19-005066 Louise Jones vs. Greystone Healthcare, D/B/A Park Meadows Status: Closed Recommended Order on Tuesday, April 7, 2020.

Summary: Petitioner did not prove that Respondent discriminated against her on the basis of her age.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

L OUISE J ONES ,

Petitioner ,

vs. Case No. 19 - 5066

G REYSTONE H EALTHCARE , D / B / A P ARK

M EADOWS ,

Respondent .

/

R ECOMMEND ED O RDER

On January 27, 2020 , Yolonda Y. Green, a duly - designated Administrative

Law Judge of the Division of Administrative Hearings (ÑDivision Ò), conducted

a hearing pursuant to section 120.57(1), Fl orida Statutes (2019), via video -

teleconference with lo cations in Gainesville and Tallahassee , Florida.

A PPEARANCES

For Petitioner: Louise Jones, p ro se

172 Southwest Timuqua Terrace

Fort White, Florida 32038

For Respondent : Angelo M. Filippi, Esquire

Kelley Kronenberg Attorneys at Law

10360 West State Road 84

Fort Lauderdale, Florida 33324

S TATEMENT OF T HE I SSUE

The issue in this case is whether Petitioner was subject to unlawful

discrimination , in violation of chapter 760, Florida Statutes.

P RELIMINARY S TATEMENT

On July 30, 2018, Petitioner, Louise Jones (ÑMs. JonesÒ or ÑPetitionerÒ),

filed a Charge of Discrimin ation (ÑChargeÒ) with the Florida Commission on

Human Relations (ÑFCHRÒ) alleging that Respondent, Greystone Healthcare,

d/b/a Park Meadows (ÑGreystoneÒ or ÑRespondentÒ) , unlawfully terminated

her employment as a Licensed Practical Nurse (ÑLPNÒ) by discrim inating

against her on the basis of her disability, age , and/or retaliation for engaging

in a protected activity. On August 15, 2019, FCHR issued a Notice of

Determination to Ms. Jones indicating that FCHR found Ñno reasonable

causeÒ to demonstrate that di scrimination occurred. Dissatisfied with FCHRÔs

finding, Ms. Jones filed a Petition for Relief seeking an administrative

hearing. FCHR referred the Petition to the Division on September 19, 2019,

and the undersigned was assigned to conduct the hearing in t his case.

The undersigned initially scheduled this matter for hearing on

November 12 , 2019. After one continuance at the request of Respondent filed

on November 4, 2019, the final hearing proceeded as scheduled on

January 27, 2020. Petitioner testified on her own behalf and presented the

testimony of Sylvia Strickland. 1 PetitionerÔs Exhibits 1 through 3 were

admitted into evidence. RespondentÔs Exhibits 1 through 5 were admitted

into evidence .

1 At hearing, Petit ioner stated that she served subpoena s to several other witnesses who are

purportedly current employees of Greystone but did not appear at the hearing. Petitioner

claimed that the witnesses did not appear because they were advised b y Greystone staff not

to appear. Petitioner was given the opportunity to contact the witnesses by phone but was

unsuccessful. The witnesses to whom Petitioner served subpoena s included : Debra Singleton,

Sherry Hesters, Ebony Rucker, Cathy Jones, and Karen Dricco.

The Transcript of the hearing was filed on February 28, 2020. Both

parties filed Proposed Recommended Orders, which have been considered in

prepar ation of this Recommended Order.

Unless otherwise indicated, all references to Florida Statutes will be to

the 2017 codification, which was the statute in effect at the ti me of the

alleged violations.

F INDINGS OF F ACT

1 . Greystone is a skilled nursing facility that provides residential care to

vulnerable elderly patients receiving care for various conditions including

rehabilitation, dementia , and long - term care.

2 . Ms. Jones became employed with Respondent in 2007 as an LPN and

worked at the facility until her terminati on on April 27, 2018. Ms. Jones was

66 years of age when she was terminated.

3 . In Ms. JonesÔ role as an LPN, she was responsible for supervision,

delive ry, and administration of nursing care as directed by physician orders

and standards of practice to meet the needs of the residents. Specifically, she

was tasked with implementing the care plans for patients , including

reviewing patien t charts, dispensing medication, and accurate documentation

of all medical records.

