16-006583 Christine N. Monkhouse vs. Davita Healthcare Partners, Inc. Status: Closed Recommended Order on Tuesday, May 16, 2017.

Summary: Petitioner failed to prove a prima facie case of discrimination because she did not suffer an adverse employment action. Her final written warning did not alter the terms, conditions, or privileges of her employment.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CHRISTINE N. MONKHOUSE,

Petitioner,

vs. Case No. 16 - 6583

DAVITA HEALTHCARE PARTNERS,

INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a f ormal hearing was held in this case

on February 22, 2017, in Deland, Florida, and on March 15, 2017,

by telephone conference in Tallahassee and Deland, Florida,

before Suzanne Van Wyk, the duly - designated Administrative Law

Judge of the Division of Adminis trative Hearings.

APPEARANCES

For Petitioner: Christine N. Monkhouse, pro se

1512 Clapton Drive

Deland, Florida 32720

For Respondent: Gretchen M aria Lehman, Esquire

Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

100 North Tampa Street, Suite 3600

Tampa, Florida 33602

STATEMENT OF THE ISSUE

Whether Davita Healthcare Partners, Inc., is liable to

Petitioner for employm ent discrimination based on race in

violation of the Florida Civil Rights Act of 1992.

PRELIMINARY STATEMENT

Petitioner, Christine N. Monkhouse, filed a Charge of

Discrimination with the Florida Commission on Human Relations

(FCHR) on March 18, 2016, alleg ing that her employer, Davita

Healthcare Partners, Inc., discriminated against her on the basis

of her race when Petitioner was given a final written warning on

February 1, 2016. The allegations were investigated, and on

October 5, 2016, FCHR issued its D etermination of No Cause

(Determination).

On November 5, 2016, Petitioner filed a Petition for Relief

requesting an administrative hearing regarding FCHRÓs

Determination pursuant to section 760.11(7), Florida Statutes. 1/

The matter was referred to the D ivision of Administrative

Hearings on November 10, 2016, for assignment of an

Administrative Law Judge to conduct a final hearing. The final

hearing was initially scheduled to commence on January 18, 2017,

but was subsequently rescheduled to, and convened on,

February 22, 2017.

At the final hearing, Petitioner testified on her own behalf

and offered the testimony of Pamela Maniec. PetitionerÓs

Exhibits LL, W1, W2, and W3 were admitted in evidence. 2/

Respondent presented the testimony of Fluerette Dakin - Davis,

Kelly Jacobs, Karen Corn, and Sharon Alpizar. RespondentÓs

Exhibits R1, R2, R4, R6, R8 through R16, and R20 through R22 were

admitted in evidence.

A three - volume Transcript of the final hearing was filed on

April 3, 2017. Both parties timely file d Proposed Recommended

Orders which have been considered in preparation of this

Recommended Order.

FINDING S OF FACT

1. Respondent, Davita Health Care Partners, Inc. (Davita),

is a subsidiary of Total Renal Laboratory, which treats patients

with end - stage renal disease who require kidney dialysis

treatment. Davita processes lab specimens for patients receiving

kidney dialysis services. Processing lab specimens involves

performing laboratory tests on the tissue, blood, and other

specimens taken from patien ts.

2. Petitioner, who is African - American, has been employed

by Davita since July 2007. PetitionerÓs current position is

Compliance Specialist in the Compliance Department, which she has

held since March 2016.

3. Petitioner previously held the position of Payer Rules

Specialist II within the Payer Rules team in Patient

Accounting. 3/

4. The general job description of the Payer Rules

Specialist II was to ensure that Davita was billing compliantly

based on the payerÓs rules and regulations.

5. The Payer Rules team consisted of four teammates,

Petitioner, Pamela Maniec, and two additional employees.

6. Ms. Maniec held the pos ition of Payer Rules

Specialist III and became the Ðteam leadÑ in mid - 2015. As team

lead, Ms. Maniec was responsible to assign, and oversee

completion of, tasks for the other teammates.

