16-001229 Tracy Jean vs. Florida Hospital Medical Group Status: Closed Recommended Order on Thursday, August 25, 2016.

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

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TRACY JEAN,

Petitioner,

vs. Case No. 16 - 1229

FLORIDA HOSPITAL MEDICAL GROUP,

Respondent.

_______________________________/

RECOMMENDED ORDER

On July 6, 2016, an administrative he aring in this case was

held by video teleconference in Orlando and Tallahassee,

Florida, before William F. Quattlebaum, Administrative Law

Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Tracy Jean , pro se

Ap artmen t 206

915 Northeast 199th Stree t

Miami, Florida 33179

For Respondent: Christopher R. Parkinson, Esquire

Brian J. Moran, Esquire

Moran Kidd Lyons Johnson, P.A.

Suite 900

111 North Orange Avenue

Orlando, Florida 32801

STATEMENT OF THE ISSUE

The issue in the case is whether Tracy Jean (Petitioner)

was the subject of unlawful discrimination by Florida Hospital

Medical Grou p (Respondent) 1/ in violation of c hapter 760, Florida

Statutes (2015) . 2 /

PRELIMINARY STATEMENT

By Charge of Discrimination dated August 14, 2015, and

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

Petitioner alleged that the Respondent committed unlawfu l

discrimination on the basis of race.

By Notice of Determination dated February 3, 2016, the FCHR

found that there was Ðno reasonable cause to believe that an

unlawful employment practice occurred.Ñ

On March 2, 2016, the Petitioner filed a Petition fo r

Relief (Petition) with the FCHR. On March 3, 2016, the FCHR

forwarded the Petition to the Division of Administrative

Hearings, which scheduled the dispute for a hearing to commence

on May 10, 2016. Upon the PetitionerÓs request, the hearing was

continu ed and subsequently rescheduled for July 6, 2016.

At the hearing, the Petitioner testified on her own behalf

and had Exhibits 1 and 12 admitted into evidence. The

Respondent presented the testimony of two witnesses and had

Exhibits 5 through 11, 13 thro ugh 15, 18 through 21, and 23

admitted into evidence. PetitionerÓs Exhibit 7 was identical

to, and was admitted as, RespondentÓs Exhibit 9.

A T ranscript of the hearing was filed on August 2, 2016.

The Respondent filed a Proposed Recommended Order that has been

reviewed in the preparation of this O rder.

FINDING S OF FACT

1. The Petitioner is a black female, who is qualified for

em ployment as a Florida - licensed registered nurse (RN ).

2. The Respondent is an ÐemployerÑ as defined by the

Florida Civil Rights Act of 1992.

3. At a job fair held on June 9, 2015, the Petitioner met

representatives from the Respondent, including Tracy Decker, a

manager, and Sarah Emerson, a nurse recruiter, and was

interviewed by them in relation to potential employment.

4. Ms. Emerson subsequently called the Petitioner to

express an interest i n hiring the Petitioner as an RN , and to

encourage her to submit an application.

5. On June 23, 2015, the Petitioner submitted an

electronic employment app lication for a positi on as an RN at

Florida Hospital.

6. The RespondentÓs online application form included

questions calling for disclosure of an applicantÓs criminal

history.

7. Although the Respondent does not automatically reject

an applicant who discloses previous cr iminal activity, the

failure to disclose such activity may be deemed by the

Respondent to be a falsification of the information, and may

disqualify an applicant from employment. The RespondentÓs

online application form states as follows:

I understand that I will not be

automatically disqualified from possible

employment if, in response to application

questions, I disclose criminal records

information. I also understand that any

false, misleading, incomplete or omitted

information in response to applicatio n

questions will result in ineligibility for

employment or termination of employment as

it will be deemed falsification of

information. As a result, I hereby confirm

that if I failed to disclose any criminal

records information, it is because it is not

re quired in response to the applicationÓs

questions (e.g., parking tickets) or it is

because I am certain that the information

has been expunged and thus, will not show up

during a background check. Finally, I

understand that my mistaken belief about

whethe r the response is required or whether

the information has been expunged is not a

defense to falsification. Accordingly, if I

erroneously omitted information, I will be

ineligible for employment or my employment

will be terminated for falsification.

