14-002526 Charlotte A. Pinkerton vs. Florida Department Of Corrections Status: Closed Recommended Order on Wednesday, March 4, 2015.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHARLOTTE A. PINKERTON,

Petitioner,

vs. Case No. 14 - 2526

FLORIDA DEPARTMENT OF

CORRECTIONS,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was held in this case on

February 6 , 2015, in Clermont , Florida, before Administrative Law

Judge Lynne A. Quimby - Pennock of the Division of Administrative

Hearings (Division).

APPEARANCES

For Petitioner: Jamison Jessup

Quali fied Representative

557 Noremac Avenue

Deltona, Florida 32738

For Respondent: Todd Evan Studley, Esquire

Florida Department of Corrections

501 South Calhoun Street

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

W hether Respondent, Department of Corrections , discrimin at ed

against Petitioner, Charlotte Pinkerton, o n the basis of her age,

race, disability, or in retaliation, and, if so, what re medy

should be ordered .

PRELIMINARY STATEMENT

On November 18, 2013, Petitioner filed a Complaint of

D iscrimination (Complaint) with the Florida Commission on Human

Relations (Commission), alleging unlawful employment

discrimination by Respondent on the bas is of her age, race,

disability, and in retaliation . The Commission investigated the

Complaint. On May 5, 2014, the Commission issued its ÐNotice of

Determination: No CauseÑ and ÐDetermination: No CauseÑ

regarding the alleged discriminatory practices.

On May 27, 2014, Petitioner timely filed a Petition for

Relief which was forwarded to the Division for assignment of an

a dministrative l aw j udge. The final hearing was initially set

for July 23, but was rescheduled to February 5 and 6, 2015,

following P etitionerÓs requests for continuance. On January 22,

Petitioner filed a motion to amend the petition for relief. A

telephone conference hearing was held and the motion was granted.

During the telephone conference hearing, the parties agreed that

only on e hearing day was necessary . The hearing was re - scheduled

for February 6, and concluded on that date.

Petitioner testified on her own behalf and prese nted the

testimony of Lou Armentrout, Regional Warden Jennifer Folsom,

Diana Gadacz, Theresa Williams, As sistant Warden Tommy Young, and

Virginia Mesa, M.D. RespondentÓs witness list included three of

the same witnesses as Petitioner (Jennifer Folsom, Tommy Young,

and Virginia Mesa). In order to provide an orderly hearing flow

and allow each party the oppor tunity to elicit the direct

testimony of th e se t h ree witness es , the undersigned allowed great

leeway in th e ir examination. PetitionerÓs Exhibits 1 through 8

were admitted into evidence. RespondentÓs Exhibits 1 , 2 , and 5

were admitted into evidence. At h earing, RespondentÓs Exhibit 6

was taken under advisement, and is now admitted. 1/ Additionally,

the parties stipulated to three facts that are found in the

Findings of Fact below.

A court reporter was present for the hearing; however , the

parties did not order a transcript. The parties were advised to

submit their proposed recommended orders (PROs) within 10 days of

the conclusion of the hearing . Respondent timely submitted its

PRO, and it has been considered in the preparation of this

Recommended Order . To date , Petitioner has not filed a PRO.

Unless otherwise indicated, citations to the Florida

Statutes refer to the 2014 codification.

FINDING S OF FACT

1. Respondent is the state agency whose purpose is to

protect the public through the incarceration a nd supervision of

offenders, and to rehabilitate offenders through the application

of work programs and servi ces. See § 20.315, Fl a. Stat .

Respondent employs more than 15 persons.

Stipulated Facts

2. Petitioner was hired by Respondent and employed at Lak e

Correctional Institution (Lake C.I.) as a s enior r egistered n urse

(RN), OPS 2/ employee, effective October 29, 2010. On October 14,

2011, Petitioner was promoted to senior RN, career service

employee, at Lake C.I. Petitioner resigned from employment wit h

Respondent at Lake C.I. on February 1, 2013, effective

February 15, 2013.

A ge and R ace

3. Petitioner is a 67 - year - old Caucasian female .

Petitioner was 63 years old when she started work at Lake C.I.

There was no evidence presented that a new employee or employees

were hired to replace Petitioner .

D isability

4. At hearing, Petitioner provided a February 7, 1990 ,

letter from Gene Watson, Ph.D., of The Learning Place, which

reflected Petitioner had a diagnosis of d evelopmental d yslexia.

PetitionerÓs cl aim that th is February 7 letter was attached to

her employment application cannot serve as a blanket notification

to everyone working for Respondent or Lake C.I.

5. Petitioner admitted she had d yslexia and declared Ð I can

do my job.Ñ Although PetitionerÓ s former supervisor, senior RN

Lou Armentrout , testified she was aware of PetitionerÓs d yslexia ,

the exact timing of this knowledge was not disclosed.

Ms. Armentrout also testified that Petitioner did not need an

accommodation to perform her nursing duti es.

