13-001102 Maria Pfeiffer vs. Hca Raulerson Hospital Status: Closed Recommended Order on Monday, July 22, 2013.

Summary: Petitioner failed to establish a prima facie case of discrimination or retaliation.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIA PFEIFFER ,

Petitioner ,

vs. Case No. 13 - 1102

HCA RAULERSON HOSPITAL ,

Respondent .

/

RECOMMENDED ORDER

Pursuant to notice, a hearing was conduct ed in this case

before Jessica E. Varn, a designated Administrative Law Judge of

the Division of Administrative Hearings (DOAH), on June 13

and 14, 2013, by video teleconference at sites in Port St. Lucie

and Tallahassee, Florida.

APPEARANCES

For Petition er: Peggy A. Underbrink, Esquire

Peggy Underbrink, Attorney at Law

5737 Lowell Avenue

Post Office Box 441044

Indianapolis, Indiana 46244

For Respondent: Allison Oasis Kahn, Esquire

Carlton Fields, P.A.

Post Office Box 150

West Palm Beach, Florida 33402

STATEMENT OF THE ISSUE

Whether Respondent committed an unfair labor practice by

discriminating against Petitioner on the basis of rac e, national

origin, color, or age; and by retaliating against Petitioner by

terminating her employment.

PRELIMINARY STATEMENT

On or about June 20, 2012, Petitioner Maria Pfieffer (Ms.

Pfeiffer) filed a Charge of Discrimination with the Florida

Commission o n Human Relations ( Ð FCHR Ñ ). On or about February 21,

2013, after conducting an investigation into Ms. Pfeiffer Ó s

allegations, the FCHR issued a Ð no cause Ñ determination, finding

there was no reasonable cause to believe that an unlawful

employment practice occurred. Ms. Pfeiffer elected to pursue

administrative remedies, timely filing a Petition for Relief with

the FCHR on or about March 25, 2013. The FCHR transmitted the

Petition for Relief to the Division of Administrative Hearings

( Ð DOAH Ñ ) on March 27, 2013. The final hearing was scheduled for

May 13 and 14, 2013. On Respondent Ó s motion, the final hearing

was continued and rescheduled for June 13 and 14, 2013.

At the hearing, Ms. Pfeiffer testified on her own behalf,

and presented the testimony of Jo e Corripio, Monica Beckham,

Titus Henderson, and Sherree Macy. During its case, Respondent

called four witnesses: Christine Goolsby, Shawn Poland, Connie

Kooper, and Cynthia Jackson. Petitioner Ó s Exhibits 7 , 15, 17 ,

and 31 were received into evidence. R espondent Ó s Exhibits 1 - 7, 9

and 29 - 35 were received into evidence.

No transcript of the final hearing was filed with DOAH.

Respondent filed a Proposed Recommended Order, which was

considered in the preparation of this Recommended Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2012 Florida Statutes.

FINDING S OF FACT

1. Ms. Pfeiffer began her employment at Raulerson Hospital

in December, 2007. She worked as a full - time Registered

Respiratory Therapist (RRT) in the Cardio pulmonary Department.

She was born in 1961, and according to her, she comes from

German, Filipino, Hispanic, and Native American descent.

2. Shawn Poland served as the director of the

Cardiopulmonary Department; Titus Henderson and Sherree Macy

served as supervisors, directly supervising Ms. Pfieffer. Robert

Lee was the Chief Executive Officer of Raulerson Hospital in

2012.

3. Full - time respiratory therapists generally work three

shifts per week, and may have many days between shifts. They

assist patie nts with airway management, by dispensing medication.

Some patients are on ventilators, some are in the intensive care

unit, and some are on life support. Therapies include comfort

measures; that is, patients receive therapies in order to breathe

easier.

4. Once physician orders are received for respiratory

therapy, patients are divided equally between the therapists on

duty during a particular shift; therapists then go to each

patient to provide respiratory treatment.

