14-002523 Dominic A. Grasso vs. Agency For Health Care Administration Status: Closed Recommended Order on Monday, October 27, 2014.

Summary: Petitioner failed to establish an unlawful employment action.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DOMINIC A. GRASSO,

Petitioner,

vs. Case No. 14 - 2523

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Respondent.

_______________________________/

RECOMMENDED ORDER

Administrative Law Judg e Jessica E. Varn held a final

hearing in this case by video teleconference between sites in

Tallahassee and West Palm Beach, Florida, on September 9, 2014.

APPEARANCES

For Petitioner: Dominic Grasso, pro se

22500 Middleton Drive

Boca Raton, Florida 33428

For Respondent: Wil l iam H. Roberts, Esquire

2727 Mahan Drive, M ail Stop 3

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

Whether Respondent committed the unlawful employment

pract ices alleged in the Employment Complaint of Discrimination

filed with the Florida Commission on Human Relations (FCHR) , and

if so, what relief should be granted.

PRELIMINARY STATEMENT

On January 21, 2014, Petitioner, Dominic A. Grasso, filed a n

Employment C omplaint of Discrimination (Complaint) with FCHR

alleging that Respondent, Agency for Health Care Administration

(Agency) , had engaged in an unlawful employment practice based on

his age and that the Agency had retaliated against him for having

filed the Complaint. The Complaint alleges that he was denied a

raise because of his age and that he was then subjected to

retaliation in the form of impossible performance measures and

questions regarding his hours. Following its investigation of

the Complaint, FCHR notified the parties that there was no

reasonable cause to believe that an unlawful employment practice

had occurred. Mr. Grasso had previously filed a c omplaint in

October 2013, alleging age discrimination, and then filed the

amended c omplaint alleg ing retaliation.

On May 28, 2014, Mr. Grasso filed a Petition for Relief,

seeking an administrative remedy. On that same day, FCHR

transmitted the Petition for Relief to the Division of

Administrative Hearings (DOAH). The final hearing was scheduled

for July 15, 2014. On July 2, 2014, a Motion for Jamison Jessup

to Serve as Petitioner ' s Qualified Representative was filed, and

the motion was granted on July 8, 2014 . Mr. Grasso also

requested a continuance, which was granted. After the parties

filed a St atus Report with mutually - agreeable hearing dates, the

hearing was re - scheduled for September 9, 2014.

On August 19, 2014, Mr. Jessup filed a Motion to Withdraw as

q ualified r epresentative for Petitioner, which was granted. On

September 4, 2014, Mr. Grass o filed a Motion to Extend Hearing

Date, which was denied on that same date.

During the final hearing, Mr. Grasso renewed his request for

a continuance, stating that he had forgotten his exhibits and had

not had adequate time to prepare for the hearing; th e ore tenus

motion to continue was denied, and the hearing proceeded.

At the final hearing, Mr. Grasso testified on his own behalf and

introduced Exhibit 1. The Agency presented the testimony of

Lorna Howell, Arlene Mayo - Davis, and Polly Weaver; Exhibits 2

through 7, 9 through 16, 18 , and 20 through 23 were introduced.

The final hearing Transcript was filed with DOAH on

September 24, 2014. Both parties filed proposed recommended

orders, which the undersigned has considered in the preparation

of the R ecommended Order.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2013 codification.

FINDING S OF FACT

1. At all times relevant to this proceeding, Mr. Grasso was

employed by the Agency as a f ire p rotection s pecialist.

2. M r. Grasso was born on December 27, 1953. When he was

46 years old, he was hired by the Agency as a h ealth f acility

e valuator, above base salary. When he was 48 years old,

Mr. Grasso was promoted to the f ire p rotection s pecialist

position, above base sala ry. When he was 54 years old, he

received a special pay increase.

3. Fire p rotection s pecialists survey health care

facilities for fire safety. These surveys can be pursuant to

federal guidelines and state guidelines; they include off - site

preparation, entrance conferences, a tour of the facility,

records review, and staff and resident interviews. Fire

p rotection s pecialists also must adhere to the Agency ' s protocol,

which provides guidelines as to the amount of time that should be

devoted to a facility , given its type and size.

4. By all accounts, Mr. Grasso is passionate about his

work, but is difficult to manage because he challenges management

directives at every turn.

5. In the summer of 2010, after Mr. Grasso was transferred

from the Bureau of Plans and Construction to the Bureau of Field

Operations, the management team noticed some deficiencies in

Mr. Grasso ' s job performance. In t his new assignment, his direct

supervisor was Lorna Howell, who reported to Arlene Mayo - Davis,

who in turn reporte d to Bureau Chief Polly Weaver.

6. On one occasion, Ms. Davis asked Mr. Grasso to assist

with a survey in Tampa, although Mr. Grasso was stationed in the

Delray Beach office. Mr. Grasso indicated that he was

unavailable for the dates requested and that , if he did do the

work, he wanted additional compensation.