* * *

Employment is subject to completion of pre -

employment procedures, including but not

limited to; verifying employment/personal

references; conducting a background

investigation/criminal record check;

verifying driving record (if appropriate);

and confir mation of licensure or

registration.

8. In relevant part, the RespondentÓs online application

form stated as follows :

Have you served any of the following for any

criminal offense? (check all that apply):

pretrial diversion

* * *

probation (an y type)

* * *

Any other type of alternative, deferred,

suspended, postponed or conditional

prosecution, adjudication, disposition,

sentence, program or release not listed

above, please describe:

(if not, type N/A)

9. The PetitionerÓs response was ÐN/ AÑ indicating that she

had not served any type of punitive sentence or alternative

disposition for a criminal offense.

10. On July 19, 2015, the Respondent extended a written

offer of employment to the Petitioner. The letter was issued by

Erika Cardona - Geis, a recruiter for the Respondent. The offer

was contingent on the completion of various requirements,

including a background check.

11. For the RespondentÓs purposes, an acceptable

background check is one that corresponds with the information

disc losed on a potential employeeÓs application. The

RespondentÓs focus is on the truthfulness and integrity of

potential employees, especially those such as RN s employed to

provides services and medications to patients.

12. The Respondent utilized a third - party vendor to

perform background checks on potential employees. The

Respondent provided the vendorÓs website link to the Petitioner

so that she could submit her information for the background

check, and the Petitioner did so.

13. On July 27, 2015, t he Respondent received the results

of the PetitionerÓs background check from the vendor.

14. The PetitionerÓs background check revealed criminal

activity that had not been disclosed by the Petitioner in her

employment application.

15. According to th e background check, the Petitioner was

charged with separate counts of Grand Theft, Obstruction of Fire

Equipment, and Criminal Mischief on September 7, 2 008, in Broward

County, Florida (Case No. 08 - 021191CF10 - A). The charges resulted

in the Petitioner be ing placed on probation for 15 months and

required to make restitution. Adjudication of guilt was

withheld.

16. The background check also revealed that the Petitioner

was charged with solicitation to commit prostitution on

August 16, 2010, in Miami - Da de County, Florida (Case No . B - 10 -

042025 - B). The Petitioner entered a pre - trial diversion program,

and the charge was nolle prossed.

17. The RespondentÓs formal policy provided that

falsification of background check information in an employment

applic ation may result in an applicant being deemed ineligible

for employment. Nonetheless, when an applicantÓs background

check revealed information other than that disclosed on an

employment application, the RespondentÓs standard procedure was

to allow an app licant an opportunity to submit additional

information to explain the discrepancy, so that the Respondent

could assess the reason for nondisclosure rather than

automatically reject the applicant.

18. Because the PetitionerÓs background check included

in formation inconsistent with that submitted by the Petitioner in

her employment application, Ms. Cardona - Geis contacted the

Petitioner and offered her the option to submit a written

statement regarding the discrepancies and to provide related

court records.

19. In response, the Petitioner submitted a letter of

explanation dated July 28, 2015, and related court records, as

well as a letter from the Florida Board of Nursing and a letter

purportedly written by an attorney.

20. Ms. Cardona - Geis provided th e PetitionerÓs response

and materials to Karla Muniz, the RespondentÓs human resources

d irector.

21. Ms. Cardona - Geis also provided the PetitionerÓs

response and materials to Lorraine Pitre, a lawyer and member in

good standing of the Florida Bar, empl oyed by the Respondent as

an employee relations consultant.

22. Ms. Pitre was responsible for providing counsel and

advice to the management of the RespondentÓs Human Relations

Department. She was also directly involved in the creation of

the Responden tÓs human resource policies and practices,

including those relevant to the RespondentÓs consideration of

the PetitionerÓs employment application.