5. Christine Goolsby was a respira tory therapist who worked

alongside M s. Pfeiffer. Sometime in March 2012, Ms. Goolsby and

Ms. Pfeiffer were working the same shift. Ms. Gooslby noticed

that some patients assigned to Ms. Pfeiffer were showing up in

the computer system in red text, which meant that the patients

had not yet received a treatment. She asked Ms. Pfieffer about

those patients, with the intention of helping Ms. Pfieffer

administer medication to the patients. Ms. Pfieffer indicated

that she did not provide treatment to Ð DNR Ñ (d o not resuscitate)

patients.

6. Ms. Goolsby, who had been feeling like she had been

helping other therapists quite a bit and running around more than

usual, was upset to hear that Ms. Pfeiffer chose to not provide

treatments to DNR patients. Ms. Goolsby told Mr. Poland about

Ms. Pfieffer Ó s position on DNR patients.

7. Mr. Poland, Ms. Goolsby, and the Human Resources

Director met. During the meeting, Ms. Goolsby reported other

personnel issues she had with Ms. Pfeiffer and with another

therapist, Monic a Beckham. Ms. Goolsby was asked to write an

email with details regarding her conversation with Ms. Pfeiffer,

and the other issues she had raised about her colleagues.

8. Ms. Goolsby sent an email to Mr. Poland and the Human

Resources Director on March 9, 2012. In her email, she explained:

Ð Maria also made a comment this past weekend that she was not

going to do DNR treatments on four of her patients. She stated

Ò DNRs do not need treatments. Ó I replied if it Ó s a doctor Ó s

order it has to be followed. Ñ

9. Mr. Poland was concerned about patient safety, and

decided to suspend Ms. Pfieffer pending an investigation into the

allegations that had been made. The Human Resources Department

contacted Ms. Pfeiffer by telephone, informing her that an

investigatio n was going to be conducted, focusing on whether she

was failing to provide treatment to DNR patients.

10. During the telephone conversation with the Human

Resources Department, Ms. Pfeiffer denied the allegations,

insisting that it was against her Ð moral code Ñ to refuse giving

respiratory treatments to any patient.

11. Mr. Poland asked Connie Kooper, a senior clinical

analyst who is in charge of Meditech (a uniform computer system

for charting medical records), to run a report on Ms. Pfeiffer,

isolating every DNR patient who was not given treatment.

12. Ms. Kooper was unable to comply with this request

because DNRs are difficult to track on the computer system.

Given that a patient or family can change the patient Ó s DNR

status on a daily or even an hou rly basis, it becomes onerous to

track DNR status through Meditech.

13. Instead, Ms. Kooper was able to run a report on

treatments that had been given and had not been given during a

45 - day period, which might show a trend of some kind. The report

also s howed any comments provided by the therapist; if a

treatment had been skipped, it would show the reason it was

skipped, if the reason had been recorded by the therapist.

14. There are numerous reasons why a therapist might skip

giving a treatment to a pat ient; the patient could feel nauseous,

a patient might have a rapid heart rate at the time of the visit,

the patient might not be in the room when the therapist arrives,

or the patient or the patient Ó s family might refuse the treatment

for a variety of rea sons. The therapist must provide a reason

for not providing a treatment in Meditech, or in a written chart.

15. Mr. Poland asked Ms. Kooper to run the same report on

three other respiratory therapists in addition to Ms. Pfieffer.

Ms. Pfeiffer Ó s report r eveals numerous treatments that were not

provided to patients, with no documented reason for not giving

the treatment. The other three therapists had very few instances

of treatments that were not provided, and for those instances

where treatment was not provided, reasons were documented in

Meditech for almost all of them.

16. Mr. Poland also accessed each patient Ó s electronic

Meditech process intervention notes to see if Ms. Pfeiffer had

documented the reason why she had not provided a respiratory

treatm ent to the patient. Ms. Pfeiffer had failed to document

the reasons there, too.

17. During the investigation, Mr. Poland also found

discrepancies in Ms. Pfieffer Ó s documentation of medications that

had been given to patients. This caused Mr. Poland to b elieve

that Ms. Pfeiffer had falsified medical records.

18. Finding that Ms. Pfeiffer Ó s conduct was deliberate and

purposeful, Mr. Poland met with Ms. Pfeiffer and explained what

he had discovered through the course of the investigation.

