14-002976 Sonia E. Brown vs. Poinciana Medical Center Hca Status: Closed Recommended Order on Tuesday, May 19, 2015.

Summary: Petitioner failed to prove that she was terminated in retaliation for engaging in a protected activity with her previous employer.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SONIA E. BROWN ,

Petitioner ,

vs. Case No. 14 - 2976

POINCIANA MEDICAL CENTER HCA,

Respondent .

_______________________________/

RECOMMENDED ORDER

On March 12, 2015, this case was heard by D .R. Alexander,

the assigned Administrative Law Judge of the Division of

Administrative Hearings (DOAH ) , at videoconferencing sites in

Orlando and Tallahassee, Florida.

APPEARANCES

For Petitioner : Sonia E. Brown, pro se

14643 Eagles Crossing Drive

Orlando , Florida 32837 - 6920

For Respondent : Lori R. Benton , Esquire

Ford and Harrison LLP

Suite 1300

300 South Orange Avenue

Orlando, F lorida 32801 - 3379

STATEMENT OF THE ISSUE

The issue is whether Petitioner was unlawfully terminated

from employment in retaliation for engaging in a protected

activity, in violation of the F lorida Civil Rights Act of 1992 ,

as amended.

PRELIMINARY STATEMENT

On November 4, 2013, Petitioner filed an Employment

Complaint of Discrimination with the Florida Commission on Human

Relations (FCHR) alleging that she was terminated from

employment by her most recent employer, Poinciana Medical Center

HCA (PM C ) , in retaliation for filing a discrimination complaint

in August 2012 against her previous employer, Osceola Regional

Hospital, Inc., d/b/a Osceola Regional Medical Center (ORMC) .

After the FCHR determined that reasonable cause ex ist ed to

believe an unlawful employment practice occurred , Petitioner

filed her Petition for Relief . The matter was then transmitted

by the FCHR to DOAH to resolve the dispute.

At the hearing, Petitioner testified on her own behalf and

presented two witne ss es . Petitioner's Exhibits E, F, H, I, M,

N, O, P, Q, and U were accepted in evidence . To the extent

there are hearsay statements in her remaining exhibits that

corroborate other competent evidence, they have been considered.

Respondent presented the t estimony of five witnesses.

Respondent's E xhibits 1 through 5, 8 through 14, 16 through 20,

22, and 23 were accepted in evidence.

A two - volume Transcript of the hearing has been prepared.

The parties filed p roposed r ecommended o rder s (PROs) , which ha ve

been considered in the preparation of this Recommended Order.

FINDINGS OF FACT

1. Petitioner is a 5 7 - year - old female of Jamaican origin .

In 2000, s he began working as a registered nurse with ORMC , a

hospital in Kissimmee, Florida, and continued working in that

capacity until June 23, 201 3 , when she voluntarily resigned.

See Resp. Ex. 3. Effective Ju ly 1 , 201 3 , she began working as a

registered nurse for PM C , a new hospital in Kissimmee , which

began accepting patients on July 24, 2013. Petitioner clai ms

she was unlawfully terminated by PM C on September 6, 2013 , in

retaliation for engaging in a protected activity while employed

at ORMC . Other claims presented by Petitioner after the case

began were excluded as being untimely. 1/ PM C disputes her claim

and says she was not terminated, but only voluntarily separated

from employment . PMS also contends that no matter how it is

characterized, the separation/ termination was for legitimate,

non - discriminatory reasons , and not in retaliation for a

protected ac tivity .

2. During her tenure with ORMC, Petitioner filed two

discrimination complaints against that facility. In August

2007, she alleged race discrimination in a complaint filed with

the Equal Opportunity Employment Office, but that charge was

dismiss ed on December 4, 2007. In August 2012, she filed a

discrimination complaint with the FCHR alleging discrimination

based on age, race, and national origin. That charge was

dismissed by the FCHR on February 21, 2013, and Petitioner never

requested a heari ng regarding those charges. In August 2012,

s he also filed a complaint with the Agency for Health Care

Administration (AHCA) regarding alleged safety or health hazards

at ORMC . However, the AHCA complaint is not a protected

activity under chapter 760, Fl orida Statutes (2014).

