11-006467 Sandra Johnson vs. Apalachee Mental Health Status: Closed Recommended Order on Tuesday, April 10, 2012.

Summary: Petitioner failed to prove an unlawful employment practice under Section 760.10, Florida Statutes, for discrimination on the basis of race or sex.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SANDRA JOHNSON , )

)

Petitioner, )

)

vs. ) Case No. 11 - 6467

)

APALACHEE MENTAL HEALTH , )

)

Respondent. )

)

R ECOMMENDED ORDER

On February 16 , 201 2 , a duly - noticed hearing was held in

Tallahassee , Florida, before F. Scott Boyd, an Administrative

Law Judge assigned by the Division of Administrative Hearings.

APPEARANCES

Fo r Petitioner: Sandra Johnson , pro se

284 Centerline Road

Crawfordville , Florida 3 2327

For Respondent: Chris Rush , Esquire

Rush and Associates

1 800 North Congress Avenue , Suite 205

Boynton Beach , Florida 3 3 426

Thomas Groendyke, Es quire

Douberley and Cicero

1000 Sawgrass Corporate Parkway, Suite 590

Sunrise, Florida 33323

STATEMENT OF THE ISSUE

The issue is w hether the Respondent committed an unla wful

employment practice under s ection 760.10, Florid a Statutes

(20 1 1 ) , by discriminating against Petitioner on the basis of

race or sex , and if so, what remedy should be ordered .

PRELIMINARY STATEMENT

On August 15 , 2011 , Petitioner filed a complaint with the

Florida Human Relations Commission (Commission) , alleging that

Apalachee Mental Health (Apalachee Center or Apalachee) had

discriminated against h er based upon h er race and sex. On

December 8 , 2011 , the Commission issued a Notice of

Determination of No Cause, and on December 20 , 2011 , Petitioner

filed a Petition for Relief. On December 21, 2011 , the case was

referred to the Division of A dministrative Hearings for

assignment of an administrative law judge.

The case was noticed for hearing on February 16 , 201 2 , in

Tallahassee , Florida . Petitioner testi fied and offered two

exhibits . PetitionerÓs Exhibit 1 , a composite of rebuttal

statement s prepared by Petitioner , had not been provided to

Respondent as directed by the Order of Pre - hearing Instructions

and was not admitted , but Petitioner was permitted t o testify to

the facts referenced within the statements . PetitionerÓs

Exhibit 2 was admitted without objection. Respondent presented

the testimony of s even witnesses and offered eleven exhibits.

Respondent ' s Exhibits A through G, K through M, and Q were

admitted, with the caveat that Exhibit D, a written statement of

Mr. Alphonzo Robinson, contained hearsay that could not alone

support a finding of fact.

The one - volume T ranscript of the proceedings was filed with

the Division of Administrative Hearings on March 15 , 201 2 . Bo th

parties timely submitted Proposed Recommended O rders , which were

considered .

FINDINGS OF FACT

1. Apalachee Center is a not - for - profit health center

provid ing mental health and substance abuse services in the Big

Bend region of North Florida , which employs over 15 people . One

of its facilities is a 16 - bed mental health residential facility

in Tallahassee, Florida, primarily housing men who suffer from

severe mental illness .

2 . Ms. Sandra Johnson , an African Î Am erican woman and

Petitioner in this case, has been a Licensed Practical Nurse

(LPN) since 1984. She began working for Respondent in 20 09 as

the only LPN on duty on ÐB Shift DaysÑ from 7:00 a.m. to 7:00

p.m. at the Forensic Residential Program . Another LP N, Ana

Degg, was a white woman who worked on the ÐAÑ shift, and was the

lead forensic nurse and PetitionerÓs acting supervisor , though

she was not actually present during the shift Petitioner work ed .

3 . Most of the residents in the facility in which

Pet itioner worked ha ve been found incompetent by the criminal

justice system and ha ve been sent to the program by court order.

Petitioner maintain ed their medications, monitor ed their health,

and help ed to ensure that the y did not leave the facility.

