13-001990 Pearl Thompson Voce vs. Holy Cross Hospital Status: Closed Recommended Order on Monday, June 29, 2015.

Summary: Former employee failed to prove that she was discharged because of her age in violation of the FCRA. Recommended dismissal of the Petition for Relief.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PEARL THOMPSON VOCE,

Petitioner,

vs. Case No. 13 - 1990

HOLY CROSS HOSPITAL,

Respondent.

_______________________________/

RECOMMENDED ORDER

This case came before Administrative La w Judge Darren A.

Schwartz for final hearing by video teleconference on

December 16, 2014, with sites in Lauderdale Lakes and

Tallahassee, Florida, and on March 19, 2015, in Plantation,

Florida.

APPEARANCES

For Petitioner: Charles M. Eiss, Esquire

Law Offices of Charles Eiss, P.L.

8211 West Broward Boulevard , Suite 360

Plantation, Florida 33324

For Respondent: Jennifer T. Williams, Esquire

Akerman Senterfi tt

1 Southeast Thi rd Avenue

Miami, Florida 33131

STATEMENT OF THE ISSUE S

Whether Respondent committed the unlawful employment

practice alleged in the Charge of Discrimination filed with the

Florida Commission o n Human Relations ( " FCHR " ), and if so, what

relief should Petitioner be granted.

PRELIMINARY STATEMENT

On October 19, 2012, Petitioner, Pearl Thompson Voce

( " Petitioner " ), filed a Charge of Discrimination ( " Complaint " )

with FCHR alleging that Respondent, Holy Cross Hospital

( " Respondent " ), terminated her employment as a r egistered

d ietician because of her age. Following its investigation of the

Complaint, FCHR notified the parties that " no reasonable cause

exists to believe that an unlawful employment pra ctice occurred. "

Petitioner elected to pursue administrative remedies, timely

filing a Petition for Relief with FCHR on or about May 24, 2013.

On May 29, 2013, FCHR referred the matter to the Division of

Administrative Hearings ( " DOAH " ) to assign an a dmi nistrative l aw

j udge to conduct the final hearing. The case was initially

assigned to Judge Cathy M. Sellers . On November 20, 2013, the

case was transferred to the undersigned for all further

proceedings . The final hearing was initially set for August 3 0,

2013 , but was continued on multiple occasions for various

reasons .

On October 11, 2013, counsel for the parties entered into a

Pre - h earing Stipulation. In the Pre - h earing Stipulation, the

parties agreed to certain facts and issues of law. The parties '

stipulations of fact and law have been incorporated into this

Recommended Order to the extent they are relevant .

The final hearing commenced as scheduled on December 16,

2014 , and concluded on March 19, 2015 . Respondent was present at

the final hearing . However, Petitioner did not appear at the

final hearing. Petitioner was represented at the final hearing

through her legal counsel. At the hearing, Petitioner ' s counsel

presented the testimony of Mindy McClure and Dawn Outcalt.

Respondent ' s counsel p resented the testimony of Rachel Thompson.

Respondent ' s Exhibits 1 through 20 and 23 through 27 were

received into evidence based on the stipulation of the parties.

The two - volume final hearing Transcript was fi l ed with DOAH

on April 1, 2015, and the par ties were granted two extensions of

time to file their proposed recommended orders . The parties

timely filed proposed recommended orders, which were given

consideration in the preparation of this Recommended Order.

FINDING S OF FACT

1. Respondent is a hospital located in Fort Lauderdale,

Florida. Petitioner was employed by Respondent as a r egistered

d ietician in the Nutrition Services Department from February 1991

until her termination on October 24, 2011.

2. Petitioner was 50 years old when she was hired by

Respondent.

3. In January 1999, Mindy McClure (age 61 as of the date of

the hearing) was hired by Respondent as the a ssistant d irector of

Nutritional Services. From January 1999 until October 24, 2011,

Ms. McClure supervised Petitioner.

