16-002820 Xianshu Zhang vs. Department Of Health Status: Closed Recommended Order on Tuesday, May 9, 2017.

Summary: Petitioner presented no direct evidence of discriminatory intent and failed to establish a prima facie case via circumstantial evidence.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

XIANSHU ZHANG,

Petitioner,

vs. Case No. 16 - 2820

DEPARTMENT OF HEALTH,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a final hearing was cond ucted in this

case on February 16, 2017, via video teleconference at sites in

Orlando and Tallahassee, Florida, before Garnett W. Chisenhall,

a duly - designated Administrative Law Judge (ÐALJÑ) of the

Division of Administrative Hearings (ÐDOAHÑ).

APPEARAN CES

For Petitioner: Jamison Jessup, Qualified Representative

2955 Enterprise Road, Suite B

De Bary , Florida 327 13

For Respondent: Michael Jovane Williams, Esquire

Florida Department of Health

Office of the General Counsel

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

STATEMENT OF THE ISSUE

The issue is whether Respondent (Ðthe Department of HealthÑ

or Ðthe DepartmentÑ) committed an unlawfu l employment practice

by not provid ing Petitioner (ÐXianshu ZhangÑ) with a licensure

application in Mandarin Chinese or by continuing with its

prosecution of her .

PRELIMINARY STATEMENT

Ms. Zhang filed a complaint of discrimination with the

Florida Commis sion on Human Relations (Ðthe CommissionÑ)

alleging that the Department of Health violated the Florida

Civil Rights Act of 1992.

After conducting an investigation, the Commission issued a

letter on April 20, 2016, notifying Ms. Zhang that it had

determin ed that there was no reasonable cause to conclude that

an unlawful employment practice had occurred:

[Ms. Zhang] filed a charge of discrimination

against [the Department] alleging that she

was subjected to different terms and

conditions and disciplined bas ed on her

race. The facts and evidence as set forth

in the Investigative Memorandum do not

support [Ms. Zhang ]Ós allegation. The

evidence in this matter reveals that

[Ms. Zhang] was disciplined because she

failed to disclose a crim inal conviction on

her application for licensure, not because

of her race. [Ms. Zhang] failed to provide

any competent substantial evidence to prove

that she was disciplined based on her race.

The Commission advised Ms. Zhang that she could file a Petition

for Relief if she di sagreed with the CommissionÓs determination.

On May 20, 2016, Ms. Zhang filed a ÐPetition for Relief

from Unlawful Employment DiscriminationÑ with the Commission.

The Commission then referred this matter to DOAH.

On May 30, 2016, Ms. Zhang filed a Moti on requesting that

Jamison Jessup be recognized as her qualified representative.

The undersigned issued an Order on June 6, 2016, denying the

aforementioned Motion.

Via an Order issued on June 6, 2016, the undersigned

scheduled the final hearing to occu r on July 29, 2016.

On June 21, 2016 , and after considering several pleadings

filed after the Order denying Ms. ZhangÓs Motion requesting that

Jamison Jessup be recognized as her qualified representative,

the undersigned reconsidered the aforementioned r uling and

issued an Order on June 21, 2016, concluding that authorizing

Jamison Jessup to appear as Ms. ZhangÓs qualified representative

was justified under the circumstances of the instant case.

Ms. Z hang filed a Motion on July 14, 2016, requesting that

the final hearing scheduled for July 29, 2016, be continued due

to a family emergency. On July 15, 2016, the undersigned issued

an Order Granting Continuance and requiring the parties to

provide by August 8, 2016, mutual dates of availability for the

fin al hearing.

After receiving mutual dates of availability, the

undersigned issued a Notice scheduling the final hearing to

occur on October 26, 2016.

On September 9, 2016, the Department filed a ÐMotion to

Dismiss PetitionerÓs Petition for Relief from Unl awful

Employment DiscriminationÑ (Ðthe Motion to DismissÑ). In

support thereof, the Department alleged that it had taken no

final agency action impacting Ms. ZhangÓs substantial interests.