4 . At the time she was hired, Petitioner was made aware of

Apalachee CenterÓs policies prohibiting discrimination and had

been advised to immediately report any suspected discrimination

to the Human Resources Department.

5 . Ms. Candy Landry, the Human R esources Officer at

Apalachee Center, is proud of ApalacheeÓs diversity record.

Apalachee employs more African - Americans than whites.

6 . Ms. Degg had some conflicts with Petitioner immediately

after they began working together , but later came to the

conc lusion that it was just a reflection of PetitionerÓs

personality. Ms. Degg said that she still continued to receive

some staff complaints, mostly about PetitionerÓs demeanor. She

testified that Petitioner Ð came off as gruff. Ñ Ms. Degg was

very credible.

7 . Ms. Degg consulted Ms. Jane Magnan, Registered Nurse

(RN) who was the Director of Nursing , and Ms. Jeanne Pope , the

Director of Residential Services , as to the best way to handle

the situation. Ms. Magnan and Ms. Pope each testified that they

advised Ms. Degg to start with basic lines of communication and

mentoring on a one - to - one level to see if the problem could be

handled before anything went to the written stage.

8. Ms. Degg provided some handouts on interpersonal

relations and Ð soft skills Ñ to Petitioner and her unit and tried

to coach Petitioner on how to be a bit more professional in her

interactions. Ms. Degg told Petitioner that staff w as saying

that Petitioner was rude and she asked her to talk to people a

little differently. She said Pe titioner responded by saying

that that was Ð just the way she was. Ñ Petitioner Ó s conduct did

not change and complaints continued.

9. Ms. Magnan , who had hired Petitioner, believed that

Ms. Degg found it difficult to discipline Petitioner.

Ms. Magnan als o believed there was some resistance from

Petitioner in acknowledging Ms. Degg , a fellow LPN, as

PetitionerÓs supervisor.

10 . Petitioner had no Ðwrite Î upsÑ from the time of her

employment at Apalachee in August or September of 2009 until

January of 2011 .

11 . On January 21, 2011, Petitioner was presented a

m emorandum dated January 7, 2011 , to document a Written

Supervisory Session on two incidents . First, t he memorandum

stated that Petitioner had been counseled for fail ure to give a

report to the oncomi ng nurse who had arrived late for her shift.

Second, it stated that Petitioner had been counseled for being

rude and unprofessional in a telephone conversation with the

Dietary Supervisor. The m emorandum was signed by Petitioner and

by Ms. Degg .

12 . Ms . Degg testified that in response Petitioner had

denied that she had failed to give a report to the oncoming

nurse, but that the other staff people had corroborated what the

oncoming shift nurse had told her , so she believed it had

happened .

13 . At heari ng, Petitioner continued to deny that she had

failed to give a report to the oncoming nurse and denied that

she had been rude or unprofessional in her conversation with the

Dietary Supervisor.

14 . In the months following the January Ðwrite - up , Ñ

Ms. Degg d id not notice any change in PetitionerÓs demeanor and

continued to receive complaints. She noted that she did not

personally consider PetitionerÓs behavior to be rude, but others

did, and she could understand why .

15 . On May 18 , 2011, Petitioner was pres ented a m emorandum

dated May 10 , 2011 , to document a nother Written Supervisory

Session. The m emorandum indicated that Petitioner had been

unprofessional in communications to a Mental H ealth Assistant

(MHA) whom Petitioner supervised . It stated that Petit ioner had

used phrases such as Ðshut upÑ and Ðget out of my faceÑ to the

MHA and that Petitioner had previously been counseled regarding

this issue. The Memorandum was signed by Petitioner and by

Ms. M agnan and Ms. Pope . Ms. Mag n an and Ms. Pope offered

P etitioner training and assistance. On the memorandum,

Petitioner wrote that she did not agree with the statement and

that she was willing to learn.

