13-004145 Martha Jane Kenny vs. Westside Regional Medical Center Status: Closed Recommended Order on Tuesday, March 4, 2014.

Summary: Petitioner failed to prove that her demotion from charge nurse to staff nurse was due to her age. Petitioner had failed to timely complete an annual competency assessment for three of the last four years and set bad example for her staff nurses.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARTHA JANE KENNY ,

Petitioner ,

vs. Case No. 13 - 4145

WESTSIDE REGIONAL MEDICAL

CENTER ,

Respondent .

/

RECOMMENDED ORDER

On January 23, 2014, Robert E. Meale, Administrative Law

Judge of the Division of Administrative Hearings (DOAH) ,

conducted the final hearing by videoconference in Tallahassee and

Lauderdale Lakes, Florida.

APPEARANCES

For Petitioner: Scott M. Behren, Esquire

Behre n Law Firm

2893 Executive Park Drive, Suite 110

Weston, Florida 33331

For Respondent: Alexander D. del Russo, Esquire

Carlton Fields, P.A.

Post Office Box 150

West Palm Beach, Florida 33402 - 0150

STATEMENT OF THE ISSUE

The issue is whether Respondent discriminated against

Petitioner in employment based on age or disability as prohibited

by section 760.10(1)(a), Florida Statutes.

PRELIMINARY STATEMENT

By Charge of Discr imination filed on April 8, 2013, with the

Florida Commission on Human Relations (FCHR), Petitioner alleged

that Respondent discriminated against her in employment based on

her age and perceived disability, as well as in retaliation for

her complaints abou t discrimination. Petitioner alleged that she

was born on August 4, 1953, and the employment discrimination

consisted of termination on May 11, 2012.

On September 16, 2013, FCHR entered a Determination: No

Cause.

On October 21, 2013, Petitioner filed w ith FCHR a Petition

for Relief, which alleges that Respondent terminated Petitioner ' s

employment on June 7, 2012, due to her age and perceived

disability.

FCHR transmitted the file to DOAH on October 21, 2013. On

the next day, DOAH issued an Initial Ord er asking the parties to

offer dates available for the final hearing. Respondent

responded by offering the entire month of January as available

for the final hearing. Petitioner did not respond. By Notice of

Hearing dated November 5, 2013, the Administr ative Law Judge set

the final hearing for January 23, 2014.

On December 26, 2013, Petitioner moved for a continuance of

the final hearing. On the next day, the Administrative Law Judge

denied the motion. On January 22, 2014, Petitioner again moved

for a continuance. On the same day, the Administrative Law Judge

again denied the motion.

At the hearing, Petitioner called two witnesses and offered

into evidence one exhibit: Petitioner Exhibit 1, which is

Respondent Exhibit 14. Respondent called three witn esses and

offered into evidence 12 exhibits: Respondent Exhibits 10 - 11,

15, 19 - 26, 28, and 31. All exhibits were admitted except

Respondent Exhibit 26, which was proffered.

At the start of the hearing, Petitioner orally renewed its

motions for a continua nce. The Administrative Law Judge denied

the motion, but offered to consider, after receiving all of the

available evidence, Petitioner ' s claim of prejudice from not

obtaining a continuance.

At the conclusion of the hearing, after the parties

presented argument, the Administrative Law Judge ordered that the

evidentiary record remain open for Respondent to answer two

posthearing interrogatories, which were crafted from the fact

issues that Petitioner had identified that it would have pursued

if it had obt ained a continuance.

On the following day, the Administrative Law Judge

memorialized the rulings at the close of the hearing in an Order

on Posthearing Activities.

On January 31, 2014, Respondent filed its Answers to Court -

Ordered Interrogatories. On the same date, Petitioner filed a

Request for Additional Documents. On February 3, 2014,

Respondent filed its response to the request. On the same date,

the Administrative Law Judge issued an Order Requiring Respondent

to Answer a Second Set of Interrogatori es, which set forth three

interrogatories. On February 17, 2014, Respondent filed its

Answers to Second Set of Interrogatories. Petitioner did not

file any requests for additional posthearing activities.