4. As a r egistered d ietician, Petitioner ' s job duties

required her to: (1) evaluat e and assess hospital patients '

nutritional needs; (2) formulat e nutrition care plans according

to nutritional assessment s and standards of care; (3) assess the

effects of nutrit ion intervention; (4) educat e and counsel

patients requiring nutrition intervention; (5) evaluat e services

and care provided to identify opportunities for improvement; and

(6) communicat e pertinent information to appropriate individuals.

5 . Petitioner ' s job performance was satisfactory during

m uch of her employment with Respondent. However, in early 2011,

Petitioner ' s job performance significantly deteriorated.

6 . Each patient ' s nutritional assessment is communicated to

Respondent ' s health care team, wh ich includes other dieticians,

via the patient ' s chart. Providing complete and accurate

information in a patient ' s chart and following a doctor ' s order

is critical to the duties of a dietician and to formulating a

proper nutritional care plan f or the pati ent.

7 . On June 30, 2011, Petitioner received a Notice of

Disciplinary Action in the form of an oral warning for failing to

meet her job standards.

8 . This warning was given to Petitioner because she f ailed

to provide complete information in a patient chart , and she

failed to order any recommended tube feedings pursuant to a

doctor ' s order. Petitioner was directed to complete assessments

and make recommendations according to established protocols and

procedures so that any dietician can easily discern a patient ' s

needs. Petitioner was also warned that failure to do so will

result in continued disciplinary action.

9 . On July 17, 2011, Petitioner received her annual

performance evaluation . She received an overall rating of

" Partially Meets Standards . " Accordingly, Petitioner was placed

on a three - month work improvement plan from July 25, 2011 , to

October 24, 2011.

1 0 . Th e improvement plan required Petitioner to improve

her: (1) organizational skills; (2) timeliness when starting her

shift; (3) promptn ess in clocking in and out of her shift;

(4) tracking and communication with patients and patient

information; and (5) computer skills. Petitioner was also

required to keep a notebook where she maintained patient

information. Petitioner and Ms. McClure m et on a weekly or bi -

weekly basis to monitor Petitioner ' s progress and ensure she was

documenting patient information correctly.

1 1 . On August 2, 2011, Petitioner received a written

warning because she los t patient information, specifically a tube

feeding card and calorie count sheet.

1 2 . On August 24, 2011, Petitioner received a final written

warning because she fail ed to monitor her e - mail messages a nd had

c ontinued inaccuracies in her patient charting.

1 3 . Because Petitioner ' s job performance did not

s ignificantly improve after she was given the work improvement

plan, her employment with Respondent was terminated on

October 24, 2011.

1 4 . Ms. McClure made the decision to terminate Petition er .

Dawn Outcalt , Respondent ' s e xecutive d irector of Nutritiona l

Services , and Rachel Thompson , Respondent ' s a ssociate r elations

c oordinator, also participated in the decision.

1 5 . Respondent has policies and procedures in place

regarding complaints of discrimination. At no time prior to her

termination did Petition er complain to Respondent that she was

discriminat ed against because of her age.

1 6 . Following Petitioner ' s termination, Respondent did not

replace Petitioner . 1/

1 7 . The parties stipulated that: " Petitioner is not

presently capable of recalling the even ts surrounding her

termination from employment with Respondent nor providing

testimony in this proceeding. "

18 . The persuasive and credible evidence adduced at hearing

demonstrates that Petitioner was terminated for legitimate, non -

discriminatory reasons having nothing to do with her age.

Petitioner ' s charge of age discrimination is based on speculation

and conjecture, and Petitioner failed to prove that she w as

terminated because of her age.

CONCLUSIONS OF LAW

19 . DOAH has personal and subject matter jurisdiction in

this proceeding pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2014). 2/

2 0 . The Florida Civil Rights Act of 1992 ( " FCRA " ),

chapter 760, Florida Statutes, prohibits discrimination in the

workplace. Among other things, the FC RA makes it unlawful for an

employer:

To discharge or to fail or refuse to hire any

individual with respect to compensation,

terms, conditions, or privileges of

employment, because of such individual ' s

race, color, religion, sex, national origin,

age, han dicap, or marital status.