23. Ms. Pitre was the RespondentÓs employee specifically

assigned to review matters involving employment ba ckground check

discrepancies.

24. Ms. Pitre reviewed the PetitionerÓs letter of

explanation, wherein the Petitioner stated, in relevant part, as

follows:

The charges were not disclosed because I

sealed & expunged the cases. Under the

advice of my attor ney, he told me there was

no need to disclose this information once I

went through the expungement process.

25. Ms. Pitre reviewed the court documents submitted by

the Petitioner and publicly - available records accessible through

th e Broward County Cler kÓs Office and determined that the

Broward County charges that resulted in the PetitionerÓs

probationary sentence had not been sealed or expunged.

26. Ms. Pitre also reviewed the letter submitted by the

Petitioner and purportedly written by an attorney. The letter,

dated August 4, 2015, stated as follows:

The set forth individual has retained my

services to expunge and seal the mentioned

cases. I am not at liberty to disclose the

information, but I am aware that my client

has revealed her past indiscre tions. The

client, Tracy Jean, has honestly answered

ÐnoÑ to the set forth employment questions

of convictions. Furthermore, my client

informed me that she has submitted the

appropriate documents and has revealed this

information to you, which under Flor ida

Statutes is not necessaryacy h as

honored all of your request [sic] , has not

knowingly lied on the application, and only

wants to be looked at as a professional.

27. The letter contradicted the PetitionerÓs assertion

that the charges had been e xpunged or sealed prior to the

submission of her application for employment.

28. Although the letter identified the writer as ÐEric

Volz, ESQ,Ñ the letter was not printed on letterhead and was

unsigned. Ms. Pitre, who routinely interacted with attorney s in

private practice, was concerned about the authenticity of the

letter.

29. Ms. Pitre discussed her findings and concerns with

Ms. Muniz and with Ms. Cardona - Geis.

30. Based on the RespondentÓs review of the PetitionerÓs

application, the backgrou nd check information, and the materials

subsequently submitted by the Petitioner, the Respondent

determined that the Petitioner had submitted false responses to

the criminal background history questions on the application.

31. The Respondent revoked the conditional offer of

employment previously extended to the Petitioner.

32. There is no evidence that the PetitionerÓs race was a

consideration in the RespondentÓs decision to revoke the

conditional offer of employment.

CONCLUSIONS OF LAW

33. The Div ision of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. §§ 120.569 and 120.57, Fla. Stat .

34. Chapter 760, Part I, Florida Statutes, sets forth the

Florida Civil Rights Act of 1992 (the "Act").

35. The Petitioner has alleged that she was subjected to

unlawful discrimination by the Respondent on the basis of race

in violation of the Act. The Petitioner has the burden of

proving by a preponderance of the evidence that the Respondent

committed an unl awful employment practice. Fla. DepÓt of

Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA 1981).

36. The Respondent is an ÐemployerÑ as defined in section

760.02(7).

37. Section 760.10 provides in relevant part as follows:

(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 privileges of employment, because of such

individu alÓs race, color, religion, sex,

national origin, age, handicap, or marital

status.

38. Florida courts , interpreting the provisions of section

760.10, have held that federal discrimination laws should be

used as guidance when construing provisions of the Florida law.

See Brand v. Fla. Power Corp. , 633 So. 2d 504, 509 (Fla. 1st DCA

1994); Fla. DepÓt of Cmty. Aff. v. Bryant , 586 So. 2d 1205 (Fla.

1st DCA 1991).

39. The Petitioner has the ultimate burden to establish

discrimination either by direct or indirect evidence. Direct

evidence is evidence that, if believed, would prove the

existence of discrimination without inference or presumption.

Carter v. City of Miami , 870 F.2d 578, 581 - 582 (11th Cir. 1989).

Blatant remarks, whose intent could be noth ing other than to

discriminate, constitute direct evidence of discrimination. See

Earley v. Champion IntÓl Corp. , 907 F.2d 1077, 1081 (11th Cir.

1990). There is no evidence of direct discrimination in this

case.

