11-002452 Stephanie Pearce vs. Osceola Regional Medical Center Status: Closed Recommended Order on Tuesday, May 15, 2012.

Summary: Petitioner failed to prove employment discrimination, either by retaliation or based on a handicap.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

STEPHANIE PEARCE , )

)

Petitioner , )

)

vs. ) Case No. 11 - 2452

)

OSCEOLA REGIONAL MEDICAL )

CENTER , )

)

Respondent . )

)

RECOMMENDED ORDER

A final administrative hearing was held in this case on

March 15, 2012, in Orlando, Florida, before J. Lawrence Johnston,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Jerry Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks Street

Orlando, Florida 32803

For Respondent: Thomas M. Findley, Esquire

Messer, Caparello and Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue in this case is whether Respondent violated

section 760. 10(7), Florida Statutes (2011), by discriminating

against Petitioner, who is white, because Petitioner opposed

Respondent ' s discrimination against other employees because of

race and color, in violation of section 760.10(1)(a), and by

discriminating agains t Petitioner because of a handicap in

viol ation of section 760.10(1)(a).

PRELIMINARY STATEMENT

Petitioner filed with the Florida Commission on Human

Relations (FCHR) a complaint alleging that Respondent

discriminated against Petitioner for opposing discrimination

against minority employees and for having a handicap or

disability (fibromyalgia and " issues " with the discs in her

back). FCHR investigated and determined that there was " no

cause " to believe t hat illegal discrimination had occurred.

Petitioner then filed a Petition for Relief, which FCHR referred

to the Divisi on of Administrative Hearings.

At the hearing, Petitioner testifi ed and had Petitioner ' s

Exhibit 1 admitted in evidence. Respondent cal led four

witnesses: Charlene Roch; Karen Franco; Sara Jane Forsyth; and

Silvia Lollis. Respondent also had Respondent ' s Exhibits 1

through 22, C8 , and S7 admitted in evidence.

Respondent ordered a Transcript , which was filed on April 2,

2012 . Respondent timely filed a P roposed R ecommended O rder,

which has been considered. Petitioner did not file a proposed

recommended order.

FINDING S OF FACT

1. Petitioner is a registered nurse. She was hired by

Respondent in mid - July 2009, participated i n an orientation

program for approximately a month, and began work as a charge

nurse on the night shift of the cardiovascular step - down unit in

late August. The cardiovascular step - down unit primarily cares

for patients who are recuperating from cardiovas c ular surgeries

and procedures.

2. In early September, Petitioner was counseled for two

unscheduled absences and for twice leaving her shif t early on

account of illness.

3 . On November 2 7 , 2009, Petitioner left her shift due to

illness without notifying her supervisor. Respondent began

taking steps to terminate Petitioner ' s employment. Respondent

told Petitioner not to report for her next shift but to attend a

meeting with the director of human resources, the chief nursing

officer, and the nurse directo r. A fter the meeting, Respondent

decided to terminate Petitioner ' s employment.

4 . After the meeting, Petitioner hand - wrote a 12 - page

letter defending her actions on November 2 7 and her performance

on the job in general . Several days later, she hand - wrote

another similar letter, this one 36 pages long. In neither of

these letters, or at any time up until then, did Petitioner claim

that she was being retaliated against for opposing discrimination

against minority employ ees or that she was being discriminated

against because of a handicap or disability. Instead, she

excused her actions on November 2 7 and blamed several other

employees of Respondent for making her actions and job

performance in general look worse than the y actually were.

5 . One of Petitioner ' s m ain target s of blame in these

letters was Karen Franco. Franco is a Filipino registered nurse

who sometimes worked as the charge nurse on her shift.

Petitioner claims that she received Franco ' s agreement to cover

for Petitioner as charge nurse on November 2 7 , in addition to

caring for the patients assigned to Franco on the shift, and did

extensive preparation of a charge report for Franco to update and

deliver at the end of the shift. Petitioner says she told Fra nco

and almost everyone else on the shift that she was leaving early

and placing Franco in charge. Petitioner says she forgot to tell

her supervisor and called Franco from her cell phone in the

parking lot to ask her to notify the supervisor. Petitioner says

Franco agreed to do so.

6 . Franco contradicted practically all of Petitioner ' s

version of events. According to Franco, she refused to be placed

in charge in addition to caring for her patients, did not know

when Petitioner left the building, did n ot know Petitioner was

gone until she received a telephone call after Petitioner already

had left the building, and did not agree to advise the supervisor

for Petitioner.

7 . Another target of Petitioner ' s blame in these letters

was Dena Vegter, the nurse manager for Petitioner ' s night shift.

In the first letter , Petitioner ' s main complaint was that Vegter

reacted with hostility when Petitioner made suggestions to

improve the operation of the night shift unit. The letter said

nothing about Vegter su pposedly discriminating against minority

nurses, about Petitioner opposing this practice, or about Vegter

or anyone else retaliating against Petitioner for her opposition.

