17-004689 Tina Gainey vs. Parallon Enterprises Llc-Hsc Orange Park Status: Closed Recommended Order on Monday, March 5, 2018.

Summary: Petitioner failed to prove by a preponderance of the evidence that Respondent committed an unlawful employment practice by failing to promote her.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TINA GAINEY,

Petitioner,

vs. Case No. 17 - 4689

PARALLON ENTERPRISES LLC - HSC

ORANGE PARK,

Respondent.

_______________________________/

RECOMMENDED ORDER

Pursuant to notice, a fina l hearing w as conducted in

this case on December 19, 2017, via video teleconference at

sites in Tallahassee and Pensacola, Florida, before Garnett W.

Chisenhall, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings (ÐDOAHÑ) .

APPEARANCES

For Petitioner: Tina Gainey , pro se

5765 JV Woolley Road

Crestview, Florida 32539

For Respondent: James J. Dean, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

STATEMENT OF THE ISSUE

The issue is whether Parallon Enterprises LLC - HSC Orange

Park (ÐParallonÑ) committed an unlawful employment practice

against Tina Gainey by subjecting her to disparate treatment

bas ed on her national origin.

PRELIMINARY STATEMENT

Tina Gainey filed an Employment Complaint of Discrimination

with the Florida Commission on Human Relations (Ðthe

CommissionÑ) on January 17, 2017 , alleging that :

I have been discriminated against based

on my National Origin (Hispanic). I have

not seen a ny Hispanics in any position

of authority at this facility, except for

one Î and he is a man. When my Supervisor,

Sue Armstrong left the company her position

became available. I spoke with my Regional

D irector Lisa Terrell; ac cording to the

job description, I have all of the

qualifications and experience to fill this

position (especially since I have been here

over 5 years). I was worried [that] having

an open Worker Comp case would disqualify

me, but s he assured me that she Ðchecked

into itÑ and such was not the case. I

emailed my resume, cover letter, transfer

form, etc. as requested to Ms. Terrell,

along with completing the online application

as required. I did not obtain the position,

and my curren t Director Karen Truelove has

less experience and less qualifications.

She is [a] White female, same as the

Supervisor before her and the Regional

Director, Ms. Terrell. I was informed by

Ms. Terrell that she was not sure if I met

the qualifications, so she p ersonally held

my resume back and therefore I was not

considered for the job. I applied for the

same position but at a different company

facility, but did not receive this position

either. Ms. Terrell did not allow me to be

considered for promotion. I informed her

that I still wanted to advance with the

company. She promised me assistance with

placing me in an advanced position, stating

that she would Ðbe on the lookout for a

higher positionÑ for me and promised [an]

opportunity for director traini ng and

additional education that would help me

further a career with the company. I have

still not received any training, and she

will not contact me back regarding the

subject.

More than 180 days passed without the Commission making a

determination rega rding the merits of Ms. GaineyÓs claim.

Accordingly, Ms. Gainey elected on July 22, 2017, to proceed

with a formal administrative hearing at DOAH. 1/

On August 17, 2017, the Commission received Ms. GaineyÓs

Petition for Relief and referred this matter to DOAH for a

formal administrative hearing.

Via a Notice issued on September 5, 2017, the undersigned

scheduled the final hearing to occur on October 17, 2017. On

September 19, 2017, counsel for Respondent filed a Motion for

Continuance requesting that t he final hearing be continued to

November 16 or 17, 201 7 . Ultimately, the undersigned

rescheduled the final hearing to occur on December 19, 2017.

On September 8, 2017, Parallon filed a ÐMotion to Dismiss

Petition for Relief or, in the Alternative, Moti on to Strike and

Exclude EvidenceÑ (Ðthe Motion to DismissÑ). In support

thereof, Parallon described how Ms. Gainey had filed a Complaint

in federal court on approximately December 28, 2016, alleging

that Parallon had violated the Americans with Disabilit ies Act

and interfered with Ms. GaineyÓs rights under the Family Medical

Leave Act. However, Parallon and Ms. Gainey executed a

settlement agreement on approximately February 24, 2017,

resulting in dismissal of Ms. GaineyÓs complaint. A paragraph

within the settlement agreement stated that Parallon agreed to

pay Ms. Gainey a sum of money Ðin exchange for a full release

[and] a dismissal [with] prejudice of her suit in Federal

Court.Ñ Another paragraph within the settlement agreement

stated that Ð[t]his a greement in no way a ffects the PlaintiffÓs

pending workers compensation claim which remains pending.Ñ 2/

According to Parallon, Ms. GaineyÓs claims in the instant case

were barred by the aforementioned settlement agreement.

