted.

PRELIMINARY STATEMENT

At the times relevant to this proceeding, Respondent

employed Petitioner. On or about November 9, 2009, Petitioner

filed a Charge of Discrimination (C harge ) with FCHR, alleging

that Respondent had unlawfully discriminated against he r based

on her age and her disability. FCHR investigated the charge and

on June 16, 2010, issued its "Determination: No Cause."

Thereafter, on July 21, 2010, Petitioner filed a Petition for

Relief from an unlawful employment practice (Petition) . On

Jul y 22, 2010, FCHR transmitted the Petition to DOAH to "conduct

all necessary proceedings required under the law and submit

recommended findings to the [FCHR]."

The Petition alleged that Respondent violated the Florida

Civil Rights Act of 1992, as Amended, b y discriminating against

her based on her disability and based on her age. At the formal

hearing, counsel for Petitioner stipulated that Petitioner does

not meet the criteria of being a disabled person and withdrew

that claim. 1 Consequently, the only allegation that remains

unresolved is whether Respondent discriminated against

Petitioner based on Petitioner's age.

Unless otherwise noted, each reference to a statute is to

Florida Statutes (2010) . There has been no material cha nge to

any statute cited in this Recommended Order from the date the

events occurred to the date of this Recommended Order.

At the final hearing, Petitioner testified on her own

behalf and offered the following pre - marked exhibits, each of

which was admitt ed into evidence: E xhibits 1 - 8 and 10(a),

10(b), and 10(c).

Respondent presented the testimony of Margie Weissgerber

(the director of Respondent's lab) and offered nine

sequentially - numbered exhibits, each of which was admitted into

evidence.

The parties filed a Pre - hearing Stipulation that contained

certain factual stipulations. Those factual stipulations have

been incorporated into the Findings of Fact section of this

Recommended Order.

A Transcript of the proceedings, consisting of one volume,

was file d on January 5, 2011. Respondent filed a Proposed

Recommended Order , which has been duly considered by the

undersigned in the preparation of this Recommended Order.

Petitioner did not file a proposed recommended order .

FINDINGS OF FACT

1. Petitioner is a female, born January 10, 196 1 . At the

time of the formal hearing, Petitioner was 49 years of age. At

all relevant times Petitioner was over the age of 40 years.

2. Respondent is a healthcare facility located in Ocoee,

Florida. Respondent's facilities include a lab that processes

blood - work for inpatients of the facility and for outpatients.

3. At all relevant times, Respondent worked under the

supervision of the lab management team.

4. Petitioner was hired by Respondent as a Lab Assistant I

in October of 2004 , as a pool status employee.

5. Pool status employees are not regular, full - time

employees. A pool status employee is a part - time employee who

works days and hours based on Respondent's needs. Some pool

status employees have regularly assigned shifts that they work

on a weekly basis, while others are called in sporadically as

the need arises.

6. Respondent's pool status employees are paid an hourly

wage based on the position the pool status employee fills. The

hourly wage is consistent with the hourly wage for a full - time

employee for the position. In addition, the hourly wage is

augmented by a "differential" for being a pool employee.

7. In October 2005, Petitioner transferred from pool

status to full - time, but remained a Lab Assistant I.

8. In February 2006, Respondent promoted Petitioner to Lab

Assistant II ; a full - time position.

9. In early 2007, Petitioner applied for an Outpatient

Attendant position. 2 The Outpatient Attendant position is the

same grade position as t he Lab Assistant II position and is not

considered a promotion.

10. Petitioner was not hired for the Outpatient Attendent

position in 2007 .

11. Ms. Weissgerber notified Petitioner that she was not

selected for the Outpatient Attendant because of Petition er's

poor attendance record .

12. In January 2008, at her request, Petitioner was

transferred back to pool status, remaining a Lab Assistant II.

Petitioner made that move because she did not want to work full -

time.

13. While employed by Respondent, Petit ioner took several

medical leaves of absence for a variety of conditions. Those

medical leaves of absence we r e necessary. Mrs. Weissgeber did

not consider those medical leaves of absence to be part of

Petitioner's attendance and tardiness problem in 2007 or in

2009.

1 4 . Throughout her employment with Respondent, Petitioner

experienced issues regarding absenteeism and tardiness that were

not related to her medical problems.

1 5 . On July 28, 2009, Respondent posted in the lab a

notice of an opening for a f ull - time position of Outpatient

Attendant. Interested applicants were instructed to "notify

Margie in writing."

1 6 . On August 17, 2009, Respondent posted in the lab a

notice of an opening for a full - time position of Outpatient

Attendant. Interested appl icants were instructed to "notify

Margie in writing."

1 7 . The "Margie" referenced in these notices was

Ms. Weissgerber.

18 . Petitioner timely advised Ms. Weissgerber of her

interest in each position.

19 . Ms. Weissgerber did not hire Petitioner for either

job. Two other female s who worked for Respondent at the time

the hiring decision was made were selected for the positions.

