14-004580 Ghanshaminie Lee vs. Shell Point Retirement Community Status: Closed Recommended Order on Monday, March 23, 2015.

Summary: Petitioner did not meet her burden of proving that Respondent committed an unlawful employment practice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

GHANSHAMINIE LEE,

Petitioner,

vs. Case No. 14 - 4580

SHELL POINT RETIREMENT

COMMUNITY,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final h earing in this case was held by

video teleconference between sites in Fort Myers and Tallahassee,

Florida, on February 13, 2015, before Linzie F. Bogan,

Administrative Law Judge of the Division of Administrative

Hearings. The final hearing commenced on No vember 25, 2014, and

was continued at Petitioner's request. By agreement of the

parties, the final hearing reconvened on February 13, 2015.

APPEARANCES

For Petitioner: Ghanshaminie Lee

4607 Vinewood Circle

North Fort Myers, Florida 33903 - 4697

For Respondent: John F. Potanovic, Esquire

Henderson, Franklin, Starnes,

and Holt, P.A.

Post Office Box 280

Fort Myers, Florida 33902 - 0280

STATEMENT OF THE ISSUE

Whether Respondent violated the Florida Civil Rights Act of

1992, as alleged in the Employment C omplaint of Discrimination

filed by Petitioner on February 24, 2014.

PRELIMINARY STATEMENT

Petitioner, Ghanshaminie Lee (Petitioner), filed an

Employme nt Complaint of Discrimination (Complaint) with the

Florida Commission on Human Relations (FC HR), which alleges that

her employer, Shell Point Retirement Community (Respondent),

violated section 760.10, Florida Statutes (2013), by

discriminating against her on the basis of r ace, color, national

origin, and religion. Petitioner also alleges that R espondent,

in an act of retaliation against her for complaining about being

the victim of unlawful discrimination, terminated her employment

with the company.

The allegations were investigated, and on August 25, 2014,

FCHR issued its Determination: No Cau se. A Petition for Relief

was filed by Petitioner on September 26, 2014. On October 2,

2014, FCHR transmitted the case to the Division of Administrative

Hearings for the assignment of an administrative law judge to

conduct a formal hearing.

At the heari ng, Petitioner testified on her own behalf and

offered testimony from Jeffrey Lee, her husband ; and Olna Exantus

and Nadine Bernard, both former co - workers. Respondent offered

testimony from its employees Karen Anderson, Stacey Daniels, and

Marjorie Cartw right. Petitioner ' s Exhibits A - 1 through A - 58, and

Respondent ' s Exhibits A, and A - 1 through A - 38 (including A - 1 8a

and A - 18b) were admitted into evidence.

A Transcript of the final hearing was filed with the

Division of Administrative Hearings on February 24, 2015. The

parties each submitted a Proposed Recommended Order .

FINDING S OF FACT

1. Respondent operates one of the largest continuing care

retirement communities in the country with about 2,400 residents

and just over 1,000 employees on a single site in Fort Myers,

Florida.

2. Petitioner describes herself as " Indo - Guyanese " and

testified that she is a member of the Catholic denomination.

Petitioner is an articulate woman who projects an air of dignity

and refinement. These qualities, when combined, can easily be

interpreted by some individuals as producing an arrogant

personality type.

3. On June 6, 2013, Petitioner began employment with

Respondent and was assigned to work at The Arbor, which is one of

Respondent ' s assisted living facilities. Petitioner was employed

as a hospitality care assistant (HCA) and worked on a PRN , or " as

needed/on - call , " basis. Petitioner ' s final date of employment

with Respondent was May 8, 2014. Petitioner ' s employment

relationship with Respondent ended after Pet itioner refused to

return to work after being cleared to do so by her authorized

workers ' compensation treating physician.

4. During her employment by Respondent, Petitioner was

supervised by Stacey Daniels, the registered nurse manager

assigned to The A rbor. Ms. Daniels has held this position for

15 years. In her capacity as registered nurse manager ,

Ms. Daniels supervise d seven licensed practical nurses,

approximately 35 HCAs and resident care assistants, and two

front - desk staff. In addition to Pet itioner, Ms. Daniels also

supervise d Marjorie Cartwright, who works at The Arbors as a

full - time HCA.