Parallon a rgued alternatively in the Motion to Dismiss that

Ms. Gainey intended to raise certain claims that were not

included in her C omplaint of Discrimination.

On December 4, 2017, Parallon filed a ÐSupplement to [the]

Motion to Dismiss and/or Strike and Exclude EvidenceÑ (Ðthe

SupplementÑ). Through the Supp lement, Parallon noted that

Ms. Gainey alleg ed in her C omplaint of Discrimination that she

had unsuccessfully applied for the same position at a different

Parallon facility. According to Parallon, the aforementioned

allegati on should be stricken because Ð[t]he Respondent in this

proceeding, Parallon Enterprises, LLC Î HSC Orange Park, had no

involvement with any decision - making regarding any application

Ms. Gainey may have made for a [Health Information Management]

Director position to work at a facility other than Twin Cities

Hospital and would have had no involvement with any position for

a facility outside of Florida.Ñ

Via an Order issued on December 5, 2017, the undersigned

denied the Motion to Dismiss but specified th at :

[t] he allegations at issue in the

instant case shall be limited to allegations

set forth in the ÐEmployment Complaint of

Discriminatio nÑ filed by Petitioner with

the Florida C ommission on Human Relations

on January 17, 2017 . With regard to

PetitionerÓ s allegation that she Ðapplied

for the same position but at a different

company facility, but did not receive this

position either,Ñ the undersigned reserves

ruling until the final hearing as to whether

this particular allegation is at issue. At

this poin t in time, it is unclear whether

Petitioner intends for that allegation to

serve as context for her primary allegation

or as a separate basis for relief.

(emphasis added) . 3/

The undersigned concludes that there is no need to strike

the allegation at i ssue because it was never offered as a

separate or alternative basis for relief during the final

hearing.

On October 3, 2017, Parallon filed a ÐMotion for

Protective Order, Order in Limine and/or to Quash SubpoenasÑ

(Ðthe Motion to QuashÑ). In support th ereof, Parallon asserted

that Ms. Gainey had provided a list indicating that she intended

to call 33 witnesses during the final hearing in this matter.

According to Parallon, only one of the 33 witnesses could

provide any relevant information. Therefore, Parallon requested

an order precluding Ms. Gainey from obtaining subpoenas for the

remaining 32 witnesses until: (a) she file d a proffer of those

witnessesÓ anticipated testimony; and (b) obtain ed pre -

authori zation from the undersigned for any subpoenas.

After conducting a telephonic hearing regarding the Motion

to Quash, the undersigned issued an Order on October 18, 2017,

providing that :

1. For every witness that Petitioner intends

to subpoena, Petitioner shall provide

notice to RespondentÓs counsel prio r to

issuance of any subpoenas. This

requirement is intended to ensure that

counsel for Respondent has notice of

which witnesses will receive a subpoena

and an opportunity to file a motion to

quash if counsel for Respondent is of the

opinion that a partic ular witness lacks

any relevant information.

2. The Motion to Quash is denied without

prejudice to Respondent filing renewed

motions to quash in response to

subpoenas.

On December 14, 2017, Ms. Gainey filed a ÐMotion for

Protective Order, Order in Limine and/or to Quash SubpoenasÑ

(Ðthe Motion in LimineÑ). Th rough the Motion in Limine,

Ms. Gainey asserted that P arallon filed its witness list on

December 12, 2017. However, Ms. Gainey argued that Parallon

should be pre clud ed from presenting any testimony f rom the

witnesses on that list because: (a) Parallon did not disclose

its witnesses in a timely manner; and (b) none of ParallonÓs

witnesses h ave relevant testimon y. In a separate argument,

Ms. Gainey took issue with the fact that Parallon employees and

ParallonÓs attorney did not assist her with obtaining the

contact information of potential witnesses employed by Parallon.

With regard to the argument pertaining to Parallon Ós

witnesses, the Order of Pre - h earing Instructions issued on

September 5, 2017, m andated that each party was to provide the

other part y with a list of its prospective witnesses Ð[n] o

later than 7 days before the final hearing . . .Ñ The witness

list filed by Parallon on December 12, 2017, has a certificate

of service indicating that i t was e - m ailed to Ms. Gainey on

December 12, 2017. Therefore, because Parallon complied

with t he portion of the Order of Pre - h earing Instructions

pertaining to the disclosure of witn esses, there is no merit to

Ms. GaineyÓs assertion that Parallon failed t o timely disclose

its witnesses.

