15-001871 Jacqueline Ash vs. Pacifica Senior Living Woodmont Status: Closed Recommended Order on Thursday, August 13, 2015.

Summary: Petitioner failed to prove a prima facie case of employment discrimination based on either age or race.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JACQUELINE ASH,

Petitioner,

vs. Case No. 15 - 1871

PACIFICA SENIOR LIVING WOODMONT,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, this case was heard on June 16, 2015,

in Tallahassee, Florida, before Suzanne Van Wyk, an

Administrative Law Judge of the Division of Administrative

Hearings.

APPEARANCES

For Petitioner: Jacqueline Ash, pro se

462 Darsey Road

Cairo, Georgia 29828

For Respondent: Timothy Tack, Esquire

Kunkel, Miller and Hament

3550 Bushwood Park Drive, Suite 135

Tampa, Florida 33618

STATEMENT OF THE ISSUE

Whether Petiti oner was subject to an unlawful employment

practice by Respondent, Pacifica Senior Living Woodmont, on

account of PetitionerÓs age or race, in violation of section

760.10, Florida Statutes.

PRELIMINARY STATEMENT

On March 11, 2014, Petitioner, Jacqueline A sh, filed a

complaint of discrimination with the Florida Commission on Human

Relations (FCHR) alleging that Respondent, Pacifica Senior Living

Woodmont (Respondent), violated section 760.10, by discriminating

against her on the basis of her age and race. The complaint of

discrimination alleges that Petitioner was notified on

February 28, 2014, that she was being Ðlet go as part of a

reorganization,Ñ that she was replaced by a younger white female,

and that she believed she was discriminated against based o n her

age and her race.

On February 24, 2015, the FCHR issued a Determination: No

Cause , and a Notice of Determination: No Cause, by which the FCHR

determined that reasonable cause did not exist to believe that an

unlawful employment practice occurred. On March 24, 2015,

Petitioner filed a Petition for Relief with the FCHR. The

Petition was transmitted to the Division of Administrative

Hearings to conduct a final hearing.

The final hearing was set for June 16, 2015, and commenced as

scheduled. At the final hearing, Petitioner testified on her own

behalf, and offered Exhibits P1 and P2, which were admitted in

evidence. Respondent presented the testimony of Emily Bearden and

Joyce Latimer. Respondent's Exhibits R1 through R6 were admitted

in evidence.

The one - volume Transcript was filed on June 25, 2015.

Respondent requested, and the undersigned granted, an extension of

time until July 13, 2015, for the parties to file their proposed

recommended orders. The extension likewise extended the 20 - day

dead line for the undersigned to issue the recommendation after

post - hearing submissions.

Respondent timely filed a Proposed Recommended Order on

July 13, 2015. Petitioner did not file a proposed recommended

order.

FINDINGS OF FACT

1. Petitioner is a 41 - yea r - old African - American female who

was at all times relevant hereto an employee of Pacifica Senior

Living Woodmont. Petitioner was 40 years old at the time the

alleged discriminatory act occurred.

2. Respondent, Pacifica Senior Living Woodmont (Respondent

or Woodmont), is a 98 - bed assisted living facility located in

Tallahassee, Florida.

3. Petitioner was employed by Woodmont from June 22, 1996,

until February 28, 2014, when her position as Interim Weekday

Receptionist was eliminated. By all accounts, Petitioner was a

dedicated, reliable, loyal, and hard - working employee. Petitioner

was recognized as Employee of the Month in August 2004 , and

January 2006.

4. Petitioner began her employment with Woodmont as a

Dietary Server in the Dining Services Depar tment.

5. At various times during her employment, Petitioner also

worked PRN (i.e., Ðas neededÑ) as the front - desk receptionist.

The Ðas neededÑ basis brought Petitioner in to work reception

occasionally in the evenings and on weekends.

6. Other employe es who worked reception PRN included

Pamela Strange, a 48 - year - old African - American female, and Barbara

Youngblood, a 58 - year - old white female.

7. In June or July 2013, Woodmont initiated a significant

renovation of the facility, adding a memory - care wing , two

additional dining rooms, and a new security system. The

renovations were completed approximately one year later.

8. In October 2013, WoodmontÓs full - time weekday

receptionist, Allison Clark, suffered a severe physical injury and

was on medical leav e through late December 2013. During

Ms. ClarkÓs absence, Petitioner, Ms. Strange, and Ms. Youngblood

alternately performed the weekday, as well as weekend and evening,

receptionist duties.

9. Ms. Clark briefly returned to Woodmont in December 2013.

Ms. Clark was terminated effective January 30, 2014.

