12-000538 Cheryl Glovette Cobb vs. Bayside Manor Nursing Home Status: Closed Recommended Order on Friday, July 20, 2012.

Summary: Evidence did not show that Petitioner was terminated based on her race - multiple policy violations led to termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHERYL GLOVETTE COBB, )

)

Petitioner, )

)

vs. ) Case No. 12 - 0538

)

BAYSIDE MANOR NURSING HOME, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause was heard by Diane

Cleavinger, Administrative Law Judge of the Division of

Administrative Hearings, on May 2, 2012 , in Pensacola, Florida .

APPEARANCES

For Petitioner: Cheryl Glovette Cobb, pro se

1101 West Cross Street

Post Office Box 19055

Pensacola, Florida 32503

For Respondent: David P. Steffen, Esquire

Constangy, Brooks, & Smith, LLP

Suite 3350

100 North Tampa Street

Tampa, Florida 33602

STATEMENT OF THE ISSUE

The issue in this proceeding is w hether Respondent

discriminated against Petitioner because of her race in violation

of the Florida Civil Rights Act of 1992.

P RELIMINARY STATEMENT

On August 29, 2011, Petitioner filed an Employment Complaint

of Discrimination with the Florida Commission o n Human Relations

(FCHR). In her Complaint, Petitioner asserted that she was

discriminated against based upon her race, color, and sex, and

that she was retaliated against for engaging in protected

activity. The Complaint was investigated by FCHR. On

Ja nuary 13, 2012, FCHR issued a Notice of Determination of no

cause. The N otice also advised Petitioner of her right to file a

Petition for Relief.

On February 9, 2012, Petiti oner filed a Petition for R elief

with FCHR. In her Petition, Petitioner asserted that she had

been discriminated against based on her race and retaliated

against for complaining about the mistreatment she suffered.

At the hearing, Petitioner testified on her own behalf and

called three witnesses to testify. Petitioner also offered 17

Exhibits into evidence, 13 of which were admitted. Respondent

called five witnesses to testify and offered 11 Exhibits into

evidence.

After the hearing, Petitioner filed a Proposed Recommended

Order in letter form on June 18, 2012. Similarly, Respondent

filed a Proposed Recommended Order on June 18, 2012.

FINDING S OF FACT

1. FL Hud Bayside, LLC , is a limited liability company

d oing business as Bayside Manor (Bayside Manor or Respondent) .

The company is also known as Bayside Manor Nursing Home, the

named Respondent in this action.

2. Respondent is a long - term nursing - care facility. As

such it p rovides nursing care and health - care services to its

residents.

3 . Petitioner , Cheryl Glove tte Cobb, is an African - American

female . As such, she is a member of a protected class under

chapter 760, Florida Statutes.

4 . Sometime in November 2009, Petitioner was employed by

Respondent as a Certified Nursing Assistant (CNA). Upon being

hired, Pet itioner received a copy of R espondentÓs employee

handbook. The handbook contained RespondentÓs policies and

procedures, including its progressive discipline policy.

5 . R espondentÓs discipline policy applies progressive

discipline for conduct that it does not consider to be grounds

for immediate termination. Such offenses are classified as

Category II violations.

6. Category II violations include violations of the

tardiness or absenteeism policy and poor work quality. Catego ry

II violations, also, inclu de failure to take lunch break s at

scheduled time s and failure to return from lunch break s within

the 30 - minute time allotted for such breaks. Additionally,

Category II violations incl ude any use of a cell phone in

residential care areas.

7 . Due to the fact that the quality of nursing and health

care services depends on consistent maintenan ce of routine

schedules, Respondent maintains strict attendance and tardiness

requirements. For example, CNAs are expected to start their

lunch breaks at their sched uled times and return from those

breaks within the 30 minute s allotted for such breaks. A CNAÓs

failure to start the lunch break on time or return within 30

minutes can create problems because it causes delays in resident

care and results in other CNAs no t being able to take their

breaks as scheduled. Similar care problems occur wh en a CNA is

late for work. CNA s from the earlier shift must stay past the

end of their shift until the late employee arrives.