7. The Payer Rules team was responsible for ensuring the

accuracy of certain information on which Davita bases its patient

billing. For example, government payers, such as Medicare, issue

bulletins s pecifying what types of tests will be covered and how

frequently the tests may be ordered. If Davita issued bills to

Medicare patients charging for tests which were not covered, or

tests that had been ordered too frequently, Medicare would deny

the claim and Davita would not be paid. Moreover, frequent

billing errors may result in investigations of Davita by

government payers.

8. The Payer Rules team was responsible to ensure that the

current version of government - payer rules was updated in DavitaÓs

bill ing system.

9. For Medicare billings, two sets of rules are most

critical: National Coverage Determinations (NCDs), which specify

covered tests from Federal Medicare; and Local Coverage

Determinations (LCDs), which track state - specific rules governing

co vered tests. NCDs and LCDs are published quarterly by the

Centers for Medicare and Medicaid Services (CMS) and are

available for download through the CMS website. The Payer Rules

team was charged with the responsibility to review NCDs and LCDs

quarterly and upload any changes to the Davita billing system.

10. The Payer Rules team was also responsible for uploading

changes in the ÐCodeMap medical necessityÑ database to the Davita

billing system. The Codemap database contains a list of testing

procedures which may only be performed with specific associated

diagnoses. The team was responsible for reviewing the quarterly

CodeMap updates and uploading the data to the Davita billing

system.

11. Finally, the Payer Rules team was responsible for

Correct Coding Initiatives updates, or CCIs. CCIs are published

by CMS within days of the quarterly NCDs and LCDs, and ÐeditÑ the

information in those publications related to what types of test

can and cannot be billed together.

Q4 2015 CodeMap Issue

12. DavitaÓs Pati ent Accounting Supervisor is Fleurette

Dakin - Davis, who is African - American and who supervises the Payer

Rules team, including Petitioner.

13. In late December 2015, Karen Jacobs, Director of

Patient Accounting, asked Ms. Dakin - Davis why the fourth quarte r

2015 CodeMap file (Q4 2015), which had been received in late

September, had not been uploaded to the Davita billing system.

Ms. Dakin - Davis replied that she would look into it.

14. Ms. Dakin - Davis approached Ms. Maniec and inquired

about the delay in u ploading the Q4 2015. Ms. Maniec indicated

she would ask the Petitioner what was taking so long.

15. Ms. Maniec asked Petitioner about the delay in the

Q4 2015 update, and Petitioner explained she had not uploaded the

Q4 2015 because of discrepancies bet ween that file and recently -

updated diagnosis codes known as the ICD - 10.

16. On January 5, 2016, Ms. Maniec sent an email to

Ms. Dakin - Davis, with copies to Ms. Jacobs and Karen Corn , the

Patient Accounting Manager, relaying her conversation with

Petition er and PetitionerÓs explanation for the delay. In the

email, Ms. ManiecÓs email noted, ÐThis was an error on

ChristineÓs part.Ñ

17. On January 12, 2016, Ms. Dakin - Davis and Ms. C orn met

with Petitioner and discussed th e error in not uploading the

Q4 2015 , the potential impact the error had on patient billing,

and the expectations going forward. Ms. Dakin - Davis described

this ÐdiscussionÑ with Petitioner as a Ðverbal warning.Ñ

18. That same date, Ms. Dakin - Davis completed a corrective

action form, provid ing written documentation of PetitionerÓs

verbal warning for failing to timely upload the Q4 2015. In the

section titled ÐExpectations Moving Forward,Ñ Ms. Dakin - Davis

noted, as follows:

It is expected that the medical necessity

file will be updated withi n the first two

weeks of file receipt.

It is expected that if you are unable to

perform a task due to other priorities, that

this is communicated to both the team lead

and supervisor.

19. The follow ing day, January 13, 2016, Ms. C orn sent the

following email to Petitioner, copying Ms. Dakin - Davis and

Ms. Maniec:

Christine -- per our conversation yesterday

afternoon n ew goals were established for

2 processes you are responsible for and are

listed below. The goals will ensure we have

reviewed and submitted any applicable changes

in a timely manner. This will prevent any

future misses for these updates on our team.

• NCD/LCD & LMRP review and update: The LMRP

file will be saved on the network and an

email will be sent to Christine on a

quarterly basis when t he file is available.