During the course of the final hearing, Parallon presented

several witnesses. While some of the witnesses gave testimony

that was far more relevant than the testimony of other

witnesses, the undersigned cannot conclude that any of the

testimony should be stricken.

As for Ms. GaineyÓs argument that Parallon employees and

ParallonÓs attorney did not assist her with obtaining the

contact information of potential witnesses employed by Parallon,

Ms. Gainey never sufficiently described the substance of this

expected testimony or how that testimony was relevant to the

allegations in her Complain t of Discrimination. Accordingly,

t he Motion in Limine is denied.

The final hearing was commenced as scheduled on

December 19, 2017 .

ParallonÓs Exhibits 1 through 9 were admitted into evidence

without objection.

Parallon presented the testimony of Milagros Bonilla, Lisa

Terrell, Kimberly Baker, Charlie Robinson, and Karen Truelove.

Ms. Gainey testified on her own behalf but d id not offer

any exhibits into evidence.

Th e T ranscript from the final hearing was filed with DOAH

on January 11, 2018. As a result, the partiesÓ proposed

recommended orders were due to be served on January 22, 2018.

On January 12, 2018, Parallon req uested that the due date

for the proposed recommended orders be extended to January 31,

2018. The undersigned issued an Order on January 16, 2018,

granting ParallonÓs request.

Both parties filed timely P roposed R ecommended O rders that

were considered i n the preparation of this Recommended Order.

FINDING S OF FACT

Based on the oral and documentary evidence adduced at the

final hearing and the entire record in this proceeding, the

following Findings of Fact are made:

The Parties

1. Parallon is a busines s based in Orange Park, Florida,

that contracts with 22 hospitals to provide health information

management (ÐHIMÑ) services.

2. HIM is a term used to describe the process by which a

health care facility secures and maintains a patientÓs medical

record fro m admittance to discharge.

3. ParallonÓs main purpose is to ensure that a patientÓs

medical record is complete and accurate upon discharge.

4. Rather than employing nurses, physicians, or other

providers of direct patient care, Parallon employs the h ospital

staff members involved with HIM operations.

5. Ms. Gainey is Hispanic and began working for Parallon

in April of 2011 as a health information technician at the Twin

Cities Hospital in Niceville, Florida.

6. Ms. Gainey has held the position of health information

technician during her entire tenure at Parallon.

7. Ms. Gainey works the night shift and is usually the

only HIM employee present at that time.

8. HIM work during the night shift is less complex tha n

HIM work during the day. The nigh ttime work involves gathering

the records of discharged patients, ensuring that all of those

records can be traced to a particular patient, and preparing

those records for delivery to a document imaging center.

9. Upon beginning he r employment with Pa rallon, Ms. Gainey

had high hopes of enjoying a long tenure there .

10. Because she was told that a degree in the HIM field

would enable her to advance within Parallon, Ms. Gainey geared

her education to ward a specializ ation in HIM.

The HIM Director Pos ition at Twin Cities Hospital Opens

11. Ms. GaineyÓs previous supervisor, the HIM Director at

Twin Cities Hospital, relocated to a different position in

approximately March of 2016 .

12. A HIM Director with Parallon has a great deal of

responsibility. In addition to being a supervisor and

responsible for every medical record in a hospital, a HIM

Director investigates every unauthorized release of protected

health information .

13. Ms. Gainey was interested in the HIM Director position

and communicated her interest to Lisa Terrell.

14. Ms. Terrell is one of ParallonÓs HIM Regional

Directors and oversees ParallonÓs operations at eight health

care facilities in Florida , including Twin Cities Hospital .

15. Ms. Terrell interviews qualified candidates for vacant

HIM Director positions and recommends which candidates will be

interviewed by ParallonÓs upper management.

16. Ms. Terrell told Mr. Gainey to send her the necessary

documentation and Ms. Terrell would then forward that

documentation to the a ppropriate person.

17. Ms. Gainey followed Ms. TerrellÓs instructions and

provided her with the necessary documentation , an internal

transfer form and a resume, v ia an e - mail transmitted on May 4,

2016.