A. Alleged Harassment by Marjorie Cartwright

5. Petitioner, in her Complaint, alleges that she " endured

on - going harassment by Marjorie Cartwright. " According to

Petitioner, Ms. Cartwright would tell Petitioner things like " we

don ' t allow terrorists to have keys and [a] radio , " would ask

Petitioner if she is " Muslim, " and referred to Petitioner as

" that bitch nigger " when speaking with other staff. Th e Complaint

also alleges that Ms. Cartwright told co - workers that she

" hate[ s Petitioner] to the bone. "

6. Olna Exantus and Nadine Bernard were previously employed

by Respondent , and each woman worked with both Petitioner and

M s. Cartwright.

7. Ms. E xantus testified that she witnessed an incident

between Ms. Cartwright and Petitioner , during which Ms. Cartwright

called Petitioner " stupid " and an " idiot " because Petitioner did

not deliver to Ms. Cartwright the number of lemons that were

requested. Ms. Exantus also recalled an incident where she was

working with Ms. Cartwright and Petitioner when, out of the

presence of Petitioner, Ms. Cartwright said that she hate s

Petitioner to the bone or words of similar import.

8. Ms. Bernard testified that Ms. Cartwright referred to

Petitioner as " stupid " on one occasion , and on another occasion ,

she called Petitioner a " bitch. " Ms. Bernard also testified that

she heard Ms. Cartwright state that she hate s Petitioner to the

bone or words of similar import.

9. Both Ms es . Exantus and Bernard testified that they heard

Ms. Cartwright say that the reason why she hate s Petitioner to the

bone is because Petitioner thinks that " she is a rich lady " and

is , therefore , better than everyone else. Neither Ms. Exantus nor

Ms. Bernard testified to having heard Ms. Cartwright refer to

Petitioner as either a " nigger " or a " bitch. "

10. M s. Cartwright, who is not Indo - Guyanese, has been

employed by Respondent for approximately six years as a full - time

HCA. Although Ms. Cartw right testified for only a few minutes

during the final hearing, she projects a personality type that can

best be described as " feisty. " Ms. Cartwright and Petitioner

worked together approximately ten times during Petitioner ' s period

of employment with Re spondent. Ms. Cartwright testified that she

never referred to Petitioner using either the word " nigger " or

" Muslim. " Ms. Cartwright did not deny that she referred to

Petitioner as " stupid " or called her an " idiot. " Ms. Cartwright

also did not deny that she stated that she hate s Petitioner to the

bone.

11. Petitioner was informed by Ms es . Exantus and Bernard

that she was disliked by Ms. Cartwright , and they suggested to

Petitioner that she should take appropriate steps to protect her

food items from poss ible contamination by Ms. Cartwright.

Although Petitioner was warned to take such steps, there is no

evidence that Ms. Cartwright engaged in any behaviors designed to

cause harm to Petitioner. The evidence is clear , however, that

Ms. Cartwright disliked Petitioner during Petitioner ' s period of

employment by Respondent.

12. P etitioner contemporaneously prepared personal notes as

certain events happened during her employment by Respondent,

including issues she claimed to have had with Ms. Cartwright.

None of Petitioner ' s contemporaneous notes indicate that

Ms. Cartwright, or anyone else employed by Respondent, referred to

her as either a " nigger " or a " Muslim. "

13. The evidence does not support Petitioner ' s claim that

Ms. Cartwright referred to Petitione r as a " bitch nigger " or as a

" Muslim " as alleged in the Complaint.

B. Stacey Daniel ' s Alleged Failure to Act on Complaints

14. Petitioner alleges in her Complaint that she attempted

to report Ms. Cartwright ' s behavior to their joint supervisor

Ms. Dani els , but was told by Ms. Daniels that she " didn ' t have

time to listen " to Petitioner ' s complaints.

15. On December 13, 2013, Ms. Daniels met with Petitioner to

discuss Petitioner ' s possible workers ' compensation claim. During

the meeting, Petitioner me ntioned to Ms. Daniels that she was

upset with her because approximately three months earlier, on or

about September 4, 2013, Ms. Daniels refused to immediately meet

with Petitioner to discuss the problems that Petitioner was having

with Ms. Cartwright. M s. Daniels had no recollection of

Petitioner approaching her with concerns about Ms. Cartwright.