Christine will pull the NCD/LCD list directly

from CMS.

GOAL: The LMRP & NCD/LCDÓs will be reviewed,

edits suggested, a QA performed and final

edits suggested within the first 2 weeks

after the file is available.

• NCCI Edits: NCCI edits are published within

the last several days of a Qtr. up until the

first few days of every new Qtr. Christine

will pull the updated list directly from CMS

on a quarterly basis.

GOAL: NCCI edits will be reviewed, edits

suggested, a QA performed and f inal edits

completed by the 7th calendar day of every

new quarter.

If you are unable to meet the goals specified

due to other priorities, it is expected you

communicate this with both the team lead and

Supervisor prior to the due date.

Although the payer bulletins may be

reallocated to compliance at a later date, I

will be setting up some time to further

discuss this process. If we currently do not

have one, we will need to establish a

schedule to ensure these are being reviewed

and actions are taken time ly.

20. Davita procedure does not require that the employee be

given a copy of, or even sign, a documented Ðverbal warning.Ñ

Petitioner was not provided a copy of the January 12, 2016,

verbal warning. At final hearing, Petitioner testified that she

was unaware of the written verbal warning until that document was

revealed during the FCHR investigation of her Charge of

Discrimination.

21. The written verbal warning was not placed in

PetitionerÓs human resources file. This documentation of the

verbal wa rning was placed only in the managerÓs file.

22. Petitioner received no suspension, demotion, reduction

in pay, or change in job duties based on the written verbal

warning.

January CCI Edit Error

23. On January 20, 2016, Susan McNeice, an employee in a

different team, brought to Ms. ManiecÓs attention some denials of

Medicare claims which appeared to be a CCI edit issue.

Ms. McNeice asked Ms. Maniec to review the system data to

determine the source of the error.

24. Ms. Maniec reviewed the edits in th e system and could

not find any discrepancy. She then brought the denial to

PetitionerÓs attention and requested Petitioner to review the

text file she would have uploaded for the prior quarter. After

her review, Petitioner told Ms. Maniec that she had u ploaded the

wrong file into the Davita billing system.

25. Ms. Maniec informed Petitioner she would have to report

the error to Ms. Dakin - Davis. In response, Petitioner said to

Ms. Maniec something to the effect of, ÐDonÓt open your mouth

until I have l ooked at it more.Ñ

26. Petitioner does not deny asking Ms. Maniec to hold off

on reporting the error to management, but testified that she only

wanted the time to figure out how the error occurred and

calculate the financial impact on billing prior to rep orting the

error.

27. Petitioner proceeded to investigate how the error

occurred, as well as its impact on DavitaÓs billings. At around

2:30 p.m. that day, Petitioner emailed Ms. Dakin - Davis, her

supervisor, explaining that Ms. McNeice had brought some payer

denials to the teamÓs attention, and that she had investigated

and discovered that the October 2015 CCI edit upload was

incorrect. Further, Petitioner related that she had isolated the

particular diagnosis codes affected and was running a query to

d etermine how many incorrect bills were generated.

28. In her email, Petitioner stated, as follows:

This appears to have happened by the

ÒduplicatesÓ being uploaded instead of

deleted from the file after the process file

was complete for upload. The proce ss calls

for the duplicate to be removed.

In order to prevent this from happening in

the future an additional QA step was added to

the process for the file to be QA after

upload.

29. In response to PetitionerÓs email, Ms. Dakin - Davis

wrote, ÐThe current P&P states that once the data is uploaded, a

QA of the upload is supposed to be done. What additional QA are

you referring to?Ñ In reply, Petitioner wrote, ÐWe normally QA

prior to upload. IÓll double check the P&P.Ñ

30. The ÐP&PÑ is a reference to Da vita Policy PAP 1006:

CCI Edits. The purpose of the policy is to ÐMaintain the most

current CMS CCI edits for accurate billing. Ensure compliance

with all federal billing guidelines.Ñ The Policy sets out the

procedural steps for downloading CCI edits f rom the CMS website,

manipulating the data, saving it as a text file, and uploading it

to the Davita billing system.