16 . On May 27, 2011 , PetitionerÓs Employee Performance

Evaluation for the period April 23, 2010 , through M ay 15, 2011,

was presented to Petitioner. It indicated ÐBelow Performance

ExpectationsÑ or ÐNeeds ImprovementÑ in several areas, including

supervision of MHAs, training of staff, unit management,

acceptance of resp onsibility, and attitude. Hand - written n otes

by Ms. Magnan and Ms. Dianne VanZorge , the RN supervising the

forensic unit, commented on difficulties in communicating with

staff, compromised staff morale, and lack of leadership . The

report noted that various employees had brought PetitionerÓs

att itude to the attention of the Program Director and Director

of Nursing. The evaluation was signed by Petitioner,

Ms. Magnan, and Melany Kearley, the Chief Operations Officer.

17 . In conjunction with this unfavorable Employee

Performance Evaluation, and in accordance with Apalachee policy,

Petitioner was placed on a Corrective Action Plan, a 60 - day

period of Conditional Probationary Status. The memorandum

advising Petitioner of this action explained that Petitioner

should immediately take action to maint ain a friendly and

productive work atmosphere, demonstrate respect and courtesy

towards clients and co - workers, and demonstrate initiatives to

improve PetitionerÓs job and the program. The memorandum

advised that any further non - compliance could result in

disciplinary action or termination of employment.

18 . PetitionerÓs supervisor was changed to Ms. V anZorge .

Petitioner knew Ms. VanZorge because they had worked together

many years earlier. Petitioner was advised in the Corrective

Action Plan that Ms. Va nZorge would meet with her on a weekly

basis to provide any needed assistance.

19 . At the time Petitioner was placed on probation,

Ms. Magnan testified that Petitioner became angry. Petitioner

asked if they wanted her to quit. Ms. Magnan encouraged

Peti tioner not to quit, telling her that that Ðwe are going to

work this out.Ñ Ms. Magnan and Ms. VanZorge testified that they

made sure that Petitioner acknowledged that resources and

coaching were available to help her.

20. Petitioner testified that leader ship, nursing

management, and supervisory resources were not subsequently

provided to her as promised.

21 . On June 29, 2011, M r. Alphonzo Robinson , an

African - American MHA who worked under PetitionerÓs

supervision, submitted complaints about Petitioner to

Ms. VanZorge and Ms. Pope. Ms. VanZorge and Ms. Pope then

met with Petitioner regarding these complaints.

22 . A memorandum documenting th e meeting with Petitioner ,

prepared the same day, states that an MHA reported that

Petitioner had eaten a resident Ós lunch. The MHA alleged that

the resident had gone out on a morning community pass, asking

staff to save his lunch for him until he returned. The

memorandum states that w hen the resident returned, the MHA went

to get his lunch for him , only to find Pet itioner eating the

last of the residentÓs food in the staff kitchen. The MHA

indicated that Petitioner denied eating the residentÓs lunch,

saying that it had been thrown away , and directed the MHA to

give the resident another patientÓs meal instead. O nly an empty

tray without food was found in the garbage . The MHA noted that

another patientÓs lunch could not be substituted because the

first resident was diabetic and had special dietary needs.

23. The memorandum also indicates that several other

compla ints were made against Petitioner by the MHA and discussed

with her at the meeting. It was alleged that the Petitioner was

continually rude to staff, asked residents to run errands for

her, left the commode dirty with urine and feces, and used her

hands t o get ice from the ice machine. The memorandum noted

that at the meeting, after an initial denial , Petitioner finally

had admitted that she had eaten the residentÓs lunch. It also

noted that Petitioner had admitted that Ða while backÑ she had

asked resid ents to get C okes for her, but that now she drank

water. The memorandum concluded by noting that the expectations

on PetitionerÓs Corrective Action Plan had been reviewed, and

that it was further discussed that Petitioner was not to eat any

resident meals or ask them to perform errands. Petitioner had

been instructed to buy a meal ticket or bring her own, clean up

after herself, and adhere to infection control policy and

universal precautions.