6. PetitionerÓs statement that Ðthey knew of my disabilityÑ

is insufficient to substantiate that fact. Warden Folsom and

Dr. Mesa were not employed at Lake C.I. when Petitioner was hired

to work there, and they were unaware of PetitionerÓs disabilit y.

R etaliation B ackground

7. Prior to the arrival of Dr. Mesa at Lake C.I. ,

Petitioner worked under the direction of the Chief H ealth O fficer

(CHO) . Petitioner did anything she could to assist the prior

CHOs ( Dr. Meredith or Dr. Marino ) . Petitioner work ed as a floor

nurse and would sometimes be the charge nurse.

8. Petitioner worked in the medical building at Lake C.I.

PetitionerÓs immediate supervisor was Ms . Armentrout.

PetitionerÓs six - month performance planning and evaluation by

Ms. Armentrout, d ated April 16, 2012, reflected a rating of 3.36

on a 5.0 scale. In September 2012, Ms. Armentrout left Lake C.I.

9. Between August 2012 and October 2013 , 3/ Dr . Mesa served

as RespondentÓs CHO at Lake C.I. As the CHO, Dr. Mesa oversaw

everything in the medical section regarding inmate patient care

and services. There are two medical buildings at Lake C.I. : one

houses those inmates needing medical care ; and a second building

houses other inmates needing mental health services. Dr. Mesa

would usually st art her work day in the medical building and then

go to the second building. On a daily basis , Dr. Mesa would

treat inmate patients, write orders, interact with staff, attend

meetings, and administer Lake C.I.Ós entire medical section.

Dr. Mesa is a Spa nish - speaking female physician who talks with

her hands as she speaks .

10. At the start of Dr. MesaÓs tenure at Lake C.I .,

Petitioner was on light duty as a result of an injured foot. It

is believable that Dr. Mesa gave Petitioner orders or directives

to do certain tasks which Dr. Mesa believed were within the light

duty category. Petitioner contends that she discussed the tasks

requested by Dr. Mesa with RespondentÓs human resource office,

and Dr. Mesa Ós request s w ere found to be outside the light duty

category . T here was no evidence to support or contradict

PetitionerÓs discussion with RespondentÓs human resource office ,

and it was hearsay as to what she was told . As the CHO, Dr. Mesa

c ould ask or direct Petitioner to perform medically related

task s .

R etaliation

11. In late November 2012, Petitioner claimed she reported

to Warden Folsom problems regarding Dr. MesaÓs continued verbal

abuse towards Petitioner, medical staffing issues including long

work - breaks, and missing medical supplies and equipment . Warden

Folsom does not recall this November meeting with Petitioner , and

there was no investigation conducted in late November or December

regarding PetitionerÓs allegations.

12. After reporting the irregularities in the medical

section, Petitioner fel t Dr. Mesa increased her verbal abuse

towards Petitioner. Petitioner felt she was being retaliated

against and tortured by Dr. Mesa. Petitioner deemed the abuse to

be a hostile work environment, yet she did not report it again

until February.

13. Petiti oner testified that Assistant Warden Young spoke

with her several days after the alleged November meeting with

Warden Folsom, and reminded her that she needed Ðto follow the

chain of command.Ñ Assistant Warden Young failed to provide any

insight into th is meeting, claiming that he did not recall

talking with Petitioner about following the chain of command.

14. Petitioner believed that Dr. Mesa had the ability to

fire her, and Petitioner remained in constant fear of Dr. Mesa.

Petitioner felt Dr. Mesa beli ttled and humiliated her in front of

prisoners and other nurses. Petitioner believed that Dr. Mesa

intentionally spoke Spanish to other nurses when Petitioner was

present. 4/ Petitioner believed that Dr. Mesa hated white people,

and black people who defen ded white people. During one

interaction between Petitioner and Dr. Mesa, Dr. Mesa stuck her

finger between PetitionerÓs eyeballs; however, the exact verbal

exchange that led to that encounter remains unclear.

15. Dr. Mesa denied making fun of Petitione r or

intentionally giving medical orders to nurses in Spanish, when

Petitioner was present. However, Dr. Mesa conceded it was

possible that she did so , as Spanish is her first language.

Dr . Mesa denied ever intentionally putting her finger on

Petitioner .

16. Dr. Mesa supervised Ms. Armentrout and her replacement ,

nurse Is ab g a , but claimed not to supervise Petitioner. As the

CHO in charge of the health care for inmates, it is logical that

the CHO would have supervisory duties over all the health care

wo rkers, maybe not directly, but certainly through the chain of

command. When Dr. Mesa gave or wrote a medical order, she

expected a high level of performance from the Lake C.I. staff.

17. Ms. Gadacz, who worked with Petitioner at Lake C.I.,

did not know Petitioner had a disability. Ms. Gadacz witnessed

Dr. Mesa yelling at different times to different people,

including Petitioner; but Ms. Gadacz did not believe it was

motivated by anyoneÓs race or age. Although Ms. Gadacz witnessed

Dr. Mesa putting her f inger on PetitionerÓs face, she could not

explain the circumstances.

