12-001523 Eunice Darlene Floyd Trinowski vs. Northeast Florida Health Services Status: Closed Recommended Order on Wednesday, October 10, 2012.

Summary: The basis for Petitioner's termination from employment did not constitute a violation of the Florida Civil Rights Act.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

EUNICE DARLENE FLOYD - TRINOWSKI , )

)

Petitioner , )

)

vs. ) Case No. 1 2 - 1523

)

NORTHEAST FLORIDA HEALTH )

SERVICES , )

)

Respondent . )

)

RECOMMENDED O RDER

Pursuant to notice, a final hearing was held in this case

on September 12 and 13 , 201 2 , by video teleconference at sites

in Tallahassee, Florida and Daytona Beach , Florida, before E.

Gary Early, a designated Administrative Law Judge of the

Division o f Administrative Hearings.

APPEARANCES

For Petitioner: Eunice Darlene Floyd - Trinowski , pro se

1092 Abeline Drive

Deltona, Florida 32725

For Respondent: Benton N. Wood , Esquire

Caryn N. Diamond Shaw, Esquire

Fisher and Philli ps, LLP

200 South Orange Aven ue, Suite 1100

Orlando, Florida 32 8 01

STATEMENT OF THE ISSUE

Whether the Petitioner demonstrated that she was terminated

from employment by Respondent as the result of an unlawful

employment practice based on her race, or as retaliation for

PetitionerÓs opposition to a practice which is an unlawful

employment practice .

PRELIMINARY STATEMENT

This case was initiated through the issuance of a ÐN otice

of D etermination : No C ause Ñ by the Florida Commission on Human

R elations, by which the Commission determined that no reasonable

cause existed to believe that Respondent engaged in an unlawful

employment practice involving Petitioner. Petitioner filed a

Petition for Relief , which was referred to the Division of

Adminis trative Hearings for disposition, and assigned to the

undersigned. The final hearing was scheduled for hearing on

September 12 - 14, 2012 , by video teleconference in Tallahassee,

Florida and Daytona Beach, Florida. T he hearing proceeded as

scheduled.

Dur ing the course of the hearing, Petitioner stated ,

without equivocation, that the basis for the Employment

Complaint of Discrimination regarding her termination from

employment with Respondent was that she had gone outside of the

normal chain of command to complain about patient care issues to

a commissioner of the West Volusia Hospital Authority (WVHA) ,

RespondentÓs funding agency . The undersigned , after having

questioned Petitioner regarding the basis for her complaint,

determined that the stated reason d id not, as a matter of law,

constitute a basis for relief under the Florida Civil Rights

Act, sections 760.01 - 760.10 . The failure to allege that the

employment action was taken on the basis of PetitionerÓs

identity as a member of a protected class, or in retaliation for

PetitionerÓs opposition to an unlawful employment practice ,

constitute s a failure to meet the most basic jurisdictional

element of an unlawful employment practice complaint, and w as

deemed by the undersigned to obviate the necessity of proc eeding

with further evidence of discriminatory acts. Thus, t he hearing

was concluded at that point , and the parties were provided with

the opportunity to file post - hearing submittals .

Prior to the conclusion of the hearing, Petitioner

presented the testi mony of Lisa Billups, Elizabeth Torres,

Sharon Warriner, Kelli Graham, Kathy Wilkes, and Juanita McNeil,

and offered PetitionerÓs Exhibits 1, 2, 4, 5A, 5B, 6, 7, 7A, 13 -

15, 20, 21, 26 , 28, 29, 31, 35, 38 - 40, and 49, each of which was

admitted into evidence . PetitionerÓs Exhibit 30 was offered but

not received in evidence, and PetitionerÓs Exhibits 11 and 19

were marked for identification but not offered into evidence.

A one - volume Transcript consisting of the testimony of

Juanita McNeil and the discussi ons leading to the decision to

terminate the proceeding was filed on September 21 , 2012. The

parties timely filed their Proposed Recommended Orders, which

have been considered in the preparation of this Recommended

Order.