24 . At hearing, Ms. VanZorge testified that during the

mee ting Petitioner admitted having eaten the residentÓs lunch,

but stated she had not done that for a long while prior to that.

Ms. VanZorge stated that Petitioner also admitted she had gotten

ice with her hands once.

25 . Ms. Pope testified that Petitioner had initially

denied eating the residentÓs food, but then later during the

course of the meeting had admitted that she had eaten it , and

also admitted that she had sent residents to run errands for

her.

26 . MHA Kim Jenkins , a white woman and the second MHA

under PetitionerÓs supervision, testified that she knew nothing

about the allegations that Petitioner ate a residentÓs lunch.

She testified that the bathroom was a unisex bathroom and that

Petitioner did leave it in an unsanitary condition almost eve ry

time she used it , although she had been too embarrassed for

Petitioner to ever discuss that with Petitioner . Ms. Jenkins

said she did try to discuss all of the other recurring issues

with Petitioner. She testified that Petitioner was rude on a

daily b asis. She testified that she had seen Petitioner going

through other staff members Ó mail and opening it . She testified

that Petitioner did get ice with her bare hands on several

occasions. On cross - examination, Ms. Jenkins stated that she

did not docume nt any of these incidents and could not remember

dates on which they occurred. Pressed to provide dates ,

Ms. Jenkins testified that t he only approximate date she could

remember was the time that Petitioner sent a client with a staff

member to get two hot dogs for Petitioner and the client had

ended up pa ying for the hot dogs . Ms. Jenkins said that she

knew this occurred in October because Ms. Jenkins had been

assigned to the unit for only about two weeks when it happened .

Ms. Jenkins testified that she c learly remembered when this

occurred because Ms. Jenkins had been Ðwritten upÑ by Petitioner

shortly afterwards for stopping at a McDonaldÓs drive Î through on

the way back from a client Ós doctorÓs appointment to allow the

client to buy some ice cream . Ms. Jenkins testimony was very

credible.

27 . Petitioner testified at hearing that the allegations

in the June 29, 2011, letter of Alphonzo Robinson were not true.

She testified that she did not eat a patientÓs food, never asked

patients to buy sodas or cand y for her, never left urine and

feces on the toilet seat, and that he never caught her sleeping

on the job. She testified that it was a public bathroom, and

noted that anyone could have left it in that condition. She

also stated that someone should wonde r , Ð [W] hy was Alphonzo

Robinson in ladiesÓ bathroom watching toilet seats? Apparently

he needs to be monitoring the patient and not the lady

bathroom.Ñ Petitioner noted that in all of the allegations

against her , Ð [I] t is their word against mine.Ñ

28 . In a memo dated July 1, 2011, to Ms. Kearley,

Ms. Pope recommended the termination of PetitionerÓs

employment with Apalachee Center. Ms. Magnan,

Ms. VanZorge, and Ms. Pope were unanimous in this

recommendation.

2 9. On or about July 6, 2011, Ms. Pope ac companied

Petitioner to the office of Ms. Candy Landry, the Human

Resources Officer, where Petitioner was informed that her

employment was terminated.

30 . Ms. Landry testified that Petitioner had violated

policies of Apalachee and that the disciplinary process and

termination of employment with respect to Petitioner had

followed standard procedures. Ms. Landry testified that

PetitionerÓs replacement was also African - American.

31 . Petitioner filed a complaint with the Florida Human

Relations Commission (Commission), alleging that Apalachee

C ente r had discriminated against her based upon her race and sex

on August 15, 2011. Her complaint alleged that non - A frican -

American employees had never been disciplined without reason , as

she had been. Her complaint stated an employee had made

unwelcome comments that she was Ðfine,Ñ ÐsexyÑ and Ðbeautiful.Ñ

O n December 20, 2011, Petitioner filed a Petition for Relief ,

which was referred to the Division of Administrative Hearings .

32 . At hearing, Petitioner present ed no evidence regarding

similarly situated white employees.

