12-001702 Doretha Pearson vs. Mrmc - Munroe Regional Health System, Inc. Status: Closed Recommended Order on Tuesday, December 11, 2012.

Summary: Petitioner did not present a prima facie case of discrimination. Respondent set forth a legitimate, non-discriminatory reason for her termination.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DORETHA PEARSON , )

)

Petitioner, )

)

vs. ) Case No. 1 2 - 1702

)

MRMC - MUNROE REGIONAL )

HEALTH SYSTEMS , INC., )

)

Respondent. )

)

RECOMMENDED ORDER

A he aring was held pursuant to notice, on Octo ber 9 , 20 1 2 ,

in Oca l a , Florida, before the Division of Administrative

Hearings by its designated Administrative Law Judge, Barbara J.

Staros.

APPEARANCES

For Petitioner: Doretha Pearson , p ro s e

3001 Southeast Lakewood Avenue

Number 904

Oca l a, F lorida 3 4471

For Respondent: Kenneth A. Knox , Esquire

Fisher and Phillips, LLP

Suite 800

450 East Las Olas Boulevard

Fort Lauderdale , Florida 3 3301

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Emp loyment Complaint of Discrimination

filed by Petitioner.

PRELIMINARY STATEMENT

On or about J anuary 23 , 20 12 , Petitioner, Doretha Pearson ,

filed a n Employment Complaint of Discrimination with the Florida

Commission on Human Relations (FCHR) , which alleged t hat

Respondent violated s ection 760.10, Florida Statutes, by

discriminating against h er on the basis of race , color,

disability, and retaliation , which result ed in her wrongful

termination .

The allegations were investigated , and on May 10 , 20 12 ,

FCHR iss ued its D etermination : No C ause. A Petition f or Relief

was filed by Petitioner on M ay 1 4 , 201 2 .

FCHR transmitted the case to the Division of Administrative

Hearings on or about May 1 5 , 20 1 2 . A Notice of Hearing was

issued setting the case for formal he aring on Ju ly 17 , 20 1 2 .

Respondent filed a Motion for Continuance of Final Hearing

which, following a telephone hearing on the motion, was granted

for good cause . The hearing was rescheduled for Octo ber 9 ,

201 2, and was heard as scheduled .

At hear ing, Pe titioner testified on her own behalf , and

presented the testimony of Milton Smith and Michael Pearson .

Petitioner did not present any documents into evidence .

Respondent presented the testimony of Melinda Monteith,

Elizabeth DeMatto, and Vicky Nelson . R espondent Ós Exhibits 1

through 7 were admitted into evidence. Official Recognition was

taken of a calendar showing the month of December 2010.

A two - volume Transcript was filed on Nove mber 8 , 201 2 .

Respondent timely filed a Proposed Recommended Order and

Petitioner timely filed a post - hearing submission , which ha ve

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is an African - American fe male who was

employed by Respondent from October 16, 200 0 , until h er

t ermination on January 4 , 20 11 . When she began her employment

with Respondent, she was hired as a Food Service Specialist.

2. Respondent, MRMC - Munroe Regional Health Systems, Inc.

(Munroe or Respondent ) , is an employer within the meaning of the

Florida Civil Rights Act. Munroe is a not - for - profit hospital

located in Ocala, Florida , and comprises numerous departments,

including the Nutritional Services Department . Petitioner

worked for this department the entirety of her employment with

Respondent.

3. On or about October 23, 2000, Petitioner receiv ed a

copy of Munroe's Employee h andbook . The Employee Handbook

includes an Equal Opportunity policy, an anti - harassment policy,

a complaint pro cedure, and an open door policy . Petitioner was

aware from the beginning of her employment that Respondent had

written policies prohibiting unlawful discrimination and that

there were procedures in place to report work - related problems,

in particular unlawful discrimination.

4. Petitioner acknowledged in Oct ober 2000 , that she

received copies of these policies. She also signed an

acknowledg ment that she was an "at - will" employee , meaning that

either the employee or Munroe has the right to terminate the

employment relationship at any time with or without noti ce or

reason . As early as 2000, Petitioner was aware that one way to

report unlawful discrimination was to contact the Human

Resources Department.

5. In early 2004, Petitioner sought a promotion to the

position of Team L eader. Melinda Monteith was one of

Petitioner's immediate supervisors at that time.