3. ORMC and PM C are wholly - owned subsidiaries of HCA

Holdings, Inc., a non - operating company without employees.

Petitioner contends they are affiliated companies, or " joint

employers, " and that ORMC exercises control over the terms and

conditions of employment of PM C 's employees. However, the

evidence shows that the two hospitals operate independently, and

PM C has sole control over the terms and conditions of its

employees' employment . Even so, in resolving this case, the

undersig ned has considered whether there is a causal connection

between P etitioner 's alleged adverse employment action and the

charge of discrimination filed against ORMC in 2012 .

4 . S ylvia Lollis serves as the Vice President of Human

Resources of both facilitie s. Respondent stipulates that

Ms. Lollis was aware of Petitioner's August 2012 charge filed

with the FCHR against ORMC. However, there is no evidence that

Ms. Lollis disclosed this information to any person acting on

behalf of PM C during Petitioner's tenure with that facility . T o

the contrary, t he evidence shows that th e individual who hired

Petitioner , Linda Coffey, PM C 's director of surgical services,

was unaware of any discrimination complaints Petitioner had

filed against ORMC while employed by t hat facility . And, the

employee who handled her transfer to a different position within

PMC , Anna Netys, was unaware of the complaint.

5. Petitioner worked as a per diem (as needed) employee at

ORMC before she was hired at PM C . Per diem employees are no t

full - time employees and do not receive health insurance

benefits. When she learned that PM C would open in July 201 3 ,

Petitioner voluntarily resigned from ORMC and applied for a

full - time position with PM C . It was never suggested by ORMC ,

nor was Petiti oner pressured by that facility , to seek a

position at another hospital. Petitioner's motivation was to

secure a full - time position in order to receive health

insurance.

6. Petitioner hoped to land a position in the radiology

department and was first i nterviewed by Greg g Jacob , PM C 's

director of radiology . He told her there were no full - time

positions open in that department. However, based on her

background and resume, Mr. Jacob advised Ms. Coffey that

Petitioner appeared to be qualified for a positi on in the

catheterization lab department (cath lab) , a combined department

consisting of interventional radiology procedures and cardiac

catheterization.

7. According to her resume, Petitioner was a critical care

nurse whose main function was to assess patients and assist the

radiologist in providing various interventional radiology

procedures that are routinely performed in the cath lab. See

Pet. Ex . E. She had also worked in noninvasive cardiology.

After reviewing her resume, which reflected a "stro ng critical

care background," Ms. Coffey offered Petitioner a full - time

position in the cath lab . In doing so, Ms . Coffey relied on

Petitioner's resume and interview and did not contact ORMC or

Ms. Lollis to verify her experience. Petitioner's contention at

hearing that she always believed she was being interviewed and

then hired for a position in radiology, and not the cath lab, is

contrary to the accepted evidence.

8. During the interview, Ms. Coffey described the job in

the cath lab and what was requi red and expected in that

position. Although P etitioner testified at hearing that she had

"no experience for this position," she voice d no objection to an

a s s ignment in the cath lab and told Ms. Coffey there were no

barriers in her transition to th at posit ion. P etitioner

admitted that she had no exposure to "MAC lab " equipment , a

mainstay in the cath lab. Ho wever , General Electric Company

(GE) offered in - house MAC lab training, and Ms. Coffey assumed

this would give Petitioner the training that she needed . If Ms.

Coffey believed that further training was needed , she would have

provided Petitioner with that training. Petitioner was hired on

a full - time basis effective July 1, 2013 , and told to report to

the cath lab . In accordance with hospital protocol, f or the

first ninety days, she was on probation.

9 . B esides broad general training and hospital

orientation, Petitioner's initial training w as geared around the

MAC lab. At Petitioner 's request, she received three days of

hands - on training with patien ts at ORMC 's cath lab since PMC had

not yet accepted patients . Also, s he was given training for

specific instrumentation and equipment used in the cath lab.