After considering Ms. ZhangÓs Response thereto, the

undersigned issued on September 22, 2016, an Order denying the

aforementioned Motion to Dismiss:

First of all, [the Department] appears to be

arguing in paragraphs one through thirteen

of the Motion to Dismiss that [Ms. Zhang]

has no standing because [the Department] has

not taken final agency action. However,

[the Department] cites no authority

demonstrating that an agency must have taken

final agency action in order to have

committed an unlawful employment practice

within the meaning of section 768.10(5),

Florida St atutes (2016).

In the remain ing paragraphs of the Motion

to Dismiss, [ the Department] argues that

the case should b e dismissed because the

Florida Commission on Human Relations has no

jurisdiction to grant the prospective

i njunctive relief sought by [Ms . Zhang].

However, prospective injunctive relief is

no t the only remedy available to one

victimized by a violation of section

760.10(5), Florida Statutes. See §§ 760.07

& 760.11(5), Fla. Stat.

The undersigned convened a telephone conference on

October 21, 2016, in order to notify the Parties of an

unexpected difficulty in scheduling an interpreter for the final

hearing in this matter. However, during the course of that

phone conference, Ms. ZhangÓs qualified representative stated

that Ms. Zhang may no longer wish to proceed with her unlawful

discrimination claim. As a result, the undersigned canceled the

final hearing scheduled for Oct ober 26, 2016, and required

Ms. ZhangÓs qualified representative to file a status report by

October 27, 2016, pro viding notice as to whether Ms. Zhang

wished to proceed with her case.

On October 27, 2016, Ms. ZhangÓs Qualified Representative

filed a Status Report stating that she wanted to continue

prosecuting her unlawful discrimination claim. As a result, the

undersig ned issued an Order on October 31, 2016, requiring the

Parties to provide mutual dates of availability in December of

2016 and January of 2017, for a final hearing in this matter.

On November 28, 2016, the undersigned issued an Order re -

scheduling the Fi nal Hearing for January 27, 2017.

After Ms. ZhangÓs Qualified Representative provided

notice on November 30, 2016, t hat he was unavailable due to

a previously - scheduled hearing on January 27, 2017, the

undersigned re - scheduled the fin al hearing to occur on

February 16, 2017. In doing so, the undersigned specified that

[t]he undersigned will not entertain any

requests for a continuance based on any type

of scheduling conflict or unavailability

unless that request is filed within 7 days

from the date of th is Order. Even if such a

request is timely - filed, the undersigned may

still deny the request. In addition, any

requests for a continuance or abatement

filed beyond the aforementioned deadline and

based on a different justification will not

be granted wit hout a compelling

demonstration of good cause. Please be

advised that ongoing settlement negotiations

shall not be considered good cause for an

addition a l continuance or abatement .

(emphasis in original).

On February 15, 2017, the Department filed a Motion in

Limine seeking to prevent the introduction of any argument or

evidence regarding an ongoin g disciplinary case against

Ms. Zhang.

Th e undersigned convened the f inal h earing as scheduled on

February 16, 2017. During the c ourse of the Final Hear ing,

Ms. Zhang testified on her own behalf , and the undersigned

accepted PetitionerÓs Exhibits 1 through 5 into evidence. The

Department introduced the testimony of Oaj Gilani , and the

undersigned accepted RespondentÓs E xhibits 1 through 13 into

evidence. In addition, the undersigned denied the DepartmentÓs

Motion in Limine.

The T ranscript from the final hearing was filed with DOAH

on March 16, 2017.

On March 24, 2017, Ms. ZhangÓs Qualified Representative

fil e d a Motion requesting that the deadline fo r submitt ing the

p artiesÓ proposed recommended orders be extended from March 27,

2017, to April 10, 2017.

The undersigned issued an Order on March 27, 2017, granting

the aforementioned Motion.

Both parties timely - filed their Proposed Recommended

Orders, an d the undersigned considered both Proposed Recommended

Orders in the preparation of the instant Recommended Order.

FINDING S OF FACT

1. Ms. Zhang was born in Chongqing, China in 1970 , and

speaks Mandarin Chinese .