6. Ms. Monteith recommended Petitioner for the promotion

to Team Leader. Petitioner was promoted to the position of T eam

Leader in February 2004, and received a pay raise commensurate

with that posi tion.

7. Ms. Monteith continued to be Petitioner's immediate

supervisor until January 4, 2011, when Petitioner was

discharged. Petitioner received pay increases every year from

2004 through 2010.

8. Petitioner's former husband, Michael Pearson, beli eves

that Petitioner's supervisor is racist because he claims she

once called him a "thug" and saw her look at another black male

"like she don't like black folks." 1 / Mr. Pearson has never

worked for Respondent and bases his personal belief that

Petitione r's supervisor is racist on interactions he had with

Petitioner's supervisor(s) at holiday parties.

9. On February 6, 2009, Petitioner was disciplined in the

form of a written Counseling Agreement for conduct which

Respondent considered "workplace bullyin g."

10 . Petitioner, along with other team leaders, was asked

to learn to use a computer system referred to as the C - Board

System, in order to fill in when necessary for employees whose

assigned duties were to use that system to correctly prepare

patient meals.

11. Petitioner was never able to operate the C - Board

system. She was never disciplined by Respondent for her

inability to use the C - Board system.

12. During the time that Petitioner held the position of

Team Leader, some employees complained to Ms. Monteith about the

way Petitioner interacted with them.

13. On December 20, 2010, Stephanie Smith , another Team

Leader, told Ms . Monteith that Petitioner was not speaking to

people and being very "sharp" with them.

14. The next morning, Ms. Mon teith asked to speak with

Petitioner about wh at Ms . Smith had told her about Petitioner's

behavior the previous day. When Petitioner responded curtly,

" I s it business?," Ms. Monteith decided to speak with her later.

15. Later that morning, Ms. Monteith w as approached by Pam

Knight, one of Petitioner's subordinates, who was in tears

regarding Petitioner's behavior and the resulting tense

atmosphere. Ms. Knight was particularly concerned with the way

Petitioner was treating Ms. Smith .

16. Ms. Monteith an d Clinical Nutrition Manager Be t sy

DeMatto met with Ms. Knight and confirmed what Ms. Knight had

told Ms. Monteith earlier regarding Petitioner's behavior: that

Petitioner was not speaking to Ms. Knight or Ms. Smith at all,

and that she was not responding to work - related questions.

17. Ms. Monteith and Ms. DeMatto decided that Petitioner

should be counseled in writing for her unprofessional behavior

toward coworkers.

18 . On December 21, 2010, Petitioner was disciplined,

again in the form of a written Cou nseling Agreement , for

"behaving in an unprofessional manner [which] creates an

environment of tension and discomfort."

19. When presented with the counseling agreement,

Petitioner became very angry , remarked that everything she was

accused of were lies, and refused to sign the counseling

agreement.

20. Later that day, Ms. Monteith was approached by

Ms. Smith who was "very pale" and who advised that Petitioner

spoke with her (Ms. Smith) following the counseling meeting, and

appeared to be angry . Ms. Smi th informed Ms. Monteith that

Petitioner stated that she was "going postal" and that if she

was "going out" she was taking Ms. Monteith with her.

Ms. Monteith believed what Ms. Smith told her, and relayed it to

Ms. DeMatto. Ms. Monteith and Ms. DeMatto d ecided to report

this to Human Resources (HR) Manager Vicky Nelson.

21. Ms. Nelson has been employed by Respondent for 33

years, five of which as HR Manager. In her capacity as HR

Manager, Ms. Nelson has conducted approximately 300

investigations into w orkplace issues, including allegations of

unlawful discrimination, harassment, threatening behavior,

workplace violence, and bullying.

22. These investigations included reviewing applicable

policies and procedures, referring to any prior events of a

simi lar nature, interviewing the complaining employee and the

individual against whom the complaint has been made, and

reviewing the personnel files of the individual making the

complaint and the individual who is accused of inappropriate

behavior. In some ca ses, a decision is made to remove the

accused from the workplace during the pendency of the

investigation.

23 . Ms. Nelson interviewed Ms. Mo nteith and Ms. DeM a tto in

her office. She observed that Ms. M o nteith appeared to be

"vis i bly shaken."

2 4 . On the afternoon of December 21, 2010, Petitioner was

called into the office of Ms. Nelson to discuss the allegations

that Petitioner made this threatening comment regarding

Ms. Monteith.