8. For these reasons, Respondent 's tardiness po licy

requires employees to appear at work at their scheduled starting

time and maintain their scheduled break times . There i s no grace

period allowed and r epeated tardiness subjects an employee to

discipline. Similarly, RespondentÓs attendance policy sub jects

employees to discipline for excessive ab sences. Excessive

absences are defined as two absences in 30 days. Further, a

doctorÓs note indicating that an associate was not able to appear

for work does not prevent Respondent from considering an absence

as excessive. None of these policies w ere shown to be a pretext

for discrimination.

9 . Under the discipline policy, a first Category II

violation subjects an employee to a written warning. A second

written warning is optional for a second Category II v iolation.

However, a third Category II violation within a 12 - month period

subjects an employee to suspension pending an investigation

followed by termination, if the investigation confirms the policy

violations.

1 0 . In addition, Respondent maintains a ÐC ounseling

ReportsÑ policy. This policy allows supervisors to informally

counsel employee s when they commit their first policy violation

without having to issue a more formal associate memorandum. It

is intended to be used in situations where an employee has not

previously received any formal disciplinary action .

11. At some unknown time prior to February, Petitioner

overheard Amber Jordan, LPN, who is white, tell someone she was

talking to that she thought blacks were ignorant and slow to

learn. Nurse Jordan denies making such a statement. However,

t he context of the statement was not established and no other

evidence regarding the statement was introduced. Importantly,

this isolated statement , while inappropriate, was not reported to

any supervisor or management personnel , and was not shown to

relate to any later actions taken by the employer at issue in

this proceeding.

12 . On February 2, 3, 4, and 7, 2011, Petitioner was late

for work. Petitioner was late because of issues pertaining to

her child ren boarding the school bus in the morning. However,

such personal issues did not excuse the fact that she failed to

appear for work as scheduled.

13 . On February 19, 2011, Assistant Director of Nursing

(ADON), Regine Malebrenche Smith, who is bl ack, is sued Petitioner

an informal Counseling Report due to excessive tardies in a 30 -

day period. Petitioner was counseled instead of formally

disciplined because RespondentÓs Director of Nursing (DON), Heidi

Duncan, who is white , wanted to work with Petitioner informally

to improve her attendance without issuing written discipline in

order to give Petitioner time to solve the bus issues regarding

her children . There was no evidence that demonstrated

Respon dent's actions were discriminatory.

14 . While Petitione r's tar diness did improve,

unfortunately , she continued to be late and absent from work due

to her children. I n fact, during a 30 - day period in March and

April , Petitioner was absent three times and tardy five t ime s.

Given these violations of Respondent' s absence and tardiness

policy, on April 15, 2011, Petitioner received a first written

warning for these violations . Again, there was no evidence that

Respondent's actions were discriminatory or a pretext to cover

discrimination.

15 . Sometime thereafter, t he evidence showed that

Petitioner failed to reposition a patient who became soaked in

her own urine as a result of not being monitored and repositioned

appropriately .

16 . At hearing, Petitioner denied that the resident was

soaked in her own urine or that Petitioner had any responsibility

for the resident becoming soaked. Petitioner admitted the

r esident was very wet. She claimed the fluid was not urine but

saline solution from an inappropriately inserted I V completed by

Amber Jordan . However, the b etter evidence demonstrated that it

was not possible for the resident to have been soaked when Nurse

Jordan insert ed an IV into the resident as Petitio ner alleged.

There simply is not enough liquid involved in the process of

inserting an IV to have soaked a resident in fluid.

17 . On April 22, 2011, Petitioner received a second written

warning for poor work quality regarding this incident from the

DON. Again there was no evidence that Respondent's actions were

discriminatory or a pretext to cover discri mination.