At the conclusion of the hearing, neither party or dered a

transcript. The Order on Posthearing Activities set a deadline

of February 24, 2014, for the parties to file proposed

recommended orders. Respondent timely filed a proposed

recommended order.

FINDINGS OF FACT

1. Petitioner was born on August 4 , 1953. She has been

licensed as a registered nurse (RN) in Florida since 1979.

Previously, Petitioner was licensed as an RN in New York for four

years.

2. Presently, Petitioner is employed as an RN with Hospice

of Broward and Palm Beach. She has been so employed for about

one and one - half years prior to the final hearing. Prior to this

employment, she was employed for a couple of months at Hospice at

Vitas. In both of these jobs, Petitioner earned about $60,000

annually including benefits.

3. For at least 20 years preceding the employment at the

hospices, Petitioner was employed by Respondent at Westside

Regional Medical Center (Westside). Initially, Petitioner was

employed as a staff nurse in the critical care unit. Eventually,

Petitioner was prom oted to charge nurse of the intensive care

unit (ICU). A charge nurse provides immediate supervision of

staff nurses. Petitioner served as a charge nurse for seven

years and was earning $95,000 annually plus benefits at the time

of the incidents describe d below.

4. The Joint Commission requires hospitals to assess

employee competency annually. Respondent employs a Director of

Education partly to discharge this obligation. Among the classes

of employees subject to annual testing, nurses are the most

num erous.

5. To ensure that an annual test focuses on critical areas,

the Director of Education annually meets with managers and

representatives of quality, risk management, and infection

control to learn what areas have posed problems for the hospital

o ver the past 12 months. After identifying the problem areas,

the Director of Education accesses available databases from which

she obtains questions that will focus on these problem areas.

The Director of Education transmits the proposed test to the

rele vant department head for review prior to finalization; the

relevant department in this case is the ICU.

6. At least for nurses, the annual test is part of a larger

annual competency process. After preparing the nurses ' test, the

Director of Education pro vides nurses with study materials so

they can prepare to take and pass the test. After each nurse

takes the test, the Director of Education consults with the

nurse ' s department director and then reviews the test with the

nurse, discussing the areas of wea kness revealed by the test.

For more serious weaknesses, the Director of Education may

require the nurse to take an entire course. For less serious

weaknesses, the Director of Education may require the nurse to

perform some online work or perform some in dividual research.

7. The competency process concludes with a followup meeting

between the Director of Education and the nurse, who discusses

the remediation work that she has completed by the time of this

meeting. The Director of Education then issues a final report to

the relevant department director, which, for Petitioner, is the

ICU department director. The ICU department director is an RN,

who serves as the immediate supervisor of the ICU charge nurses,

including Petitioner.

8. For 2012, the Dire ctor of Education provided a window of

three months, from February 1, 2012, through May 1, 2012, for

nurses to complete all phases of the annual competency process.

For nurses, including charge nurses, the Chief Nursing Officer

(CNO) determined that the c onsequence for noncompliance would be

suspension without pay until timely completion. The CNO did not

address any additional consequence for noncompliance by a charge

nurse because the charge nurse ' s department director had direct

responsibility for this matter.

9. At least six times before and during the period provided

for completing the competency assessment process, the Director of

Education sent emails to the nurses reminding them of the

deadline to complete the annual competency process and to the

department directors identifying their nurses who had not yet

completed the process.

10. Most of the nurses completed the annual competency

process in March and April, 2012. Of the 68 ICU employees -- all

o r a majority of whom are nurses -- eight ICU staff nurses failed

to timely complete the process, and they were suspended without

pay until they completed the process.

11. Petitioner failed to timely complete the annual

competency process. She took the test on May 7, 2012, and

completed the process one w eek later. Accordingly, she was

suspended without pay from May 3 to May 14. Petitioner was

cleared to return to work starting May 15, although she never did

so.