40. When there is no direct evidence of discrimination,

the Petitioner may establish unlawful discrimination through the

presentation of circumstantial evidence. Such evidence is

subject to the analysis set forth in McDonnell Douglas Corp. v.

Green , 411 U.S. 792 (1973), and Texas Department of Community

Affairs v. Burdine , 450 U.S. 248 (1981). Under such analysis,

the Petitioner has the initial burden of establishing a prima

facie case of unlawful discrimination.

41. If the Petitioner is able to prove a prima facie case

by a preponderance o f the evidence, the burden shifts to the

Respondent to articulate a legitimate, non - discriminatory reason

for its actions. Assuming the employer articulates a

legitimate, non - discriminatory reason for the employment

decision, the burden then shifts back t o the Petitioner , who

must establish that the reason offered by the employer is not

the true reason, but is mere pretext for the decision. The

question becomes whether or not the proffered reasons are "a

coverup for a . . . discriminatory decision." McDo nnell

Douglas , 411 U.S. at 805.

42. The ultimate burden of persuading the trier of fact

that there was intentional discrimination by the Respondent

remains with the Petitioner. Burdine , 450 U.S. at 253. In this

case, the burden has not been met becaus e the Petitioner has

failed to establish a prima facie case of discrimination.

43. To establish a prima facie case of discrimination, the

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

class; (2) she was qualified for the position; (3) s he suffered

an adverse employment action; and (4) she was treated

differently than other similarly situated employees who are not

members of her protected class. McDonnell Douglas , 411 U.S. at

802.

44. In this case, the evidence establishes that the

Pe titioner is a member of a protected class, that she was

qualified for the position sought, and that she suffered an

adverse employment action. However, the Petitioner has failed

to establish a prima facie case of discrimination because there

is no evidenc e that she was treated differently than other

similarly situated employees who were not members of a protected

class. Because the failure to establish a prima facie case ends

the analysis, the PetitionerÓs complaint of discrimination must

be dismissed.

45. Had the Petitioner met the burden of establishing a

prima facie case, the burden would have shifted to the

Respondent to establish a legitimate, non - discriminatory reason

for its decision to withdraw the conditional employment offer.

The evidence off ered by the Respondent would have met the

burden.

46. The RespondentÓs offer of employment to the Petitioner

was condit ional on the Petitioner meeting clearly stated

requirements, including acceptable completion of a background

check. The background ch eck indicated that the PetitionerÓs

response to one question on the employment application was

false. Consistent with the RespondentÓs standard practice, the

Respondent asked the Petitioner to submit additional information

to clarify the circumstances. T he Petitioner submitted

additional information that was reviewed by the Respondent.

Based on a review of all relevant information, the Respondent

concluded that the PetitionerÓs disclosures on the employment

application were untruthful and the conditional offer of

employment was rescinded.

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 Petitioner's

complaint of discriminatio n.

DONE AND ENTERED this 25 th day of August , 2016 , in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

T allahassee, 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 25 th day of August , 2016 .

ENDNOTE S

1/ The Respondent has asserted that it should prope rly be

identified as Adventist Health System/Sunbelt, Inc. , d/b/a

Florida Hospital. For purposes of this proceeding, the

identification of the Respondent is as set forth by the Florida

Commission on Human Relations in its Transmittal of Petition

dated Mar ch 2, 2016.

2/ All statutory references are to Florida Statutes (2015).

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Sylvia R. Adams

Florida Hospital/FPMG

Adventist Health System

900 Hope Way

Altamonte Springs, Florida 32714

Tracy Jean

Apartment 206

915 Northeast 199th Street

Miami, Florida 33179

(eServed)

Brian J. Moran, Esquire

Moran Kidd Lyons Johnson, P.A.

Suite 900

111 North Orange Ave nue

Orlando, Florida 32801

(eServed)

Christopher R. Parkinson, Esquire

Moran Kidd Lyons Johnson, P.A.

Suite 900

111 North Orange Avenue

Orlando, Florida 32801

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Es planade 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 Order sh ould be filed with the agency that

will issue the Final Order in this case.