18. Licensed Practical Nurse Theresa Williams worked with

Petitioner at Lake C.I. At various times , Ms. Williams observed

Dr. Mesa Ós interactions with Petitioner, which she deemed to be

less than professional. During at least one meeting , with six or

seven employees present, Dr. Mesa addressed everyone but

Petitioner with respect. When Respondent began the investigation

of PetitionerÓs complaint (after PetitionerÓs resignation),

Ms. W illiams was interviewed and provided her observations of

Dr. MesaÓs treatment of Petitioner.

PetitionerÓs Resignation

19. On February 1, 2013, Petitioner requested a meeting

with Warden Folsom. During this meeting Petitioner initially

expressed her desi re that nothing be done about what she was

going to tell the Warden. Petitioner expressed her frustrations

with Dr. MesaÓs verbal abuse and discrimination . At that

meeting , Petitioner gave Warden Folsom a resignation letter. The

letter provided:

I would like to inform you that I am

resigning from my position as Senior Register

[sic] Nurse for Lake Correction Institution,

effective February 15, 2013.

Thank you for the opportunities for

professional and personal development that

you have provided me durin g the last 28

months. I have enjoyed working for the

agency and appreciate the support provided me

during my tenure with the Institution.

If I can be of any help during this

transition, please let me know.

Sincerely,

[signature]

Ms. Charlotte Pinkerton

Senior Register [sic] Nurse

Warden Folsom was surprised that Petitioner was resigning and

provided her with the opportunity to continue to work for

Respondent. However, when Petitioner used the phrase Ðhostile

work environment , Ñ Warden Folsom instituted RespondentÓs

proce dure s to have the allegation investigated.

20. Dr. Mesa participated in RespondentÓs Inspector

GeneralÓs investigation that ensued after Petitioner left Lake

C.I., but couldnÓt recall the details. Further , Dr. Mesa

testified repeatedly that she did not recall having conversations

with other Lake C.I. personnel regarding Petitioner or others.

There is evidence that Petitioner and Dr. Mesa do not care for

one another ; however, the evidence necessary to prove any

discrimination is lacking.

21. Following her resignation, Petitioner has attempted to

obtain another RN position, but has been un successful. In

December 2013, Petitioner sustained an injury which has precluded

her from continuing to seek employment.

CONCLUSIONS OF LAW

22. The D ivision of Administrative Hearings has

jurisdiction over the parties and subject matter of this

proceeding. §§ 120.569 , 12 0.57(1), and 760.11(7) Fla. Stat.

23. The Florida Civil Rights Act of 1992 (the Act) is

codified in sections 760.01 through 760.11, and prohibits

discrimination in the workplace. When Ða Florida statute [such

as the A ct ] 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 Po wer Corp. , 633 So.

2d 504, 509 (Fla. 1st DCA 1994). Therefore, the A ct 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.

24. Section 760.10 provi des 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 privil eges of employment, because of such

individualÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

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

1997) . Courts have held that Ðonly 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 . I n this case, Pe tition er presented only

self - serving testimony .

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

inference of discriminatory intent, if complainants can p roduce

sufficient circumstantial evidence 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 circumsta ntial

evidence constitutes a prima facie case. In this instance,

Petitioner and her witnesses did not provide that proof.

27 . In addressing PetitionerÓs retaliation claim , she

alleges that she was forced to resign as a result of her

reporting the discrim ination, lengthy work - breaks, and missing

medical equipment. PetitionerÓs own actions show otherwise.

28 . Section 760.10(7) provides in pertinent part:

It is an unlawful employment practice for an

employer . . . to discriminate against any

person becaus e 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.

29 . It can be said that Petitioner felt as if she was

participating in a protected activity when she allegedly

complained in November . However, Warden Folsom was not aware of

PetitionerÓs complaint until February . Wa r den Folson did not

terminate Petit ionerÓs employment ; Petitioner resigned.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that PetitionerÓs Petition for Relief from

an unlawful employment action be dismissed.

DONE AND ENTERED this 4th day o f March , 2015 , in

Tallahassee, Leon County, Florida.

S

LYNNE A. QUIMBY - PENNOCK

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 4th day of March , 2015 .

ENDNOTE S

1 / PetitionerÓs Exhibit 8 contained the same documentation.

2 / Although never defined by either party, when used by a Florida

state agency, OPS means Ðother personal services.Ñ

3 / In or around October 2013, Respondent contracted with Corizon

Health to provide medical services for RespondentÓs inmates.

Dr. Mesa and most of RespondentÓs heal th care workers were hired

by Corizon Health.

4 / Petitioner does not speak or understand the Spanish language.

COPIES FURNISHED:

Charlotte A. Pinkerton

165 Cork Way

Davenport, Florida 33897

Todd Evan Studley, Esquire

Florida Department of Correction s

501 South Calhoun Street

Tallahassee, Florida 32399

(eServed)

Jamison Jessup

557 Noremac Avenue

Deltona, Florida 32738

(eServed)

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 32399

Cheyanne 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 th e 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.