There was no credible evidence as to the age of either of the

employees who filled these positions.

2 0 . Ms. Weissgerber and Emma Green (Petitioner's direct

supervisor) informed Petitioner in person on September 14, 2009,

that she was not selected for either of the positions because of

her attendance/tardiness problems.

2 1 . Attendance and punctuality are essential to the

funct ioning of an Outpatient Attendant because the position has

constant dealings with the public. The lab cannot afford to be

short - staffed.

2 2 . Petitioner asserts that Ms. Weissgerber discriminated

against her based on her age by not hiring Petitioner for e ither

of these two positions. Petitioner's assertions are not

supported by the record in this proceeding.

2 3 . Lab employees are required to call in and inform his

or her supervisor if the employee is going to take an

unscheduled absence or is going to be tardy to work. The

employee is required to provide a reason for the absence or

tardiness. The person who takes the call completes a form,

which is signed by Ms. Weissgerber and kept in the regular

course of business.

2 4 . Respondent's attendance records for Petitioner

establish that Petitioner's absenteeism and tardiness issues

continued during 2009. Those records for 2009 reflect that

Petitioner was absent from work for non - medical reasons on the

following dates January 23, May 26, June 29, September 2 8, and

October 11. Each of these absences was unscheduled.

2 5 . Respondent's attendance records for Petitioner for

2009 reflect that on April 10 and May 12 Petitioner did not

arrive at work in a timely matter for non - medical reasons.

2 6 . Petitioner eithe r could not recall or she denied most

of the unscheduled absences and tardiness reflected by

Respondent's time records. Petitioner's testimony lacks

credibility and is insufficient to impeach the integrity of the

contemporaneous attendance records introdu ced by Respondent.

27 . On October 12, 2009, Ms. Weissgerber issued a verbal

warning to Petitioner based on four absences during the calendar

year (there had actually been five absences during the calendar

year). The warning was consistent with Respondent 's policies.

28 . Ms. Weissgerber testified, credibly, that she did not

select Petitioner for either position because Petitioner has a

poor attendance record consisting of unscheduled absences and

tardiness. Ms. Weissgerber testified, credibly, that

Petit ioner's age had no bearing on the hiring decision.

CONCLUSIONS OF LAW

29 . The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.569, 120.57(1), and 760.11.

3 0 . The Florida Civil Rights Act of 1992 (FCRA) is codified

in sections 760.01 through 760.11 , Florida Statutes .

3 1 . Pursuant to section 760.10(1)(a), it is unlawful for

an employer to discriminate against an individual by failing or

refusing to hire the individu al based on the individualÓs age.

3 2 . The FCRA was patterned after Title VII of the Civil

Rights Act of 1964, 42 U.S.C Sections 2000 et seq. Federal case

law interpreting Title VII is applicable to cases arising under

the FCRA. See Valenzuela v. GlobeGr ound North America, LLC , 18

So. 3d 17, 21 (Fla. 3d DCA 2009) and Brand v. Florida Power

Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

3 3 . Petitioner bears the burden of proving by a

preponderance of the evidence that Respondent discriminated

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

3 4 . Discriminatory intent may be established through

direct, circumstantial, or stat istical evidence. See United

States Postal Serv. Bd. of Governors v. Aikens , 460 U.S. 711,

714 (1983), Valenzuela , 18 So. 3d at 21.

3 5 . Direct evidence is evidence that, if believed, would

prove the existence of discriminatory intent without resort to

in ference or presumption. See Wilson v. B/E Aero., Inc. , 376

F.3d 1079, 1086 (11th Cir. 2004)("Direct evidence is 'evidence,

that, if believed, proves [the] existence of [a] fact without

inference or presumption.'").

3 6 . Petitioner offered no direct eviden ce that Respondent,

acting through Ms. Weissgerber, discriminated against her based

on her age.

37 . Petitioner offered no statistical evidence that

Respondent, acting through Ms. Weissgerber, discriminated

against her based on her age.

38 . Where a compla inant attempts to prove intentional

discrimination using circumstantial evidence, the shifting

burden framework established by the United States Supreme Court

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

1817, 36 L. Ed .2d 668 (1973) and Te xas Dep't of Cmty Affairs v.

Burdine , 450 U.S. 248, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)

is applied. "In order to establish a prima facie case of

disparate treatment based on gender discrimination, a plaintiff

must prove that: (1) the employee is a m ember of a protected

class; (2) the employee was qualified for her position; (3) the

employee suffered an adverse employment action; and (4)

similarly situated employees outside the employee's protected

class were treated more favorably." Valenzuela , 18 S o. 3d at

21.

39 . Petitioner established prongs 1 and 2 of the analysis.

4 0 . Respondent asserts that Petitioner did not establish

prong 3 because she did not suffer an adverse employment action.

Respondent argues that the Outpatient Attendant position wo uld

have, at best, been a lateral transfer for Petitioner.