33 . Petitioner presented no evidence that anyone ever made

comments that she was Ðfine,Ñ ÐsexyÑ or Ðbeautiful.Ñ She did

testif y that she made a note on June 20, 2011, regarding

Alphonzo Robinso n. Her testimony was as follows:

Okay. Ready for Alphonso Robinson. This is

what he states, ÐIÓm looking for a wife.

Bring your friend down here so I can look at

her.Ñ I informed Robinson to sit in day

room with client. Let Kim Jenkins come from

back there with the men. He states, ÐI

donÓt want to deal with the men. When I

worked at Florida Hospital, we punish

inmate.Ñ I told him we donÓt do that here.

Social Service case managers do that. Group

coordinator recommend Î - group coordinators

recomme nd treatment, member, nurse, case

manager, and Ms. Pope. Robinson state, ÐI

used to be a man that Î that Î I used to be

a man that a husband was having problem with

sex, I took care of his wife.Ñ I stopped

talking to him and just restrict everything

to w ork only with Mr. Alphonzo Robinson. I

gave this note to Ana Degg. I asked her

please to address it with Ms. Pope. I never

heard anything else about that. I did my

job as I was told. I went by the

instructions what the facility asked me to

do.

Pet itioner testified that she prepared the note with this

information on June 20, 2011, and gave it to Ms. Degg .

This would have been a bit more than one week prior to

Mr. RobinsonÓs complaints about her performance.

34 . Under cross - examination, Mr. Robin son denied that

he had been sleeping on the job or had made inappropriate

sexual remarks. He denied that he made the allegations

against Petitioner because he was fearful he would be

terminated and was attempting to get Petitioner fired

first:

Q You said Î you made sexual statements,

you told me that you had a new lady, that

her husband had problems with sex, and you

took care of the lady. After that I learned

that, to stay out from around you, because I

am a married lady. I have been married for

37 yea rs. I donÓt endure stuff like that.

So after that, then later on you was in the

room and you made a sexual comment. You Î I

said that is inappropriate, thatÓs not the

kind of behavior Î we do not come to work

for that kind of behavior.

* * *

Q So Alphonzo Î

A Yes.

Q -- after you made that comment, and then

you said those statements, and then after

that I approached you and told you that you

cannot be sleeping at the desk, and then you

decided to make these statements, to g o to

Dianne, KimÓs friend and all that, so they

can get me fired before you get terminated,

is that not true?

A No, thatÓs not.

Q You had never been sleeping at the desk?

A No, I havenÓt.

35 . There is no evidence that Petiti oner mentioned

the note or showed it to anyone at the Florida Commission

on Human R elations in connection with her complaint of

discrimination. She did not provide a copy of the note to

the Division of Administrative Hearings or to Respondent

prior to hea ring. Petitioner testified that she found the

note in her papers when she went through them. Ms. Degg

was no longer PetitionerÓs supervisor on June 20, 2011 .

Ms . Degg testified that she could not recall Petitioner

ever complaining about anyone in the wo rkplace sexually

harassing her. Ms. Degg testified that she had received a

written complaint about MHA Jenkins, but that she had never

received any written complaint about M HA Robinson.

Ms. DeggÓs testimony that she did not receive the note was

credible, and is accepted as true.

36 . Ms. VanZorge testified that Petitioner never

complained to her about any type of sexual harassment by

Mr. Robinson.

37 . Ms. Pope testified that Petitioner never complained to

her about any sexual harassment.

38 . Ms. Cand y Landry, the Human Resources Officer,

testified that Petitioner never complained to her that she

had been subjected to sexual harassment. She further

testified that she was never aware of any allegations of

sexual harassment of Petitioner from any source .

3 9. The facts do not support the conclusion that

Respondent discriminated against Petitioner on the basis of race

or sex .

C ONCLUSIONS OF LAW

40 . The Division of Administrative Hearings has

jurisdiction over the subject matter and the parties in this

case under sections 120.569 and 120.57(1), Florida Statutes.