2. Her comprehension of spoken and wr itten English is very

limited.

3. Ms. Zhang moved to the United States in December of

2003 and stayed in the United States until she returned to China

in December of 2005.

4. Ms. Zhang returned to the United S tates in November of

2009.

5. Ms. Zhan g elected to pursue a career as a massage

therapist and graduated from VIP Beauty School on February 24,

2012.

6. On approximately May 15, 2012, Ms. Zhang filed an

initial application for licensure as a massage therapist .

7. At the time of Ms. ZhangÓ s application, the Department 1/

did not offer an application writt en in Mandarin Chinese, and

Ms. Zhang did not ask the Department to provide such an

application.

8. With the assistance of others, Ms. Zhang was able to

complete the application. 2 /

9. The application completed by Ms. Zhang ha d a section

entitled ÐCriminal HistoryÑ that ask ed if the applicant ha d

Ðever been convicted of, or entered a plea of guilty, nolo

contendere, or no contest to, a crime in any jurisdiction other

th an a minor traffic offense.Ñ

10. Ms. Zhang responded to the aforementioned question by

answering Ðno.Ñ

11. Ms. Zhang acknowledged marking a box on the

application that

I have carefully read the questions on the

foregoing application and have answered them

completely, without reservation of any kind,

and I declare that my answers and all

statements made by me herein and in support

of this application are true and correct.

Should I furnish any false information on or

in support of this application, I understand

that suc h action shall constitute cause for

denial, suspension, or revocation of any

license to practice in the State of Florida

in the profession for which I am applying.

12. On July 21, 2012, the Department issued a massage

therapist license to Ms. Zhang.

13. The Department renewed Ms. ZhangÓs license on July 26,

2013, and June 11, 2015. Ms. Zhang currently works for a spa in

Miami .

14. On April 2, 2015, the Department received information

indicating that Ms. Zhang had been arrested for two counts of

m isdemeanor prostitution on April 5, 2005 , in Suffolk County,

New York. According to the information received by the

Department, Ms. Zhang entered a guilty plea to one count of

disorderly conduct on May 18, 2005, and was sentenced to pay

$295 in fines and/ or court costs.

15. After conducting an investigation, the Department

issued an Administrative Complaint on November 24, 2015,

alleging that Ms. Zhang violated section 480.046(1)(a), Florida

Statutes (2011).

16. The aforementioned statute subject ed ma ssage therapist

licensees to discipline for Ð[a]ttempting to procure a license

to practice massage by bribery or fraudulent misrepresentation.Ñ

17. On March 4, 2016, the Department issued a ÐFirst

Amended Administrative ComplaintÑ which did not contain the

allegation that Ms. Zhang violated section 480.046(1)(a).

Instead, the Department alleged that Ms. Zhang violated section

480.046(1)(o), Florida Statutes (201 1 ), by violating section

456.072(1)(w), Florida Statutes (201 1 ).

18. Section 480.046(1)(o) subjects massage therapist

licensees to discipline for Ð[v]iolating any provision of this

chapter or chapter 456, or any rules adopted pursuant thereto.Ñ

Section 456.072(1)(w), prohibits licensees in health professions

and occupations from

[f]ailing to comply with the requirements

for profiling and credentialing, including,

but not limited to, failing to provide

initial information, failing to timely

provide updated information, or making

misleading, untrue, deceptive, or fraudulent

representations on a profile, credentialing,

or initial or renewal licensure application.

19. As of the final hearing date, the DepartmentÓs

prosecution of Ms. Zhang was ongoing.

20. Ms. Zhang argues that the Department has discriminated

against her based on her national origin and thus violated

section 760.10(5), Florida Statutes (2016) , by : (a) failing to

provide her with a licensure application written in Mandarin

Chinese; and by (b) failing to dismiss its Administrative

Complaint after receiving notice that it had un lawfully

discriminated against her.

21. As explained below, Ms. Zhang has : (a) failed to

present any direct evidence that the Department intentionally

discriminated against her; and (b) failed to establish a prima

facie case of discriminat i on via circu mstantial evidence.