7. In September 2010, problems arose regarding

Mr. Grasso ' s upcoming October schedule; he was requesting

overtime pay for the work he was scheduled to complete. The

Agency responded that no ove r time was necessary because his

schedule could be adjusted to limit his work to regular work

hours. Mr. Grasso threatened to file a grievance.

8. The three management witnesses credibly testified to a

pattern that existed: Mr. Grasso failed to properly m anage his

time . He frequently took longer to conduct surveys that his

colleagues could complete in shorter timeframes, he often had

logged in 40 hours of work by the fourth day of a five - day work

week, he requested changes to his survey schedules and devi ated

from the schedule without seeking permission, and he often failed

to adhere to the scheduling and staffing protocols. He requested

overtime almost weekly, and his colleagues rarely did so.

9. His requests were often found in emails sent to

managem ent that were written in such a way as to reflect disdain

for management and an inability to accept a management decision.

10 . In August of 2013, Mr. Grasso requested a pay raise

based on the fact that he had received a competitive job offer .

Ms. Weaver, who processes these types of requests, decided not to

recommend Mr. Grasso for a pay raise because he did not exhibit

team player attributes, he often challenged management decisions ,

and he had yet to resolve his time management issues. Ms. Weaver

found Mr. Grasso to be unwilling to perform his job as requested

by the Agency; therefore, he was denied the pay raise.

11 . Ms. Weaver had, in 2012, recommended a pay raise for

a different f ire p rotection s pecialist, Mr. Pescatrice.

Mr. Pescatrice worked in a different field office than

Mr. Grasso, had perfect evaluations, worked well with others, had

garnered positive feedback from everyone he worked with, and had

received a competitive job offer. His supervisor had expressed a

need to keep Mr. Pescatrice in the Agency ' s employ.

12 . Ms. Weaver, when deciding whether to recommend both

Mr. Grasso and Mr. Pescatrice for a competitive pay raise, was

unaware of their respective ages. At the time they requested the

raises, Mr. Grasso was 59, and Mr. Pescatrice wa s 51.

13 . In October 2013, Mr. Grasso exchanged emails with

management questioning the decision to not send staff to a

seminar. Management viewed Mr. Grasso ' s emails as disrespectful,

and asked Mr. Grasso to cease communication regarding the

subject .

14 . Later that month, pursuant to the Agency 's leave

policy, Mr. Grasso was asked to provide a doctor ' s note to

document the need for sick leave, as he had been absent four days

in a 30 - day period. He was unable to provide a medical note;

management asked h im to consider the request a reminder of the

Agency ' s leave policy; and no discipline was imposed.

15 . In November 2013, Ms. Davis convened an informal

counseling session with Mr. Grasso. She was unaware that

Mr. Grasso had filed a Complaint with FCHR. At the session,

Mr. Grasso was notified of the Agency ' s concerns regarding time

management and disrespectful communications with management. He

was given counseling and a plan to correct the behavior in those

areas.

16 . Two days after the counseling sess ion, Mr. Grasso

notified his supervisor that he would be adjusting his work

hours, despite the fact that he had not followed Agency policy

seek ing prior approval.

17 . The record is replete with emails from Mr. Grasso to

management that are argumentative and reflect a disdain for

management decisions.

18 . Mr. Grasso ' s rendition of the alleged age

discrimination presented through his testimony at hearing is not

found credible and is belied by the credible testimony provided

by the Agency 's witnesses. H e was denied a pay raise for

legitimate reasons and not due to his age. His documentary

evidence, a " statistical " report purporting to reflect age

discrimination, was created by Mr. Grasso himself and was not

supported by testimony to provide some statist ical context ; the

undersigned finds it wholly unreliable.

19 . Similarly, absent from the record is any credible

evidence that Mr. Grasso was subjected to retaliation after

filing the Complaint.

CONCLUSIONS OF LAW

20 . DOAH has personal and subject matter jurisdiction in

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

Florida Statutes (2014).

21 . The Florida Civil Rights Act of 1992 (FCRA),

chapter 760, Florida Statutes, prohibits discrimination in the

workplace. Among other things, the FCRA m akes 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, handicap , or marital status.

§ 760.10(1)(a), Fla. Stat.

22 . The FCRA, as amended, was patterned after Title VII of

the Civil Rights Act of 1964 and 1991 (Title VII), as well as the

Age Discrimination in Employment Act (ADEA). Thus, federal

decisional authority interpreting Title VII and the ADEA is

applicable to cases arising under the FCRA. Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009).

23 . The ADEA prohibits an employer from discriminating

against an employee who is at least 40 y ears old on the basis of

his /her age. 29 U.S.C. §§ 623(a)(1) & 631(a).

24 . Complainants alleging unlawful discrimination may prove

their case using direct evidence of discriminatory intent.

Direct evidence is evidence 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).