4 . In 2014, Ms. Jones had a stroke. The stroke resulted in a slowing of her

mental processing and difficulty with decision making. Although Ms. Jones

had taken time off of work d ue to the str oke, Ms. Jones requested an

additional six weeks of time off in September 2014 for recovery, which

Greystone granted. Her request for additional time off f or therapy was also

granted. Ms. Jones also requested to return to work part - time, which

Greysto ne gr anted. After her time off in 2015 , Ms. Jones returned to work in

her same position as an LPN and with the same pay. At that time , she also

requested to work at s tation number three, which she considered a

reasonable accommodation for her cognitive disabili ty.

5 . The facility maintained four different nursing stations. Most relevant

here, Ms. Jones described station number three, which had more

rehabilitation and long - term care patients, as quiet with minimal

distractions. In contrast, Ms. Jones described station f our as having more

dementia patients and being loud .

6 . Ms. Jones ultimately returned to a full - time work schedule and

continued to work at station three until 2017. At some point in 2017, the

administration changed at Greystone. Under the new ad ministration,

management began to schedule Ms. Jones on a rotating basis with other

nurses between station s three and four.

7 . Ms. Jones testified that she protested the assignment to a station other

than station three because she was assigned to station three as an

accommodation for her disability . However, Ms. Jones did not provide

documentation to Greystone to demonstrate her disability and request for an

accommodation. Despite her protest, Ms. Jones continued to work on a

rotating basis at station s th ree and four.

8 . Ms. Jones asserts she was terminated on the basis of her disability, age ,

and retaliation for requesting a reasonable accommodation . Greystone,

however, denied the assertion. GreystoneÔs position is that inste ad of

discrimination, Ms. Jon es was terminated for committing three medication

errors within two months and failing to comply with company policy .

9 . The first of the three medication errors occur red on March 1, 2018. It

was documented that she gave Ambien to a resident, which should have been

given at 9:00 p.m. However, the medication was administered at the wrong

time and on the wrong date. Ms. Jones explained that since the Ambien was

missing from the dispenser, she assumed another nurse had failed to

properly document the medicati on administration and so sh e signed it out.

On March 7, 2018, Ms. Jones received a final discharge warning for the error

and was removed from the schedule for three days. 2

10 . Ms. JonesÔ first medication error occurred two days after she attended

a facil ity compliance training, held on February 27, 2018. The training

entitled ÑProper Scheduled Medication Inventory Signing OutÒ covered the

guidelines for medication administration. Specifically, nurses were instructed

to ensure that there i s an active order before medication is administered and

ensure the time is correct for medication administration .

11 . On April 26, 2018, Ms. Jones experienced her second medication error

where she administered a narcotic medication to a patient without a

physicianÔs order . As a result, Ms. Jones received a Ñteachable momentÒ

counseling action for the error. Despite the compliance training in February

2018 , Ms. JonesÔ second m edication error involved a topic covered during the

training.

12 . The next day, April 27, 2018, Ms . Jones experienced her third and

final medication error. Thereafter, Ms. Jones was terminated for having three

medication errors involving narcotic medications within two months ,

falsifying medical records, disregarding physicianÔs orders, and failure to

follow company policy.

13 . Ms. Jones claims that Greystone discriminated against her due to her

age, her d isability ( by failing to exclusively schedule her at station number

three ) , and by terminating her based on retaliation for requesting a

reasonable a ccommodation for her disability.

14 . Ms. Jones testified that the medication errors were caused by stress

she experienced due to scheduling changes and her assignment to a station

other than station three . She explained that the errors would not have

occu rred had Greystone continued to accommodate her. Assuming Ms. Jones Ô

medication errors were related to her stated disability; Ms. Jones

2 Petitioner wa s removed from the schedule for March 8, 9, and 12, 2018.

acknowledged that the three medication errors occurred while she was

working on station number three.

15 . To further s upport her assertion that the errors resulted from her

disability, Ms. Jones stated that she never experienced any medication errors

before her first error in March 2018 . Furthermore, she received a rating of

ÑoutstandingÒ on her employee evaluation in Mar ch 2017, and s he had been

nominated for employe e of the year on two occasions .

16 . The re is no dispute that Ms. Jones suffered a cardiovascular event in

2014 .

17 . Ms. Jones testified that when she requested a reasonable

accommodation to work at statio n three, D ebra Singleton, the RN supervisor ,

told her that Greystone wanted to Ñlet the old nurses go and hire newer

nurses, younger nurses.Ò Ms. Singleton was the supe rvisor who terminated

Ms. Jones . Although she was issued a subpoena to appear at the hea ring,

Ms. Singleton did not testify at the hearing.

