20-004117 Glenda Baker vs. Covenant Hospice, Inc. Status: Closed Recommended Order on Monday, February 22, 2021.

Summary: Petitioner failed to prove Respondent subjected her to unlawful employment practices.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

G LENDA B AKER ,

Petitioner ,

vs. Case No. 20 - 4117

C OVENANT H OSPICE , I NC . ,

Respondent .

/

R ECOMMENDED O RDER

On Novembe r 19, 2020, pursuant to notice, Administrative Law Judge

Yolonda Y. Green of the Division of Administrative Hearings (ÑDivisionÒ),

conducted a hearing, pursuant to section 120.57(1), Florida Statutes (2020),

by Zoom conference.

A PPEARANCES

For Petitioner: Glenda L . Baker, pro se

1030 Sable Drive , Apartment B

Pensacola, Florida 32514

For Respondent: Russell F. Van Sickle, Esquire

Beggs & Lane

Post Office Box 12950

Pensacola, Florida 32591

S TATEMENT OF T HE I SSUE

Whether Respondent subjected Petitio ner to employment discrimination

in violation of section 760.10, Florida Statutes.

P RELIMINARY S TATEMENT

On June 20, 2019, Petitioner, Glenda Baker (ÑPetitionerÒ or ÑMs. BakerÒ),

filed a Complaint of Discrimination with the Florida Commission on Human

Re lations (ÑFCHRÒ) , alleging that Respondent, Covenant Hospice, Inc.

(ÑRespondentÒ or ÑCovenantÒ), unlawfully discriminated against her bas ed o n

her race and age, and retaliat ed against her for engaging in a protected

activity. Specifically, Petitioner alleg ed the following acts were

discriminatory: 1) she was wrongfully suspended and demoted due to alleged

workplace violations; 2) she was subject to disparate treatment in her

discipline, i.e. her work badge was deactivated and she was placed on an

action pla n in March 2019; and 3) her supervisor subjected her to harassment

in retaliation for her complaints of alleged protected activity.

On August 7, 2020, FCHR issued an Amended Notice of Determination to

Ms. Baker indicating that FCHR found Ñno reasonable c auseÒ to demonstrate

that discrimination occurred. To dispute FCHR Ôs findings, Petitioner filed a

Petition for Relief seeking an administrative hearing. FCHR transmitted the

Petition to the Division on September 16, 2020, where it was assigned to the

under signed to conduct the final hearing in this case.

The undersigned scheduled this matter for hearing on November 19, 2020,

and the hearing commenced as scheduled. Petitioner testified on her own

behalf and presented no other witnesses. PetitionerÔs Exhibit s 1 through 16

were admitted into evidence. Respondent presented the testimony of two

witnesses: Kara Benedict, Associate Vice President, Governance Risk &

Compliance, for Covenant; and Amy Bajjaly, Vice President of Human

Resources, for Covenant. Responde ntÔs Exhibits 1 through 26 were admitted

into evidence over objection.

The Transcript of the hearing was filed on December 23, 2020. Both

parties timely filed Proposed Recommended Orders (ÑPROsÒ), which have

been considered in preparation of this Recommen ded Order. After the parties

filed their post - hearing submittals, Petitioner filed an Amended PRO, to

which Respondent did not file any objection. The amended PRO is accepted.

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

the 2018 codification, which was the statute in effect at the time of the

alleged violations.

F INDINGS OF F ACT

Based on the exhibits and testimony offered at the final hearing, the

following Findings of Fact are made.

Background

1. Ms. Baker, a then 62 - yea r - old African - American woman, began her

employment with Covenant in July 2018. She worked as a staff nurse at The

Residence, which is a memory care center. As a staff nurse, Ms. Baker

provided care to residents at Covenant and served as supervisor to resid ent

assistants. Ms. Baker, a licensed practical nurse (ÑLPNÒ), had worked as an

LPN for over 26 years at other facilities before working for The Residence.

2. Ms. Baker worked with Covenant until March 14, 2019, when she

voluntarily resigned her position .