12. After learning that Petitioner had failed to timely

complete the annual competency proce ss, the ICU department

director consulted with the CNO and decided to demote Petitioner

to staff nurse for two reasons: the charge nurse served as an

important role model to the staff nurses whom she supervised, and

Petitioner had failed to timely complet e the annual competency

process in 2009 and 2010, at which times she was counseled for

these noncompliances.

13. There is no evidence that the CNO discriminated against

Petitioner on any basis in the CNO ' s implementation of her

preannounced decision to su spend without pay those nurses who

failed timely to complete the annual competency process.

14. There is no evidence that the CNO or the ICU department

director, who is ten months older than Petitioner, discriminated

against Petitioner on the basis of a ge in demoting her to staff

nurse for failing timely to complete the annual competency

process. The ICU department director made a good faith effort to

accommodate Petitioner in selecting a shift and obtaining

training for her new duties as a staff nurse, but Petitioner

elected to forego this opportunity. After a reasonable period of

waiting for Petitioner to return to work at Westside, Respondent

justifiably determined that she had voluntarily terminated her

employment.

15. Petitioner has failed to prov e that she had any

disability, the CNO or ICU department director perceived that she

had a disability, or the CNO or ICU department director

discriminated against her on the basis of any real or perceived

disability. The issue of a disability emerged with a work -

related injury that Petitioner suffered to her hip while helping

a large patient on April 23, 2012. After the pain worsened

overnight, Petitioner reported it the next day, but was able to

work her entire shift.

16. Pursuant to Respondent ' s poli cy, a compensable injury

necessitates a drug screen of the injured employee. Petitioner

complains that a staffperson drew her blood in an employee

lounge, where coworkers could witness the process, but the

staffperson did so only after earlier attempts to have Petitioner

report to the staffperson had failed. Although the location of

the blood draw may have violated Respondent ' s confidentiality

policy, it is unclear why a coworker would draw an adverse

inference from witnessing a process routinely performe d with

every employee who is injured on the job. In any event, the

circumstances of the taking of Petitioner ' s blood do not suggest

any discrimination on the part of Respondent ' s representatives

against Petitioner.

17. The drug screen revealed the presen ce of Valium. When

informed of this fact, Petitioner advised Respondent that she had

a prescription for Valium and identified the pharmacy that filled

the prescription. Unfortunately, when contacted, a pharmacy

representative misstated that no such presc ription existed, which

resulted in Petitioner ' s termination effective May 11, 2012.

However, a pharmacy representative later indicated that the

pharmacy had a prescription for Valium, and Respondent rescinded

the termination no later than May 15, 2012.

18. No evidence links this unfortunate incident, which

occurred through no fault of Petitioner or Respondent, with the

demotion that is the subject of Petitioner ' s present complaint.

This incident may have played a role in Petitioner ' s ensuing

decision n ot to return to work at Westside, although this

decision appears to have been driven at least as much by

Petitioner ' s discomfort at the prospect of working with staff

nurses whom she had previously supervised, if not by other

factors as well.

19. More i mportantly, though, no evidence links the

" failed " drug screen or Petitioner ' s injury with the subject

demotion. There is no doubt that the CNO and ICU department

director demoted Petitioner, a charge nurse, for failing to

timely complete the annual compe tency test three times in the

preceding four years.

20. Petitioner cites the injury as justification for

missing the May 1 deadline for completion of the annual

competency process. There are two problems with this contention.

First, Petitioner assumed the risk of noncompliance when she

failed to take the test at anytime in the 11 weeks prior to the

injury, waiting until the last week to take the test, attend the

conference with the Director of Education, complete any required

remedial work, and attend the followup conference with the

Director of Education.