§ 760.10(1)(a), Fla. Stat.

2 1 . The FCRA, as amended, is patterned after the Age

Discrimination in Employment Act ( " ADEA " ) and Title VII of the

Civil Rights Act of 1964 . Thus, federal decisional authority

interpreting the ADE A is applicable to age discrimination cases

arising under the FCRA. Petrik v. City of Pembroke Pines , 120

So. 3d 102 (Fla. 4th DCA 2013); Sunbeam TV Corp. v. Mitzel , 83

So. 3d 865, 877, n.3 (Fla. 3d DCA 2012) ; Woolsey v. Town of

Hillsboro Beach , 2013 U.S. App. LEXIS 18569, *1, n.1 (11th Cir.

2013) .

2 2 . To ultimately prevail in an age discrimination case,

Petitioner must prove by a preponderance of the evidence (which

may be direct or circumstantial) that age was the " but - for " cause

of the challenged emplo yer decision. Gross v. FBL Fin. Servs.,

Inc. , 557 U.S. 167, 177 - 78 (2009); Greene v. Sch. Bd. of Broward

Cnty . , 2014 U.S. Dist. LEXIS 111664, *13 - 14 (S.D. Fla. 2014).

23. Direct evidence is evidence that, if believed, would

prove the existence of discrim inatory intent without resort to

inference or presumption and must in some way relate to the

adverse action against the complainant. Greene , 2014 U.S. Dist.

LEXIS 111664, at *1 4 . Only the most blatant remarks, whose

intent could mean nothing other than t o discriminate on the basis

of age, c onstitute direct evidence of age discrimination. Id .

2 4 . When no direct evidence of age discrimination exists,

the employee may attempt to establish a case circumstantially.

To establish a prima facie case of age dis crimination through

circumstantial evidence, Petitioner must show that she: (1) is a

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

at issue; (3) was subjected to an adverse employment action; and

(4) was replaced by someone outside her p rotected class, or that

her employer treated similarly - situated employees outside her

protected class more favorably. Washington v. UPS , 567 Fed.

Appx. 749, 751 (11th Cir. 2014) ; Horn v. UPS , 433 Fed. App x . 788,

792 (11th Cir. 2011); Greene , 2014 U.S. Dis t. LEXIS 111664, at

*12 . Failure to establish a prima facie case of discrimination

ends the inquiry. Kidd v. Mando Am. Corp. , 731 F. 3d 1196, 1202

(11th Cir. 2013).

2 5 . As to the fourth prong of the prima facie case, an

adequate comparator must be " simil arly situated " in all relevant

respects. Greene , 2014 U.S. Dist. LEXIS 111664, at *16; Horn ,

433 Fed. Appx. 788, at 792. To determine whether employees are

similarly situated, courts evaluate whether the employees are

involved in or accused of the same c onduct or similar conduct and

are disciplined in different ways. Burke - Fowler v. Orange Cnty . ,

Fla. , 447 F.3d 1319, 1323 (11th Cir. 2006); Horn , 433 Fed. Appx.

788, at 793 . In making this determination, courts " require that

the quantity and quality of th e comparator ' s misconduct be nearly

identical to prevent courts from second - guessing employers '

reasonable decisions. " Horn , 433 Fed. Appx. 788, at 793 .

2 6 . When the charging party, i.e., Petitioner, is able to

establish a prima facie case, the burden to go forward with the

evidence shifts to the employer to articulate a legitimate, non -

discriminatory explanation for the employment action.

Importantly, the employer has the burden of production, not

persuasion, and need only present the fact - finder with evidence

that the decision was non - discriminatory. This intermediate

burden is " exceedingly light. " Bradley v. Pfizer, Inc. , 440 Fed.

Appx. 805, 807 - 808 (11th Cir. 20 11 ).