10. Emily Bearden was the Business Office Coordinator for

Woodmont from January 2013 through May 2015. Ms. BeardenÓs duties

included accounts payable and receivable, payroll, and onsite

Human Resources, a s well as managing the front - desk team.

11. On January 30, 2014, the date Ms. Clark was terminated,

Ms. Bearden offered Petitioner the position of Interim Weekday

Receptionist. Petitioner accepted the position. On January 30,

2014, Petitioner was remove d from the Dietary schedule with Dining

Services and began as Interim Weekday Receptionist. Her regular

work hours were from 8:00 a.m. to 4:30 p.m.

12. During her term as Interim Weekday Receptionist,

Petitioner occasionally worked shifts for Dining Serv ices. Those

shifts were taken prior to 8:00 a.m. and after 4:30 p.m.

13. Ms. Bearden reclassified the weekday receptionist

position to that of Receptionist/HR marketing assistant.

Ms. B earden explained to Petitioner the duties of the new

position, which would include assisting the marketer on

develop ment of brochures and handouts, making time - clock

adjustments for employees who missed clocking in or out, and other

duties with various departments. The position would require basic

knowledge of the Excel s preadsheet program and use of Outlook for

email with other departments.

14. Petitioner did not immediately dismiss the idea of

moving into the proposed position, but expressed concerns with the

computer skills which would be required. Ms. Bearden offered to

personally provide some training to Petitioner, and indicated that

Woodmont could provide additional training through a third party.

15. When Woodmont advertised the position of Receptionist/HR

marketing assistant, Petitioner did not apply.

16. In Ma rch 2014, Woodmont hired Laurie Love, a 45 - year - old

white female , as Receptionist/HR marketing assistant.

17. Upon completion of the facility renovations, Woodmont

made budget adjustments in order to staff the new memory care

wing. Woodmont eliminated a full - time dishwasher position in

Dining Services, reduced the full - time Activities Director

position to part time, and eliminated the part - time evening

receptionist position.

18. The facility renovations included a new security feature

for the front door, allowing after - hoursÓ visitors (i.e., between

5:00 p.m. and 7:30 p.m.) to be Ðbuzzed in.Ñ This feature

eliminated the need for the part - time evening receptionist at

Woodmont.

19. On February 6, 2014, Ms. Bearden met with Petitioner

regarding options for continued employment with Woodmont following

conclusion of her stint as Interim Weekday Receptionist, and

elimination of the part - time evening receptionist position.

Ms. Bearden offered Petitioner a position in housekeeping, as well

as a position transpo rting residents to and from medical

appointments in the facility vehicle. Ms. Bearden also informed

Petitioner that Dining Services was hiring to fill positions for

the two new dining rooms. Petitioner responded that she was only

interested in evening re ception.

20. Joyce Latimer is an employee of Senior Management

Advisors, the company which manages Woodmont. Ms. Latimer became

Assistant Director of Operations at Woodmont in October 2013.

21. On February 14, 2014, Ms. Latimer called Petitioner into

he r office to notify her that her position had been eliminated,

and deliver a termination letter with detailed information.

Ms. B earden was also present at the meeting.

22. Ms. Latimer testified, credibly, that Petitioner did not

seem to understand the ram ifications of the facility

reorganization. Ms. Latimer explained, more than once, the

elimination of the part - time receptionist position, and

opportunities for continued employment at Woodmont. The meeting

lasted 40 to 45 minutes, much longer than simila r meetings with

other affected employees. During the meeting, Petitioner insisted

that she wanted to stay in her current position.

23. Ms. Strange and Ms. Youngblood were likewise affected by

WoodmontÓs restructuring and elimination of the part - time

rece ptionist position. Ms. Strange accepted the position of full -

time weekend receptionist. Ms. Youngblood declined any alternate

position and was separated from employment at Woodmont.

24. Ms. LatimerÓs concern for Petitioner was genuine. She

wanted to en sure that Petitioner understood she was not being

terminated for poor job performance. Ms. Latimer offered to allow

Petitioner to take time off to look for other employment, to write

letters of recommendation on PetitionerÓs behalf , and to otherwise

suppo rt Petitioner, should Petitioner decide not to remain at

Woodmont. Further, during the meeting, Ms. Latimer offered

Petitioner the opportunity to return to a position in Dietary

Services.

25. On February 28, 2014, Woodmont hosted a going - away party

for P etitioner at the facility. Petitioner made some comments to

the assembled employees which led Ms. Latimer to believe

Petitioner was upset.

26. Ms. Latimer spoke privately with Petitioner during the

party to address PetitionerÓs concerns. Ms. Latimer aga in

explained the restructuring and elimination of positions.

Ms. Latimer reiterated opportunities for continued employment with

Woodmont.

