17-001996 Jamaine Jones vs. Winter Haven Hospital, Inc. Status: Closed Recommended Order on Friday, August 11, 2017.

Summary: Petitioner failed to prove that he was discharged from employment on account of his race.

S TATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JAMAINE JONES,

Petitioner ,

vs. Case No. 1 7 - 1996

WINTER HAVEN HOSPITAL, INC. ,

Respondent .

_______________________________/

RECOMMENDED ORDER

D . R. Alexander, the assigned Administrative Law Judge of

the Division of Administrative Hearings (DOAH) , conducted a

hearing in this case by video teleconference at sites in

Lakeland and Tallahassee, Florida , on June 20 , 2017.

APPEARANCES

For Petitioner : J ason Bradford Woo dside, Esquire

Woodside Law, P.A.

Post Office Box 9447

Tampa , Florida 3 36 74 - 9447

For Respondent : Thoma s M . Gonzalez , Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa , Florida 33602 - 5110

STATEMENT OF THE ISSUE

The issue is whether Petitioner was unlawfully terminated

from employme nt by Respondent on the basis of his race .

PRELIMINARY STATEMENT

On September 27 , 2016, Petitioner filed a C harge of

Discrimination with the Florida Commission on Human Relations

(FCHR) alleging that he "had been discriminated against because

of [his] rac e." After the FCHR determined no reasonable cause

exist ed to believe an unlawful employment practice had occurred ,

Petitioner filed h is Petition for Relief . The matter was then

referred by the FCHR to DOAH to resolve the dispute.

At the hearing, Petition er testified on h is own behalf.

Petitioner's E xhibits 1 through 5 were accepted in evidence.

R espondent presented the testimony of f our witnesses.

Respondent's E xhibits 1 through 1 6 were accepted in evidence.

A one - volume Transcript of the hearing has been prepared.

Petitioner filed a p roposed r ecommended o rder (PRO) , which ha s

been considered in the preparation of this Recommended Order.

Respondent did not submit a PRO .

FINDINGS OF FACT

A. Background

1. Petitioner is a 32 - year - old male of African - American

heritage. Respondent is a full - service, non - profit hospital in

Winter Haven, Florida , and is a part of the BayCare Health

System (Baycare) .

2. Petitioner began working at the hospital in 2007. In

June 2010, he transferred to a mental health t echnician position

in the Center of Psy chiatry and continued working in that

position until his termination in late 2015 . Except for th e

incident that resulted in his termination , there is no record of

any other disciplinary action.

3 . On November 10, 20 15, Petitioner and another mental

health technician , Ted Mitchell, escort ed an unruly , combative

62 - year - old male patient , J.Q., to the ward's seclusion room.

The patient suffers from mental limitations , takes medications ,

was admitted to the hospital und er the Baker Act , and is

considered a vulnerable adult . The patient is around five feet,

eight inches tall, and weighs more than 200 pounds. Petitioner

is six feet tall and weighs around 160 pounds. While Petitioner

and Mitchell restrain ed J.Q. on a bed so that he could be

medicated by a nurse , two employees alleged that they observed

Petitioner str ike J.Q. with his fist.

4 . P ursuant to hospital policy, P etitioner was placed on

administrative leave pending the outcome of an investigation.

Based on th e hospital's in - house investigation, which confirmed

the charges, Petitioner was terminated on December 13, 2015, for

violating hospital policy.

5 . Because a vulnerable adult was injured, t he hospital

was required to notify the Department of Children & Families

(Department) . After conducting an Adult Institutional

I nvestigation of the incident , the Department concluded that

Petitioner had injured the patient and closed its investigation

with verified findings of physical injury . Although Petitioner

as serts th at "an independent investigation conducted by the

Department [cleared him] of any wrongdoing , " this assertion is

contrary to the evidence.

6 . After being terminated, Petitioner filed his Charge of

Discrimination. Petitioner contends he was termin ated on the

basis of his race, and that a white employee in the same

position , David T i ege, was involved in numerous incidents of

this sort, including one in January 2016 , but wa s not

terminated.

B. The Incident

7 . On November 10, 2015, Petitioner and Mi tchell , also an

African - American, were directed to conduct a safety check of all

patient rooms in the ward and remove it ems that were considered

contraband. A lthough no contraband was found in J.Q. 's room, he

became very upset at the intrusion and began y elling at the m .

8 . Ten or 15 minutes later, Petitioner went to the Social

Room to do a patient count. That room is used by patients to

read, watch television , and socialize with one another. J.Q.

entered the room , spotted Petitioner , "rushed" him , and began

swinging and kicking. Petitioner bear - hugged the patient to

protect his own body and looked around for help. A few moments

later, Mitchell arrived, and the two escorted J.Q. to the

seclusion room , which is next door to the Social Room. During

the transfer of the patient, Petitioner says he sustained

injuries when J.Q. struck and kneed him.

9 . Because J.Q. was kicking, screaming, and trying to

punch and spit on them, Petitioner and Mitchell placed him in a

bed and restrained him until the nurse could administer an

injection.