This was the same training given to other nurses in the cath lab

hired at the same time. Because her training included

instruction on the database , the MAC lab, and other equipment

she had never used in the past, Ms. Coffey had no reason to

believe that Petitioner could not perform in the cath lab.

10 . During her training classes, other participants

frequently observed Petitioner sleeping and failing to

concentrate on the lecture. A co - worker testified that

Petitioner fell asleep mid - sentence while the two were having a

conversation ; another testified that she fell asleep while

working at her comput er . Barbara Ott, who participated in the

MAC lab training sessions with Petitioner, observed her

appearing drowsy and sometimes falling asleep. When asked if

she was tired, Petitioner told Ms. Ott that she was tired

because "I was up studying last night. " While monitoring

Petitioner's training , Ms. Coffey observed her appearing very

drowsy, with her eyes closed and head nodding. At one point,

Ms. Coffey asked Petitioner to move to the more common area of

the lab which had more activity and would hopeful ly keep her

stimulated.

11 . In a memorandum dated July 10, 2013, Doris Hale, who

attended MAC lab training with Petitioner, advised Ms. Coffey

that Petitioner "has on multiple occasions fallen asleep, even

[while] standing at [her] computer and monitoring stations" ; she

"routinely appears drowsy and can't participate in training

sessions" ; and she "lacks the attitude, skills and fore - sight

needed for a critical care area." Resp. Ex. 9.

1 2 . In response to Ms. Hale's memorandum, o n July 15,

2013, Ms. Coffe y conducted a counseling session with Petitioner

to discuss the complaints . Ms. Coffey was concerned with these

reports because complications in the cath lab can arise very

quickly, and an inattentive nurse presents a huge patient safety

issue. Ms. Coffe y was also concerned with complaints that

Petitioner was falling aslee p during the MAC lab training that

is vital for a cath lab nurse .

1 3 . In response to these concerns, Petitioner told

Ms. Coffey that she was staying up late every night working o n a

master's degree , she was very tired, and she would rearrange her

schedule to address the problem . She added that while she may

have been falling asleep during training, there was no record of

her falling asleep while caring for patient s. This was

obv iously true since the cath lab did not receive its first

patients until after July 2 4 , 2013.

1 4 . Shortly after the counseling session, Ms. Coffey

received a report from a GE MAC lab trainer stating that

Petitioner's participation was less than 50 percent, and " she

appeared very tired and kept dozing during the training event."

Resp. Ex. 11. D uring this same time, multiple complaints were

made by other nurses that Petitioner appeared very tired and was

falling asleep. Ms. Coffey confirmed this with perso nal visits

to the cath lab.

1 5 . With the end of the 90 - day probationary period drawing

closer, o n August 19, 2013, Petitioner was counseled a second

time for sleeping and not staying alert during her training

sessions. The counseling session was intend ed to serve as a

written warning on performance and to provide Petitioner notice

that she had not made any progress since being counseled in mid -

July . Ms. Coffey advised Petitioner that her inability to

retain the training that she was receiving presented major

safety concerns for patients. Petitioner did not request

additional training at the counseling session. In fact, she

told Ms. Coffey that much of what she had learned from the MAC

lab database was "very similar" to what she was learning in

school.

1 6 . P etitioner was never told by Ms. Coffey th at she could

not return to the cath lab, as no decision had been made on

whether to keep her past her 90 - day probationary period. At

that time, i t was still Petitioner's choice to stick it out and

stay in th e cath lab, or find another position. When Ms. Coffey

attempted to persuade Petitioner that there may be another

nursing position that was more suitable for her skill sets,

Petitioner conceded that " the cath lab may not be the place

for her, and she was willing to go look to see what e l se was

available within [PMC]." Ba sed on Petitioner's comments,

Ms. Coffey recommended that Petitioner look for another position

that better matched her skills . The two then met with PMC's

Human Resource g eneralist, Anna Netys (then known as Otto), to

search for available positions.

1 7 . Petitioner 's first choice was always radiology, but

she was told that there w as only a per diem position available.