25 . During the December 21, 2012 , meeting , Petitioner

initially denied mak ing the statement about going postal and

taking Ms . M o nteith with her. She later admitted that she used

the word "postal , " but was just joking and was not serious.

26. At hearing, Petitioner acknowledged that she used the

word "postal," but in the cont ext that they had her in the

office "trying to make me postal" and reiterated that she was

just kidding in using that word. Petitioner believes that she

was being accused of acting "crazy."

27 . While there is some dispute as to the context of

Petitioner 's use of the word "postal," it is not disputed that

she did use the word "postal" in the workplace, and that

employees of Respondent were extremely concerned because of it.

2 8. At the conclusion of the December 21, 2010 , meeting,

M s . Nelson told Petition er not to return to work until after she

(Ms. Nelson) had finished the investigation if this matter.

2 9. Ms. Nelson also asked Petitioner to submit a written

statement setting forth her position as to the events of

December 21, 2010. Petitioner d id not submit a written

statement at that time, but said she would do so later.

30. On December 22, 2010, Ms. Nelson interviewed Ms. Smith

and Ms. Knight, each of whom confirmed what Ms. Montei th

previously told Ms. Nelson. Based on the information avail able

to her, Ms. Nelson determined that Petitioner's employment

should be terminated. Whether or not Petitioner was just joking

when she used the word "postal , " it was taken seriously by her

employer.

31. Ms . Nelson based the termination decision on

Peti tioner's use of the word "postal" and considered it

inflammatory in nature. She based her decision in part on the

comment itself; the credibility of Ms. Smith, Ms. Knight,

Ms. DeMatto, and Ms. Monteith; her personal observations of

Petitioner's behavior a nd demeanor in the December 21, 2010 ,

meeting; and the context in which the comment was made, i.e.,

the information she received regarding Petitioner's interaction

with co - workers on December 20 and 21, and her angry reaction to

being presented with the co unseling agreement on December 20.

32. Ms. Nelson contacted Petitioner on January 3, 2011 ,

and asked to meet with her the following day. On January 4,

2011, Ms. Nelson informed Petitioner of the results of her

investigation and of the decision to te rminate her employment,

effective that day.

33. At the January 4, 2011 , meeting, Ms. Nelson again

asked Petitioner for a written statement. Petitioner did not

give one to her.

34. On January 13, 2012, Petitioner filed a written

request, pursuant to Res pondent's Conflict Management Program,

for peer review of the circumstances surrounding her termination

from Munroe. The Panel Review Request Form lists several

factors for the employee making the request to "check off" as to

the nature of the dispute. P etitioner checked the boxes for

"race" and for "retaliation, but did not check the box for

"disability." At no time during the December 21 meeting with

Ms. Nelson or the time between that meeting and the January 4,

2011 , meeting, did Petitioner advise M s . Nelson that she

believed that she was being discriminated against on the basis

of race, color, or disability.

35. On February 23, 2011, the Peer Review Panel

recommended that Petitioner's termination be upheld and that she

not be eligible for rehire.

C ONCLUSIONS OF LAW

36 . The Division of Administrative Hearings has

jurisdiction over the parties and s ubject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (201 2 ).

37 . Section 760.10(1) and (7) , Florida Statutes (20 11 ) , 2 /

state s that it is an unlawful employment practice for an

employer to discharge or otherwise discriminate against an

individual on the basis of race , color, or handicap, or to

discriminate against a person who has made a charge of an

unlawful employment practice .

38 . FCHR a nd Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of section 760.10. See Valenzuela v. GlobeGround N .

Am . , LLC , 18 So. 3d 17 (Fla. 3d DCA 2009); Brand v. Fl a . Power

Corp. , 633 So. 2d 50 4, 509 (Fla. 1st DCA 1994).

39 . In her Employment C omplaint of D iscrimination,

Petitioner alleged that she was disc riminated against by

Respondent based upon race, color, disability, and retaliation .

40 . Discriminatory intent can be established throug h

direct or circumstantial evidence. Schoenfeld v. Babbitt ,

1 68 F. 3 d 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 interference or presumption. Maynard v. Bd. of Regents ,

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

41 . Petitioner did not produce competent direct ev idence

of racial discrimination. Therefore, P etitioner may attempt to

establish her case through inferent ial and circumstantial proof.

Kline v. Tenn. Valley Auth. , 128 F. 3d 337, 348 (6th Cir. 1997).