41 . The Florida Civil Rights Act, sections 760.01 Î 760.11

and 509.092 , Florida Statutes (201 1 ), is patterned after federal

law contained in Title VII of the Civil Rights Acts of 1964, and

Florida courts have determined that federal discrimination law

should be used as guidance when construing its provisions. See

Fla. State Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996);

Fla. Dep ' t of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st

DCA 1991 ).

42 . Section 760.11(1) provides that an aggrieved person

may file a complaint with the C ommission within 365 days of the

alleged violation . Petitioner timely filed her complaint, and

following the Commission ' s initial de termination, timely filed

h er Petition for Relief requesting this hearing.

43 . Respondent is an employer as that term is defined in

section 760.02(7).

44 . Petitioner has the burden of proving by a

preponderance of the evidence that the Respondent comm itted an

unlawful employment practice. Fla. Dep ' t of Transp. v . J.W.C.

Co., Inc. , 396 So. 2d 778 (Fla. 1st DCA 1981).

45 . Section 760.10(1)(a) provides that it is an unlawful

employment practice for an employer to " discriminate against any

individual wit h respect to compensation, terms, conditions, or

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

color, religion, sex, national origin, ag e, handicap, or marital

status."

46 . Petitioner Ós complaint alleged unlawful discrimination

in two conte xts: first, that she was subjected to unwelcomed

comments stating she was Ðfine,Ñ sexy, and ÐbeautifulÑ based

upon her gender ; and second, that she was disciplined and

discharged for no reason, unlike employees who were not African -

American , based upon her race .

Discrimination based upon Gender

47 . No evidence was presented that any employee told

Petitioner that she was Ðfine,Ñ sexy, or Ðbeautiful.Ñ

Petitioner did testif y that Mr. Alphonzo Robinson made

inappropriate remarks of a sexual nature to her. M r. Robinson

allegedly told her, ÐIÓm looking for a wife. Bring your friend

down here so I can look at her.Ñ Mr. Robinson allegedly also

said , ÐI donÓt want to work with the menÑ and ÐI used to be a

man that Î that Î I used to be a man that a husband was having

problem with sex, I took care of his wife.Ñ Petitioner

testified that she provided a note documenting th ese

inappropriate statements to Ms. Degg , ask ing her to provide it

to Ms. Pope, but that nothing was ever done . This might be

considered an all egation that Respondent maintained a hostile

work environment.

48 . A prima facie case of discrimination on the basis of

sex due to a hostile work environment requires proof of the

following elements: ( 1) the employee belonged to a protected

group; (2) the employee was subject to unwelcome harassment;

(3) the harassment was based on a protected characteristic, such

as gender; (4) that the harassment was sufficiently severe or

pervasive to alter the terms or conditions of employment and

create a discrimi natorily abusive working environment; and

(5) the employer was responsible for such environment under a

theory of either vicarious or direct liability. See Miller v.

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

4 9. Even assuming Petitioner proved the first three

elements, she failed to prove elements four and five.

50 . In order to establish element four, that the sexual

harassment affected a condition of employment , the Petitioner

must show that the harassment was so severe or pe rvasive that it

altered the interpersonal climate of the workplace, creating an

objectively abusive and hostile atmosphere. Gupta v. Fla. Bd.