3. Covenant operates The Residence, a 25 - bed facility that provides

residential care to vulnerable patients receiving care for dementia. The

facility provides 24/7 care to patients across different work shifts and is one

of multiple facilities operated by Respondent. Covenant is an ÑemployerÒ as

defined by section 760.02(7) .

4. Barbara Scheurer, a Caucasian female, supervised Ms. Baker during

her employment. At all times relevant to Ms. BakerÔs allegations,

Ms. Scheurer served as the executive director for The Residence.

5. Donna Strange, a Caucasian female , served as the senior director of

human resources for The Residence at all times material to Ms. BakerÔs

allegations. At all times material to this matter, Ms. Strange reported to

Amy Bajjaly.

6. Andrew Rabon, a Caucasian male, also worked at The Residence. No

evidence regarding Mr. Rabon Ôs age was introduced into evidence at the final

hearing. Mr. Rabon was assigned as the preceptor for Ms. Baker for

competency skills training. Ms. Baker repeatedl y indicated it was confusing

to have Mr. Rabon as a preceptor, evaluating her competencies , when she had

more experience than Mr. Rabon and he was younger than Ms. Baker.

Mr. Rabon, Ms. BakerÔs peer, was assigned as preceptor because of the

opportunity for peer - to - peer learning opportunities.

7. Petitioner was one of three full - time LPNs at The Residence, who were

classified as staff nurse s . T he assignments to provide care to the patients was

divided among the LPNs for each shift.

8. As a staff nurse, Ms. BakerÔs job duties involved maintaining a safe and

secure environment for residents. One of the requirements to maintain safety

included monitoring patients to prevent falls.

Fall Incident

9. On January 29, 2019, when Ms. Baker was on duty as the LPN in

charge, resident T.P. fell in the dining room. Ms. Baker did not see the

resident fall as she was not physically present in the dining room at the time.

However, two resident assistants , who were present at the time of the fall ,

provided information regar ding their observations. The resident assistants

provided written statements regarding what they witnessed, which is

hearsay. They did not testify at the final hearing. Thus, the ir statements may

not be used for a finding of fact, but is referenced herein to supplement and

explain other testimony and evidence offered regarding the incident.

10. Sarah, a resident assistant, was cleaning a patientÔs room when she

heard the resident fall. She signaled to Ms. Baker for assistance but

Ms. Baker continued to wal k down the hall. Minutes later , Ms. Baker

responded to the patient, assessed her head , and attempted to sit her up.

Ms. Baker instructed Sarah to obtain copies of documents to contact

Emergency Medical Services (ÑEMSÒ). Ms. Baker then left to cal l EMS.

Ano ther assistant, Dawn, helped Sarah until Ms. Baker returned. Ms. Baker

attempted to obtain vital signs but by that time EMS was present.

11. Dawn, the second assistant, also provided a statement about the fall.

Dawn took the resident to the dining room to eat breakfast and then, she

went to make the residentÔs bed. Kim, a third assistant, 1 was in the dining

room watching the patient while Ms. Baker was passing out medications.

Dawn heard the resident fall. She ran to the dining room and discovered the

resid ent on the floor on her right side. Dawn notified Ms. Baker of the

patientÔs fall, and Ms. Baker provided an ice pack for the residentÔs head.

12. Although Respondent argued in its PRO that Respondent Ô s account of

the incident differed, the evidence demon strates that the versions of the

incident were essentially very similar regarding the material factors.

13. On February 6, 2019, Ms. Scheurer called Ms. Baker to discuss the

fall. Ms. Baker defended her actions and indicated that Kim was assigned to

monito r the resident. After the discussion with Ms. Scheurer about the fall,

Ms. Baker called in sick. After calling - in , M s . Baker entered the facility

unannounced and accessed the records relating to resident T.P. At the

hearing, Ms. Baker explained that she en tered the facility to obtain a

personal item. However, she failed to explain how entering the facility for a

personal item resulted in her accessing the patientÔs file while off duty.

1 There was no statement offered into evidence from Kim. She also did not testify at the final

hearing.