18 . Ms. Jones did not offer a comparator to demonstrate she was treated

differently than someone else of a different age.

19 . Ms. Jones placed her LPN license in retirement status because she

believed that she should not continue working and administering medication.

C ONCLUSIONS OF L AW

20 . The Div ision has jurisdiction over the parties and the subject matter of

this cause pursuant to sections 12 0.569, 120.57(1), and 760.11(7).

21 . Petitioner brings thi s action charging that Greystone discriminated

against h er in violation of the Florida Civil Rights Act (Ñ FCRA Ò) . PetitionerÔs

claim cent ers on h er allegation that Greystone terminated her based on her

age and disability . The FCRA protects employees from a ge and disability .

discrimination in the workplace. See §§ 760.10 - .11, Fla. Stat. Section 760.10

states, in pertinent part:

(1) It is an unlawful employment practice for an

employer:

(a) To discharge or to fail or refuse to hire any

individual, or ot herwise to discriminate against

any individual with respect to compensation,

terms, conditions, or privileges of employment,

because of such individualÔs race, color, religion,

sex, pregnancy, national origin, age, handicap,

or marital status.

22 . Sectio n 760.11(7) permits a party for whom FCHR determines that

there is not reasonable cause to believe that a violation of the FCRA has

occurred to request an ad ministrative hearing before the Division . Following

an administrative hearing, if the Administrativ e Law Judge (ÑALJÒ) finds

that a discriminatory act has occurred, the ALJ Ñshall issue an appropriate

rec ommended order to FCHR prohibiting the practice and recommending

affirmative relief from the effects of the p ractice, including back pay.Ò

§ 760.11(7), Fla. Stat.

23 . Petitioner has the burden of proving by a preponderance of the

evidence that Respondent committed an unlawful employment practice.

See St. Louis v. Fla. IntÔl Univ. , 60 So. 3d 455 (Fla. 3d DCA 2011); Fla. DepÔt

of Transp. v. J.W.C. Co. , 39 6 So. 2d 778 (Fla. 1st DCA 1981).

24. There is no dispute that Gre ystone is an ÑemployerÒ as that term is

defined in section 760.02(7), which defines an employer as Ñany person

employing 15 or more employees for each working day in each of 20 or more

cale ndar weeks in the current or preceding calendar year, and any agent of

such person.Ò

Establishing Discrimination

25 . Discrimination may be proven by direct, statistical, or circumstantial

evidence. See 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 (11th Cir. 2001); s ee also Holifield v. Reno , 115 F.3d 1555, 1561

(11th Cir. 1997). Ñ Only the most blatant remarks, whose intent could be

nothing other than to di scriminate on the basis of [age ] constitute direct

ev idence of discrimination. . . . For statements of discrimin atory intent to

constitute direct evidence of discrimination, they must be made by a person

involved in the challenged decision. Ò Bass v. B d . of C ty . Comm'rs, Orange Cty,

Fl a . , 256 F.3d 1095, 1105 (11th Cir. 2001)( citations omitted ) .

2 6. In the absence of direct or statistical evidence of discriminatory intent,

Petitione r must rely on circumstantial evidenc e of discrimination to prove her

case. For discrimination claims involving circumstantial evidence, Florida

courts follow the three - part, burden - shiftin g framework set forth in

McDonnell Douglas Corp. v. Green , 411 U.S. 792 (1973), and its progeny,

Valenzuela , 18 So. 3d at 21, 22; see also St. Louis v. Fla. IntÔl Univ. , 60 So. 3d

455, 458 (Fla. 3d DCA 2011). Under th is well - established framework, a

petiti oner bears the initial burden of establishing, by a preponderance of the

evidence, a prima facie case of discrimination.

27. When the charging party is able to make out a prima facie case, the

burden to go forward shifts to the employer to articulate a le gitimate, non -

discriminatory explanation for the employment action. See DepÔt of Corr. v.

Chandler , 582 So. 2d 1183 (Fla. 1st DCA 1991)(court discusses shifting

burdens of proof in discrimination cases). The employer has the burden of

production, not persu asion, and need only persuade the finder of fact that the

decision was non - discriminatory. Id. ; Alexander v. Fulton Cty., Ga. , 207 F.3d

1303, 1335 (11th Cir. 2000).