18. On May 4, 2016, Ms. Terrell forwarded Ms. Ga ineyÓs

e - mail to Kimberly Baker, a human resource generalist at

ParallonÓs headquarters in Orange Park during the time in

question .

19. Ms. Baker did not account for that e - mail by adding

Ms. Gainey to the list of applicants for the HIM Director

posit ion at Twin Cities Hospital.

20. Ms. Baker should have recognized this e - mail as an

application for the open HIM Director position because the

subject line read ÐFW: Application for HIM Director position.Ñ

Moreover, the line below the subject line indic ates two files

were attached to the e - mail. Those files were named ÐInternal

Transfer Form rev 9.3.14.docÑ and ÐTina Gainey Management Resume

2016.docx.Ñ

21. Ms. Baker can only speculate as to why she failed to

account for Ms. GaineyÓs application.

22. Ms. Baker was on vacation in May of 2016 , a nd she left

Parallon at the end of that month. Thus, it is possible that

Ms. TerrellÓs e - mail was overlooked in a mass of e - mails that

accumulated in Ms. BakerÓs in - box while she was gone.

23. Also , Ms. Gainey did not follow the formal process

established by Parallon for existing Parallon employees to apply

for transfers to open positions.

24. Parallon requires existing employees to apply for open

positions by transmitting an e - mail to a particul ar human

resource employee such as Ms. Baker.

25. An internal transfer form and the employeeÓs resume

sho uld be attached to the e - mail.

26. That requirement serves multiple purposes. First,

ParallonÓs human resources department is able to verif y tha t an

application is complete. Then, the human resources department

screens a particular applicant to ensure that he or she is

eligible to apply for the position in question.

27. Parallon also requires that applications be sent to a

particular human res ources employee because the em ployee

responsible for managing the process for filling a particular

opening must track which applicants are interviewe d and which

receive offers.

28. If the human resources department finds that a

particular applicant is e ligible, then the human resources

department notifies the hiring director that an internal

candidate has applied for the position in question.

29. A list of open pos itions within Parallon on March 29,

2016, i ndicates that existing employees should have t ransmit ted

an e - mail and the required attachments to Ms. Baker.

30. Ms. Baker believes that she would have been more

likely to have added Ms. Gainey to the list of applicants for

the HIM Director position if Ms. Gainey had followed the

established proc edure.

31. Nevertheless, Ms. B aker should have recognized

Ms. TerrellÓs e - mail as an application for the open HIM Director

position.

Parallon Offers the HIM Director Position to Karen Truelove

32. Karen Truelove was employed by Parallon and work ing a t

the Fort Walton Beach Medical Center (ÐFWB Medical CenterÑ) in

Fort Walton Beach, Florida , in May of 2016 .

33. Msuelove was also interested in the HIM Director

position at Twin Cities Hospital . S he transmitted an e - mail to

Ms. Baker on March 30, 20 16, with an internal transfer form and

her resume attached thereto .

34. Msuelove has over 20 years of experience in the

HIM field.

35. From March of 199 6 through December of 2000,

Ms. Truelove worked for Contra Costa County Health Ser vices

in Mar tinez, California , where she: (a) developed and

implemented policies and procedures for medical record

maintenance; (b) worked with outlying county medical clinics to

ensure proper medical record procedures; and (c) completed and

processed workersÓ compen sation, state disability, social

security, and private insurance forms.

36. From January of 2001 to October of 2001, Msuelove

worked at the Oasis Sports Medical Group in San Diego,

California , where she: (a) prepared charts for daily outpatient

vis its; (b) requested MRIs, EMG s, and medical records; and

(c) proofread medical record dictation.

37. Msuelove was next employed from April of 2002

through July of 2003 at the Rehabilitation Hospital of the

Pacific in Hawaii , where she conducted insuran ce verifications,

processed referrals, and scheduled patients.

38. Ms. TrueloveÓs next position was based at the Queens

Medical Center in Honolulu, Hawaii , from July of 2003 through

December of 2004 , where she reviewed discharged patient medical

records for completeness and accuracy .

39. Msuelove has worked for Parallon at the FWB

Medical Center since February of 2005. She began her employment

with Parallon as an HIM Operations Supervisor for the evening

shift. In that position, M s uelove was r esponsible for:

(a) staffing the evening shift; (b) ensuring that the evening

shift met productivity and quality goals; (c) preparing charts;

and (d) reviewing charts for completeness and accuracy.