10 . Two registered nurses , Mary Jo Combs and Melissa

White, both Caucasian, arrived within a minute or two . Combs

intended to administer the injection. While they stood at the

door no more than a few feet from J.Q., b oth nurses observed

Petitioner clench his fist and strike a blow to J.Q ' s lower

back. Petitioner then looked up to see if anyone had seen him

hit the patient . Petitioner asserts that Mitchell can confirm

that no blow was struck, but Mitchell did not testify at the

final hearing.

1 1 . After sedating the patient, Combs immediately reported

the incident to her charge nurse , who instructed her to contact

the nurse manager of the ward , Lynne Har ty . Details of the

incident eventually worked their way through the chain of

command until they reached Rosemary Myers, a manager at Team

Resources, a Bay c are unit that investigates this type of

incident.

1 2 . Based on interviews with a number of hospital

personnel, including Petitioner , Mitchell, and the two nurses

who observed the incident, a three - person investigative team

consisting of Harty, Myers, and the director of the behavioral

health division , Anthony Santucci, concluded that Petitioner ha d

struck the patient. The hospital then notified the Department,

which conducted a second investigation and rendered a confirmed

abuse report on January 12, 2016 . Although Petitioner denies he

hit the patient, the greater weight of evidence supports a

finding that he did.

C. Petitioner's Termination

1 3 . Hospital policy req uires termination of employment

whenever an employee strikes a patient. Petitioner acknowledged

that he was aware of this policy before the incident. Based on

the hospital's in - house investigation, the three - member team

concluded that the charge was subs tantiated and recommended that

Petitioner be terminated. Petitioner was terminated effective

December 13, 2015 , or before the Department closed its abuse

investigation with a verified finding of abuse. A suggestion by

Petitioner that the hospital 's decis ion was based in part o n the

Department's confirmed abuse report is contrary to the evidence.

There is no evidence that race was a factor in the hospital's

decision to terminate Petitioner.

1 4 . In his Charge of Discrimination, Petitioner contends

that a white employee, Daniel Tiege, was not terminated even

though he was involved in "numerous altercations with patients

many of which resulted in injuries sustained by the patients ,"

including one incident in January 2016 .

1 5 . To begin with, there is a record of only one complaint

against T i ege. In January 2016, a complaint was lodged against

Tiege by a patient who contended Tiege had injured him. Unlike

Petitioner's encounter, there were no other witnesses to the

incident . In Tiege ' s case, a combativ e patient went to his

bathroom and slammed the door while trying to elude Tiege .

After opening the door, T i ege attempted to restrain the patient

and the two fell onto the floor. The patient injured his head

when he fell causing a bruise on his face , and he was

immediately administered first aid. A fter conducting an in -

house investigation, the hospital determined Tiege did not

intentionally injure the patient during their encounter. A

simil ar investigation conducted by the Department reached the

same con clusion.

1 6 . Like Petitioner, Tiege was placed on administrative

leave pending the outcome of the hospital's investigation . The

investigation was performed in the same manner as the

investigation of Petitioner. After a determination was made

t hat th e patient's injury was not intentionally inflicted, Tiege

was reinstated. Tiege is not a relevant comparator.

1 7 . Petitioner points out that he filed a criminal

complaint against J.Q. with the local police department because

J.Q. injured him during the e ncounter on November 10, 2015 . But

even if Petitioner was injured, this does not excuse hi s

striking the patient, a violation of hospital policy.

1 8 . Petitioner contends the investigation was flawed

because the hospital had no cameras in the quiet area to confirm

his version of what occurred. He also contend s the hospital

declined to implement his suggested staffing changes that are

designed to minimize conflicts between staff and patients .

However, eye witness testimony by two other employees confirm s

the allegation.

1 9 . In his Charge of Discrimination, Petitioner allege s

that the investigation was flawed because it was conducted by

Myers, a Caucasian, and was based on information provided by two

Caucasi a n employees. But n o evidence was produced t o s upport

the allegation that the charge was sustained because of his

race.

CON CLUSIONS OF LAW

20 . Petitioner has the burden of proving by a

preponderance of the evidence that Respondent committed an

unlawful employment practice. See § 120 .57(1)(j), Fla. Stat.

2 1 . Section 760.10(1)(a) makes it an unlawful employment

practice for an employer to discharge any individual because of

his race.

2 2 . Regarding race discrimination, Florida law is

construed in conformity with the federal law. Valenzuela v.

GlobeGround N. Am., LLC , 18 So. 3d 17, 21 (Fla. 3d DCA 2009).

Accordingly, chapter 760 claims are analyzed under the same

standards as its f ederal prototype.

2 3 . When bringing a claim of discrimination under the

F lorida Civil Rights Act bas ed on race, a complainant may

proceed on the theory of disparate impact, disparate treatment,

or both. EEOC v. Joe's Stone Crab, Inc. , 220 F.2d 1263, 1273

(11th Cir. 2000). Here, Petitioner has alleged facts giving

rise to a claim of disparate treatment on the basis of his race.