CONCLUSIONS OF LAW

22 . DOAH has jurisdiction over the subject matter and the

parties hereto pursuant to sections 120.569 and 120.57(1),

Florida Statutes (2016).

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

codified in sec tions 760.01 through 760.11, Florida Statutes ,

(2016) .

24. Section 760.10(5), Florida Statutes (2016), provides

that

[ w]henever, in order to engage in a

profession, occupation, or trade, it is

required that a person receive a license,

certification, or other cr edential, become a

member or an associate of any club,

association, or other organization, or pass

any examination, it is an unlawful

employment practice for any person to

discriminate against any other person

seeking such license, certification, o r

other credential, s eeking to become a member

or associate of such club, association, or

other organization, or seeking to take or

pass such examination, because of such other

personÓs race, color, religion, sex,

pregnancy, national origin, age, handicap,

or marital status.

25. Section 760.02(6), Florida Statutes (2016), defines a

ÐpersonÑ to include Ðthe state; or any governmental entity or

agency.Ñ

26. Discriminatory intent can be established through

direct or circumstantial evidence. Schoenfeld v. Babbitt ,

168 F.3d 1257, 1266 (11 th Cir. 1999). Direct evidence o f

discrimination is evidence that, if believed, establishes the

existence of discriminatory intent behind an em ployment decision

without inference or presumption. Maynard v. Bd. of Regent s ,

342 F.3d 1281, 1289 (11 th Cir. 2003).

27. ÐDirect evidence is composed of only the most blatant

remarks, whose intent could be nothing other than to

discriminate on the basis of some impermissible factor.Ñ

Schoenfeld , 168 F.3d at 1266.

28. With r egard to the instant case, Ms. Zhang has

presented no direct evidence demonstrating that the Department

intentionally discriminated against her. For example, Ms. Zhang

acknowledged during her testimony that she did not request that

the Department provide her with an initial licensure application

written in Mandarin Chinese. Also, the Department did nothing

to prevent Ms. Zhang from obtaining assistance with completing

the application. Furthermore, while the Department is

undoubtedly now aware of Ms. Zhan gÓs lack of proficiency with

English, the Department has a legitimate basis for prosecuting

her because Ms. Zhang did not disclose her conviction on her

initial licensure application.

29. Because there is no direct evidence of any

discriminatory intent on the DepartmentÓs part, the analysis

must turn to whether there is any circumstantial evidence.

See generally Yang vadestation Technologies, Inc. , Case

No. 14 - 1916, ¶40 (Fla. DOAH Dec. 31, 2015)(dismissed with

prejudice prior to final order)(conclud ing Ð[t]he record is

devoid of any direct evidence of national origin discrimination.

Accordingly, PetitionerÓs claim is analyzed pursuant to the

McDonnell - Douglas burden shifting analysis.Ñ).

30. Complainants may establish a prima facie case via

circu mstantial evidence through the burden - shifting test

established by the United States Supreme Court in McDonnell -

Douglas Corp. v. Green , 411 U.S. 792, 802 - 05 (1973).

31. Under the McDonnell - Douglas analysis, a complainant

establishes a prima facie case o f national origin discrimination

by demonstrating that: (a) she is a member of a protected

class; (b) that she was subjected to an adverse employment

action; (c) the respondent treated similarly - situated people who

were not members of the protected class more favorably; and that

(d) she was qualified to perform the task at issue.

32. In the instant case, Ms. Zhang has demonstrate d that

she is a member of a protected class due to her national origin.

See generally Yang , ¶41 (concluding that Ð[t]he first two

elements for the foregoing test are satisfied, as Respondent

stipulates that Petitioner is a member of [a] protected class

with an Asian national origin and that Petitioner was

subject[ed] to an adverse employment action wh en he was

terminated on Octo ber 9, 2012.Ñ).

33. However, in light of the fact that the Department

approved Ms. ZhangÓs initial licensure application, the

undersigned cannot conclude that Ms. Zhang was subjected to an

adverse employment action when she applied for her massage

thera pist license.