For the reasons set forth herei n, the Florida Commission on

Human Relations should , as a matter of law, enter a Final Order

dismissing this case.

FINDINGS OF FACT

1. Respondent is a provider of health - care services that

receives funding from the West Volusia Hospital Authority (WVHA) .

Respondent operate s health clinics in Pierson , DeLand, and

Deltona, Florida.

2. Petitioner was employed by Respondent as a Certified

Medical Assistant on September 25, 2009. After a period of time

in RespondentÓs Pierson office, Petitioner was transferr ed to

RespondentÓs DeLand office. PetitionerÓs duties included those

as a referral clerk. In that capacity, Petitioner arranged,

scheduled, and coordinated referrals from RespondentÓs medical

providers to outside physicians and laboratories. Petitioner

also performed blood - draws , Pap smears, and related services .

3 . Petitioner was frequently behind in her referrals .

Petitioner sought assistance with her referrals. Taken in the

light most favorable to Petitioner, an employee of Respondent

with some app arent supervisory authority denied her requests, and

advised other employees that they were not to assist Petitioner

in catching up .

4 . In October 2010, Petitioner was assigned to RespondentÓs

newly created Emergency Room D iversion (ERD) program. That

assignment caused a change in PetitionerÓs shift from the 9:00

a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift.

She was returned to her normal day shift in mid - November. The

disruption in her standard shift caused Petitioner to fall

further behind in her referrals. To minimize the problem, nurses

began to make referrals for their doctors when they had the time.

5 . On November 19, 2010, Petitioner called Juanita McNeil,

a n elected commissioner of the WVHA , to discuss what Petitioner

perceiv ed to be sub - standard patient care that, in some cases,

relat ed to referrals that were not being timely completed , and

for which Petitioner was receiving no assistance. Petitioner

asked Ms. McNeil to keep their conversation confidential because

she feared that she would be terminated for going outside of the

chain of command.

6 . Later in the day o n November 19, 2010, Petitioner was

presented with a separation notice by which she was terminated

from employment. The separation notice listed four reas ons for

her termination . The reasons were Ð employee not doing job in a

timely manner , being rude with patients , being rude with other

employees , [ and ] insubordination (calling the WVHA) instead of

talking with appropriate supervisors. Ñ

7 . During the hear ing, Petitioner admitted that Ð100% of

the reason that I was fired is because of me calling the WVHA.Ñ

Upon follow up inquiry, Petitioner reiterated that she was

terminated for insubordination in bypassing her supervisors to

contact a WVHA commissioner , a nd that reason formed the basis for

her complaint that she had been the subject of discrimination or

retaliation .

8 . Petitioner knew of no other employee that ever

communicated directly with a WVHA commissioner, or that ever

escaped disciplinary sanctions for having done so. Thus, there

was no comparator upon which to measure whether Petitioner was

treated differently under like circumstances as a result of her

race.

9 . PetitionerÓs admission of the basis for her termination

is dispositive of this case. Being terminated for

insubordination, in the absence of evidence that persons outside

of her protected class were treated differently, i s not related

to PetitionerÓs race . PetitionerÓs admission demonstrates that

her claim is not founded on an unlawful employment practice based

on her race, or retaliation for PetitionerÓs opposition to a

practice which is an unlawful employment practice .

10 . Based on PetitionerÓs admission, the undersigned

concluded that there was no legal basis upon which relief could

be ordered under the Florida C ivil R ights Act. Thus, the final

hearing was adjourned.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding pursuant to s ections 1 20.569 and 120.57(1), Florida

Statutes (2012 ).

12 . Unless specifically stated otherwise herein, all

references to the Florida Statutes will be to the 2010

codification which was that in effect when the unlawful

employment practice that forms the basis for Petit ionerÓs claim

occurred.

13 . Section 760.11(1) provides that Ð[a]ny person aggrieved

by a violation of ss. 760.01 - 760.10 may file a complaint with the

[FCHR] within 365 days of the alleged violation . . . .Ñ

Petitioner timely filed her complaint.