19. Ms. Pfeiffer gave no explanation for why she had failed

to provide the treatments, and why she had failed to document the

reason for not giving the treatments.

20. Mr. Poland decided to terminate Ms. Pfeiffer based on

the results of the investigation. At that time, Mr. Poland did

not know Ms. Pfeiffer Ó s race, national origin, or age.

21. No new employees were hired to replace Ms. Pfeiffer.

No credible evidence was presented establishing the age, race, or

national origin of the employees who replaced Ms. Pfeiffer.

22. Ms. Pfeiffer never appealed the decision to terminate

her through the employee dispute resolution program. She also

never complained of any type of discrimination during the course

of her employment. 1/

CONCLUSIONS OF LAW

23 . The Division of Administ rative Hearings has personal

and subject matter jurisdiction in this proceeding pursuant to

s ections 120.569, and 120.57(1), Florida Statutes.

24. The Florida Civil Rights Act of 1992 ( Ð FCRA Ñ ) is

codified in s ections 760.01 through 760.11, Florida Statute s.

When Ð a Florida statute [such as the FCRA] 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). Therefore, t he FCRA should be interpreted, where

possible, to conform to Title VII of the Civil Rights Act of

1964, which contains the principal federal anti - discrimination

laws.

25. Section 760.10, Florida Statutes, provides, in relevant

part:

(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, b ecause of such individual Ó s

race, color, religion, sex, national origin,

age, handicap, or marital status.

26. Complainants alleging unlawful discrimination may prove

their case using direct evidence of discriminatory intent.

Direct evidence is evidenc e that, if believed, would prove the

existence of discriminatory intent without resort to inference or

presumption. Denney v. City of Albany , 247 F.3d 1172, 1182 (11th

Cir. 2001); Holifield v. Reno , 115 F.3d 1555, 1561 (11th Cir.

1997). Courts have held that Ð only the most blatant remarks,

whose intent could be nothing other than to discriminate, Ñ satisfy

this definition. Damon v. Fleming Supermarkets of Fla., Inc. , 196

F.3d 1354, 1358 - 59 (11th Cir. 1999)(internal quotations omitted) ,

cert. denied , 529 U .S. 1109 (2000). Often, such evidence is

unavailable, and in this case, Ms. Pfeiffer presented none.

27. In the absence of direct evidence, the law permits an

inference of discriminatory intent, if complainants can produce

sufficient circumstantial evide nce of discriminatory animus, such

as proof that the charged party treated persons outside of the

protected class (who were otherwise similarly situated) more

favorably than the complainant was treated. Such circumstantial

evidence constitutes a prima fac ie case.

28. In McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 803 (1973), the U.S. Supreme Court explained that the

complainant has the initial burden of establishing by a

preponderance of the evidence a prima facie case of unlawful

discrimination. Failure to establish a prima facie case of

discrimination ends the inquiry. See Ratliff v. State , 666 So.

2d 1008, 1012 n.6 (Fla. 1st DCA 1996), aff Ó d , 679 So. 2d 1183

(Fla. 1996). If, however, the complainant succeeds in making a

prima facie case, the n the burden shifts to the accused employer

to articulate a legitimate, non - discriminatory reason for its

complained - of conduct. This intermediate burden of production,

not persuasion, is Ð exceedingly light. Ñ Turnes v. Amsouth Bank,

N.A. , 36 F.3d 1057, 1 061 (11th Cir. 1994). If the employer

carries this burden, then the complainant must establish that the

proffered reason was not the true reason but merely a pretext for

discrimination. St. Mary Ó s Honor Center v. Hicks , 509 U.S. 502,

516 - 518 (1993). At all times, the Ð ultimate burden of persuading

the trier of fact that the [charged party] intentionally

discriminated against Ñ him remains with the complainant.

Silvera v. Orange County Sch. Bd. , 244 F.3d 1253, 1258 (11th Cir.

2001).