27. Petitioner maintained throughout the proceeding that she

was never offered continued employment at Woodmont, and that she

repeatedly requested to return to her position as a Dietary

Server, but was not allowed to do so.

28. In arriving at the findings herein, the undersigned has

carefully considered the demeanor and the testimony of the

witnesses. Ms. LatimerÓs an d Ms. BeardenÓs testimony is accepted

as both credible and persuasive on this point.

29. Following her last day of employment, February 28, 2014,

Petitioner did not apply for any other position with Woodmont, nor

did Petitioner request a letter o f recomme ndation from

Ms. Latimer.

CONCLUSIONS OF LAW

30. Sections 120.569 and 120.57(1), Florida Statutes, grant

the Division of Administrative Hearings jurisdiction over the

subject matter of this proceeding and of the parties. 1 /

31. PetitionerÓs single allegat ion of discrimination is

stated in her Charge of Discrimination as follows 2 / :

I am a 40 - year - old, African - American female.

I have worked 19 years for Woodmont and its

successor company, Pacifica Senior Living

Woodmont. On February 28, 2014, the company

n otified me that I was being let go as part of

reorganization. A 25 - year - old, white female

was recently hired to take my place.

32. Section 760.10 provides, in pertinent part:

(1) It is an unlawful employment practice for

an employer:

(a) To discharg e or to fail or refuse to hire

any individual, or otherwise to discriminate

against 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.

33. Chapter 760, Part I, is patterned after Title VII of the

Civil Rights Act of 1964, as amended. When Ða Florida statute is

modeled after a federal law on the same subject, the Florida

statute will take on the same constru ctions as placed on its

federal prototype.Ñ Brand v. Fl a. Power Corp. , 633 So. 2d 504,

509 (Fla. 1st DCA 1994); see also Valenzuela v. GlobeGround N.

Am., LLC , 18 So. 3d 17 (Fla. 3rd DCA 2009); Fla. State Univ. v.

Sondel , 685 So. 2d 923 (Fla. 1st DCA 1996 ); Fla. Dep't of Cmty.

Aff. v. Bryant , 586 So. 2d 1205 (Fla. 1st DCA 1991).

34. Petitioner has the burden of proving by a preponderance

of the evidence that Woodmont committed an unlawful employment

practice. See St. Louis v. Fla. Int'l Univ. , 60 So. 3d 455 (Fla.

3rd DCA 2011); Fla. Dep't of Transp. v. J.W.C. Co. , 396 So. 2d 778

(Fla. 1st DCA 1981).

35 . Employees may prove discrimination by direct,

statistical, or circumstantial evidence. Valenzuela , 18 So. 3d at

22.

36. Direct evidence is evidence tha t, 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 will constitute direct evidence of discrimination.Ñ

Damon v. Fleming Supermarkets of Fla. , 196 F.3d 1354, 1358 - 59

(11th Cir. 1999)(citations omitted).

37. The record of this proceeding contains no direct

evidence of any age or racial bias on the part of Woodmont at any

level.

38. In the absence of any direct or statistical evidence of

discriminatory intent, Petitioner must rely on circumstantial

evidence of such inte nt. In McDonnell Douglas Corp. v. Green , 411

U.S. 792 (1973), and as refined in Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981) and St. Mary's Honor

Center v. Hicks , 509 U.S. 502 (1993), the United States Supreme

Court established th e procedure for determining whether employment

discrimination has occurred when employees rely upon

circumstantial evidence of discriminatory intent.

39. Under McDonnell Douglas , Petitioner has the initial

burden of establishing a prima facie case of unla wful

discrimination. In order to establish a prima facie case,

Petitioner must prove that (1) she is a member of a protected

class; (2) she was qualified for her position; (3) she suffered an

adverse employment action; and (4) she was treated less favorab ly

than similarly - situated employees who were not members of her

protected class. Holifield , 115 F.3d at 1555. Petitioner has

failed to establish a prima facie case of discrimination by

failing to prove the fourth element.

Elimination of Part - Time Recept ionist

40. Petitioner is a member of a protected class, both as an

African - American and an employee who has attained the age of 40.

Petitioner was qualified for both her position as Interim Weekday

Receptionist and as part - time evening receptionist. Pet itioner

suffered an adverse employment action during the facilityÓs

reorganization, first in the restructuring of the interim position

to a Receptionist/HR marketing assistant, and second in the

elimination of the part - time evening receptionist position.

41. However, Petitioner did not prove that she was treated

less favorably than similarly - situated employees who were not

members of her protected class.

42. On the issue of race, the facts established that

Ms. Strange, a member of PetitionerÓs protected class, was treated

more favorably (receiving the position of full - time weekend

receptionist), while Ms. Youngblood, a white woman outside

PetitionerÓs protected class, was terminated. Ms. Youngblood was

not treated more favorably than Petitioner.