Petitioner was concern ed that she m ight not be successful in the

cath lab at the end of the 90 - day probationary period, which

could end in termination. Therefore, she voluntarily filled out

a transfer form to radiology. Ms. Netys encouraged Petitioner

to look at the entire list of open positions, and she was told

tha t she could apply for any one of them. Prior to that date,

Petitioner had never searched for available job positions . As

it turned out, there was another full - time position that

Petitioner felt she was qualified for, but she did not apply for

the positio n. Notably, a t no time during the August 19 meetings

did Petitioner ever indicate to Ms. Coffey or Ms. Netys that she

wished to return to the cath lab if the new position did not

work out.

1 8 . Ms. Coffey immediately approved the transfer and

signed the f orm releasing Petitioner from the cath lab

department. That was the last time Ms. Coffey saw or spoke with

Petitioner.

1 9 . After the transfer form was executed, Petitioner's

full - time position in the cath lab was filled by another nurse,

Barbara Ott, t hen a per diem employee . Ms. Ott had previously

worked in three cath labs and was fully qualified for the

position by reason of training and experience .

20 . After the transfer was approved by Greg g Jacob ,

Petitioner was initially assigned to work in ra diology covering

for a nurse on a pre - scheduled two - week vacation. Within a few

days, however, she n otified Mr. Jacob that she was ill and would

be on sick leave. On August 29, 2013, she went to the PMC

emergency room where she was diagnosed with a serio us illness.

Petitioner remained on medical leave until September 6, 2013,

when she was cleared to return to work.

2 1 . On September 6, 2013, Petitioner went to Ms. Netys 's

office with a return to work slip from her physician . She told

Ms. Netys that sh e was returning to the cath lab , presumably to

enable her to have health benefits reinstate d . By then,

however, Petitioner's position had been filled by Ms. Ott , and

no full - time positions were available in that department .

2 2 . In view of Petitioner's demands to return to the cath

lab , Ms. Netys and Petitioner participated in a telephone

conference call with Ms. Lollis . Prior to the call, Ms. Lollis

was unaware of Ms. Coffey's counseling session with Petitioner

on August 19, 2013, and Petitioner's deci sion to voluntarily

transfer to radiology. After Petitioner stated that she

intended to return to the cath lab, M s. Lollis explained that no

full - time positions were available in the cath lab, and that she

had already transferred to radiology. Petitioner was told that

she could apply for any available position at PMC that suited

her qualifications , and that until an acceptable full - time

position became avail able, she could continue working as a per

diem employee in radiology. She was also offered a posit ion in

ICU but declined. Petitioner was never given a take - it - or -

leave - it choice between termination or demotion.

2 3 . The conference call ended with Petitioner refusing to

work in radiology because of a loss of benefits and insisting

that she return t o the cath lab. Ms. Lollis explained that

because she had turned down the available position in radiology ,

Petitioner was choosing to end her employment with PMC.

Petitioner was reminded multiple times that she could review

available positions and apply for a full - time position for which

she was qualified. In sum, Petitioner was given three choices:

search and apply for available positions within PMC; return to

her per diem radiology position that she requested and to which

she was currently assigned; o r terminate her employment, where

she was eligible for rehire. Petitioner chose to not return to

a per diem position and to separate from employment . She

continues to remain eligible to apply for any full - time or per

diem position at PM C that becomes vac ant. PMC did not provide

Petitioner with termination paperwork because she ended her own

employment on September 6, 2013.

2 4 . The decision to separate Petitioner from employment at

PM C was not in retaliation for Petitioner filing a complaint

against OR MC . Rather, it was because she refused to fill an

available and accepted position or search for an alternative

available position.

2 5 . At hearing, Petitioner contend ed that after she was

observed appearing drowsy and sleeping during training sessions,

P M C had a duty to investigate the cause of her fatigue and take

whatever steps were necessary to diagnose the problem. However,

Petitioner cite s no authority to support th at proposition .

Moreover, Petitioner always told PM C personnel that her day - time

fatig ue was due to extra - curricular activities involving school,

studying, and writing papers. While t here were concerns on the

part of other PM C employees who observed Petitioner sleeping ,

th ose concerns were directed to patient safety if she remained

in the cath lab. In her testimony and PRO , Petitioner asserted

that she was required to lift heavy boxes and supplies wh en the

cath lab was first set up for operations , which may have

contributed to her fatigue . But this explanation is not an

excuse for the poo r performance in training sessions.