18 . On April 23, 2011, Lauren Lauletta, RespondentÓs risk

manager, was working as the nurse on duty. While conducting

rounds throughout the facility, Ms. Lauletta observed

PetitionerÓs cell phone in her lap when she was supposed to be

feeding a resident that suffered from dementia. Having the cell

phone out in a patient area violated RespondentÓs cell phone

policy. However, even though Petitioner was subject to formal

discipline pursuant to RespondentÓs progressive discipline

policy, Ms. Laul e tta elected to informally counsel Petitioner.

She reminded Petitioner that she needed to comply with the cell

phone policy and notified Petitioner that future violations could

result in more severe disciplin ary action .

19 . On another oc casion, the ADON verbally counse led

Petitioner regarding her use of a cell phone when she observed

Petitioner with her cell phone out while she was feeding a

resident in the dining room. The date of this incident was not

clear from the evidence. However, it occurred afte r the incident

with Ms. Lauletta.

20 . Additionally, on May 27, 2011, the ADON hosted a Team

Talk that d iscussed multiple issues. The T eam Talk included a

reminder to the employees that they must avoid usin g their cell

phones in resident - care areas.

21 . During May and June 2011, Petitioner failed to leave

for her lunch breaks as scheduled and failed to return from her

lunch breaks in a timely manner. Petitioner admitted she did not

always maintain her lunch schedule and the evidence demonstrated

that s uch failure had occurred more than 20 times in a 30 - day

period .

22 . On June 28, 2011, Resp ondent issued Petitioner her

Ðsecond written warningÑ based upon her fa ilure to comply with

the Respondent' s lunch break policy. However, Respondent elected

not to terminate Petitioner. Petitioner was notified that any

additional policy violations could result in her suspension and

possible termination. Again, there was no evidence that

Respondent's action s were discriminatory o r a pretext for

discrimination.

23 . On July 4, 2011, Nurse Jordan observed Petitioner

sitting in a residentÓs room while using her cell phone. The

residentÓs room was considered a resident - care area . At the time

Ms. Jordan saw Petitioner using her cell phone, the DON was

walking behind Ms. Jordan and also observed Petitioner standing

up and placing the cell phone in her pocket.

24 . On July 5, 2011, Petitioner was suspended pending an

investigation into her use of the cell phone since this was her

four th Category II violation in a 12 - month period.

25 . Prior to making a final decision regarding PetitionerÓs

employment, the DON spoke with the ADON regarding the appropriate

discipline. The two considered PetitionerÓs disciplinary history

and the previou s warnings Petitioner had received as a result of

h er prior violations of the cell - phone - use policy. The DON also

spoke with multiple individuals, including Ms. Lauletta, about

PetitionerÓs prior use of a cell phone in resident - care areas.

At the conclus ion of h er investigation, the DON determined that

Petitioner had violated company policies by usi ng her cell phone

in a resident - care area and that she was subject to termination

because she had progressed through the companyÓs disciplinary

policy. There was no evidence that Respondent's actions were

discriminatory or a pretext for discrimination.

26 . Prior to her termination, Petitioner appeared at the

facility to speak with Mary Reid, RespondentÓs administrator.

During the meeting, Petitioner a sked to keep her job. At no

point during the meeting did Petitioner notify Ms. Reid that she

thought her discipline was discriminatory, report that she was

being discriminated against because of her race, or assert that

she was being retaliated against be cause of her race. Similarly,

prior to her ter mination, Petitioner never notified a ny

supervisor or manager that Nurse Jordan made any allegedly

discr iminatory statements or that Nurse Jordan discriminated

against her in any way. Moreover, there was no e vidence that the

one statement alleged to have been made by Nurse Jordan related

in any way to Petitioner's disciplinary issues. Instead,

Petitioner simply claimed that her discipline was unfair.

27 . Likewise, Petitione r never complained to the DON, AD ON

or any other management personnel about being treated differently

than other similarly situated employees because of her race.