31. The final step in the process is to Ð[p]erform a

quality check on the newly updated data confirming accurate

uploading.Ñ

32. Petiti oner is the author of PAP 1006, which she created

in 2013.

33. Ms. Dakin - Davis was justifiably surprised at

PetitionerÓs apparent unfamiliarity with the post - upload QA

requirement. It i s easy to understand how PetitionerÓs

suggestion that a post - upload Q A step be added to the P&P could

be seen as an effort to conceal her error.

34. Ms. Maniec reported the error to Ms. Dakin - Davis in her

office following lunch. Ms. Dakin - Davis instructed Ms. Maniec to

document the issue, which Ms. Maniec did by email to Ms. Dakin -

Davis the following day, January 21, 2016. Ms. Dakin - Davis

forwarded Ms. ManiecÓs email to Ms. Jacobs.

35. Ms. Jacobs and Ms. Dakin - Davis met with Petitioner that

same day and confronted her about the statement, ÐDonÓt open your

mouth until I look at it further,Ñ that she had made to

Ms. Maniec. Ms. Jacobs and Ms. Dakin - Davis construed this

statement as an effort by Petitioner to conceal her CCI edit

error. Ms. Jacobs counseled Petitioner about appropriate

language to be used with other team mates, as well as the

importance of reporting any error, no matter the dollar amount,

to the Director.

36. On February 1, 2016, Ms. Corn issued Petitioner a Final

Written Warning regarding the incident, using the companyÓs

Universal Corrective Action For m. The following description of

the incident is particularly relevant:

1/20/2016 - [I]t was discovered via another

team receiving denials that the CCI edit

changes that were made in October 2015 were

incorrect. The changes to the CCI edits are

the respon sibility of Christine to complete

and QA once the changes are made to the

[Accounts Receivable] AR system. The team

lead discovered the error and went to

Christine to review her process as the data

was incorrect in the AR system. ChristineÓs

reply to the team lead was ÐdonÓt open your

mouth until I have looked at it more.Ñ The

leadÓs reply was that these type of errors

effect appropriate billing and will be

reported immediately to the leadership team.

The Supervisor was made aware of the issue by

the te am that receives the denials,

Supervisor questioned Christine about the

error and why the final QA was not performed

on the data that is part of the formal policy

and procedure. ChristineÓs reply was that

she was not aware a final QA was expected.

Superv isor pushed back as Christine was the

teammate that wrote the P&P detailing a final

QA is expected.

1/21/2016 - Director of [Patient Accounting]

and Supervisor had a verbal conversation with

Christine in regards to her comment ÐdonÓt

open your mouth until I have looked at it

more.Ñ Director asked Christine if she ever

made that comment to the team lead. She

stated that she cannot confirm that she used

those exact words and meant that she wanted

to identify the dollar impact before it

should be shared. D irector counseled her on

being aware of her language when she

communicates to other teammates.

Director also informed Christine that

regardless of the dollar amount of an error,

she, Director, should be informed of any

error that pertains to billing. The

expectation is for Christine to be

transparent and disclose immediately when an

issue is identified.

37. In the section of the Corrective Action Form titled

ÐExpectations Moving Forward,Ñ Ms. Corn noted:

Immediately and on a sustained basis it is

our e xpectation that you perform your job

duties at a satisfactory level to include the

following:

It is expected that all tasks assigned to

Christine are completed within the

appropriate time frame and the policy and

procedure for each is followed.

It is exp ected that if you are unable to

perform a task due to other priorities, that

this is communicated to both the team lead

and supervisor.

It is expected that Christine demonstrate our

core value of integrity and immediately

disclose an issue when it is iden tified.

Going forward, any behaviors not

demonstrating our core values, and most

specifically integrity, will not be

tolerated.

In addition, it is our expectation that you

adhere to all Davita Policies, Procedures and

Guidelines and exemplify the Core Va lues.

38. Ms. Corn presented the Final Written Warning to

Petitioner in her office with Ms. Dakin - Davis present.

Petitioner refused to sign the acknowledgment section of the

corrective action.