2 6 . At hearing, Petitioner testified that in the mid - July

counseling session, she told Ms. Coffey that she had a newly

diagnosed condition called autoimmune thyroiditis that might be

making her tired. However, Ms. Coff ey did not recall such a

comment. A vague reference to a "serious diagnosis," without

further explication, in Petitioner's Employee Counseling Form

dated July 15, 2013, has been discounted as being insufficient

to put Ms. Coffey on notice of any ailment. In any event,

discrimination on account of a disability is not a charge raised

by Petitioner in her initial complaint.

2 7 . Af t er her complaint was filed, Petitioner contended

for the first time that she was denied the necessary training to

qualify for a position in the cath lab . There is no evidence,

however, that Petitioner advised Ms. Coffey that she needed more

training, or that anyone at PMC ever denied her that

opportunity. Indeed, she told Ms. Coffey that the MAC lab

database training was very sim ilar to what she was learning in

school. Even assuming that the allegation is true, it made no

sense to provide more training if Petitioner was falling asleep

in class or failing to participate in more than half of the

training sessions. Notably, this ch arge was never raised in her

Employment Complaint of Discrimination or Petition for Relief.

2 8 . Unfortunately, Petitioner has not worked since she

left PMC because of a major medical issue . She cannot currently

work, and she does not know if she will b e able to work in the

future. She filed h er Employment Complaint of Discrimination

with FCHR on November 4, 2013, after she left PMC.

CONCLUSIONS OF LAW

2 9 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committe d an

unlawful employment practice. See § 120.57(1)(j), Fla. Stat.

30 . Section 760.10( 7 ) makes it unlawful for an employer to

take adverse action against a person because that person has

opposed any practice which is an unlawful employment practice,

or because that person has made a charge in an investigation,

proceeding, or hearing under section 760.10.

3 1 . The FCHR's retaliation provis i on "is almost identical

to its federal counterpart" under Title VII of the Civil Rights

Act of 1964, as amended. C arter v. Health Mgmt. Assocs. , 989

So. 2d 1258, 1262 (Fla. 2d DCA 2008). Thus, Florida courts

follow federal case law when examining FCHR retaliation claims.

Id. ; s ee also Hinton v. Supervision Int'l , Inc. , 942 So. 2d 986,

989 (Fla. 5th DCA 2006).

3 2 . To establish a prima facie case of retaliation,

Petitioner must show that: 1) she was engaged in a n activity

protected by the FCHR ; 2) she suffered an adverse employment

action by her employer, PMC ; and 3) there is a causal connection

between the protec ted activity and the adverse employment

action. See Pennington v. City of Huntsville , 261 F.3d 1262 ,

1266 (11th Cir. 2001).

3 3 . Petitioner has the ultimate burden of proving by a

preponderance of the evidence that PMC intentionally retaliated

against h er. See Tex . Dep't of Cmty. Affairs v. Burdine , 450

U.S. 248, 253 (1981). She must come forward with evidence that

PMC intentionally retaliated against her because of her charge

of discrimination against ORMC in August 2012. See St. Mary's

Honor Ctr. v. Hicks , 509 U.S. 502, 507 - 08 (1993). On the other

hand, PMC's burden of proof is "merely one of production, not

persuasion, and is exceedingly light." Buzzi v. Gomez , 62 F.

Supp. 2d 1344, 1356 (S.D. Fla. 1999).

3 4 . Petitioner has satisfied the first pro ng of the test ,

as the charge of discrimination against ORMC in August 2012 is a

protected activity under the FCHR. However, Petitioner has not

established that she suffered an adverse employment action by

PMC. The evidence shows that Petitioner made a v oluntary choice

to transfer to radiology and to then end her employment.