Indeed, Petitioner failed to identify any other CNAs who were not

terminated after progressing through RespondentÓs progressi ve

discipline policy. Given these facts, Petitioner has failed to

demonstrate that she was discriminated or retaliated against by

Respondent. Therefore, the Petition For Relief should be

dismissed.

CONCLUSIONS OF LAW

28 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569, 120.57(1), and 760.11(4)(b), Fla. Stat.

(2011).

29 . Section 760.10(1)(a), Florida Statutes, states as

follows:

(1) It is an unlawful employment practice

for an employer: (a) To discharge or to fail

or refuse to hire any individual, or

otherwise to discriminate against any

individual with respect to compensation,

terms, conditions, or privileges of

employment, because of such individualÓs

race, color, religion, sex, national origin,

age, handicap, or marital status.

30 . Additionally, it is unlawful for an employer to

retaliate against any person because that person has opposed any

practice that is an unlawful practice. § 76 0.10(7), Fla. Stat.

(2011).

3 1 . Under c hapter 760 , Petitioner has the burden of proving

by a prep onderance of the evidence that R espondent discriminated

or retaliated against her through an adverse employment action .

See Fla. DepÓt of T ransp. v . J.W.C. , Co. , 396 So. 2d 778 (Fla.

1st DCA 1981).

32 . In order to carry her burden of proof, Petitioner can

establish a case of discrimination or retaliation through direct

or circumstantial evidence. See Holifield v. Reno , 115 F.3d

1555, 1561 - 1562 (11th Cir. 1 997). Direct evidence consist s of

Ðonly the most blatant remarks, whose intent could be nothing

other than to discriminateÑ on the basis of some impermissible

factor. Evidence that only suggests discrimination, or that is

subject to more than one interpr etation, is not direct evidence.

See Carter v. Three Springs Residential Treatment , 132 F.3d 635,

462 (11th Cir. 1998). Direct evidence is evidence that, if

believed, would prove the existence of discriminator y intent

without resort to in ference or presu mption and must in some way

relate to the adverse actions of the employer . Denney v. City of

Albany , 247 F.3d 1172, 1182 (11th Cir. 2001). See Jones v. BE&K

EngÓ g, Inc. , 146 Fed. Appx. 356, 358 - 359 (11th Cir. 2005)(ÐIn

order to constitute direct evidence , the evidence must directly

relate in time and subject to the adverse employment action at

issue.Ñ) ; see also Standard v. A.B.E.L. Serv s . , Inc. , 161 F.3d

1223, 1227 - 28 (11th Cir. 2002)(concluding that the statement

ÐweÓll burn his black a**Ñ was not direct evidence where it was

made two and a half years prior to the employeeÓs termination ).

3 3 . In this case, Petitioner has not shown any direct

e vidence of discriminatory intent. Her claims that Ms. Jordan

made a derogatory remark about African - Americans is not direct

evidence of discrimination as it does not relate to the decision

to terminate PetitionerÓs employment and was unknown to anyone

inv olved in the decision to terminate nor temporally related to

that decision .

3 4 . On the other hand, McDonnnell Douglas Corp. v. Green ,

411 U.S. 792, 802 - 805 (1973), established that an employment

discrimination or retaliation case based on circumstantial

evidence involves the following burden - shifting analysis: (a) the

employee must first establish a prima facie case of

discrimination; (b) the employer may then rebut the prima facie

case by articulating a legitimate, nondiscriminatory reason for

the emplo yment action in question; and (c) the employee then

bears the ultimate burden of persuasion to establish that the

employerÓs proffered reason for this action is merely pretext for

discrimination. See also Brand v. Fla. Power Corp ., 633 So. 2d

504, 509 (Fl a. 1st DCA 1994) ; Fla. DepÓt of Cmty. Aff. v . Bryant ,

586 So. 2d 1205 (Fla. 1st DCA 1991); and Scott v. Fla. DepÓt of

Child. & Fam. Servs. , 19 Fla. L. Weekly Fed. D 268, 2005 U.S.