39. Neither party introduced DavitaÓs disciplinary policy

into evidence. There is enough record evidence to find that

Davita follows a progressive discipline program. There is no

reliable record evidence of the effect on an employeeÓs status

based on issuance of a final written warning. 4/

40. Petitioner receiv ed no change in job duties or salary,

demotion, or suspension, based on the final written warning.

Petitioner received a merit pay increase in 2016 following the

issuance of the final written warning. Petitioner speculated

that her pay increase would hav e been higher without the final

written warning on her record.

Responsibility for the Errors

41. PetitionerÓs case centers on her argument that both

Petitioner and Ms. Maniec, who is Caucasia n, were equally

responsible for the Q4 2015 upload and the CCI e dits, but only

Petitioner was disciplined for the errors. Petitioner maintains

that she was selectively disciplined based upon her race.

42. Ms. Maniec is the Payer Rules team l ead, responsible

for assigning and overseeing tasks of the P ayer R ules team mates.

43. With regard to the Q4 2015, Petitioner argued that she

and Ms. Maniec had agreed not to upload the Q4 2015 because of

conflicts with the diagnosis codes in the ICD 10, which would be

corrected by the next quarterly update. Ms. Maniec denied t hat

she had ever agreed to hold off on uploading the Q4 2015.

Neither Petitioner nor Ms. Maniec had authority to decide not to

upload the Q4 2015. That is a decision that would have had to be

made by management.

44. Ms. Maniec testified, credibly, that her responsibility

with both the Q4 2015 and the CCI e dits was quality assurance,

not initial data download and manipulation.

45. PetitionerÓs testimony that she and Ms. Maniec had

agreed together not to upload the Q4 2015 was simply not

credible.

46. Petitioner had the r esponsibility to perform the

Q4 2015 update and failed to do so.

47. With respect to the CCI e dits, Ms. Maniec was

responsible to perform a QA check of the data file following

PetitionerÓs manipulations, but prior to the upload.

48. On October 6, 2015, Petitioner emailed Ms. Maniec, ÐI

have completed the October 2015 NCCI edits for upload, can you

please QA.Ñ Petitioner attached a file titled ÐNCCI New/October

2015.Ñ

49. On October 13, 2015, Ms. Maniec replied, ÐI have QAÓd

the d ata and agree with your findings. The file is ready for

upload.Ñ

50. That same day, Petitioner replied, ÐUpload is complete.

See you next quarter.Ñ

51. PAP 1006 requires a final QA to be performed on the

Ðnewly updated data confirming accurate upload ing.Ñ Petitioner

did not refute testimony that the final QA on the uploaded data

was PetitionerÓs responsibility.

52. Petitioner did not prove that Ms. Maniec was

responsible for QA of the final uploaded data, or that Ms. Maniec

was oth erwise responsibl e for the CCI e dit error that created the

incorrect billings.

53. Petitioner did not perform the final QA, even though

she authored the policy requiring it. Furthermore, when

confronted with the error, Petitioner suggested that she was

adding a final QA step to the process to prevent similar errors

in the future. Ms. Dakin - DavisÓ met this suggestion as suspect

given PetitionerÓs familiarity with the policy.

PetitionerÓs Transfer

54. In March 2016, Davita dissolved the Payer Rules team

for reasons unrel ated to the instant case. Each of the Payer

Rules teammates was allowed to transfer to another position with

Davita.

55. Petitioner transferred to the Compliance Department in

her current position of Compliance Specialist.

CONCLUSIONS OF LAW

56. The Di vision of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

cause pursuant to sections 120.569 and 120.57(1), Florida

Statutes.

57. The Florida Civil Rights Act of 1992 (ÐFCRAÑ) prohibits

discrimination in the workpl ace. Among other things, FCRA makes

it unlawful for an employer:

To limit, segregate, or classify employees or

applicants for employment in any way which

would deprive or tend to deprive any

individual of employment opportunities, or

adversely affect any individualÓs status as

an employee, because of such individualÓs

race, color, religion, sex, pregnancy,

national origin, age, handicap, or marital

status.

§ 760.10(1)(b), Fla. Stat.