34. Even if the DepartmentÓs prosecution of Ms. Zhang for

her failure to disclose her prior conviction could be

characterized as an adverse employment action, Ms. Zhang

presented no evidence that the Department provided more

favorable trea tment for comparable acts to those outside

Ms. ZhangÓs protected class. In other words, there is no

evidence that th e Department has declined to prosecute anyone

else who failed to disclose a prior conviction on a licensure

application. 3/ See generally Y ang , ¶43 (concluding that

ÐPetitioner failed to prove the third element, that Respondent

treated similarly - situated employees not of his protected class

more favorably. In order to make a valid comparison, Petitioner

must show that he and the comparators he identifies are

similarly - situated in all relevant respects.Ñ).

35. Accordingly, Ms. Zh ang has failed to demonstrate

a prima facie case of discrimination. See generally Yang ,

¶ 44 (concluding ÐPetitioner failed to demonstrate that

Respondent treated s imilarly - situated employees who were not of

Asian national origin more favorably than he was treated, and,

therefore, no prima facie case of discrimination on the basis of

national origin has been demonstrated.Ñ).

RECOMMENDATION

Based on the foregoing Fi ndings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing Xianshu ZhangÓs

Petition for Relief.

DONE AND ENT ERED this 9th day of May , 2017 , in Tallahassee,

Leon County, Florida.

S

G. W. CHISENHALL

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

Fi led with the Clerk of the

Division of Administrative Hearings

this 9th day of May , 2017 .

ENDNOTE S

1/ The Board of Massage Therapy (Ðthe BoardÑ) is under the

DepartmentÓs administrative umbrella. £ 480.035(1), Fla. Stat.

(2016)(providing that the ÐBoar d of Massage Therapy is created

within the department.Ñ). The Department provides investigative

services to the Board and administers the licensure process.

See generally § 480.039, Fla. Stat. (2016)(providing that Ð[t]he

department shall provide all inv estigative services required in

carrying out the provisions of this act.Ñ); £ 480.042(3), Fla.

Stat. (2016)(providing that Ð[t]he department shall, in

accordance with rules established by the board, examine persons

who file applications for licensure under this act in all

matters pertaining to the practice of massage.Ñ).

2 / Ms. Zhang testified that she was able to pass the written

examination required of prospective massage therapist licensees

by memorizing key words. Also, Ms. Zhang testified that she

ÐpracticedÑ English much more frequently prior to taking the

exam. Finally, a portion of her testimony suggested that she

may have taken the exam multiple times prior to achieving a

passing score.

3/ Ms. ZhangÓs discrimination complaint appears to b e a

collateral attack on the DepartmentÓs prosecution. It also

appears that Ms. ZhangÓs lack of proficiency in English could be

more appropriately raised as a defense to the DepartmentÓs

charges or a s grounds for mitigation. See generally Gandy v.

Trans World Computer Tech. Group , 787 So. 2d 116 (Fla. 2d DCA

2001)(proving fraud requires a showing that the person making a

statement knows, at the time the statement is made, that it is

false.Ñ); McGraw v. DepÓt of State, Div. of Licensing , 491 So.

2d 1193, 1 195 (Fla. 1 st DCA 1986)(stating that Ð[t]o the extent

that appellantÓs petition for hearing sought to present

mitigation, an informal hearing under Section 120.57(2), would

have provided a forum more than adequate for such purpose.Ñ).

COPIES FURNISHE D:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Jamison Jessup , Qualified Representative

2955 Enterprise Road, Suite B

De Bary , Florida 327 13

(eServed)

Dee Dee McGe e, EO Manager

Department of Health

Office of the General Counsel

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399

Mark John Henderson, Esquire

Florida Department of Health

2585 Merchants Row, Room 110J

Tallahassee, Florida 32399

(eServed)

M ichael Jovane Williams, Esquire

Department of Health

Prosecution Services Unit

4052 Bald Cypress Way, Bin C - 65

Tallahassee, Florida 32399

(eServed)

Cheyanne Costilla, Gen eral Co unsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tall ahassee, Florida 32399

(eServed)

Michelle Wilson, Executive Director

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit wr itten 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.