of Regents , 212 F.3d 571, 582 (11th Cir. 2000). The alleged

statements of Mr. Robinson here , although inappropri ate, do not

approach this standard. Simple teasing, offhand comments, and

isolated incidents are not sufficient. The Civil Rights Act is

not a Ð general civility code. Ñ As the Supreme Court noted in

Faragher v. City of Boca Raton , 524 U.S. 775, 788 (1998 ), ÐWe

have made it clear that conduct must be extreme to amount to a

change in the terms and conditions of employment.Ñ

51 . Moreover, with respect to the fifth element, there was

no demonstration that Respondent was made aware of the alleged

inappropriat e statements prior to hearing. Petitioner knew of

her responsibility to report any suspected discrimination to the

Human Resources Department. This was not done, as Petitioner

herself admitted. Petitioner claim ed to have provided a note

regarding Mr. Ro binsonÓs statements to Ms. Degg, al though she

was no longer her supervisor . But Ms. Degg never was given the

note, and further testified that Petitioner never complained to

her about discrimination. Petitioner did not claim to have

informed anyone else, and numerous witnesses testified they were

unaware of any allegations of harassment. In addition,

Petitioner was MHA RobinsonÓs supervisor, not the other way

around . She was i n a position to take needed corrective action

if inappropriate conduct persiste d. Petitioner did not prove

that Respondent was even aware of any inappropriate statements ,

much less responsible for a discriminatory environment under a

theory of either vicarious or direct liability.

52 . In the context of the hearing, it was not eve n clear

that Petitioner was maintaining that the alleged inappropriate

statements of Mr. Robinson constituted an unlawful employment

practice . It seemed rather that Petitioner was suggesting they

demonstrated a motive for Mr. Robinson to fabricate his rep ort

and testimony, in support of her contention s that she had not

violated ApalacheeÓs policies , should not have been terminated ,

and was a victim of racial discrimination .

Discrimination based upon Race

53 . Discrimination can be established through di rect,

circumstantial, or statistical evidence. U. S. Postal Serv. Bd.

of GovÓnrs v. Aikens , 460 U.S. 711, 714 (1983); Schoenfeld v.

Babbitt , 168 F.3d 1257, 1266 (11th Cir. 1999). Direct evidence

of discrimination is evidence that, if believed, establishes the

existence of discriminatory intent behind an employment decision

without inference or presumption. Wilson v. B/E Aero., Inc. ,

376 F.3d 1079, 1086 (11th Cir. 2004) ; Maynard v. Bd. of Regents ,

342 F.3d 1281, 1289 (11th Cir. 2003).

54 . There was no direct evidence of discrimination.

Petitioner sou ght to prove discrimination through circumstantial

evidence of disparate treatment. In McDonnell - Douglas Corp. v.

Green , 411 U.S. 792 (1973), the Supreme Court established the

analysis to be used in cases alleging claims under Title VII

that rely on circu mstantial evidence to establish

discrimination. This analysis was later refined in St. Mary's

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

55 . Under McDonnell - Douglas , Petitioner has the burden of

establishing by a preponderance of the evidence a prima f acie

case of unlawful discrimination. If a prima facie case is

established, Respondent has the burden of articulating some

legitimate, non - discriminatory reason for the action taken

against Petitioner. It is a burden of production, not

persuasion. If a non - discriminatory reason is offered by

Respondent, the burden then shifts back to Petitioner to

demonstrate that the offered reason is merely a pretext for

discrimination. As the Supreme Court stated, before finding

discrimination "[t]he factfinder must believe the plaintiff's

explanation of intentional discrimination." Hicks , 509 U.S. at

519.

56 . In order to establish a prima facie case, Petitioner

must prove: (1) she is a member of a protected class; (2) she

was subject to an adverse employment acti on; (3) her employer

treated similarly situated employees who were not members of the

protected class more favorably; and (4) she was qualified for

the job or job benefit at issue. Gillis v. Ga. DepÓt of Corr. ,

400 F.3d 883, 887 (11th Cir. 2005).

57 . Pe titioner established the first element. She is an

African - American woman and is a member of a protected class.

58 . Petitioner established the second element. She

suffered an adverse employment action, in that she was

disciplined, placed on probation, a nd ultimately terminated from

employment.

5 9. Petitioner failed to establish the third element. In

order to prevail in a disparate treatment claim, Petitioner must

show unfavorable treatment compared with the treatment of

employees who were not members of her protected class and were

otherwise Ðsimilarly - situated in all relevant aspects." Knight

v. Baptist Hosp. of Miami, Inc. , 330 F.3d 1313, 1316. "The

comparator must be nearly identical to the petitioner, to

prevent courts from second - guessing a rea sonable decision by the

employer." Wilson v. B/E Aero., Inc. , 376 F.3d 1079, 1091 (11th

Cir. 2004). In other words, Petitioner must be "matched with

persons having similar job - related characteristics who were

similarly situated" to Petitioner. MacPherson v. Univ. of

Montevello , 922 F.2d 766, 775 (11th Cir . 1991).

