17-000129 Bridget L. Montgomery vs. Tallahassee Memorial Healthcare, Inc. Status: Closed Recommended Order on Friday, May 26, 2017.

Summary: Petitioner failed to establish that she was the victim of discrimination based upon race, color, age, sex, or marital status.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRIDGET L. MONTGOMERY,

Petitioner,

vs. Case No. 17 - 0129

TALLAHASSEE MEMORIAL HEALTHCARE,

INC.,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held on March 10,

2017, in Tallahassee, Florida, before W. David Watkins, the

duly - designated Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioner: Bridget L. Montgomery, pro se

524 East Paul Russell Road

Tallahassee, Florida 32301

For Respondent: Brian A. Newman, Esquire

Gerald D. Bryant, Esquire

Pennington, P.A.

215 South Monroe Str eet, 2nd Floor

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Did Respondent, Tallahassee Memorial Healthcare, Inc. (TMH

or Respondent), discriminate against Petitioner on account of

her race, color, age, sex, or marital status in violation of

chapter 760, Florida Statutes?

PRELIMINARY STATEMENT

Petitioner, Bridget L . Montgomery (Petitioner or

Ms. Montgomery), filed a Complaint of Discrimination with the

Florida Commission on Human Relations (FCHR) on June 24, 2016.

In h er Complaint, Petitioner alleged that Respondent

discriminated against her on the basis of her race (African -

American), color, age, sex, and marital status when it terminated

her employment on May 4, 2016. The allegations were

investigated, and on Decembe r 7, 2016, FCHR issued its

Determination: No Cause.

On January 9, 2017, Petitioner filed a Petition for Relief

requesting an administrative hearing regarding the FCHRÓs ÐNo

CauseÑ determination pursuant to section 760.11(7).

The matter was referred to t he Division of Administrative

Hearings on January 11, 2017, and on January 24, 2017,

Administrative Law Judge Yolanda Y. Green issued a Notice of

Hearing, setting the matter for final hearing on March 10, 2017.

On March 6, 2017, the case was transferred t o the undersigned for

all further proceedings.

The final hearing was convened as noticed on March 10, 2017.

At hearing, Petitioner testified on her own behalf and did not

offer any exhibits in evidence.

Respondent presented the testimony of Sheree Por ter, TMH

Rehabilitation Center Manager - Neuro Outpatient Clinic ; and

Norman Pasley, TMH Rehabilitation Center Administrator.

Respondent also presented the testimony of Shakayla Birch,

Investigator Specialist II with FCHR (by deposition transcript).

Respo ndent's Exhibits 1 through 15 were admitted into evidence

without objection.

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

April 3, 2017. At the conclusion of the hearing, the parties

agreed to file proposed orders within 10 days of the transc ript

filing. Respondent timely filed its Proposed Recommended Order

on April 13, 2017. Petitioner did not file a proposed

recommended order.

All statutory citations are to Florida Statutes (2016),

unless otherwise indicated.

FINDING S OF FACT

Based upon the demeanor and credibility of the witnesses and

other evidence presented at the final hearing, and on the entire

record of this proceeding, the following Findings of Fact are

made:

1 . Petitioner was employed by Respondent as a Rehab

Technician in the TM H Rehabilitation Center beginning in 2004.

2 . Petitioner was supervised by Sheree Porter, the Manager

of the Neurological Outpatient Clinic of the TMH Rehabilitation

Center, during the entire course of her employment as a Rehab

Technician.

3 . In Janua ry or February of 2016, Petitioner met a patient

who was receiving outpatient treatment at the Rehabilitation

Center to recover from a stroke. The patientÓs treatment

consisted of speech therapy, occupational therapy, physical

therapy, social work , and co unseling. As a recovering stroke

survivor, the patient is a member of a vulnerable population.

4 . Petitioner did not know the patient prior to meeting him

at the Rehabilitation Center in early 2016.

5 . Petitioner exchanged phone numbers with the patien t

after they met. Petitioner called and text messaged the patient

multiple times over the next month or two.

6 . On April 19, 2016, Petitioner drove to the patientÓs

apartment and picked him up at approximately 6:30 p.m.

Petitioner then brought the pati ent to her house. They arrived

at PetitionerÓs house at approximately 7:00 p.m.

7 . Petitioner had a glass of wine before she picked up the

patient. She continued to drink wine when she returned home with

the patient. The patient did not drink alcohol.

8 . Petitioner and the patient talked and played pool at

PetitionerÓs house for approximately three hours. At some point,

the patient became upset and told Petitioner he was ready to go

home. At approximately 10:00 p.m., Petitioner drove the patient

ba ck to his apartment.

9 . After driving the patient back to his apartment,

Petitioner sent a text message to the patient in which she

apologized for upsetting the patient.