2 7 . Should the employer meet this burden, the presumption

of discrimination create d by the employee ' s prima facie case

drops from the case. Reeves v. Sanderson Plumbing Prods., Inc. ,

530 U.S. 133, 142 - 43 (2000). At this juncture, the employee must

then establish that the proffered reasons were not the true

reason for the employment de cision, but rather a mere pretext for

intentional age discrimination. Woolsey , 2013 U.S. App. LEXIS

18569, at *6 .

2 8 . In this regard, Petitioner must demonstrate " such

weaknesses, implausibilities, inconsistencies, incoherencies, or

contradictions in the employer ' s proffered legitimate reasons for

its actions that a reasonable factfinder could find them unworthy

of credence. " Combs v. Plantation Patterns, Meadowcraft, Inc. ,

106 F.3d 1519, 1538 (11th Cir. 1997).

2 9 . " Courts do not sit as a super - personne l department that

re e xamines an entity ' s business decisions. " Davis v. Town of

Lake Park, Fla . , 245 F.3d 1232, 1244 (11th Cir. 2001). Whether

an employment decision was prudent or fair is irrelevant because

an employer " may fire [Petitioner] for a good r eason, a bad

reason, a reason based on erroneous facts, or for no reason at

all, " as long as its action is not for a d iscriminatory reason.

Nix v. WLCY Radio/Rahall Commc ' ns , 738 F.2d 1181, 1187 (11th Cir.

1984). Petitioner " is not allowed to recast an e mployer ' s

proffered nondiscriminatory reasons or substitute [her] business

judgment for that of the employer. " Chapman v. AI Transp . , et.

al. , 229 F.3d 1012, 1030 (11th Cir. 2000). Provided that the

proffered reasons are ones that might motivate a reason able

employer, an employee must meet those reasons head on and rebut

them, and the employee cannot succeed by simply quarel l ing with

the wisdom of those reasons. Id.

3 0 . Turning to the instant case, Petitioner presented no

direct evidence of discriminato ry intent by Respondent.

3 1 . Petitioner established the first three elements of a

prima facie case based on circumstantial evidence. However, s he

failed to establish the fourth prong -- that she was replaced by

someone outside her protected class, or that the employer treated

similarly - situated employees outside h er protected class more

favorably.

3 2 . Having failed to establish a prima facie case, the

inquiry need not go further , and the petition should be

dismissed. However, even if Petitioner had met h er initial

burden of establishing a prima facie case, and the burden had

shifted to Respondent to articulate a legitimate,

nondiscriminatory reason for the termination, Respondent

successfully met its burden at the hearing which Petitioner

failed to prove was a mere pretext for intentional age

discrimination. The persuasive and credible evidence adduced at

hearing showed that Petitioner was terminated because of poor job

performance . Accordingly, 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 a final order dismissing the Petition for Relief.

DONE AND ENTERED this 29th day of June , 2015 , in

Tallahassee, Leon Cou nty, Florida.

S

DARREN A. SCHWARTZ

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 29th day of June , 2015 .

ENDNOTES

1/ Petitioner's contention that she was replaced by Jessi c a

Weissman is without merit. Ms. Weissman was never a full - time

employee. Sh e was an intern in 2010 assigned to Respondent as

part of completing an educational clinical internship at Florida

International University. After graduation, Ms. Weissman worked

as a per diem dietician starting in January 2011. She generally

worked betw een eight to 16 hours per week. However, there were

some weeks during which Ms. Weissman did not work any hours at

Respondent. Ms. Weissman was not available to work for

Respondent full - time because she had another job. Per diem

associates of Respondent are not eligible for employee health

benefits, paid time off benefits, or educational assistance

benefits. Per diem associates are not guaranteed any specific

number of hours .

2/ References to Florida Statutes are to the 2014 version, unless

otherwise indicated.

COPIES FURNISHED:

Charles M. Eiss, Esquire

Law Offices of Charles Eiss, P.L.

8211 West Broward Boulevard , Suite 360

Plantation, Florida 33324

(eServed)

Jennifer T. Williams, Esquire

Akerman Senterfitt

1 Southeast Thir d Avenue

Miami, Florida 33131

(eServed)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

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 agenc y that

will issue the Final Order in this case.