28 . The employee must then come forward with specific evidence

demonstrating that the reaso ns given by the employer are a pretext for

discrimination. Schoenfeld v. Babbitt , 168 F.3d 1257, 1267 (11th Cir. 199 9).

The employee must satisfy this burden by showing directly that a

discriminatory reason more likely than not motivated the decision, or

i ndirectly by showing that the proffered reason for the employment decision

is not worthy of belief. Chandler , 582 So. 2d at 1186; Alexander v. Fulton

C ty., Ga. , 207 F.3d at 1336.

29 . ÑAlthough the intermediate burdens of production shift back and forth,

t he ultimate burden of persuading the trier of fact that the employer

intentionally discriminated against the [Petitioner] remains at all times with

the [Petitioner].Ò EEOC v. JoeÔs Stone Crabs, Inc. , 296 F.3d 1265 (11th Cir.

2002); see also Byrd v. RT Food s, Inc. , 948 So. 2d 921, 927 (Fla. 4th DCA

2007)(ÑThe ultimate burden of proving intentional discrimination against the

plaintiff remains with the plaintiff at all times.Ò).

Age Discrimination

30 . Regarding age discrimination, the FCRA was derived from t wo federal

statutes, Title VII of the Civil Rights Act of 1964 and 1991, 42 U.S.C. § 2000e,

et seq.; and the Age Discrimination in Emplo yment Act (ÑADEAÒ), 29 U.S.C.

§ 623. See Brown Distrib. Co. of W. Palm Beach v. Marcell , 890 So. 2d 1227,

1230 n.1 (Fla. 19 4th DCA 2005). Florida courts apply federal case law

interpreting Title VII and the ADEA to claims arising out of the FCRA. Id .;

see also City of Hollywood v. Hogan , 986 So. 2d 634, 641 (Fla. 4th DCA 2008);

and Sunbeam TV Corp. v. Mitzel , 83 So. 3d 865 , 867 (Fla. 3d DCA 2012).

31 . To establish a prima facie case of age discrimination, Petitioner must

demonstrate that: Ñ 1) [s] he is a member of a protected class, i.e., at least forty

years of age; 2) [s] he is otherwise qualified for the position; 3) [s] he was

subjected to an adverse employment action; and 4) h[er] position was filled by

a worker who was substant ially younger than Petitioner. Ò OÔConnor v.

Consol. Coin Caterers Corp. , 517 U.S. 308 (1996); Kragor v. Takeda Pharm.

Am., Inc. , 702 F.3d 1304, 130 8 (11th Cir. 2012); and Hogan , 986 So. 2d at

641. 3

32 . Florida and federal case law further instruct that, to prevail on an

ADEA (and FCRA) claim, the employee must prove, by a preponderance of

the evidence, that the employerÔs adverse employment action would not have

occurred Ñbut - forÒ the employeeÔs age. Gross v. FBL Fin. Servs., Inc. , 557 U.S.

167, 180, 129 S. Ct. 2343, 2352, 174 L. Ed. 2d 119 (2009); Rodriguez v. Cargo

Airport Servs. USA, LLC , 648 F. AppÔx 986, 989 (11th Cir. 2016). The

petitionerÔs a ge must have Ñactually played a role in [the employerÔs decision -

making] process and had a determinative influence on the outcome.Ò Hogan ,

986 So. 2d at 641; Hazen Paper Co. v. Biggins , 507 U.S. 604, 610, 113 S. Ct.

1701, 1706 (1993); see also Cap. Health Plan v. Moore , 281 So. 3d 613, 616

(Fla. 1st DCA October 23, 2019)(the ÑÓbut - for causeÔ does not mean Ósole cause

. . . an employer may be liable under the ADEA if other factors contributed to

its taking the adverse action, as long as age was the factor th at made a

differenceÔ . . . Ó age must be determinative. Ô Ò) ( citing Leal v. McHugh , 731 F.3d

405, 415 (5th Cir. 2013) ) .

33. Petitioner offered a sta tement made by Ms. Singleton that , Ñthey want

to let the old nurses go and hire newer nurses, younger nurses .Ò PetitionerÔs

testimony about the statement was not rebutted by any other testimony or

evidence offered at the hearing. However, the unsubstantiated hearsay,

alone, is not sufficient to support a finding of fact. Thus, Petitioner offered no

direct eviden ce of age discrimination.