40. Msuelove held the HIM Operations Supervisor

posi tion until February 21, 2006. She then became the Lead HIM

Technician at the FWB Medical Center for issues pertaining to

incomplete medical records and patient charts.

41. At some point in 2007, Msuelove became a t umor

r egistrar at FWB Medical Cent er.

42. A tumor registrar analyzes patient charts for cancer

diagnoses. The information is then reported to the American

College of Surgeons so that national treatment guidelines for

cancer c an be developed .

43. In order to hold this position, Ms. Tr uelove earned a

certification from the National C ancer RegistrarÓs Association.

44. In add ition to working full - time, Ms. Truelove is

currently pursuing a two - year degree in HIM and hopes to

eventually take an examination in order to become a registered

health information technician.

45. Because she had visited the FWB Medical Center for

department meetings, Ms. Terrell already knew Msuelove prior

to her applicatio n for the HIM Director position and had a very

high opinion of her work.

46. Ms. TrueloveÓs direct supervisor at the FWB Medical

Center gave Msuelove a strong recommendation.

47. As a result, Ms. Terrell considered a face - to - face

interview with Msuelove to be unnecessary and interviewed

her over the phone on April 17 or 18, 2016.

48. After wards , M s. Terrell recommended that Ms. Truelove

be interviewed by ParallonÓs upper management.

49. Even if Ms. GaineyÓs application had been processed by

Ms. Baker, Ms. Terrell would have considered Msuelove to be

a better candidat e for the HIM Director position.

50. ParallonÓs Chief Executive and Chief Operating

Officers then interviewed Msuelove .

51. Ultimately, Parallon offered the HIM Director position

to Msuelove on or about May 1 7 , 2016, and she has held that

po sition since June of 2016.

52. Because she is much further along in her career and

has more than twice as much experience with medical records,

Ms. Truelove would have almost certainly been offered the job

e ven if Ms. Gainey Ós application had been process ed by

Ms. Baker .

53. With regard to hiring and/or promotional practices,

there is no persuasive evi dence to support a finding that

Parallon treats similarly sit uated, non - Hispanic employees more

favorably than Hispanic employees , such as Ms. Gainey.

M s. Gainey Requests Training

54. On Friday, May 20, 2016, Ms. Gainey sent an e - mail to

Ms. Baker inquiring about the HIM Director position:

Hi Kimberly,

I have not heard back from Lisa Terrell

regarding the HIM Director position at Twin

Cities in Nicevill e. I sent her my transfer

form and resume information back on May 2,

and wanted to make sure that you had

received this as well.

Please contact me as soon as possible.

Thank you.

Tina M. Gainey

55. Ms. Baker responded on May 23, 2016, with the

follow ing e - mail:

Tina,

These always need to be sent to HR for

consideration and processing.

I can see if Lisa receive[d] it, but

unfortunately, they have already selected a

candidate for an offer.

56. Ms. Gainey then spoke to Ms. Terrell about r eceiving

training so that she could advance beyond her night t ime

technician position.

57. Parallon has offered training to Ms. Gainey so that

she could advance into a daytime position. However, given that

her nighttime shift ends at 1:30 a . m . , it is unclear wh ether the

training has been offered at a time during which it would be

reasonable to expect that Ms. Gainey would be able to take

advantage of that training opportunity.

58. There was no persuasive evidence indicating that any

other Parallon employees we re treated more favorably than

Ms. Gainey with regard to training opportunities.

CONCLUSIONS OF LAW

59. The Division of Administrative Hearings has

jurisdiction over the parties and the subject matter of this

proceeding pursuant to sections 120.56 9 and 120.57, Florida

Statutes (2016), 4 / and Florida Administrative Code Rule 60Y -

4.016(1).

60. The State of Florida, under the legislative scheme

contained in sections 760.01 Î 760.11 and 509.092, Florida

Statutes, known as the Florida Civil Rights Act of 1992 (Ðthe

FCRAÑ) , incorporates and adopts the legal principles and

precedents established in the federal anti - discrimination laws

specifically set forth under Title VII of the Civil Rights Act

of 1964, as amended. 42 U.S.C. § 2000e, et seq .

61. S ection 760.10 prohibits discrimination Ðagainst any

individual with respect to compensation, terms, conditions, or

privileges of employment, because of such individual's race,

color, religion, sex, national origin, age, handicap, or marital

status.Ñ § 760.10(1)( a), Fla. Stat.