Petitioner acknowledged that she only approached Ms. Daniels once

to discuss her concerns about Ms. Cartwright.

16. During the meeting on December 13, 2013 , Ms. Daniels

reminded Petitioner that she (Ms. Daniels) is very busy during the

workday, that it may be necessary to bring matters to her

attention more than once, and that she is not always able to stop

what she is doing and immediately meet with employe es to address

work - related disputes. She apologized to Petitioner for the

oversight and immediately offered to mediate any dispute between

Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels '

offer because Ms. Cartwright, according to Petitione r, would

simply lie about her interaction with Petitioner. Petitioner

never complained to Ms. Daniels about Ms. Cartwright referring to

Petitioner as either a " nigger " or a " Muslim. "

C. Petitioner C omplains to Karen Anderson

17. Karen Anderson is the v ice - president of Human Resources,

Business Support, and Corporate Compliance and has been employed

by Respondent for approximately 18 years.

18. On November 21, 2013, Petitioner met with Ms. Anderson

to discuss matters related to a workers ' compensation claim.

During this meeting with Ms. Anderson, Petitioner complained,

for the first time, about M s. Cartwright and the fact that

Ms. Cartwright had called Petitioner " stupid " and had also

referred to Petitioner as a " bitch. " At no time during this

meetin g did Petitioner allege that she had been referred to by

Ms. Cartwright as a " nigger " or a " Muslim. " Additionally, at no

time during her meeting with Ms. Anderson did Petitioner complain

about Ms. Daniels, Petitioner ' s immediate supervisor, refusing to

me et with her in order to discuss her concerns about

Ms. Cartwright.

D. Denied P romotion on Three O ccasions

19. In her Complaint, Petitioner alleges that she " was

denied promotions to Registered Medical Assistant 3 different

times " by Ms. Daniels. This a llegation is not supported by the

evidence. Ms. Daniels testified that Petitioner was never denied,

nor did she ever seek, a transfer to the position of registered

medical assistant . Ms. Daniels also testified that the only

conversation that she and Peti tioner had about the position of

registered medical assistant occurred before Petitioner was hired

by Respondent. Petitioner offered no credible evidence to refute

Ms. Daniel s ' testimony.

E. Retaliatory R eduction in H ours W orked

20. In her Complaint, P etitioner alleges that " [o]ut of

retaliation for complaining to Ms. Stacey about Ms. Marjorie, they

cut my hours back to 2 days a week without my request. " As

previously noted, Petitioner worked for Respondent on an " as

needed/on - call " basis.

21. Typical ly , Respondent ' s on - call staff members are

presented with a work schedule that has already been filled in

with work times for the full - time staff members. Any work times

not filled by full - time staff are then offered to on - call staff.

In addition, on - cal l staff may be called at the last minute , if

there is a last minute schedule change by a full - time staff

member. On - call HCAs do not have set work schedules and are

offered work hours on a first - come , first - serve d basis.

22. After Petitioner was cleared to return to work following

her alleged work - related injuries, Ms. Daniels, along with Amy

Ostrander, who is a licensed practical nurse s upervisor, tried to

give Petitioner notice of the availability of work shifts that

were open on upcoming schedules at T he Arbor. Ms. Daniels

encouraged Petitioner to provide her with an e - mail address in

order to provide Petitioner with a more timely notice of available

work shifts, but Petitioner refused to do so . E - mail

communication is the most typical form of communi cation used by

the rest of the on - call staff and serves as the most efficient and

quickest way for Ms. Daniels to communicate with HCA staff.

23. Because Petitioner would not provide an e - mail address,

she was at a disadvantage , because other on - call staf f members

were able to learn of the availability of work shifts and respond

faster to the announced openings. Because Petitioner would not

provide an e - mail address and indicated that she preferred to

receive the notice of work shift availability by mail, Ms. Daniels

complied and sent the schedule of availability to Petitioner by

U.S. mail. The evidence establishes that any reduction in the

number of hours worked by Petitioner resulted exclusively from her

own actions and not as a result of any retaliator y animus by

Ms. Daniels or Respondent.