3 The Fourth District Court of Appeal has indicated that, consistent with Federal precedent,

the protected class is defined as being a person at least 40 years of age. Hogan , 986 So. 2d at

641. None theless, FCHR has determined Ñ[w]ith regard to element (1), Commission panels

have concluded that one of the elements for establishing a prima facie case of age

discrimination under the [FCRA] is a showing that individuals similarly - situated to

Petitioner of a ÑdifferentÒ age were treated more favorably, and Commission panels have

noted that the age Ñ40Ò has no significance in the interpretation of the [FCRA].Ò Johnny L.

Torrence v. Hendrick Honda Daytona , Case No. 14 - 5506 (DOAH Feb. 26, 2015; FCHR May

21, 2015). Given that this Recommended Order will be subject to the CommissionÔs Final

Order authority, the undersigned will apply the standard described in Johnny L. Torrence v.

Hendrick Honda Daytona .

34. Similarly, t here was no statistical evidence of discriminatory intent.

35. I n the absence o f direct or statistical evidence , Petitioner must rely on

circumstantial evidenc e of discrimination to prove her case.

36. Petitioner established the first three elements: (1) she is a member of

a protected class (66 years of age ); (2) she was qualified for the position as she

possessed an LPN license and had been trained for the position; and (3) she

was subject to an adverse employmen t action because she was terminated

from employment .

37 . Petitioner did not establish the fo urth element , i.e., that the position

was filled by a person of a Ñ different ageÒ than herself. Petitioner did not offer

any evidence of any comparator to demonstra te that she was treated less

favorably than someone outside of her protected class.

38 . A ssuming Petitioner established a prima facie case of age

discrimination, Grey st one articulated legitimate, non - discriminatory reasons

for the adverse employment actio n Petitioner raised in her discrimination

complaint . GreystoneÔs burden to refute PetitionerÔs prima facie case is light.

However, Greystone met this burden. Petitioner was terminated for making

three medication errors involving narcotic medications within two months.

One of the medication errors involved her falsifying the medical records of a

resident by documenting that she administered medication when she had not

administered that medication . Petitioner also administered medication to a

resident without a physicianÔs order .

39 . Thus, concerning pretext, Petitioner did not prove, by a preponderance

of the evidence, that GreystoneÔs stated reasons for firing her were merely a

ÑpretextÒ for unlawful discrimination. The rec ord in this proceeding support s

a finding and legal conclusion that GreystoneÔ s proffered explanations were

worthy of credence.

Disability Discrimination

40 . Petitioner also bears the ultimate burden in this proceeding to prove

that Respondent unla wfully discriminated against her on the b asis of

disability. St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 507 (1993);

Valenzuela , 18 So. 3d at 22.

41. The FCRA is patterned after Title VII of the Civil Rights Acts of 1964

and 1991, codified as 42 U.S.C. § 2000, et seq . The FCRA is construed in

c onformity with the federal Americans with Disabilities Act of 1990, as

amended (ADA), when addressing claims of discrimination based upon a

disability or handicap. Byrd v. BT Foods, Inc. , 848 So. 2d 921, 925 (Fla. 4th

DCA 2007).

42. Section 760.10 uses th e term Ñhandicap.Ò That term is construed as

equivalent to the term ÑdisabilityÒ as used in the ADA. Byrd , 948 So. 2d at

926 .

43 . In order to prove a prima facie case of disability discrimination,

Petitioner must show that: Ñ 1) [s] he is disabled; 2) [s] he was a Óqualified

individualÔ ; and 3) [s] he was disc riminated against because of h[er]

disability. Ò See Frazier - White v. Gee , 818 F.3d 1249, 1255 (11th Cir. 2016);

Lucas v. W.W. Grainger, Inc. , 257 F.3d 1249, 1255 (11th Cir. 2001). The

employee may satisfy the third prong through showings of intentional

discrimination, disparate treatment, or failure to make reasonable

accommodations . Schwarz v. City of Treasure Island , 544 F.3d 1201, 1212 n.6

(11th Cir. 2008).

44 . Petitioner demonstrated that she is qualifi ed to perform the job.

45 . To establish the first element of a prima facie case, Petitioner must

prove either that she has a disability, or that Respondent perceived her as

having a disability. Savage v. Secure First Credit Union , 107 F. Supp. 3d

1212, 121 7 (N.D. Ala. 2015).