14. Also on February 6, 2019, Ms. Baker sent an email to Ms. Benedict.

She wrote a list of a litany of complaints involving various areas of concern.

She listed seven incidents in which patients fell and were injured. She

complained that Ms. Scheurer maintain ed the keys to the medication cabinet

in an unlocked drawer. S he als o complained that Ms. Scheurer did not

require staff to sign - out the medication. She complained of double - billing

regarding two separate patients. Ms. Baker complained that a lthough she

requested a certain shift, she was not granted the shift , and it was g iven to a

newly - hired nurse. She complained that staff members were not being

properly protected from infectious diseases . Ms. Baker asserted that

Ms. Scheurer asked staff members to falsify records. She asserted that

Ms. Scheurer did not ensure or repair the sensor pads that would assist with

monitoring patients. She stated that she had not received a 30 - or 90 - day

evaluation timely , and thus, needed to receive training. She ended her letter

stating, ÑI donÔt know if I will be able to work today under thes e conditions.Ò

15. Later that same day, Respondent deactivated Ms. BakerÔs badge

because she accessed resident T.P.Ôs record while the incident investigation

was ongoing.

16. Ms. Benedict , who handles all risk management matters, reviewed the

surveillanc e video of the fall. Ms. Baker argued that Covenant treated her

differently than others in that it does not review surveillance footage for all

fall incidents. However, to the contrary, Kara Benedict testified that she

reviews all fall - related incidents pu rsuant to risk management protocol.

Ms. BenedictÔs testimony is credited.

17. After review of the video and Ms. BakerÔs complaints, Ms. Benedict

informed Ms. Baker that she should not return to work, pending further

investigation of her complaints about n ot wanting to return given the

circumstances.

18. On or about February 18, 2019, Ms. Benedict completed the

compliance investigation of Ms. BakerÔs complaints and prepared a report of

her findings. Ms. Benedict investigated all the complaints by speaking with

other current and past employees. She found that most complaints were not

substantiated. Specifically, she found Ms. BakerÔs complaint about retaliatory

conduct was not substantiated. She did find there w ere sufficient findings to

substantiate some of the complaints against Ms. Scheurer and recommended

that Ms. Scheurer receive coaching and an action plan.

19. After Ms. BenedictÔs investigation of the fall, she determined that

Ms. Baker could return to work. A list of directives w as issued to Ms. Bak er

including review of policies and procedures related to fall s , medication

management, patient safety , and skills and competency related tasks. The

list of directives was commonly referred to as an action plan. The review of

policies and procedures and co mpletion of LPN skills and competencies re -

training was required to be completed prior to re - entry to the Charge LPN

position , within 30 days of reinstatement. The word reinstatement was used

several times, but she never lost any benefits or pay.

20. Pet itioner alleged that after the fall incident , she suffered adverse

action when she was required to complete a corrective action plan, demoted

from her position , and had her identification badge deactivated .

21. However, Ms. Baker was removed from the nor mal work schedule so

she could focus on completion of the action plan. In fact, she was permitted to

complete the competencies and review the policies and procedures during

work hours. Upon completion of the action plan, she would be reinstated to

the norm al work schedule on the nursing floor . Moreover, Ms. Baker

complained that she had not received orientation when she began working

with The Reside nce, and she believed she would benefit from having the

opportunity to review the policies and procedures befo re returning to the

nursing floor.

2 2 . Although Ms. Baker was removed from the normal work schedule

until completion of the action plan , she did not suffer a change in pay or in

benefits. In addition, Ms. Baker did not experience a change in her job title .

Thus , she was not demoted.

23. Ms. BakerÔs badge deactivation was also not an adverse action as she

still had access to the work site to perform her work duties. Thus, based on

the totality of the circumstances, there was no material change to the term s,

conditions, or privileges of her position to amount to adverse action.