25 . When no direct proof of discrimination exists, the

employee may attempt to establish a prima facie case

cir cumstantially through the burden - shifting framework

established in McDonnell Douglas Corp. v. Green , 411 U.S. 792,

802 - 05 (1973).

26 . Under the McDonnell Douglas framework, Mr. Grasso could

establish a prima facie case of age discrimination by showing

t hat: (1) he was a member of the protected age group; (2) he was

subjected to adverse employment action; (3) he was qualified to

do the job; and (4) the Agency treated a similarly - situated

employee outside his protected class more favorably. Knight v.

Bap tist Hosp. of Miami, Inc. , 330 F.3d 1313, 1316 (11th Cir.

2003).

27 . In Mr. Grasso ' s case, he did establish the first three

elements of a prima facie case, but failed to establish the

fourth prong. First, Mr. Pescatrice is in the same protected

class as Mr. Grasso (over age 40); therefore, Mr. Grasso was

unable to produce a comparator who was outside his protected

class. Furthermore, Mr. Pescatrice was not similarly situated to

Mr. Grasso. Mr. Pescatrice reported to a different field office

and to a dif ferent supervisor than Mr. Grasso , his evaluati ons

were perfect, he worked well with others, had garnered positive

feedback from everyone he worked with, he was an exemplary

employee, and his competitive pay raise request came with a

recommendation from hi s direct supervisor. Mr. Grasso, on the

other hand, did not exhibit team player attributes, he often

challenged management decisions, and he had time management

issues. Mr. Grasso was unwilling to perform his job as requested

by the Agency, he was not re commended by his supervisor for a

raise, and his evaluations were not perfect.

28 . Having failed to establish a prima facie case, the

inquiry need not go further. However, even if Mr. Grasso had met

his initial burden of establishing a prima facie case, and the

burden had shifted to the Agency to articulate a legitimate,

nondiscriminatory reason for denying him a competitive pay raise,

the Agency succes sfully met its burden at the hearing. The

Agency ' s witnesses credibly testified that Mr. Grasso was a

d ifficult employee to manage, had time management issues, and did

not perform his job duties as the Agency requested. He was

denied the pay raise for those legitimate reasons.

29 . Furthermore, Mr. Grasso failed to prove, by a

preponderance of the evidence , any causal link between his age

and the denial of his competitive pay raise, and hence cannot

prove that his age was the but - for cause of the adverse

employment action. Hawthorne v. Baptist Hosp., Inc. , 448 Fed.

Appx. 965 (11th Cir. 2011).

30. Turning to Mr. Grasso ' s retaliation claim, which is

loosely described in his Complaint, section 760.10(7), Florida

Statutes, provides:

It is unlawful for an employer . . . to

discriminate against any person because that

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.

31. To establish a prima facie case of retaliati on ,

Mr. Grasso must show that: (1) he engaged in statutorily -

protected expression; (2) he suffered an adverse employment

action ; and (3) there was some causal relation between the two

events. If Mr. Grasso establishes a prima facie case, the Agency

could offer a legitimate, nondiscriminatory reason for the

employment action(s) as an affirmative defense. If the Agency

articulates a legitimate reason, the burden of proof shifts to

Mr. Grasso to offer evidence that the alleged reason is a pretext

for illega l discrimination. Pennington v. City of Huntsville ,

261 F.3d 1262, 1269 (11th Cir. 2009).

32. Mr. Grasso failed to establish a prima facie case of

retaliation because he failed to establish any adverse employment

actions. His attempts to cast a request for a doctor ' s note, the

effort to help him manage his time better, and his counseling

session as adverse employment actions are not found credible.

The Agency provided abundant credible testimony that each action

was taken for legitimate, nondiscriminato ry reasons.

33. Even if Mr. Grasso had established a prima facie case,

the Agency, as stated in the previous paragraph, provided

legitimate, nondiscriminatory reasons for each action taken.

Lastly, Mr. Grasso provided no evidence that the Agency ' s action s

were pretextual.

34. Mr. Grasso ' s charge of age discrimination and

retaliation 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 f inal order adopting the Findings of Fact and

Conclusions of Law contained in this Recommended Order. Further,

it is RECOMMENDED that the final order dismiss the Petition for

Relief.

DONE AND ENTERED this 27th day of October , 2014 , in

Tallahassee, Leon Cou nty, Florida.

S

JESSICA E. VARN

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.st ate.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27th day of October , 2014 .

COPIES FURNISHED:

William H. Roberts, Esquire

Agency for Health Care Administration

2727 Mahan Drive , Mail Stop 3

Tallahassee, Florida 32308

(eSe rved)

Cheyanne Michelle Costilla, General Counsel

Florida Commission on Human Relations

2009 Apalachee Parkway , Suite 100

Tallahassee, Florida 32301

(eServed)

Dominic A. Grasso

22500 Middleton Drive

Boca Raton, Florida 33428

(eServed)

NOTICE OF RIGH T 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.