46 . The ADA defines "disability" as follows:

(1) Disability. The term "disability" means, with

respect to an individual:

(A) a physical or mental impairment that

substantially limits one or more major life activities

of such indivi dual;

(B) a record of such an impairment; or

(C) being regarded as having such an impairment

(as described in paragraph (3)).

(2) Major life activities.

(A) In general. For purposes of paragraph (1), major

life activities include, but are not limit ed to, caring

for oneself, performing manual tasks, seeing,

hearing, eating, sleeping, walking, standing, lifting,

bending, speaking, breathing, learning, reading,

concentrating, thinking, communicating, and

working.

(B) Major bodily functions. For purpo ses of

paragraph (1), a major life activity also includes the

operation of a major bodily function, including but

not limited to, functions of the immune system,

normal cell growth, digestive, bowel, bladder,

neurological, brain, respiratory, circulatory,

endocrine, and reproductive functions.

(3) Regarded as having such an impairment. For

purposes of paragraph (1)(C):

(A) An individual meets the requirement of "being

regarded as having such an impairment" if the

individual establishes that he or she ha s been

subjected to an action prohibited under this Act

because of an actual or perceived physical or

mental impairment whether or not the impairment

limits or is perceived to limit a major life activity.

(B) Paragraph (1)(C) shall not apply to

impairmen ts that are transitory and minor. A

transitory impairment is an impairment with an

actual or expected duration of 6 months or less.

42 U.S.C. § 12102.

47 . Petitioner did not prove that she is disabled as contemplated by the

ADA. The record establishes t hat Petitioner experienced a stroke in 2014,

which resulted in some slow cognitive functioning. Operation of the brain is

considered a major bodily function under the ADA. Petitioner testified that

her physician (who did not testify at hearing) initially r estricted her from

returning to work full - time within a six - week timeframe. Without more

information from her physician indicating that she would have limitations

after that the six - week timeframe, it cannot be assumed from this record that

any limitations related to her cognitive abilities would last longer than six

weeks after the stroke. Further, PetitionerÔs testimon y that she was able to

change her work status from part - time to full - time and perform her job

indicates that at the time of her employment her condition was transitory.

The undersigned concludes that Petitioner failed to prove that s he had, or

was perceived as having, a "disability" under the ADA.

48 . In addition , the evidence does not establish that PetitionerÔs

supervisors or managers, who were in a position to make emp loyment

decisions, perceived Petitioner as having a disability. Although Petitioner

presented unrefuted evidence that she experienced some cognitive

impairment and that s he had requested a reduced schedule at one point, the

e vidence does not estab lish that Respondent knew of her alleged continued

health problems, or that Respondent perceived her as disabled. In 2015, she

was returned to her same position as an LPN with the same pay , received an

ÑoutstandingÒ employee evaluatio n in 2017, and was nominated for employee

of the year . Accordingly, there is insufficient evidence to establish that at the

time Petitioner was employed by Respondent, s he was "disabled" as that term

is defined under the ADA.

49 . Assuming Petitioner was a ble to prove that she is disabled for

purposes of the ADA, and is entitled to an accommodation, Petitioner must

show that s he was discriminated against as a result of RespondentÔs failure

to provide a reasonable accommodation. Petitioner bears the burden b oth to

identify an accommodation and show that it is Ñreasonable.Ò Lucas , 257 F.3d

at 1255. Ñ[T]he duty to provide a reasonable accommodation is not triggered

unless a specific demand for an accommodation has been made.Ò Gaston v.

Bellingrath Gardens & Hom e, Inc. , 167 F.3d 1361, 1363 (11th Cir. 1999).

50 . A qualified individual is not enti tled to the accommodation of her

choice, but rather only to a ÑreasonableÒ accommodation. Stewart v. Happy

Herman's Cheshire Bridge, Inc. , 117 F.3d 1278, 1286 (11th Cir. 1 997). An

accommodation is ÑreasonableÒ and, therefore , required under the ADA, only

if it enables the employee to perform the essential functions of the job.

LaChance v. Duffy's Draft House , 146 F.3d 832, 835 (11th Cir. 1998). An

employer need not accommod ate an employee in any manner the employee

desires, nor reallocate job duties to change the essential functions of the job.

Earl v. Mervyns, Inc. , 207 F.3d 1361, 1367 (11th Cir. 2000). The intent of the

ADA is that ÑÓan employer needs only to provide meani ngful e qual

employment opportunitiesÔ . . . Ó[t]he ADA was never intended to turn

nondiscrimination into discriminationÔ against the nondisabled.Ò U.S. EEOC

v. St. Joseph's Hosp. Inc. , 842 F.3d 1333, 1346 (11th Cir. 2016)( quoting

Terrell v. USAir , 132 F.3d 621, 627 (11th Cir. 1998)).