Complaints about Disparate Treatment

2 4 . Ms. Baker also alleged that Ms. Scheurer and Ms. Strange treated her

unfairly based on her race and age , and retaliated against her. Ms. Ba ker

met with Ms. Scheurer regarding her progress with the action plan. In an

email to Ms. Benedict regarding that meeting, Ms. Scheurer noted that

Petitioner was upset that Andrew Rabon (Ms. BakerÔs competency skills

preceptor) and Lydia Rabon (another sta ff member) were in the office while

Ms. Baker was asking questions about policies and procedures. Ms. Baker

told Ms. Scheurer that she believed the meetings regarding her being

required to review policies and procedures were confidential. Thus, it was

inap propriate for the two other staff members to be present during that

meeting.

2 5 . On another occasion, March 6, 2019, Ms. Baker met with Ms. Scheurer

and Ms. Strange to discuss Ms. BakerÔs progress. Ms. Baker called

Ms. Benedict after the meeting. During the conversation , Ms. Baker stated

that Ms. Scheurer and Ms. Strange bullied and harassed her because of her

race. This was the first time Ms. Baker made a complaint of racial

discrimination. When asked for examples of discrimination, Ms. Baker

indicated t hat Ms. Scheurer would ask her to do something and then claim to

Ms. Strange that she was not instructed to do the task. Ms. Scheurer and

Ms. Strange would repeatedly enter and exit the office asking questions. She

complained that Ms. Scheurer made negativ e comments toward her progress

with the action plan. She also complained that she was forced to go to lunch

earlier than she had planned.

2 6 . Ms. Benedict advised Ms. Baker that she would address her concerns

with management. Ms. Benedict scheduled a mee ting for March 20, 2019.

However, Ms. Baker resigned March 14, 2019, before the meeting could take

place.

2 7 . Ms. Baker contacted Jeff Mislevy, the Chief Executive Officer (ÑCEOÒ)

for Covenant Hospice, Inc., addressing the same or similar issues as she

r eported to Ms. Benedict. In addition, she expressed that she was unable to

enter her paid time off (ÑPTOÒ) request and Ms. Strange then took her mouse

and used it to show her how to enter her PTO request. Ms. Baker considered

that action to be belittling. She shared that Ms. Strange was in her face a few

times and hovering over her while speaking to her. Finally, she stated that

she reported Ms. Scheurer in November 2018 for placing the last four digits

of social security numbers throughout the building. Af ter considering the

actions of Ms. Scheurer and Ms. Strange, such behavior does not constitute

discriminatory conduct by Respondent.

2 8 . CovenantÔs discrimination policy provides that it prohibits

discriminatory practices of harassment based on, among oth er things, race

and age. Any staff member of Covenant who believes they have been

subjected to discrimination are instructed to contact their supervisor and the

d irector of h uman r esources. If the supervisor is involved or is the subject to

the complaint, the next higher - level management or CEO and the d irector of

h uman r esources would be the next point of contact.

2 9 . Ms. Strange was removed from oversight of Petitioner after Ms. Baker

reported that Ms. Strange was involved in bullying and harassment base d on

race. Ms. Bajjaly, as the next higher - level of management for human

resources, began handling complaints raised by Ms. Baker. Her role was to

ensure the action plan was completed and to resolve Ms. BakerÔs complaints.

30 . On March 7, 2019, Ms. Bajjal y explained to Ms. Baker that she wanted

to meet with her to update her on the plan going forward. The meeting was

scheduled for March 12, 2019. At that time, Ms. Bajjaly instructed Ms. Baker

to report work related concerns to Ms. Scheurer, and report all other

questions and concerns to her .

31. On March 12, 2019, Ms. Bajjaly met with Ms. Baker as planned. They

discussed Ms. Baker 's complaints about operation of the facility that she had

reported previously. Ms. Baker also raised her complaint that Ms. Str ange

bullied and harassed her. During the meeting with Ms. Bajjaly, Ms. Baker

did not offer any remarks regarding race or age.

32 . On March 14, 2019, Ms. Baker voluntarily resigned her position with

Covenant after she found a new job.

Ultimate Findings o f Fact

3 3 . At no time prior to the fall incident on January 29, 2019, did

Petitioner contact RespondentÔs human resources department, file a

complaint, discuss with management , or otherwise raise a complaint that she

was subject to discrimination because of her race or age.