Petitioner bears the burden of proof established by the United

States Supreme Court in McDonnell Douglas v. Green , 411 U.S. 792

(1973), and Texas Dep ' t of Cmty . Affairs v. Burdine , 450 U. S.

248 (1981). Under this well - established model of proof, the

complainant bears the initial burden of establishing a prima

facie case of discrimination. When the charging party, i.e. ,

Petitioner, is able to make out a prima fa cie case, the burden

to go forward shifts to the employer to articulate a legitimate,

non - discriminatory explanation for the employment action. See

Dep ' t of Corr . v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)

(court discusses shifting burdens of proof in discrimination

cases). The employer has the burden of production, not

persuasion, and need only persuade the finder of fact that the

decision was non - discriminatory. Id. Alexander v. Fulton

Cnty . , G a. , 207 F.3d 1303 (11th Cir. 2000). The employee mu st

then come forward with specific evidence demonstrating that the

reasons given by the employer are a pretext for discrimination.

Schoenfeld v. Babbitt , supra at 1267. " The employee must

satisfy this burden by showing directly that a discriminatory

reas on more likely than not motivated the decision, or

indirectly by showing that the proffered reason for the

employment decision is not worthy of belief." Dep ' t . of Corr .

v. Chandler , supra at 1186; Alexander v. Fulton Cnty . , G a. ,

supra . Petitioner has no t met this burden.

42 . "Although the intermediate burdens of production shift

back and forth, the ultimate burden of persuading the trier of

fact that the employer intentionally discriminated against the

[Petitioner] remains at all times with the [Petitio ner]." EEOC

v. Joe's Stone Crabs, Inc. , 296 F. 3d 1265, 1273 (11th Cir.

2002); se e also Byrd v. RT Foods, Inc. , 948 So . 2d 921, 927

(Fla. 4th DCA 2007) ("The ultimate burden of proving intentional

discrimination against the plaintiff remains with the plain tiff

at all times.") .

43 . To establish a prima facie case of race

discrimination , Petitioner must prove that (1) s he is a member

of a protected c lass (e.g., African - American); (2) s he was

subject to an adverse employment action; (3) h er employer

treated s imilarly situated employees, who are not members of the

protected class, more favorably; and (4) s he was qualified for

the job or benefit at issue. See McDon nell , supra ; Gillis v.

G a . Dep ' t of Corr. , 400 F. 3d 883 (11th Cir. 2005).

44 . Petitioner has met t he first and second elements to

establish a prima facie case of discrimination in that s he is a

member of a protected class and was subject to an adverse

employment action.

45 . However, s he has not proven the third element, that

h er employer treated sim ilarly situated employees who are not

members of the protected class more favorably. No evidence was

presented to establish that there were similarly situated

individuals of other races treated more favorably for the same

conduct . See McCann v. Tillman , 526 F.3d 1370, 1373 (11th Cir.

2008) ("In order to determine whether other employees were

similarly situated to [Petitioner], we evaluate 'whether the

employees are involved in or accused of the same or similar

conduct and are disciplined in different ways .' (citation

omitted)" ) .

46 . As for the fo u rth element, the preponderance of the

evidence establishes that Petitioner was qualified for the job.

Ms. Monteiff recommended Petitioner for a promotion, and

Petitioner received annual pay raises.

47 . Applyin g the McDonnell analysis, Petitioner did not

meet h er burden of establishing a prima facie case of

discriminatory treatment because she did not prove the third

element . Assuming that Petitioner had demonstrated a prima

facie case of discriminatory conduct , Respondent demonstrated a

legitimate, non - discriminatory reason for PetitionerÓs

termination . That is, Petitioner was fired because of

inappropriate behavior , including behavior that was considered

threatening, toward co - workers.

48 . Even if it were n ecessary to go to the next level of

the McDon nel l analysis, Petitioner did not produce any evidence

that RespondentÓs legitimate reasons were pretext for

discrimination. "The inquiry into pretext centers upon the

employer's beliefs, and not the employee's perceptions of his

performance." Therefore, Petitioner has not met h er burden of

showing that a discriminatory reason more likely than not

motivated the actions of Respondent toward Petitioner or by

showing that the proffered reason for the employment de cision is

not worthy of belief. Dep't of Corr. v . Chandler , supra ,

Alexander v. Fulton Cnty., G a. , supra . "Would the proffered

evidence allow a reasonable factfinder to conclude that the

articulated reason for the decision was not the real one."