CONCLUSIONS OF LAW

24. The Division of Administrative Hearings has

jurisdiction over the parties and subject matter in this case.

§§ 120.569 and 120.57, Fla. Stat. (2014). 1 /

25. Section 760.10(1), Florida Statutes ( 2013), provides ,

in part , that it is an unlawful employment practice for an

employer to discharge or otherwise discriminate against an

individual on the basis of " race, color, religion . . . [or]

national origin . " Section 760.10(7) provides , in part , that " it

is an unlawful employment practice 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. "

26. FCHR and Florida courts have determined that federal

discrimination law should be used as guidance when construing

provisions of section 760.10. See Valenzuela v. GlobeGround

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

Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA 1994).

27. Petitioner asserts that Respondent ' s discriminatory

harassment created a hostile working environment. " A hostile

work environment claim is comprised of a series of separate acts

that collectively constitute one unlawful employment practice. "

Amtrak v. Morgan , 536 U.S. 101, 117 (2002).

28. In order to be actionable, harassment based on r ace,

color, national origin, or religion must be so severe or

pervasive that the harassment alters the conditions of employment

and creates a hostile work environment. " When the workplace is

permeated with discriminatory intimidation, ridicule, and insult

that [are] sufficiently severe or pervasive to alter the

conditions of the victim ' s employment and create an abusive

working environment, Title VII is violated. " Harris v. Forklift

Sys. , 510 U.S. 17, 21 (1993).

29. Petitioner did not present credible evidence tha t any

harassment she experienced in the workplace occurred as a result

of her r ace, color, national origin or religion. At best,

Petitioner ' s evidence establishes that she and Ms. Cartwright

experienced a personality conflict , which is not actionable.

Mc Collum v. Bolger , 794 F.2d 602, 610 (11th Cir. 1986)

( " plaintiff cannot turn a personal feud into a . . .

discrimination case by accusation. " ).

30. As for Petitioner ' s claim of retaliation, it is well

established that in order to prove a prima facie case of

retaliation prohibited by Title VII, the plaintiff must show

" (1) that there was a statutorily protected participation;

(2) that an adverse employment action occurred; and (3) that

there was a causal link between the participation and the adverse

emplo yment action. " Fleming v. Boeing Co . , 120 F.3d 242, 248

(11th Cir. 1997).

31. Petitioner ' s claim of retaliation fails for at least

two reasons. First, Petitioner ' s only complaints to

Ms es . Anderson and Daniels were that she had been called

" stupid, " a n " idiot, " and a " bitch " by Ms. Cartwright.

Complaints of this nature do not constitute statutorily protected

activity, as presented in the instant case, because such

statements did not reasonably put Respondent on notice that

Petitioner was being targete d by the author of the statements for

reasons related to Petitioner ' s r ace, color, national origin , or

religion. Additionally, even if Petitioner ' s complaints about

being called " stupid, " an " idiot, " and a " bitch " by

Ms. Cartwright amounted to statutorily protected activity , the

evidence fails to establish a causal connection between

Petitioner reporting the statements and the reason for the

termination of her employment. Petitioner presented no credible

evidence that Respondent ' s decision to terminate he r for refusing

to return to work, despite being medically cleared to do so, was

a pretext for unlawful retaliation.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Rela tions enter a final order finding : that Respondent, Shell

Point Retirement Community, did not commit an unlawful employment

practice as alleged by Petitioner, Ghanshaminie Lee ; and denying

Petitioner ' s Employment Complaint of Discrimination .

DONE AND ENTE RED this 23rd day of March , 2015 , in

Tallahassee, Leon County, Florida.

S

LINZIE F. BOGAN

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 23rd day of March , 2015 .

ENDNOTE

1 / All statutory references are to 2014 Florida Statutes, unless

otherwise indica ted.

COPIES FURNISHED:

J ohn F. Potanovic, Esquire

Henderson, Franklin, Starnes,

and Holt, P.A.

Post Office Box 280

Fort Myers, Florida 33902 - 0280

(eServed)

Ghanshaminie Lee

4607 Vinewood Circle

North Fort Myers, Florida 33903 - 4697

Cheyanne Cost illa, General Counsel

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

Tammy Scott Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

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 agency that

will issue the Final Order in this case.