Respondent argues that she would have received less compensation

since she would have los t the "differential" that augments the

salary of a pool employee. For the purpose of this analysis,

the un dersigned rejects Respondent's argument and concludes that

prong 3 has been met. This conclusion is reached because

Petitioner had valid reasons for wanting an Outpatient Attendant

position.

4 1 . Petitioner introduced no competent evidence as to the

age o f the two persons who filled the two Outpatient Attendant

positions at issue in this proceeding. Without such proof, it

cannot be concluded that "similarly situated employees outside

the employee's protected class were treated more favorably , "

thereby satisfying prong 4 of the analysis. Petitioner failed

to satisfy prong 4 of the analysis.

4 2 . Petitioner did not present a prima facie case that

Respondent, through Ms. Weissgerber, discriminated against her. 3

4 3 . Petitioner has not met her burden of pr oof in this

proceeding.

4 4 . In its Proposed Recommended Order, Respondent asserts

that it is entitled to an award of costs and reasonable

attorney's fees pursuant to section 120.659 , Florida Statutes,

because Petitioner's Petition for Relief is frivolous and

unsupported by material facts. Section 120.595(1) relates to

proceedings brought pursuant to section 120.57(1) and provides

as follows:

(a) The provisions of this subsection are

supplemental to, and do not abrogate, other

provisions allowing the awar d of fees or

costs in administrative proceedings.

(b) The final order in a proceeding

pursuant to s. 120.57(1) shall award

reasonable costs and a reasonable attorneyÓs

fee to the prevailing party only where the

nonprevailing adverse party has been

determ ined by the administrative law judge

to have participated in the proceeding for

an improper purpose.

(c) In proceedings pursuant to s.

120.57(1), and upon motion, the

administrative law judge shall determine

whether any party participated in the

proceedi ng for an improper purpose as

defined by this subsection. In making such

determination, the administrative law judge

shall consider whether the nonprevailing

adverse party has participated in two or

more other such proceedings involving the

same prevailin g party and the same project

as an adverse party and in which such two or

more proceedings the nonprevailing adverse

party did not establish either the factual

or legal merits of its position, and shall

consider whether the factual or legal

position assert ed in the instant proceeding

would have been cognizable in the previous

proceedings. In such event, it shall be

rebuttably presumed that the nonprevailing

adverse party participated in the pending

proceeding for an improper purpose.

(d) In any proceedin g in which the

administrative law judge determines that a

party participated in the proceeding for an

improper purpose, the recommended order

shall so designate and shall determine the

award of costs and attorneyÓs fees.

(e) For the purpose of this subse ction:

1. ÐImproper purposeÑ means participation

in a proceeding pursuant to s. 120,57(1)

primarily to harass or to cause unnecessary

delay or for frivolous purpose or to

needlessly increase the cost of litigation,

licensing, or securing the approval of a n

activity.

2. ÐCostsÑ has the same meaning as the

costs allowed in civil actions in this state

as provided in chapter 57.

3. ÐNonprevailing adverse partyÑ means a

party that has failed to have substantially

changed the outcome of the proposed or final

agency action which is the subject of a

proceeding. . . . .

4 5 . There is insufficient evidence that Petitioner

participated in this proceedi ng for an improper purpose.

Consequently, Respondent's request for costs and attorney's fees

should be denied.

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 that dismisses Petitioner's claims

of discrimination based on disability and on age. It is further

recommended that the final order deny Respondent's request for

costs and attorney's fees .

DONE AND ENTERED this 1st day of February , 2011 , in

Tallahassee, Leon County, Florida.

S

CLAUDE B. ARRINGTON

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 Administrative Hearings

this 1st day of February , 2011 .

ENDNOTES

1/ On page 108, beginning on Line 15, Petitioner's counsel made

the concession that Petitioner does not meet the definition of a

disabled person. On page 151, the undersigned made the

following statement, beginning at line 6: "I want to make clear

that my order is going to reflect that Petitioner has withdrawn

the disability claim. The only claim that is left is the age

claim." Immediately thereafter Mr. Helsby (on behalf of

Respondent) stated "correct" and Mr. Colleton (on behalf of

Petitioner) stated " that's correct."

2 / This position has been referred to by certain exhibits as

"Out Patient Attendant". The undersigned has used the job title

of "Outpatient Attendant" as used in the position description

(Respondent's exhibit 9).

3 / Even if Petitioner had been able to establish a prima facie

case of discrimination, Respondent proved that it had a

legitimate, non - discriminatory reason for the action it took.

There was no evidence that Respondent's reason was a pretext.

Compare, Vale nzuela , 18 So. 3d at 24 - 25.

COPIES FURNISHED :

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 A palachee Parkway, Suite 100

Tallahassee, Florida 32301

Larry H. Colleton, Esquire

The Colleton Law Firm, P.A.

Post Office Box 677459

Orlando, Florida 32867

Wayne L. Helsby, Esquire

Allen, Norton & Blue, P.A.

1477 West Fairbanks Avenue, Suite 100

Winter Park, Florida 32789

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

wil l issue the Final Order in this case.