29. To establish a prima facie case of employment

discrimination, Ms. Pfeiffer is required to show that she Ð (1) is

a member of a protected class; (2) was qualified for the position;

(3) was subject to an adverse employment action; and (4) was

replaced by someone outside th e protected class, or, in the case

of disparate treatment, shows that other similarly situated

employees were treated more favorably. Ñ Taylor v. On Tap

Unlimited, Inc. , 282 Fed. Appx. 801, 803 (11th Cir. 2008) ( Ð Taylor

established a prima facie case for r acial discrimination. She was

a qualified member of a protected class; she was terminated; and

she was replaced by an individual outside of her protected

class Ñ ).

30. It is undisputed that Ms. Pfeiffer belongs to a

protected class. As such, Petitioner s atisfied the first prong of

a prima facie case of employment discrimination.

31. With respect to the second prong, it is undisputed that

Ms. Pfeiffer was qualified for her position. Because Ms. Pfeiffer

possessed the basic skills necessary to perform t he position of a

respiratory therapist, she has established the second prong of a

prima facie case.

32. Ms. Pfeiffer has also established the third element of a

prima facie case, as her termination constitutes an adverse

employment action.

33. Finally, with respect to the fourth prong of the test,

Ms. Pfeiffer presented no credible evidence that sh e was replaced

by someone younger , or anyone of a different race or national

origin. Accordingly, Ms. Pfeiffer did not establish a prima facie

case of employ ment discrimination, and the burden of production

never shifted to Respondent to articulate a legitimate, non -

discriminatory reason for the termination.

34. However, if the burden had shifted, Respondent proffered

a legitimate non - discriminatory reason for Ms. Pfeiffer Ó s

termination: Respondent believed that Ms. Pfeiffer deliberately

and purposefully failed to provide prescribed treatments to

patients, without providing reasons for not providing the

treatments, and that she falsified medical rec ords.

35. As Respondent articulated a legitimate

non - discriminatory reason for the termination , Ms. Pfeiffer would

then be required to establish that the proffered reason was not

the true reason but merely a pretext for discrimination.

St. Mary Ó s Ho nor Center v. Hicks , 509 U.S. 502, 516 - 518 (1993).

To show pretext, Petitioner must demonstrate Ð such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer Ó s proffered legitimate reasons for

its action that a reas onable factfinder could find them unworthy

of credence. Ñ Combs v. Plantation Patterns , 106 F.3d 1519, 1538

(11th Cir. 1997) (citation omitted).

36. Throughout the proceedings, Ms. Pfeiffer attempted to

show that she was innocent of the alleged misconduct .

Significantly, however, whether Ms. Pfeiffer was innocent of the

alleged misconduct is not the correct inquiry. Instead, the

relevant question is whether Respondent actually believed, at the

time Ms. Pfeiffer was terminated, that she had committed the

misconduct. Elrod v. Sears, Roebuck & Co. , 939 F.2d 1466, 1470

(11th Cir. 1991) (inquiry is limited to whether employer believed

employee was guilty of misconduct, and if so, whether that was the

reason behind discharge; that employee did not actually eng age in

misconduct is irrelevant); Nix v. WLCY Radio , 738 F.2d 1181, 1187

(11th Cir. 1984) (holding that Ð an employer may fire an employee

for a good reason, a bad reason, a reason based on erroneous

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

discriminatory reason Ñ ).

37. Ms. Pfeiffer failed to establish a prima facie case of

discrimination. Even if she had met that initial burden, she

also failed to demonstrate that the proffered reason for her

termination was a pretext for discrimination. Accordingly,

Ms. Pfeiffer did not satisfy her ultimate burden of persuading

the undersigned that Respondent intentionally discriminated

against her.

38. Turning to Ms. Pfeiffer Ó s retaliation claim, she

alleges that she was terminated as a result of her complaint

regarding having to help clean the employee area.

39. Subsection 760.10(7), Florida Statutes, provides, in

pertinent part:

It is an unlawful employment practice for an

employer . . . to discriminate against any

person because tha t person has opposed any

practice which is an unlawful employment

practice under this section, or because that

person has made a charge, testified,

assisted, or participated in any manner in an

investigation, proceeding, or hearing under

this section.

40 . Ms. Pfeiffer Ó s retaliation claim under the Florida

Civil Rights Act must also be appropriately analyzed with the

same framework as used in analyzing retaliation claims under

Title VII. Gant v. Kash N Ó Karry Food Stores , 2010 U.S. App.