58. FloridaÓs chapter 760 is patterned after Title VII of

the Civil Rig hts Act of 1964, as amended. Consequently, Florida

courts look to federal case law when interpreting chapter 760.

Valenzuela v. Globe Ground N. Am., LLC , 18 So. 3d 17 (Fla. 3rd

DCA 2009).

59. Petitioner claims she was discriminated against by

Da vita b ased on her race (African - American) in violation of FCRA.

Specifically, Petitioner alleges that race was a motivating

factor in RespondentÓs decision to discipline Petitioner.

60. Section 760.11(7) permits a party who receives a no

cause determination t o request a formal administrative hearing

before the Division of Administrative Hearings. ÐIf the

administrative law judge finds that a violation of the Florida

Civil Rights Act of 1992 has occurred, he or she shall issue an

appropriate recommended order to the commission prohibiting the

practice and recommending affirmative relief from the effects of

the practice, including back pay.Ñ Id.

61. Petitioner claims disparate treatment (as opposed to

disparate impact) under the FCRA; in other words, she clai ms she

was treated differently because of her race. Petitioner has the

burden of proving by a preponderance of the evidence that

Respondent discriminated against her. See Fla. DepÓt of Transp.

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

62. A p arty may prove unlawful race discrimination by

direct or circumstantial evidence. Smith v. Fla. DepÓt of

Corr. , Case No. 2:07 - cv - 631, (M.D. Fla. May 27, 2009); 2009 U.S.

Dist. LEXIS 44885 (M.D. Fla. 2009). When a petitioner alleges

disparate treatment un der the FCRA, the petitioner must prove

that her race Ðactually motivated the employerÓs decision. That

is, the [petitionerÓs race] Òmust have actually played a role

[in the employerÓs decision making] process and had a

determinative influence on the outc ome.ÓÑ Reeves v. Sanderson

Plumbing Prods., Inc. , 530 U.S. 133, 141 (2000) (alteration in

original).

63. Direct evidence is evidence that, Ðif believed, proves

[the] existence of [a] fact in issue without inference or

presumption.Ñ Burrell v. Bd. of Tr s. of Ga. Mil. Coll. ,

125 F.3d 1390, 1393 (11th Cir. 1997). Direct evidence consists

of Ðonly the most blatant remarks, whose intent could be nothing

other than to discriminateÑ on the basis of an impermissible

factor. Carter v. City of Miami , 870 F.2d 578, 582 (11th Cir.

1989).

64. The record in this case did not establish unlawful

race discrimination by direct evidence.

65. To prove unlawful discrimination by circumstantial

evidence, a party must establish a prima facie case of

discrimination by a preponderance of the evidence. If

successful, this creates a presumption of discrimination. Then

the burden shifts to the employer to offer a legitimate, non -

discriminatory reason for the adverse employment action. If the

employer meets that burden, the presumption disappears and the

employee must prove that the legitimate reasons were a pretext.

Valenzuela v. GlobeGround N. Am., LLC , supra . Facts that are

sufficient to establish a prima facie case must be adequate to

permit an inference of discriminat ion. Id.

66. Accordingly, Petitioner must prove discrimination by

indirect or circumstantial evidence under the McDonnell Douglas

framework. Petitioner must first establish a prima facie case

by showing: (1) she is a member of a protected class; (2) she

was qualified for the position held; (3) she was subjected to an

adverse employment action; and (4) other similarly - situated

employees, who are not members of the protected group, were

treated more favorably than Petitioner. See McDonnell Douglas

Corp . v. Green , 411 U.S. 792, 802 (1973). ÐWhen comparing

similarly situated individuals to raise an inference of

discriminatory motivation, these individuals must be similarly

situated in all relevant respects.Ñ Jackson v. BellSouth

Telecomm. , 372 F.3d 1250 , 1273 (l1th Cir. 2004).

67. Thus, in order to establish a prima facie case of

disparate treatment based on race, Petitioner must show that

Davita treated similarly situated non - African - American employees

differently or less severely. Valdes v. Miami - Da de Coll. ,

463 Fed. Appx. 843, 845 (11th Cir. 2012); Camara v. Brinker

IntÓl , 161 Fed. Appx. 893 (11th Cir. 2006).