51. Petitioner asserts, without providing supporting records, that she

requested an accommodation. I t a ppears from the record , by PetitionerÔs own

admission that Greystone attempted to accommodate her by assigning her to

statio n three on a rotating basis. Here , considering all fact s in favor of

Petitioner, Petitioner has not proven that her employer did not provide a

reasonable accommodation. Thus, her claim of discriminatio n on the basis of

disability must fail.

Pre t ext

52 . If P etitioner establishes a prima facie case of discrimination, s he

creates a presumption of discrimination. At that point, the burden shifts to

the employer to articulate a legitimate, nondiscriminatory reason for taking

the adverse action. Valenzuela , 18 S o. 3d at 22. The reason for the employerÔs

decision should be clear, reasonably specific, and worthy of credence.

Chandler , 582 So. 2d at 1186 (Fla. 1st DCA 1991).

53 . 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. Flowers v. Troup Cty. , 803 F.3d 1327, 1336 (11th Cir. 2015).

This burden of production is Ñexceedingly light.Ò Holifield , 115 F.3d at 1564.

The employer only needs to produce evidence of a re ason for its decision. It is

not required to persuade the trier of fact that its decision was actually

motivated by the reason given. St. MaryÔs Honor Ctr. v. Hicks , 509 U.S.

502 (1993).

54 . If the employer meets its burden, the presumption of discriminat ion

disappears. The burden then shifts back to the petitioner to prove that the

employerÔs proffered reason was not the true reason but merely a ÑpretextÒ

for discrimination. Combs v. Plantation Patterns , 106 F. 3d 1519, 1538

(11th Cir. 1997); Valenzuela , 1 8 So. 3d at 25.

55 . To establish Ñpretext,Ò the petitioner must show Ñdirectly that a

discriminatory reason more likely than not motivated the decision, or

indirectly by showing that the proffered reason for th e . . . decision is not

worthy of belief.Ò Ch andler , 582 So. 2d at 1186; Kogan v. Israel , 211 So. 3d

101, 109 (Fla. 4th DCA 2017). The proffered explanation is unworthy of belief

if the petitioner demonstrates Ñsuch weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in th e employerÔs proffered

legitimate reasons for its action that a reasonable factfinder could find them

unworthy of credence.Ò Combs , 106 F.3d at 1538; see also Reeves v. Sanderson

Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000). The petitioner must prove

th at 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) ( citing St. MaryÔs Honor Ctr. , 509 U.S. at 515)(Ñ[A] reason

cannot be proved to be Óa pre text for discriminationÔ unless it is shown both

that the reason was false, and that discrimination was the real reason.Ò).

56 . Despite the shifting burdens of proof, Ñthe ultimate burden of

persuading the trier of fact that the defendant intentionally di scriminated

against the [petitioner] remains at all times with the [petitioner].Ò Burdine ,

450 U.S. at 253; Valenzuela , 18 So. 3d at 22.

57. The reasons for PetitionerÔs termination, improper medication

administration, falsification of records, and disrega rd of company policy, were

not only reasonable but, after the third instance and despite training, were

also legitimate . Thus, Respondent articulated a rational basis for its action

that was not a pretext for discrimination.

Retaliation

5 8 . Section 760.1 0(7) prohibits retaliation in employment as follows:

(7) It is an unlawful employment practice for an

employer . . . to discriminate against any person

because that person has opposed any practice

which is an unlawful employment practice under

this secti on, or because that person has made a

charge, testified, ass isted, or participated in any

manner in an investigation, proceeding, or hearing

under this section. (emphasis added).

5 9 . The burden of proving retaliation follows the general rules enunciated

for proving discrimination. Reed v. A.W. Lawrence & Co. , 95 F.3d 1170, 1178

(2d Cir. 1996). As discussed above, Petitioner can not meet her burden of proof

with either direct or circumstantial evidence.

60 . Petitioner did not introduce any direct or stati stical evidence of

retaliation in this case. Thus, Petitioner must prove her allegation of

retaliation by circumstantial evidence. Circumstantial evidence of retaliation

is subject to the burden - shifting framework established in McDonnell

Douglas .