43. On the issue of age, the facts did not establish that

any employee younger than Petitioner was treated more favorably.

Both Ms. Strange, who was treated more favorably, and

Ms. Youngblood, who was treated equally to Petitioner, were older

than Petitioner.

R eclassification of Full - Time Weekday Receptionist

44. Petitioner secondly alleges that she was discriminated

against because Woodmont ÐreplacedÑ her with a younger white

employee as the full - time weekday receptionist.

45. To establish a prima facie case of discrimination based

on failure to promote, Petitioner must prove (1) that she was a

member of a protected class; (2) that she was qualified for and

applied for the promotion; (3) that she was rejected; and (4) that

other equally or less qualified emplo yees who were not members of

the protected class were promoted. Denney v. City of Albany , 247

F.3d 1172, 1183 (11th Cir. 2001)(citing Combs v. Plantation

Patterns , 106 F.3d 1519, 1539 n.11 (11th Cir. 1997)).

46. Petitioner failed to establish a prima fac ie case of

discrimination because she did not apply for the reclassified

position of Receptionist/HR marketing assistant. Even if she had

applied, the record establishes that Petitioner was not qualified

for the position, which would have required additio nal training.

47. Assuming, arguendo , Petitioner had proven a prima facie

case by a preponderance of the evidence, the burden would shift to

Woodmont to articulate a legitimate, non - discriminatory reason for

its employment decisions. Burdine , 450 U.S. at 255; DepÓt of

Corr. v. Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991). An

employer has the burden of production, not persuasion, to

demonstrate to the finder of fact that the decision was non -

discriminatory. Id. This burden of production is "exceedingly

light." Holifield , 115 F.3d at 1564; Turnes v. Amsouth Bank ,

N.A. , 36 F.3d 1057, 1061 (11th Cir. 1994).

48. If the employer produces evidence that the decision was

non - discriminatory, then the complainant must establish that the

proffered reason was not the true reason but merely a pretext for

discrimination. St. Mary's Honor Ctr . v. Hicks , 509 U.S. at 516 -

518. In order to satisfy this final step of the process,

Petitioner must Ðshow[] directly that a discriminatory reason more

likely than not motivate d the decision, or indirectly by showing

that the proffered reason for the employment decision is not

worthy of belief.Ñ Chandler , 582 So. 2d at 1186 (citing Burdine ,

450 U.S. at 252 - 256). The demonstration of pretext Ðmerges with

the plaintiff's ultimat e burden of showing that the defendant

intentionally discriminated against the plaintiff.Ñ Holifield ,

115 F.3d at 1565.

49. Respondent introduced a legitimate non - discriminatory

reason for eliminating the part - time evening receptionist

position: the new security measures at the front entrance.

Respondent likewise introduced a legitimate non - discriminatory

reason for reclassifying the main receptionist position to assume

additional duties: budget considerations to staff a new memory

care wing.

50. Peti tioner did not meet her burden to prove by a

preponderance of the evidence that WoodmontÓs stated reasons for

reclassifying and eliminating the subject positions were not its

true reasons, but were a pretext for discrimination.

51. Section 760.10 is desig ned to eliminate workplace

discrimination, but it is Ðnot designed to strip employers of

discretion when making legitimate, necessary personnel decisions.Ñ

See Holland v. Washington Homes, Inc. , 487 F.3d 208, 220 (4th Cir.

2007). Because Petitioner failed to establish a prima facie case

of discrimination, her petition must be dismissed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order finding that Respondent, Pacifica

Senior Living Woodmont, did not commit any unlawful employment

practice as to Petitioner, Jacqueline Ash, and dismissing the

Petition for Relief filed in FCHR No. 2014 - 00515.

DONE AND ENTERED this 13th day of August , 2015 , in

Tal lahassee, Leon County, Florida.

S

SUZANNE VAN WYK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 92 1 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 13th day of August, 2015.

ENDNOTE S

1/ Except as otherwise provided herein, all references to the

Florida Statutes are to the 2013 version.

2/ Petitioner admitted on cross - examination that neither her race

nor her age factored into RespondentÓs decision to eliminate her

position. T.38:1 - 5. However, based upon PetitionerÓs demeanor

and the totality of her testimony, the undersigned does not

conclude that Petitioner abandoned her allegation of

discrimination as stated in her Charge of Discrimination.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

Timothy Nathan Tack, Esquire

Kunkel Miller and Hament

3550 Buschwood Park Drive , Suite 135

Tampa, Florida 33618

(eServed)

Jacqueline Ash

462 Darsey Road

Cairo, Georgia 39828

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

40 75 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

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 Ord er should be filed with the agency that

will issue the Final Order in this case.