68. The Findings of Fact here are not sufficient to

establish a prima facie case of discrimination based on race.

Petitioner did establish the first two elements: she is a

member of a protected class -- African - American -- and she was

qualified for the position of Payer Rules Specialist II.

However, Petitioner did not establish the third element -- that

she suffered an adverse employment action.

69. ÐNot all conduct by an employer negatively affecting

an employee constitutes adverse employment action.Ñ Davis v.

Town of Lake Park Fla. , 245 F. 3d 1232, 1238 (11th Cir.

2001)(Plaintiff, who received one oral reprimand, one written

reprimand, the wi thholding of a bank key, and a restriction on

cashing non - account - holder checks, did not suffer an adverse

employment action). ÐThe asserted impact cannot be speculative

and must at least have a tangible adverse effect on the

plaintiffÓs employment.Ñ Id. at 1239. An employee is required

to show a Ðserious and material change in the terms, conditions,

or privileges of employment.Ñ Id.

70. In this case, the record does not support a finding

that Petitioner suffered an adverse employment action. Neither

the verbal warning nor the final written warning had any

tangible effect on PetitionerÓs employment. Neither action

resulted in her termination, demotion, suspension, a reduction

in pay, or a change in job duties. Despite the final written

warning, Petit ioner received a merit pay increase in 2016.

While Petitioner speculated that she would have been eligible

for a greater pay increase without the final written warning,

such speculation is insufficient to establish a tangible adverse

effect on PetitionerÓ s employment. See Barnett v. Athens RegÓl

Med. Ctr. , 2013 U.S. App. LEXIS 248677 (11th Cir. Dec. 16,

2013)(Although Plaintiff speculated that his written reprimands

and negative performance reviews might have been used by his

employer as grounds for futur e adverse employment action, he did

not establish that they actually led to any tangible effect on

his employment).

71. The fact that the final written warning was a step in

DavitaÓs progressive disciplinary policy was also an

insufficient basis to conclu de that it constituted an adverse

employment action. See Barnett , 2013 U.S. App. LEXIS 24867 *5 - 6

(Plaintiff Ós argument that the written reprimands and the

negative performance evaluation were steps in the employerÓs

progressive disciplinary policy , which could have led to harsher

disciplinary action , was insufficient to establish an adverse

employment action.) The Petitioner must establish that the

actions actually led to any tangible effect on his or her

employment. Id.

72. Assuming, arguendo, that ei ther the verbal or final

written warning did constitute an adverse employment action,

Petitioner still failed to establish a prima facie case because

she did not establish that similarly - situated employees outside

of her protected class were treated more f avorably.

73. Petitioner presented evidence attempting to show that

Davita treated Caucasian team lead Ms. Maniec more favorably

than it did her when the error in uploading the CCI e dits came

to light. To be a proper comparator, Ms. ManiecÓs conduct mus t

have been Ðnearly identicalÑ to PetitionerÓs. Vickers v.

Hyundai Motor Mfg. Ala., LLC , 2016 U.S. App. LEXIS 6741 (11th

Cir. Apr. 14, 2016); and Stone & Webster Constr., Inc. v. U.S.

DepÓt of Labor , 684 F.3d 1127, 1134 - 35 (11th Cir. 2012). This

requirem ent prevents courts from Ðsecond - guessing employersÓ

reasonable decisions and confusing apples with oranges.Ñ

Maniccia v. Brown , 171 F.3d 1364, 1368 (11th Cir. 1999).

74. The evidence shows that Ms. ManiecÓs conduct was not

at all similar to PetitionerÓ s. First, PetitionerÓs contention

that the two employees were e qually responsible for the CCI e dit

error was unsupported by the record evidence. Petitioner was

responsible to download the edits from CMS and manipulate the

data to remove duplicates and ed it incorrect diagnostic codes,

which she did. Ms. Maniec was responsible to QA the data prior

to upload to ensure accuracy, which she did. Petitioner was

clearly responsible to perform the post - upload QA, which she

failed to do. The employeesÓ actions w ere not at all similar --

only Petitioner failed to perform h er duty with regard to the

CCI e dit.