62. The FCRA is patterned after Title VII of the Civil

Rights Act of 1964, as amended. Accordingly, Florida courts

hold that federal decisions construing Title VII are applicable

when considering claims under the FCRA. Harper v. Blockbust er

EntmÓt Corp. , 139 F.3d 1385, 1387 (11 th Cir. 1998).

63. M s . Gainey alleged in h er C omplaint of Discrimination

that s he has experienced disparate treatment at Parallon because

of h er national origin . As a result, M s . Gainey has the burden

of proving by a preponderance of the evidence that Parallon

discriminated against h er . See Fla. DepÓt of Transp. v . J.W.C.

Co. , 396 So. 2d 778 (Fla. 1 st DCA 1981).

64. Discrimination may be proven by direct, statistical,

or circumstantial evidence. Valenzuela v. GlobeGround N. Am.,

LLC , 18 So. 3d 17, 22 (Fla. 3d DCA 2009). Direct evidence is

evidence that, if believed, would prove the existence of

discriminatory intent behind the employment decision without any

inference or presumption. Denney v. City of Albany , 247 F.3d

1172, 1182 (11 th Cir. 2001); Holifield v. Reno , 115 F.3d 1555,

1561 (11 th Cir. 1997). Courts have held that "'only the most

blatant remarks, whose intent could be nothing other than to

discriminate . . .' will constitute direct evidence of

disc rimination." Damon v. Fleming Supermarkets of Fla., Inc. ,

196 F.3d 1354, 1358 - 59 (11 th Cir. 1999) (citations omitted).

65. Ms. Gainey presented no direct evidence that Parallon

discriminated against her because of her national origin .

66. Without dire ct evidence of discriminatory intent,

Ms. Gainey must rely on circumstantial evidence of

discrimination to prove her case. See McDonnell Douglas Corp.

v. Green , 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

67. Petitioners such as Ms. Gainey bear the initial burden

of establishing, by a preponderance of the evidence, a prima

facie case of discrimination. In order to establish a prima

facie case for failing to promote, a petitioner must demonstrate

that she: (a) belongs to a protected class; (b) she applied for

and was qualified for the position or promotion; (c) she was not

hired or promoted despite her qualifications; and (d) other

equally or less qualified candidates who were not members of the

protected class were hired or promoted. Marab le v. Marion

Military Inst. , 595 Fed. AppÓx. 921, 926 (11 th Cir. 2014).

68. Demonstrating a prima facie case is not difficult .

A petitioner need only "establish facts adequate to permit an

inference of discrimination." Holifield , 115 F.3d at 1562.

6 9. If a petitioner establishes a prima facie case, then

there is a presumption of discrimination. At that point, the

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

discriminatory reason for taking the adverse action.

See Valenzuela , 18 So . 3d at 22.

70. The reason for the employer's decision should be

clear, reasonably specific, and worthy of credence. See DepÓt

of Corr. v. Chandler , 582 So. 2d 1183, 1186 (Fla. 1 st DCA 1991).

The employer has the burden of production, not the burden of

persuasion, to demonstrate to the finder of fact that the

decision was non - discriminatory. See Flowers voup Cnty . ,

803 F.3d 1327, 1336 (11 th Cir. 2015).

71. This burden of production is "exceedingly light."

Holifield , 115 F.3d at 1564. The emplo yer only needs to produce

evidence of a reason for its decision. It is not required to

persuade the trier of fact that its decision was actually

motivated by the reason given. See St. MaryÓs Honor Ctr. v.

Hicks , 509 U.S. 502, 113 S. Ct. 2742, 125 L. Ed.2 d 407 ( 1993).

72. If the employer meets its burden, the presumption of

discrimination disappears. The burden then shifts back to the

petitioner to prove that the employer's proffered reason was not

the true reason but merely a "pretext" for discriminat ion.

See Combs v. Plantation Patterns , 106 F.3d 1519, 1538 (11 th Cir.

1997).

73. In order to satisfy this final step of the process,

the petitioner must show "directly that a discriminatory reason

more likely than not motivated the decision, or indire ctly by

showing that the proffered reason for the . . . decision is not

worthy of belief." Chandler , 582 So. 2d at 1186 (citing Tex.

DepÓt of Cmty. Aff. v. Burdine , 450 U.S. 248, 252 - 56 (1981)).

74. T he proffered explanation is unworthy of belief if t he

petitioner demonstrates "such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer's proffered legitimate reasons for its action that a

reasonable factfinder could find them unworthy of credence."