Dist. LEXIS 19261 (N.D. Fla. 2005).

3 5 . Petitioner must establish a prima f acie case of

discrimination by demonstrating that: (1) she is a member of a

protected class; (2) she was subjected to an adverse employment

action; (3) employees outside of her protected class were treated

more favorably by her employer; and (4) she wa s qu alified for her

job as a CNA . See Rice - Lamar v. City of Ft. Lauderdale , 232 F.3d

842 - 843 (11th Cir. 2000).

3 6 . In this case , Petitioner is able to establish that she

is a member of a protected class and was subject to an adverse

employment action based upon her termination . Additionally,

Petitioner was qualified for her position as a CNA .

3 7 . However, Petitioner did not present an y evidence

establishing that any similarly situated CNA s , outside of her

protected class, received less discipline than she did for

similar work policy violations. Given this lack of evidence ,

Petitioner cannot demonstrate that she received less favorable

treatment than any other CNA.

3 8 . On the other hand , the evidence established that

Petitioner received multiple opportun ities to improve her

performance but failed to meet the companyÓs expectations. Given

these facts, Petitioner has failed to establish a prima facie

case of discrimination and he r discrimination claim should be

dismissed .

39 . However, e ven if Petitioner c ould have established a

prima facie case of discrimination, she cannot prevail. In this

case, Respondent has a legitimate nondiscriminatory reason for

taking the adverse employment action of termination . See

McDonnell Douglas Corp. , 411 U.S. at 802 , and Walker v.

Nationsbank of Fl a . , N.A. , 53 F.3d 1548, 1556 (11th Cir. 1995).

40 . The failure to comply with company policies is a

legitimate business reason to terminate an employee. See

Aldabblan v. Festive Pizza, Ltd. , 380 F. Supp. 2d 1345, 1353

(S.D. Fla. 2005)(generally, a violation of a companyÓs policy or

disregard for a companyÓs directive are legitimate business

reasons for termination); see also Cooper v. Southern Co. , 390

F.3d 695, 740 - 41 (11th Cir. 2004).

4 1 . Petitioner progr essed through RespondentÓs discipline

policy and was eventually terminated after more than three

Category II violation s within a 12 - month period. In fact, upon

receipt of her second " second written warning " on June 28, 2011,

Respondent notified Petitioner that she could be suspended and

would be subject to termination if she committed any additional

poli cy violations. Nonetheless, Petitioner violated the cell

phone policy one week after this warning. There was no evidence

that Respondent's reason for ter minating Petitioner was

pretextual. See Chapman v. AI Transp. , 229 F.3d 1012, 1024 - 1025

(11th Cir. 2000).

4 2 . To prove pretext, Petitioner must present evidence

which will create an issue of fact as to whether the reason

offered by Respondent for its act ion is pretextual and whether

race discrimination was the true reason. See Reeves v. Sanderson

Plumbing Products, Inc. , 530 U.S. 133, 146 - 147 (2000)(quoting St.

MaryÓs Honor Ctr. v. Hicks , 509 U.S. 502, 519 (1993)(stating that

Ð[i]t is not enough . . . to dis - believe the employer; the fact

finder must believe the employeeÓs explanation of intentional

discriminationÑ)(emphasis in original)).

4 3 . To be actionable, the decision maker must have

purposefully taken action against Plaintiff based on membership

i n a protected group. See Silvera v. Orange County Sch. Bd . , 244

F.3d 1253, 1262 (11th Cir. 2001)(stating that Ð[r]acial

discrimination is an intentional wrong. An empty head means no

discrimination.Ñ).

4 4 . Further, Petitioner cannot succeed by simply qu arreling

with the wisdom of the employerÓs decision to terminate her.

Combs v. Plantation Patterns , 106 F.3d 1519, 1538 (11th Cir.

1997) and Blackmon v. Wal - Mart Stores East, L.P. , 358 Fed.Appx.