Therefore, she was not subject to an actionable adverse

employment action by PMC. See Turlington v. Atlanta Gas Light

Co. , 135 F.3d 1428, 1432 - 33 (11th Cir. 1998). An unfavorable

r esult from an action taken or choice made by an employee is not

an actionable employment action. See Rowell v. BellSouth Corp. ,

433 F . 3d 794, 806 (11th Cir. 2005) . See also Turley v. SCI of

Ala. , 190 Fed. Appx. 844 , 847 (11th Cir. 2006)(affirming

distric t court's finding that employee's decision to accept a

position that reduced her pay was not a demotion resulting from

employer's deliberate decision and was not an actionable

employment action); Allen v. U.S. Postmaster Gen. , 158 F. Appx .

240, 244 (11th C ir. 2005)(finding a transfer is not an adverse

employment action because plaintiff requested a transfer even

though she lost seniority); Doe v. Dekalb Cnty. Sch. Dist. , 145

F.3d 1441, 1454 (11th Cir. 1998)( a transfer cannot be a n

actionable employment acti on if it occurred as a result of an

employee's own request) ; Santandreu v. Miami - Dade Cnty. , 513 F.

Appx. 902, 906 (11th Cir. 2013)( a choice to voluntarily resign

when faced with unpleasant alternatives is not an adverse

employment action by the employer).

3 5 . A s to the third prong of the test, t here is no

evidence establishing the requisite causal connection. To

satisfy the causal connection requirement of a prima facie case,

Petitioner must demonstrate "but for" causation to sustain a

retaliation claim. Univ. of Tex. Sw. Med. Ctr. v. Nassar , 133

S. Ct. 2517, 2533 (2013). In other words, Petitioner must show

that the adverse employment action would not have occurred if

she did not engage in the protected activity. Here, there is no

evidence that Ms. Co ffey had actual knowledge of Petitioner's

protected activity . Thus, she could not have taken any adverse

action against Petitioner because of her protected activity.

And, if Ms. Lollis is considered the decision maker, there was

no evidence showing "but for" Petitioner's charge of

discrimination she would not have been transferred from the cath

lab to radiology , and her employment with PMC would have ended

on September 6, 2013.

3 6 . Finally, assuming arguendo that Petitioner established

a prima facie case , PMC offered a legitimate, non - retaliatory

business explanation for its employment actions. First,

Ms. Coffey recommended that Petitioner search for another

position within PMC because Ms. Coffey believed that Petitioner

would not improve and would not be able to perform as a nurse in

the cath lab position . She also wanted Petitioner to have an

opportunity to locate a different position that matched her

skills to avoid a possible termination. Second, when Petitioner

indicated she no longer wanted t he per diem position she

requested and held, she wanted to return to a cath lab position

that was no longer available. PMC provided Petitioner with

several legitimate reasonable options, which could not include a

position that was no longer available.

3 7 . Petitioner failed to produce evidence that PMC's

actions were unworthy of credence. See, e.g. , Combs v.

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

3 8 . Because Petitioner has failed to establish a prima

facie case of retaliation , her P etition 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 , with

prejudice .

DONE AND ENTERED this 19th day of May , 20 1 5 , in

Talla hassee, Leon County, Florida.

S

D . R. ALEXANDER

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 19th day of May , 201 5 .

ENDNOTE

1/ After the case was referred to DOAH, and the discovery

process began, Petitioner attempted to assert new claims of

discrimination, including a charge that she was terminated by PMC

on account of age, race, and disability , and a charge that ORMC

was guilty of discrimination . These charges were untimely, and

the introduction of evidence regarding those cl aims was precluded

by Orders dated March 3 and 10, 2015.

C OPIES FURNISHED:

Tammy Barton , Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Suite 110

Tallahassee, Florida 323 99 - 7020

Sonia E. Brown

14643 Eagles Crossing Drive

Orlan do, Florida 32837 - 6920

(eServed)

Lori R. Benton, Esquire

Ford and Harrison LLP

Suite 1300

300 South Orange Avenue

Orlando, Florida 32801 - 3379

(eServed)

Cheyanne M. Costill a , General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Su ite 110

Tallahassee, Florida 323 99 - 7020

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with t he agency that will

render a final order in this matter.