8 . In the second letter, Petitioner modified her complaint

against Vegter , alleging that Vegter became hostile when

Petitioner refused to cooperate with a plan to " crush " and drive

off a nurse named Choisette, whom Vegter perceived to be a poor

nurse and a liability to the unit. She also alleged in the

second letter that Vegter wanted Petitioner to cooperate in

getting rid of a nurse with a hearing impairment and that

Pet itioner herself was fired on account of medical issues.

9 . Before writing these letters, Petitioner never

complained to anyone at the hospital that Vegter was targeting

minority nurses or nurses with disabilities , not even to Sandria

George, Vegter ' s im mediate supervisor , who is black and

participated in firing Petitioner .

10. Besides George, Respondent had numerous minority nurses

and other staff. Petitioner did not prove that Vegter or anyone

else employed by Respondent was discriminating against

m inorities. When Vegter moved from the step - down unit to the

cardiovascular unit, s everal minorities requested to be

transferred with her, including several individuals Petitioner

claims were Vegter ' s " targets. "

11. During and after Petitioner ' s employm ent by Respondent ,

Respondent fired some minority nurses, some minority nurses

resigned, and some non - m inority nurses were hired. However,

during the same time period, some non - minority nurses were fired

or resigned, and some minority nurses were hired.

12 . As for the alleged discrimination against Petitioner

because of her handicap, during the time she worked at the

hospital, Petitioner never claimed to have a handicap or

disability. She alleged in her complaint of discrimination filed

in November 201 0 that she had fibromyalgia and " issues " with the

discs in her back that prevented her from working four days in a

row. However, Petitioner did not prove that she had a medical

condition that limited her in any major life activity. In

addition, at Petiti oner ' s request, she never was scheduled to

work more than three days in a row and usually was scheduled for

no more than two days in a row.

13. Petitioner now claims that she was demoted from charge

nurse because of her inability to work four days in a row and in

retaliation for opposing discrimination against minority nurses .

However, the evidence was that there was no actual charge nurse

position at the time Petitioner worked for Respondent. Rather,

the nurse manager would assign one of the nurses on duty to be in

charge of the shift. The charge nurse would receive a small

additional amount of pay, but it was not a permanent job

classification. In any event, Petitioner clearly was not demoted

since she was assigned to be in charge on her last night on the

job before her termination.

1 4 . After filing her complaint of discrimination,

Petitioner again modified her story to allege for the first time

what she described as an elaborate plot by her and Vegter .

Petitioner said Vegter was an ol d and dear friend of Petitioner

who agreed to have Petitioner hired by Vegter ' s immediate

supervisor, Sandria George, while concealing from George her

close friendship with Petitioner. According to Petitioner, after

George hired her, the plan was for Petitioner to i mprove the

operation of the night shift and share credit with Vegter , to the

benefit of both of them.

1 5 . Vegter persuasively contradicted most of Petitioner ' s

allegations. She testified that she had no close friendship with

Petitioner, but an rather a n old friendship based on prior

employment together . She also testified that there was no plot

to dupe George and the hospital . To the contrary, Vegter

testified that she openly acknowledged to George that she knew

Petitioner and requested that George interview Petitioner and

make an independent decision whether to hire her. She also

denied targeting minority nurses or nurses with handicaps or

disabilities.

16 . Respond ent had legitimate, non - discriminatory reasons

for all employment actions taken with respect to Petitioner.

Petitioner failed to prove that Respondent ' s reasons were

pretexts for actual retaliation against Petitioner for opposing

illegal discrimination or for actual d iscrimination against

Petitioner based on handicap. There was no persuasive evidence

that Respondent discriminates against nurses or other employees

because of race or handicap (disability). Petitioner ' s testimony

regarding such discriminati on is rejected as not credible.

1 7 . In December 2009, Petitioner both threatened Respondent

and begged Respondent for her children ' s sake to allow her to

resign with severance pay instead of being terminated.

Respondent agreed so that Petitioner would be able to collect

unemployment and be reemployed more easily . In return,

Petitioner agreed not to bring an action such as this one.

CONCLUSIONS OF LAW

1 8 . Section 760.10(1)(a), Florida Statutes, makes it

unlawful for an employer to " discriminate against any individual

with respect to compensation, terms, conditions, or privileges

of employment, because of such individual ' s race, color,

religion, sex, national origin, age, handicap, or marital

status. " Section 760.10(7) makes it unlawful for an em ployer to

discriminate against someone who has opposed any such unlawful

practice .

1 9 . Petitioner has the burden to prove the alleged

violations of this statute. Petitioner did not meet her burden

of proof. Respondent had legitimate, non - discriminatory reasons

for all employment actions taken with respect to Petitioner, and

Petitioner did not prove that Respondent ' s reasons were pretexts

for actual statutory violations. The Petition for Relief should

be dismissed. See Fla. Admin. Code R. 60Y - 5.008(5).

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that FCHR enter a final order dismissing

the Petition for Relief.

DONE AND ENTERED this 15th day of May , 2012 , in Tallahassee,

Leon County, Florida.

S

J. LAWRENCE JOHNSTON

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 15th day of May , 2012 .

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

Thomas M. Findley, Esquire

Messer, Caparello and Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

Jerry Girley, Esquire

The Girley Law Firm, P.A.

125 East Marks Street

Orlando, Florida 32803

Lawrence Kranert, Gen eral 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.