Walker v. Prudential , 286 F.3d 1270 (11th Cir. 2002).

Consequently, Petitioner has not met h er burden of showing

pretext.

49 . In summary, Petitioner has failed to carry h er burden

of proof that Respondent engaged in racial discrimination toward

Petitioner wh en it terminat ed h er .

50 . In her Employment Complaint of Discrimination,

Petitioner also alleges that she was disc riminated against on

the basis of disability. The record does not establish that

Petitioner had a disability. This allegation appears to be

based on Petitioner's belief that her co - wor kers were referring

to her as "a cting crazy." However, this falls far short of what

is necessary to establish that Petitioner is a person with

disabilities entitled to protection under the law.

51. The Amer icans with Disabilities Act of 1990 (ADA), 42

U.S.C. §§ 12101 - 12213, prohibits discrimination against persons

with disabilities in employment and other facets of life, such

as public accommodations. Federal case law interpreting the ADA

applies to claims of disability - based discrimination arising

under the Florida Civil Rights Act. See Fromm - Vane v. La wnwood

Med. Ctr., Inc. , 871 So. 2d 312 (Fla. 2d DCA 2004).

52. To establish a prima facie case of disability

discrimination, Petitioner must prove by a pre ponderance of the

evidence that she is a handicapped person within the meaning of

subsection 760.10(1)(a), that she is a qualified individual, and

that she was discriminated against because of her disability.

Pritchard v. Southern Co. Servs. , 92 F.3d 1130 (11th Cir. 1996);

Byrd v. BT Foods, Inc. , 948 So . 2d 921 (Fla. 4th DCA 2007).

53. The ADA defines a disability as "(A) a physical or

mental impairment that substantially limits one or more of the

major life activities of such individual; (B) a record of such

impairment; or (C) being regarded as having such impairment."

42 U.S.C. § 12102(1). " M ajor life activities" include, but are

not limited to, caring for oneself, performing manual tasks,

walking, seeing, hearing, speaking, breathing, learning, and

w orking. 29 C.F.R. § 1630(2)(i). In light of Petitioner's

assertion that co - workers commented that she was acti ng "crazy,"

it is presumed that Petitioner believes that she was perceived

as having a disability. There is no competent evidence in the

record that supports this assertion.

54. Petitioner failed to establish that she has any

statutorily covered disability, or that her co - workers perceived

her as having a covered disability. Petitioner was not

subjected to any unlawful employment practice based on

disability.

55 . Finally, Petitioner also alleged that she was

discharged in retaliation for something. To make a prima facie

case of retaliation, Petitioner must show that s he engaged in

protected activity, that s he suffered adverse employment action ,

and that there is some causal relation between the protected

activity and the adverse employment action. Casiano v.

Gonzales , 2006 U.S. Dist. Lexis 3593 (N.D. Fla. 2006); Jeronimus

v. Polk Cnty . Opportunity Council, Inc. , 2005 U.S. App. Lexis

17016 (11t h Cir. 2005) .

56 . Petitioner failed to establish that she engaged in any

statutorily protected activity to substantiate a claim of

illegal retaliation. The decision to terminate Petitioner had

nothing to do with race , color, disability, or retaliation, b ut

was rather based on a series of issues regarding Petitioner's

office demeanor and behavior .

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions

of Law set forth herein, it is

RECOMMENDED:

That the Florida Commission on Huma n Relations enter a

final order dismissing the Employment Charge of Discrimination

and Petition for Relief.

DONE AND ENTERED this 11 th day of December , 20 1 2 , in

Tallahassee, Leon County, Florida.

S

___________________________________

BARBARA J. STAROS

A dministrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11 th day of December , 20 1 2 .

ENDNOTES

1/ Mr. Pearson's was apparently referring to Ms. Montei th but

identified her as ÐBelinda.Ñ

2/ All future references to Florida Statutes will be to 20 11 .

COPIES FURNISHED :

Doretha P ear son

3001 Southeast Lakewood Avenue

Number 904

O c a la, F lorida 3 4 471

Kenneth A. Knox , Esquire

Fisher and Phillips, LLP

Suite 800

450 East Las Olas Boulevard

Fort Lauderdale , F lorida 3 33 01

Denise Crawford, Agency Clerk

Florida Commission on Human Rela tions

2009 Apalachee Parkway, Suite 100

Tallahassee, Florida 32301

Cheyanne Costilla , Interim General 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.