6 1 . To establish a prima facie case of retaliation, Petitioner must show:

( 1) that she was engaged in statutorily protected expression or conduct;

(2) that she suffered an adverse employment action; and (3) that there is

some causal relationship between the two e vents. Holifield , 115 F.3d at 1566.

6 2 . Petitioner establish ed the first two elements of a prima facie case:

(1) she engaged in a statutorily protected activity when s he requested a

reasonable accom m odation , and (2) she established that she suffered an

ad verse employment action when she was terminated .

6 3 . PetitionerÔs case fails because she did not establish the third element ,

a causal connection between her engagement in the protected activity and the

adverse employment action.

6 4 . The U.S. Supreme Cour t established the causation standard for Title

VII retaliation claims in University of Texas Southwest Medical Center v.

Nassar , 570 U.S. 338 (2013). There, the Court held that Ñ[t]he text, structure,

and history of T itle VII demonstrate that a [petitioner ] making a retaliation

claim under section 2000e - 3(a) must establish that his or her protected

activity was a but - for cause of the alleged adverse action by the employer.Ò

Nassar , 570 U.S. at 365. ÑTitle VII retaliation claims must be prove[n]

according to traditional principles of but - for causation, not the lessened

causation testÒ for status - based discrimination. Id . at 360.

6 5 . There is no direct evidence of a causal connection in this case.

Petitioner introduced no evidence that Ms. Singleton (or any o ther member of

GreystoneÔs management) relied upon PetitionerÔs request for an

accommodation as a basis for her termination.

6 6 . Proximity between the protected conduct and the adverse employment

action can be offered as circumstantial evidence of causatio n, but Ñ[m]ere

temporal proximity, without more, must be Óvery closeÔ.Ò Thomas v. Cooper

Lighting, Inc. , 506 F.3d 1361, 1364 (11th Cir. 2 007).

6 7 . Here, Petitioner established that she engaged in a protected activity

by requesting an accommodation , she di d not establish the time frame

between when she requested the accommodation and her termination.

Assuming all facts in favor of Petitioner, a t least three years elapsed between

PetitionerÔs request for an accommodation and her termination . Thus , no

inferen ce of causation can be drawn from temporal proximity. See Jones v.

Gadsden C ty. Sch. , 2018 U.S. App. LEXIS 35176, at *4 (11th Cir. 2018)(Ña

nine - year gap is too attenuated to establish [plaintiff] would have been hired

but - for his 2008 complaint.Ò).

6 8 . Ñ In the absence of other evidence of causation, if there is a substantial

delay between the protected expression and the adverse action, the complaint

of retaliation fails as a matter of law.Ò Cooper Lighting, Inc. , 506 F.3d at

1364. Here, Petitioner introd uced no other ev idence of retaliatory conduct.

6 9 . A ssuming Petitioner had established a prima facie case of retaliation,

Respondent presented persuasive evidence that its decision to terminate

Petitioner was based on her three medication errors and failu re to follow

company policy .

70 . Because Petitioner failed to either establish a prima facie case of age

discrimination or demonstrate that RespondentÔs articulated reason was

mere pretext for discrimination, her petition must be dismissed.

R ECOMMENDATIO N

Based on the foregoing Findings of Fact and Conclusions of Law, it is

R ECOMMENDED that the Florida Commission on Human Relations issue a

final order finding that Greystone did not commit any unlawful employment

action as to Louise Jones, and dismissing t he Petition for Relief filed in this

matter.

D ONE A ND E NTERED this 7th day of April , 2020 , in Tallahassee, Leon

County, Florida.

S

Y OLONDA Y . G REEN

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 7th day of April , 2020 .

C OPIES F URNISHED :

Angelo M. Filippi, Esquire

Kelley Kronenberg, Esquire

Kelley Kronenberg Attorneys at Law

10360 West State Road 84

Fort Lauderdale, Florida 33324

(eServed)

Louise M. Jones

172 Southwest Timuqua Terrace

Fort White, Florida 32038

(eServed)

Tammy S. Barton, Agency Clerk

Florida Commission on Human Re lations

Room 110

4075 Esplanade Way

Tallahassee, Florida 32399 - 7020

(eServed)

Cheyanne Costilla, General Counsel

Florida Commission on Human Relations

4075 Esplanade Way, Room 110

Tallahassee, Florida 32399

(eServed)

N OTICE OF R IGHT T O S UBMIT E XCEP TIONS

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.