21. Second, the injury did not prevent Petitioner from

taking the test at any time. As noted above, Petitioner was able

to work her entire shift on the day after the injury. The first

physician, wh om Petitioner saw the day after the injury,

determined that Petitioner could work, but she had to be limited

to 95% sitting; three days later, this physician cleared

Petitioner to return to work without restrictions. Another

physician, whom Petitioner lat er consulted, prescribed physical

therapy, but only one hour daily. Regardless of when Petitioner

was able to return to regular nursing duties, it is clear that

the injury did not prevent her from taking the test at any time.

22. The posthearing interrog atories, which were devoted to

producing evidence of Respondent ' s treatment of putative

comparators, have proven unnecessary, given the findings set

forth above. However, Respondent ' s answers to these

interrogatories do not support Petitioner ' s claim of p rejudice in

any event.

23. These responses disclose that Respondent did not grant

any RNs extensions of less than 14 days, due to injury or

illness, to complete the annual competency process.

24. Of the 31 charge nurses employed at Westside at the

time of the 2012 competency process, four, in addition to

Petitioner, failed timely to complete the annual competency

process. However, unlike Petitioner, none of these charge nurses

had previously failed timely to complete an annual comp etency

process. One received counseling, which is what Petitioner

received for her first two noncompliances. One worked in another

department which lacked, at the time, a director; as noted above,

the department director is directly responsible for determining

whether a char ge nurse should undergo additional adverse

employment action for missing the deadline. The other two worked

in another department, which had a director who lacked a history

of consistent written discipline of her employees; this director

is no longer a We stside employee. The other four charge nurses

are thus not comparators because of different immediate

supervisors, in the form of department directors, and different

circumstances, primarily in the form of no prior noncompliances

by these four charge nurs es.

CONCLUSIONS OF LAW

25. DOAH has jurisdiction over the subject matter.

§§ 120.569, 120.57(1), and 760.11(7), Fla. Stat.

26. Section 760.10(1)(a) provides that it is an unlawful

employment practice for an employer " [t]o discharge . . . or

otherwise to discriminate against any individual with respect to

compensation, terms, conditions, or privileges of employment,

because of such individual ' s age [op] handicap . . . . "

27. Petitioner has failed to prove that she was disabled or

that Respondent ' s repres entatives perceived her as disabled.

Petitioner has also failed to prove that she was discharged. The

sole issue is thus whether Respondent demoted Petitioner because

of her age.

28. To prevail on this claim of disparate treatment because

of age, Petiti oner must prove by a preponderance of the evidence

that age was the " but for " cause of her demotion. Gross v. FBL

Fin. Serv., Inc. , 557 U.S. 167, 177 (2009); Sunbeam TV Corp. v.

Mitzel , 83 So. 3d 865, 870 - 71 (Fla. 3d DCA 2012).

29. The sole cause for Pet itioner ' s demotion was not her

age, but her failure to complete timely the 2012 competency

process -- for the third year of the preceding four. Petitioner

was a supervising nurse. The competency process is an important

device by which Respondent ensures qu ality patient care.

Petitioner ' s immediate supervisor, the ICU department director,

had ample reason to determine that a suspension without pay was

insufficient under these circumstances, but that Petitioner

merited a demotion to staff nurse.

RECOMMENDAT ION

It is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief.

DONE AND ENTERED this 4th day of March , 2014 , in

Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 Administra tive Hearings

this 4th day of March , 2014 .

COPIES FURNISHED:

Violet Denise Crawford, Agency Clerk

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

Scott Michael Behren, Esquire

Scott M. Behren, P.A.

Sui te 110

2893 Executive Park Drive

Weston, Florida 33331

Mark E. Edwards, Esquire

Mark E. Edwards, Attorney at Law

2501 Park Plaza

Nashville, Tennessee 37203

Alexander David del Russo, Esquire

Carlton Fields Jorden Burt, P.A.

Suite 1200

525 Okeechobee Boulevard

West Palm Beach, Florida 33401

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

Suite 100

2009 Apalachee Parkway

Tallahassee, Florida 32301

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.