14 . Section 760.11(7) provides that upon a determination by

the FCHR that there is no probable cause to believe that a

violation of the Florida Civil Rights Act of 1992 has occurred,

Ð[t]he aggrieved person may request an administrative hearing

under ss. 120 .569 and 120.57, but any such request must be made

within 35 days of the date of determination of reasonable cause.

. . .Ñ Following the FCHR determination of no cause, Petitioner

timely filed her Petition for Relief requesting this hearing.

15 . Chapter 760, Part I, is patterned after Title VII of

the Civil Rights Act of 1964, as amended. When Ða Florida

statute is modeled after a federal law on the same subject, the

Florida statute will take on the same constructions as placed on

its federal prototype. Ñ Brand v. Florida Power Corp. , 633 So. 2d

504, 509 (Fla. 1st DCA 1994); see also Valenzuela v. GlobeGround

North America, LLC , 18 So. 3d 17 (Fla. 3rd DCA 2009); Fla. State

Univ. v. Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996); Fla. Dep't

of Cmty. Aff. v. B ryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

16 . Petitioner has the burden of proving by a preponderance

of the evidence that Respondent committed an unlawful employment

practice. See St. Louis v. Fla. Int'l Univ. , 60 So. 3d 455 (Fla.

3rd DCA 2011); Fl a. Dep't of Transp. v. J.W.C. Co., Inc. , 396 So.

2d 778 (Fla. 1st DCA 1981).

17 . With regard to PetitionerÓs claim of discrimination,

s ection 760.10 provides, in pertinent part:

(1) It is an unlawful employment practice

for an employer:

(a) To discha rge 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

individual's race , color, religion, sex,

national origin, age , handicap, or marital

status.

18 . With regard to PetitionerÓs claim of retaliation,

section 760.10(7), provides, in pertinent part:

(7) It is an unlawful employment practice

for an employer . . . to discriminate against

any person because that person has opposed

any practice which is an unlawful employment

practice under this section , . . . (emphasis

added ) .

Thus, the alleged retaliation must be for a reason that is

subject to protection under the Act, i.e. race, color, religion,

sex, national origin , age, handicap, or marital status.

19 . The only basis for PetitionerÓs claim of discrimination

or retaliation is , by her admission, that Respondent terminated

her for insubordination by going outside of the normal chain of

authority and taking her com plaints regarding allegedly poor

patient service and lack of assistance in completing referrals to

a WVHA commissioner.

20 . Petitioner admitted that the basis for her termination

was not the result of her race, but that Ð 100% of the reason that

I was f ired is because of me calling the WVHA .Ñ

21 . RespondentÓs p atients may have been ill served as a

result of the delays in their referrals . Respondent may have

been misguided, or even acting contrary to its policies, by

refusing to allow other employees to assist Petitioner in getting

caught up with her referrals . It may have been unfair and unjust

for Respondent to fire Petitioner for bringing her concerns with

the referrals to a member of the WVHA. 1/ However, none of those

issues, even if true, sugge st that Petitioner was fired due to

her race or that she was the subject of retaliation as a result

of her opposition to an unlawful employment practice as defined

in section 760.10.

22 . An action pursuant to the Florida Civil Rights Act may

not be pred icated on whether an employment decision is fair or

reasonable, but only on whether it was motivated by unlawful

discriminatory intent. As set forth by the Eleventh Circuit

Court of Appeals, Ð[t]he employer may fire an employee for a good

reason, a bad re ason, a reason based on erroneous facts, or for

no reason at all, as long as its action is not for a

discriminatory reason.Ñ Nix v. WLCY Radio/Rahall CommcÓns , 738

F.2d 1181, 1187 (11th Cir. 1984). In a proceeding under the

Civil Rights Act, Ð[w]e are no t in the business of adjudging

whether employment decisions are prudent or fair. Instead, our

sole concern is whether unlawful discriminatory animus motivates

a challenged employment decision.Ñ Damon v. Fleming Supermarkets

of Fla., Inc. , 196 F.3d 1354, 1361 (11th Cir. 1999) . Moreover,

Ð[t]he employerÓs stated legitimate reason . . . does not have to

be a reason that the judge or jurors would act on or approve.Ñ

DepÓt of Corr. v. Chandler , 582 So. 2d 1183, 1187 (Fla. 1st DCA

1991) .