10 . The patient reported this interaction to Sheree Porter

and Norman Pasley, the Administrator of the Rehabilitation

Center. The patient also reported that while he was at

PetitionerÓs house, Petitioner tried to persuade him to drink

alcohol and made sexual advances toward him. The patient

reported he felt unsafe and uncomfortable b ecause of PetitionerÓs

actions.

11 . Petitioner denied trying to persuade the patient to

drink alcohol and denied making sexual advances toward him.

12 . Sheree Porter and Norman Pasley interviewed Petitioner

regarding the patientÓs report. Both found t he patientÓs version

of events to be more credible than PetitionerÓs.

13 . On May 4, 2016, Respondent discharged Petitioner from

employment because of PetitionerÓs conduct with the patient. The

decision to discharge Petitioner was made jointly by Sheree

Porter, Norman Pasley, and Elissa Saavedra, the TMH Human

Resources Director of Colleague Relations. Petitioner would have

been discharged even if her account of her conduct with the

patient were true.

14 . Petitioner filed a charge of discrimination wit h FCHR

on June 24, 2016 , contesting her termination from TMH as based

upon her race, color, sex, age, and marital status.

15 . PetitionerÓs charge of discrimination was investigated

by Shakayla Birch, Investigator Specialist II with FCHR.

Ms. Birch condu cted a telephone interview of Petitioner on

October 14, 2016 , as part of her routine investigation of a

charge of discrimination. During this telephone interview,

Petitioner denied that her termination from TMH was motivated by

her race, color, age, sex, or m arital status. Rather, per

Ms. BirchÓs notes, Petitioner claimed her termination was a

Ðpersonal issueÑ with Sheree Porter who she claimed Ðwanted to

get rid of her since they always disagreed . Ñ

16 . On December 7, 2016, FCHR entered a determination that

no reasonable cause exists to believe that Petitioner was

subjected to an unlawful employment practice. Petitioner timely

requested a hearing to challenge this determination pursuant to

section 760.11(7), thus giving rise to this proceeding.

17 . Pet itioner contends that other TMH employees (Tracy

Dobson, Kendra Alex, and Carolyn Bryant) had relationships of

some kind with TMH patients and yet were not terminated.

Petitioner does not, however, have direct knowledge that any of

these employees were inv olved in a relationship with a patient

before the patient was discharged or that their supervisors knew

about an inappropriate relationship. Petitioner also contends

that Sheree Porter had a relationship with a patient, but the

patient was Mrs. PorterÓs h usband at the time of his admission.

CONCLUSIONS OF LAW

18 . The Division 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.

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

discrimination in the workplace. 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.

20 . FloridaÓs chapter 760 is patterned after Title VII of

the Civil Rights Act of 1964, as amended. Consequently, Florida

courts look to federal case law when interpreting chapter 760.

Valenzuela v. GlobeGround N. Am., LLC , 18 So. 3d 17 (Fla. 3d

DCA 2009).

21 . Petitioner claims she was discriminated against by T MH

because of her race (African - American), color, sex (female), age

and marital status (single) in violation of FCRA. Specifically,

Petitioner alleges that each of the above was a motivating factor

in RespondentÓs decision to terminate her employment.

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

cause determination to request a formal administrative hearing

before the Division of Administrative Hearings. ÐIf the

administrative law judg e 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.

23 . Petitioner claims disparate treatment (as opposed to

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

was treated differently because of her race, color, sex, age,

and marital status. Petitioner has the burden of pro ving 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). A party 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 under chapter 760, or the

Civil Rights Act, the petitioner must prove that her protected

statu s Ðactually motivated the employerÓs decision. That is,

the [petitionerÓs race] Òmust have actually played a r ole [in

the employerÓs decision - making] process and had a determinative

influence on the outcome.ÓÑ Reeves v. Sanderson Plumbing

Prods., Inc. , 5 30 U.S. 133, 141 (2000) (alteration in original).

The same analysis applies to all of PetitionerÓs claimed bases

of discriminatory. See Valenzuela v. GlobeGround North America,

LLC , 18 So. 3d 17, 21 - 22 (Fla. 3d DCA 2009).

24 . Direct evidence is evidenc e that, Ðif believed, proves

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

presumption.Ñ Burrell v. Bd. of Trs. 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).

25 . The record in this case did not establish unlawful

race discrimination by direct evidence.

26 . To p rove 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 t o 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 discrimination. Id.

27 . 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

emplo yees, 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 motivati on, these individuals must be similarly

situated in all relevant respects.Ñ Jackson v. BellSouth

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

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

disparate treatment based on race, Petitioner must sh ow that TMH

treated similarly situated employees of a non - protected class

differently or less severely. Valdes v. Miami - Dade Coll. ,

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

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

29 . Petitioner d id not establish the fourth element of a

prima facie case, the existence of a similarly situated

comparator who was treated more favorably. A comparator must be

similarly situated in all relevant respects, including position,

job duties, disciplinary hist ory, and misconduct. Valenzuela ,

18 So. 3d at 23. When the claimantÓs conduct is at issue, Ðthe

quantity and quality of the comparatorÓs misconduct must be

nearly identical to prevent courts from second - guessing

employersÓ reasonable decisions and confus ing apples with

oranges.Ñ Id. Holifield v. Reno , 115 F.3d 1555, 1562

(11th Cir. 1997).