60 . Petitioner failed to show that Respondent treated

similarly situated employees who were not members of her

protected class more favorably. Petitioner offered no testimony

or other evidence that any other LPN , of any race, had similar

alle gations against them or was treated more favorably. Mere

conclusory allegations and assertions of discrimination are not

sufficient to meet PetitionerÓs burden. See Earley v. Champion

Int. Corp. , 907 F.2d 1077, 1081 (11th Cir. 1990).

61 . Petitioner also failed to establish the fourth

element , that she was qualified for the job. Although

Petitioner maintained she violated no policies, testimony from

seven witnesses established that she had done so on numerous

occasions. It does appear that relations bet ween MHA Robinson

and Petitioner, his supervisor, were strained. However,

Petitioner was already on probation before Mr. RobinsonÓs letter

of June 29, 2011, based upon PetitionerÓs actions involving the

Dietary Supervisor, the nurse on the following shift , MHA

Jenkins, and other persons.

62 . Petitioner failed to demonstrate a prima facie case of

discrimination on the basis of race .

63 . Even had Petitioner established a prima facie case of

discrimination, Respondent articulated a legitimate , non -

discri minatory reason for its actions toward Petitioner.

Respondent showed a gradually escalating response, consistent

with ApalacheeÓs policy, to correct the deficiencies Respondent

perceived in PetitionerÓs performance. PetitionerÓs supervisor

was changed. Respondent believed that Petitioner had a gruff

demeanor and poor management skills, abused resident

relationships, and failed to adhere to infection control policy

and universal precautions.

64 . Petitioner offered no evidence to suggest that

Respondent Ós documented reason s for counseling her, placing her

on probation, and terminating her employment was simply a

pretext for unlawful discrimination. See Young v. Gen. Food

Corp. , 840 F.2d 825, 830 (11th Cir. 1988)("Once a legitimate,

nondiscriminatory rea son for dismissal is put forth by the

employer, the burden returns to the plaintiff to prove by

significant probative evidence that the proffered reason is a

pretext for discrimination.") .

65 . Even had Petitioner succeeded in proving that MHA

RobinsonÓs allegations were complete fabrications, created

simply to protect his own job - Î which she did not do -- there

remains no evidence to suggest that Respondent's decision s had

anything to do with Petitioner's race or gender.

66 . The Florida Civil Rights A ct is not concerned with

whether an employment decision is fair or reasonable, but only

with whether it was motivated by unlawful animus. See Nix v.

WLCY Radio/Rahall CommcÓns , 738 F.2d 1181, 1187 (11th Cir.

1984).

RECOMMENDATION

Upon consideration of the above findings of fact and

conclusions of law, it is

RECOMMENDED:

That the Florida Commission on Human Relations enter a

final order dismissing Petitioner's complaint.

DONE AND ENTER ED this 10 th day of April , 2012 , in

Tallahassee, Leon County, Florida .

S

F. SCOTT BOYD

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

Fil ed with the Clerk of the

Division of Administrative Hearings

this 10th day of April, 2012.

COPIES FURNISHED:

Sandra Johnson

284 Centerline Road

Crawfordville, Florida 32327

Thomas A. Groendyke, Esquire

Douberley and Cicero

1000 Sawgrass Corporate Parkway, Suite 590

Sunrise, Florida 33323

tgroendyke@dc - atty.com

Chris John Rush, Esquire

Rush and Associates

1880 North Congress Avenue, Suite 205

Boynton Beach, Florida 33426

[e-mail]

Lawrence F. Kranert, Jr., Esquire

Florida Commission on Human Relations

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

[e-mail]

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

violet.crawford@fch r.myflorida.com

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 t he

agency that will issue the final order in this case.