23. In addition to PetitionerÓs admission regarding the

basis for her claim of discrimination, Petitioner also admitted

that she knew of no person outside of her protected class that

was treated differently in a comparable situation. As

established by the Fifth District Cou rt of Appeal:

Ð . . . it is necessary to consider whether

the employees are involved in or accused of

the same or similar conduct and are

disciplined in different ways.Ñ The employee

must show that she and the employees outside

her protected class are simi larly situated

Ðin all relevant respects.Ñ Thus, Ðthe

quantity and quality of the comparator's

misconduct [must] be nearly identical to

prevent courts from second - guessing

employers' reasonable decisions and confusing

apples with oranges.Ñ

Similarly situ ated employees Ðmust have

reported to the same supervisor as the

plaintiff, must have been subject to the same

standards governing performance evaluation

and discipline, and must have engaged in

conduct similar to the plaintiff's, without

such differentiat ing conduct that would

distinguish their conduct or the appropriate

discipline for it.Ñ If a plaintiff fails to

present sufficient evidence that a non -

protected, similarly situated employee was

treated more favorably by the employer, the

defendant is enti tled to summary judgment.

( c itations omitted) .

Valenzuela v . GlobeGround North America, LLC. , 18 So. 3d at

22 - 23.

24 . Petitioner admitted that she knew of no other employee,

regardless of their race, color, religion, sex, national origin,

age, handica p, or marital status , that acted in a similar manner

to that of Petitioner but escaped discipline. Therefore,

Petitioner Ó s complaint of discrimination must be dismissed.

2 5 . PetitionerÓs admission s are dispositive. Termination

of an employee for viola ting the chain of command to air

complaints and grievances , without some evidence of disparate

treatment for like conduct, is not a basis for relief under the

Florida Civil Rights Act .

2 6 . Based on the foregoing, it is concluded that Petitioner

failed to state a basis for her termination from employment that

falls within the ambit of the Florida Civil Rights Act.

Therefore, the Petition for Relief should be dismissed.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it i s

RECOMMENDED that the Florida Commission on Human Relations

issue a final order dismissing PetitionerÓs Petition for Relief .

DONE AND ENTERED this 10th day of Octo ber , 201 2 , in

Tallahassee, Leon County, Florida.

S

E. GARY EARLY

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 10th day of October , 201 2 .

ENDNOTE

1 / Each of the assertions were disputed, and no finding is made

that patients were not receiving care, that Respondent actually

refused assistance, violated its policies, or disregarded

PetitionerÓs interactions with patients and other employees or

her work performance in its termination decision, or that

consideration of PetitionerÓs interaction with the WVHA was

inappropriate . Rather, as is necessary in a disposition of this

nature , all allegations and assertions expressed b y Petitioner

have been accepted.

COPIES FURNISHED :

Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

[e-mail]

Caryn N. Diamond, Esquire

Fisher and Phillips, LLP

200 South Orange Avenue, Suite 1100

Orlando, Florida 32801

[e-mail]

Eunice Darlene Floyd Trinowski

1092 Abeline Drive

Deltona, Florida 32725

Benton N. Wood, Esquire

Fisher and Phillips, LLP

200 South Orange Avenue, Suite 1100

Orlando, Florida 32801

[e-mail]

Larry Kranert, General Counsel

Florida Commission Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to su bmit written exceptions within

15 days from the date of this Recommended Order of Dismissal .

Any exceptions to this Recommended Order of Dismissal should be

filed with the agency that will issue the Final Order in this

case.