Combs , 106 F .3d at 1538.

75. The petitioner must prove that the reasons articulated

were false and that the discrimination was the real reason for

the action. City of Miami v. Hervis , 65 So. 3d 1110, 1117 (Fla.

3d DCA 2011) .

76. Despite the shifting burdens of proo f, "the ultimate

burden of persuading the trier of fact that the defendant

intentionally discriminated against the plaintiff remains at all

times with the plaintiff." Burdine , 450 U.S. at 253, 101 S. Ct.

at 1089, 67 L. Ed. 2d 207; Valenzuela , 18 So. 3d at 22.

77. With regard to the instant case, Ms. Gainey

established by a preponderance of the evidence that she is

Hispanic and thus belongs to a protected class.

78. However, Ms. Gainey did not prove by a preponderance

of the evidence that : she was qu alified for the HIM Director

position; she was not hired or promoted despite her

qualifications; or that Msuelove was equally or less

qualified for the HIM Director position .

79. So far, Ms. GaineyÓs work for Parallon has consisted

of working the night shift at Twin Cities Hospital whe re she is

usu a lly the only HIM e mployee on duty . Also, the testimony

indicated that her work was primarily clerical in nature.

80. In contrast, the HIM Director position is supervisory

in nature, and that person has wide - ranging responsibilities

that include being responsible for every medical record at a

health care facility.

81. As a result, Parallon filled that position with

Ms. Truelove . As noted above, Msuelove has 20 years of

experience in HIM and ha s fil l ed a wide variety of roles in that

field . Therefore, the undersigned cannot conclude that Parallon

hired a candidate who was equ ally or less qualified than

Ms. Gainey. Instead, Ms. TrueloveÓs experience indicates she

was more qualified for the HI M Director position than

Ms. Gainey.

82. Even Ms. Gainey appears to have recognized that she is

not yet qualified for such a position. A fter she learned that

Parallon had offered t he HIM Director position to Ms. Truelove ,

Ms. Gain ey approached Ms. Te rrell about obtaining training that

would enable her to advance to higher positions with Parallon .

83. As for Ms. GaineyÓs assertion that she has been denied

training opportunities, t here was no persuasive evidence

indicating that any other Parallon emp loyees were treated more

favorably than Ms. Gainey with regard to the provision of

training opportunities .

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the Florida Commission on Human

Relations issue a final order dismissing Tina GaineyÓs Petition

for Relief from an unlawful employment practice .

DONE AND ENTERED this 5th day of March, 2018 , in

Tallahassee, Leon County, Florida.

S

G. W. CHISENHALL

Administrative Law J udge

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 5th day of March, 2018 .

ENDNOTE S

1/ Section 760.11(8), Florida Statutes (2016), provided that

Ð[i]n the event that the commission fails to conciliate or

determine whether there is reasonable cause on any complaint

under this section within 180 days of the fil ing of the

complaint, an aggrieved person may then proceed under

subsection (4), as if the commission determined that there was

reasonable cause.Ñ Section 760.11(4) stated that if the

Commission Ðdetermines that there is reasonable cause to believe

that a discriminatory practice has occurredÑ then the aggrieved

person may bring a civil action or request a formal

administrative hearing.

2/ Due to another work - related injury, Ms. Gainey has not

performed any work for Parallon since March of 2017.

3/ D uring her testimony at the fi nal hearing and in her

Proposed Recommended Order, Ms. G ainey alleged that she has

been subjected to disparate treatment because other Parallon

employees have had a much easier time achieving resolution of

their workersÓ compen sation claims. Ms. Gainey also alleged

that she has been the victim of a hostile work environment.

Because those allegations were not set forth in her Complaint of

Discrimination, the undersigned will make no findings regarding

the merit of those claims.

4/ All statutory references will be to the 2016 version of the

Florida Statutes unless indicated otherwise.

COPIES FURNISHED:

Tammy S. Barton, Agency Clerk

Florida Commission on Human Relations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Tina Gainey

5765 JV Woolley Road

Crestview, Florida 32539

(eServed)

James J. Dean, Esquire

Messer, Caparello & Self, P.A.

2618 Centennial Place

Tallahassee, Florida 32308

(eServed)

Cheyanne Costilla, Gen eral Counsel

Florida Comm ission 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 written exceptions within

15 days from the date of this Recommended Order. Any except ions

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.