30 . PetitionerÓs conduct is at issue. The evidence

established that Petitioner repeatedly called and texted a

current TMH patient who she met at TMH facilities. The patient

was receiving treatment to recover from a stroke. Petitioner

brought the patient back to her house for several hours one

night while she drank alcohol. Petitioner failed to prove that

a similarly situated TMH employee engaged in nearly identical

conduct without being discharged. While Petitioner testified

that she believes four employees -- Sheree Porter, Tracy Dobson,

Kendra Alex, and Carolyn Bryant -- had relationships of some kind

with TMH patients, none of these employees is an appropriate

compa rator.

31 . Mrs. Porter is not an appropriate comparator because

the patient in question is (and was at the time his admission)

her husband.

32 . Ms. Dobson, Ms. Alex, and Ms. Bryant are not

appropriate comparators because their alleged relationships were

with former TMH patients. PetitionerÓs conduct involved a

current TMH patient. What is more, Petitioner did not prove

that Ms. Dobson, Ms. Alex, and Ms. Bryant engaged in

relationships -- let alone inappropriate relationships -- with any

former TMH patients . Petitioner testified that she ÐbelievesÑ

these employees had relationships of some kind with former TMH

patients, but Petitioner admitted she has no direct knowledge of

the alleged relationships and offered no other evidence to

substantiate their existe nce. PetitionerÓs uncorroborated

speculation is not proof. Therefore, even if engaging in a

personal relationship with a former patient constituted nearly

identical conduct, Petitioner failed to meet her burden of

proving that Ms. Dobson, Ms. Alex, or Ms . Bryant engaged in such

conduct.

33 . The inquiry can end here. Without an appropriate

comparator, Petitioner cannot establish a prima facie case of

discrimination on any of her claims. McDonnell Douglas ,

411 U.S. 792. But PetitionerÓs claims also fail for another

reason: she did not rebut RespondentÓs legitimate, non -

discriminatory reason for her discharge.

34 . Respondent presented evidence that it discharged

Petitioner because she engaged in inappropriate behavior with a

current TMH patient. The b urden is on Petitioner to prove

RespondentÓs stated reason was mere pretext for unlawful

discrimination. Combs v. Plantation Patterns , 106 F.3d 1519,

1538 (11th Cir. 1997).

35 . To prove pretext, a claimant must show Ðsuch

weaknesses, implausibilities, in consistencies, incoherencies, or

contradictions in the employer's proffered legitimate reasons

for its action that a reasonable factfinder could find them

unworthy of credence.Ñ Id . Moreover, when a claimant alleges

she was fired for misconduct, whether the claimant actually

engaged in the misconduct is irrelevant. See Bruce v. SamÓs

East, Inc. , 2012 WL 6733034, *3 (N.D. Fla. 2012). ÐWhat matters

is not what [the claimant] actually did or said or what she

believed, but only what the [employerÓs] decisio nmakers

reasonably concluded she did or said. As the Eleventh Circuit

has recognized time and again, ÒThe employer may fire an

employee for a good reason, a bad reason, a reason based on

erroneous facts, or for no reason at all, as long as its action

is n ot for a discriminatory or retaliatory reason.ÓÑ Id .

36 . P etitioner disputes the patientÓs account of her

behavior on the night she brought the patient to her house. But

the issue is not what Petitioner did or said that night. The

issue is what Respond entÓs decision - makers -- Sheree Porter,

Norman Pasley, and Elissa Saavedra -- reasonably concluded

Petitioner did or said. Id . Respondent presented evidence that

the decision - makers concluded Petitioner offered the patient

alcohol and made sexual advances to ward him. Petitioner offered

no evidence to suggest this conclusion was unreasonable or was

motivated by the PetitionerÓs race, color, age, sex, or marital

status. Moreover, Respondent presented evidence that it would

have discharged Petitioner even if P etitionerÓs account of the

night was accurate. Petitioner offered no evidence to shed

doubt on this testimony. Thus, Petitioner failed to rebut

RespondentÓs legitimate, non - discriminatory reason for her

discharge.

37 . ÐThe 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. Aff . 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 Respondent.

DONE AND ENTERED this 26th day of May , 2017 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 967 5

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 26th day of May , 2017 .

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade W ay

Tallahassee, Florida 32399

(eServed)

Bridget L. Montgomery

524 East Paul Russell Road

Tallahassee, Florida 32301

Elissa R. Saavedra, Esquire

1300 Miccosukee Road

Tallahassee, Florida 32308

(eServed)

Gerald D. Bryant, Esquire

Brian A. Newman, Es quire

Pennington, P.A.

2nd Floor

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

NOTICE OF RIGHT T O SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exceptions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.