101 (11th Cir. 2009). A court does not Ðsit as a super - pers onnel

department that reexamines an entityÓs business decisions.Ñ

Elrod v. Sears Roebuck & Co. , 939 F.2d 1466, 1470 (11th Cir.

1991); see also Combs v. Plantation Patterns , 106 F.3d 1519, 1543

(11th Cir. 1997)(stressing that Ðfederal courts do not sit to

second - guess the business judgment of employers.Ñ). The judge

Ðneed only determine that the [respondent] in good faith

believedÑ that Petitioner committed the act for which he was

terminated. Elrod , 939 F.2d at 1470. If R espondent terminated

Petitioner Ðbecause it honestly believed that [Petitioner] had

violated a company policy even if it was mistaken in such belief,

the discharge is not Ðbecause of race.Ñ See id.

45 . As indicated, Petitioner failed to present any evidence

that demonstrated Respondent's reasons for termination were

pretextual . Specifically, she failed to establish by a

preponderance of the evidence that Respondent disciplined her and

ultimately terminated her for any other reason than its good

faith belief that she repeatedl y violated company policies.

Therefore, PetitionerÓs race discrimination claim should be

dismissed .

46 . A similar analysis applies to Petitioner's retaliation

claim. In order to state a prima facie case of retaliation,

Petitioner must show (1) that she engaged in protected activity;

(2) that she suffered an adverse employment action; and (3) that

there was a causal connection between the protected activity and

adverse action. See Gupta v. Fla. Bd. o f Regents , 212 F.3d

571,590 (11th Cir. 2000).

47 . Pet itioner cannot prevail in her retaliation claim

because she is unable to establish that she engaged in any

protected activity. Specifically, Petitioner failed to present

any evidence that she objected to any unlawful employment

practices. § 760.10(7), Fl a. Stat. Instead she merely asserted

that she thought her termination was unfair. As a result,

Petitioner has not presented a prima facie case of retaliation.

48 . In addition, Petitioner cannot establish any

relationship between her alleged protected activity and the

adverse action. To establish this causation, Petitioner must

show that: (1) the decision makers were aware of her protected

activity, and (2) the protected activity and the adverse action

were not wholly unrelated. Gupta , 212 F.3d at 59 0. In the

present case, Petitioner failed to present any evidence

demonstrating that any of the decision makers who disciplined her

had any knowledge of Petitioner engaging in any protected

activity.

49 . PetitionerÓs ongoing policy violations also elimi nate

any causal connection between any potential protected activity

and the adverse action. See Henderson v. FedEx Express ,

442 Fed.Appx. 502, 506 (2011)(ÐIntervening acts of misconduct can

break any causal link between the protected conduct and the

adver se employment action.Ñ)(internal citations omitted); see

also Fleming v. Boeing Co. , F.3d 242 , 248(11th Cir. 1997).

50 . In this case, based upon Petitioner's failure t o

demonstrate that the decision - makers knew about any alleged

protected activity , she ca nnot establish the necessary causal

connection to present a prima facie case of retaliation.

5 1 . Moreover, e ven if Petitioner presented a prima facie

case of retaliation, for the same reasons Respondent established

that it had a legitimate business reason to terminate Petitioner

with regard to her discrimination claim, it can satisfy its

burden with regard to the retaliation claim. Given these facts,

the Petition for Relief should be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter an order dismissing the Petition for Relief.

DONE AND ENTERED this 20 th day of July , 2012 , in

Tallahassee, Leon County, Florida.

S

DIANE CLEAVINGER

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 o f Administrative Hearings

this 20 th day of July , 2012 .

COPIES FURNISHED:

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Cheryl Glovette Cobb

1101 West Cross Street

Post Office Box 19055

Pensacola, Florida 32503

David Patrick Steffen, Esquire

Constangy, Brooks and Smith, LLP

100 North Tampa Street

Tampa, Florida 33601

[e-mail]

Larry Kranert, General Counsel

Florid a 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

exc eptions to this Recommended Order should be filed with the

agency that will issue the Final Order in this case.