In other words, he contends he was intentionally treated

differently than similarly - situated employees on the basis of

his race. EEOC v. Catastrophe Mgmt. Sols. , 852 F.3d 1018, 1025

(11th Cir. 2016). "The ultimate question in e very employment

discrimination case involving a claim of disparate treatment is

whether the plaintiff was the victim of intentional

discrimination." Reeves v. Sanderson Plumbing Prods., Inc. , 530

U.S. 133, 153 (2000).

2 4 . Discriminatory intent can be est ablished through

direct or circumstantial evidence. Since no direct evidence of

discrimination on the basis of race was presented, a finding of

discrimination, if any, must be based on circumstantial

evidence.

2 5 . To establish a prima facie case of rac e discrimination

based on circumstantial evidence , Petitioner must demonstrate by

a preponderance of the evidence that: 1) he is a member of a

protected class; 2) he was qualified for the position; 3) he was

subjected to an adverse employment action; and 4) his employer

treated similarly - situated employees outside of his protected

class more favorably than he was treated. Burke - Fowler v.

Orange Cnty. , 447 F.3d 1319, 1323 (11th Cir. 2006).

2 6 . The first three elements of the prima facie case have

been m et by Petitioner. He is African - American, he was

qualified for the position, and he was terminated from his

position at the hospital. He failed, however, to establish that

other similarly - situated employees outside his protected class

were treated more f avorably than he.

2 7 . An adequate comparator for Petitioner must be

similarly - situated in all relevant respects. Johnson v. Great

Expressions Dental Ctrs. o f Fla. , 132 So. 3d 1174 (Fla. 3d DCA

2014) . As explained by the court, t hey must have "reported to

the same supervisor as the plaintiff, must have been subject to

the same standards governing performance evaluation and

discipline , and must have engaged in conduct similar to

plaintiff's, without such differentiati ng conduct that would

distinguish thei r conduct o r the appropriate discipline for it."

Id. at 1176. In other words, these individuals must be

similarly situated in all relevant respects , including position,

job duties, disciplinary history, and misconduct . Jackson v.

BellSouth Telecomm. , 37 2 F.3d 1250, 1273 (11th Cir. 2004). Th is

means that the comparator's mis conduct must be " nearly identical

to prevent courts from second - guessing employers' reasonable

decisions and confusing apples with oranges." Valenzuela ,

18 So. 3d at 23; Holifiel d v. Reno , 115 F.3d 1555, 1562 (11th

Cir. 1997).

2 8 . The evidence does not show that David T ei ge 's conduct

was "nearly identical" to Petitioner's actions or that Tiege was

treated differently . Although Petitioner alleges Tiege had a

string of altercati ons with patients resulting in injuries to

the patients , there is only one reported complaint against that

individual. Second, unlike Petitioner's incident, there were no

witnesses present when th e Tiege's alleged misconduct occurred

and thus no corrobora tion of the abuse. Third, an investigation

by the hospital (and the Department) confirmed that Tiege did

not act inappropriately. Thus, Petitioner failed to prove that

Tiege engaged in nearly identical conduct without being

discharged. And t here is no e vidence that the hospital's

investigation of Tiege was flawed or motivated by the fact that

Tiege is white. Tiege is not a similar ly - situated comparator.

2 9 . Without an appropriate comparator, Petitioner cannot

establish a prima facie case of discrimin ation and the inquiry

must end.

30 . Petitioner's claim must also fail for another reason:

he did not rebut Respondent's legitimate, non - discriminatory

reason for his discharge, namely, the violation of hospital

policy that forbids an employee from stri king a patient. The

burden is on Petitioner to prove Respondent's stated reason was

mere pretext for unlawful discrimination. Here, there was no

evidence that the hospital's action was taken for a

discriminatory reason.

RECOMMENDATION

Based on the forego ing Findings of Fact and Conclusions of

Law, it is

RECOMMENDED that the Florida Commission on Human Relations

enter a final order dismissing the Petition for Relief , with

prejudice .

DONE AND ENTERED this 31st day of July , 2017, i n

Talla hassee, Leon Co unty, Florida.

S

D . R. ALEXANDER

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 o f the

Division of Administrative Hearings

this 31st day of July , 2017.

C OPIES FURNISHED:

Tammy Barton , Agency Clerk

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 323 99 - 7020

(eServed)

Jason B radford Woodside, E squire

Woodside Law, P.A.

Post Office Box 9447

Tampa , Florida 33674 - 9447

(eServed)

Thomas M. Gonzalez , Esquire

Thompson, Sizemore, Gonzalez

& Hearing, P.A.

Suite 1600

201 North Franklin Street

Tampa , Florida 3 3602 - 5110

(eServed)

Cheyanne M. Costil l a , General Counsel

Florida Commission on Human Relations

4075 Esplanade Way , Room 110

Tallahassee, Florida 323 99 - 7020

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

1 5 days of the date of this Recommended Order. Any exceptions to

this Recommended Order should be filed with the agency that will

render a final order in this matter.