75. Further, PetitionerÓs behavior when confronted with

the error was significantly different from Ms. ManiecÓs. While

Ms. Maniec recognized the responsibili ty to immediately report

the error to management to prevent further erroneous billing,

Petitioner wanted to wait until she had the details of the

fiscal impact prior to reporting. The record is clear that

PetitionerÓs discipline was related more to her at tempt to

conceal the error than the commission of the error itself.

Thus, Ms. ManiecÓs behavior was diametrically opposed to

PetitionerÓs since Ms. Maniec did not engage in any effort to

delay reporting the error to management.

76. In short, Ms. Maniec was not a proper comparator, and

Petitioner fell short of establishing her prima facie case.

See Robinson v. Colquitt EMC , 2016 U.S. App. LEXIS 10040 (11th

Cir. June 2, 2016) (summary judgment for the employer affirmed

in race discrimination action where the plaintiff failed to

present sufficient evidence of a proper comparator).

77. Even assuming, arguendo, that Petitioner established a

prima facie case of discrimination, Respondent presented

persuasive documentary and testimonial evidence that it

disc iplined Petitioner because of its reasonable belief she had

exhibited a lack of integrity in failing to disclose the CCI

e dit error immediately, and that she engaged in unprofessional

conduct when she instructed Ms. Maniec to do the same. As such,

Davita has met its burden to establish legitimate, non -

discriminatory business reasons for its decision to discipline

Petitioner.

78. Petitioner did not present any credible evidence that

RespondentÓs reason for disciplining her was a pretext for

discrimination . Petitioner expressed her belief that her

discipline was unfair because it was based upon facts with which

she disagreed, but disagreement with the employerÓs decision

falls short of the showing necessary to establish pretext.

Chambers v. Walt Disney Wo rld Co. , 132 F. Supp. 2d 1356, 1366

(M.D. Fla. 2001). Courts Ðdo not sit as a super - personnel

department that examines an entityÓs business decisions.Ñ

Chapman v. AI Transport , 229 F.3d 1012, 1033 (11th Cir. 2000)

(en banc) (citations omitted).

79. ÐTh e ultimate burden of persuading the trier of fact

that the [employer] intentionally discriminated against the

[employee] remains at all times with the [employee].Ñ Texas

DepÓt of Cmty. Affairs v. Burdine , 450 U.S. at 253. In this

case, Petitioner failed to meet her burden.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations dismiss the Petition for Relief from an Unlawful

Employment Practice filed against Responden t.

DONE AND ENTERED this 1 6 th day of May , 2017 , in

Tallahassee, 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) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 6 th day of May , 2017 .

ENDNOTE S

1/ All references to the Florida Statutes are to the 2016

version, unless otherwise noted herein.

2/ The balance of PetitionerÓs exhibits were excluded because

she did not comply with the undersignedÓs Order of Pre - hearing

Instructions which directed the parties to exchange, no later

than seven days before the final he aring, copies of all documents

which they intended to offer as exhibits. As of the date of

final hearing, Petitioner had not disclosed to Respondent any

documents she intended to offer as exhibits.

3/ Davita eliminated the Payer Rules team in March 2016 , thus

the past tense is used in reference to the team.

4/ Petitioner testified that, due to the final written warning,

she was ineligible for the bonus pool in 2016 and unable to apply

for a transfer to a new position for six months. However,

Petitione rÓs knowledge was based solely on what she read or was

told through the Davita personnel system. PetitionerÓs hearsay

testimony was not corroborated by any non - hearsay evidence.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Hum an Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399

(eServed)

Dorothy Parson, Esquire

Ogletree, Deakins, Nash,

Smoak, and Stewart, P.C.

Suite 4600

111 Monument Circle

Indianapolis, Indiana 46204

Christine N. Monkhouse

1512 Clapton Dr ive

Deland, Florida 32720

(eServed)

Gretchen Maria Lehman, Esquire

Ogletree, Deakins, Nash,

Smoak & Stewart, P.C.

Suite 3600

100 North Tampa Street

Tampa, Florida 33602

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relatio ns

4075 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 Recommende d Order should be filed with the agency that

will issue the Final Order in this case.