LEXIS 16504, *4 ( 11th Cir. August 4, 2010). Pursuant to this

framework, an employee must first establish a prima facie case of

retaliation. Bryant v. Jones , 575 F.3d 1281, 1307 - 08 (11th Cir.

2009). If a prima facie case is shown, the burden shifts to the

employer to art iculate a legitimate, non - discriminatory reason

for its actions. Id. at 1308. If the employer articulates a

legitimate, non - discriminatory reason, the burden of production

shifts to the employee to offer evidence that the alleged reason

of the employer i s a pretext for illegal discrimination. Id.

41. To establish a prima facie case of retaliation, Ms.

Pfeiffer must demonstrate that: (1) she participated in a

protected activity; (2) she suffered an adverse employment

action; and (3) there was a causal connection between the

participation in the protected activity and the adverse

employment action. Crawford v. Carroll , 529 F.3d 961, 970 (11th

Cir. 2008). To satisfy the third prong of the test, which

requires a causal connection between the protected activity and

the adverse decision, Ms. Pfeiffer Ð must show that the

decision - makers were aware of the protected conduct, and that the

protected activity and adverse actions were not wholly

unrelated. Ñ Shannon v. BellSouth Telecomms., Inc. , 292 F.3d 712,

716 (11th Cir. 2002).

42. There is no question that Ms. Pfeiffer Ó s termination

constitutes an adverse employment action. Even assuming,

however, that Ms. Pfeiffer Ó s informal complaint regarding

cleaning the break room constituted protected conduct, the

evidence demonstrates that the decision - maker who terminated

Ms. Pfeiffer Ó s employment, Mr. Poland, did not base his decision

on the brief exchange between Ms. Pfeiffer and Mr. Lee.

Accordingly, the third prong of the test was not satisfied, and

Ms. Pfeiffer failed to establish a prima facie case of

retaliation.

43. Furthermore, even if Ms. Pfeiffer could establish a

prima facie case of retaliation, she has failed to present any

evidence that Respondent Ó s proffered reason for her terminatio n

was mere pretext.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations enter a final order adopting the Findings of Fact and

Conclusions of Law contained in th is Recommended Order. Further,

it is RECOMMENDED that the final order dismiss the Petition for

Relief.

DONE AND ENTERED this 22nd day of July , 2013 , in

Tallahassee, Leon County, Florida.

S

JESSICA E. VARN

Administrati ve 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 22nd day of July , 2013 .

ENDNOTE

1/ At the hearing, Ms. Pfeiffer testified that she felt

discriminated and Ð retaliated Ñ against as a result of an

encounter in the employee break room with Mr. Lee, the CEO of the

hospital. According to Ms. Pfeiffer, Mr . Lee had come into the

break room and had seen Ms. Pfeiffer and Ms. Beckham relaxing in

the area, despite the fact that the room was dirty, and it was

the responsibility of the employees to keep employee areas tidy.

During an exchange regarding the clean liness of the room, Ms.

Pfeiffer told Mr. Lee that she had not gone to school to be a

housekeeper. Later, a housekeeping staff member brought a mop to

the break room, and handed it to Ms. Pfeiffer. Mr. Poland was

aware that Mr. Lee had seen the break roo m in a dirty state, and

he was upset that his department break room was not clean when

Mr. Lee had stopped by. Mr. Poland credibly testified that the

exchange between Mr. Lee and Ms. Pfieffer had no role in Ms.

Pfeiffer Ó s discipline.

COPIES FURNISH ED:

Violet Denise Crawford, Agency Clerk

Florida Commission on

Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Colleen S. Bracken, Esquire

Mark E. Edwards, Attorney at Law

2501 Park Plaza

Nashville, Tennessee 37203

Pegg y A. Underbrink, Esquire

Peggy Underbrink, Attorney at Law

5737 Lowell Avenue

Post Office Box 441044

Indianapolis, Indiana 46244

Allison Oasis Kahn, Esquire

Carlton Fields, P.A.

Post Office Box 150

West Palm Beach, Florida 33402

Cheyanne Costilla, In terim General Counsel

F lorida 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 thi s Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.