3 4 . When Ms. Baker made complaints about Ms. Scheurer and her

actions, another level management became involved. When Ms. Baker made

a complaint about Ms. Strange, Ms. Bajjaly, the v ice p resident of human

resources for Respondent , beca me involved and took action.

3 5 . Ms. Baker worked with Covenant hospice until March 14, 2019, when

she voluntarily resigned her position.

3 6 . There was no competent, substantial evidence offered at the hearing to

support a finding that Petitioner was sub jected to any adverse employment

action. Instead the evidence supports a finding that Ms. Baker voluntarily

resigned from Covenant aft er she found a different job. There was no

competent, substantial evidence that any person who was not African

American an d of the same age, were treated differently from Petitioner, or

were not subject to the same or similar policies and procedures .

3 7 . In response to PetitionerÔs complaints regarding Ms. Scheurer and

later, Ms. Strange, Ms. Bajjaly communicated with the tw o of them, in person

and by email, to remind them of policies and procedures for the facility.

C ONCLUSIONS OF L AW

3 8 . The Division of Administrative Hearings has jurisdiction over the

parties and the subject matter of this cause pursuant to sections 120. 569,

120.57(1), and 760.11(7).

3 9 . Petitioner filed this action alleging Covenant discriminated against

her in violation of the Florida Civil Rights Act (ÑFCRAÒ). Specifically,

PetitionerÔs Complaint focuses on her allegation that Covenant discriminated

ag ainst her based on her race and age. The FCRA protects employees from

age and race discrimination in the workplace. See § 760.10, Fla. Stat. Section

760.10 states, in pertinent part:

(1) It is an unlawful employment practice for an

employer:

(a) To disc harge or to fail or refuse to hire any

individual, or otherwise to discriminate against any

individual with respect to compensation, terms,

conditions, or privileges of employment, because of

such individualÔs race, color, religion, sex,

pregnancy, nationa l origin, age, handicap, or

marital status.

40 . Section 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 administrative hearing before the Division. Following

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

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

recommended order to FCHR prohibiting the practice and recommending

affirmative relief from the e ffects of the practice, including back pay.Ò

§ 760.11(7), Fla. Stat. 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. 3 d

DCA 2011); Fla. DepÔt of Transp. v. J.W.C. Co. , 396 So. 2d 778 (Fla. 1st DCA

1981).

41 . There is no dispute that Covenant is an ÑemployerÒ as that term is

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

employing 15 or more employ ees for each working day in each of 20 or more

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

such person.Ò

42 . To show a violation of the FCRA, Ms. Baker must establish, by a

preponderance of the evidence, a prima facie case o f discrimination. See

St. Louis v. Fla. IntÔl Univ. , 60 So. 3d at 458 - 5 9 ( reversing jury verdict

awarding damages on FCRA racial discrimination and retaliation claims

where employee failed to show similarly situated employees outside his

protected class we re treated more favorably; finding prima facie case not

established).

4 3 . ÑPreponderance of the evidenceÒ is the Ñgreater weightÒ of the

evidence, or evidence that Ñmore likely than notÒ tends to prove the fact at

issue. This means that if the undersigne d found the parties presented equally

competent substantial evidence, Ms. Baker would not have proved her claims

by the Ñgreater weightÒ of the evidence, and would not prevail in this

proceeding. See Gross v. Lyons , 763 So. 2d 276, 289 n.1 (Fla. 2000).

Es tablishing Discrimination

4 4 . 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); see also Holifield v. Reno , 115 F.3d 1555, 1561

(11th Cir. 1997), abrogated on other gro unds by , Lewis v. City of Union City,

Ga. , 918 F. 3d 1213, 1218 (11th Cir. 2019)(en banc). ÑOnly the most blatant

remarks, whose intent could be nothing other than to discriminate on the

basis of [ age or race ] constitute direct evidence of discrimination. . . .For

statements of discriminatory intent to constitute direct evidence of

discrimination, they must be made by a person involved in the challenged

decision.Ò Bass v. Bd. of Cty. Comm'rs, Orange Cty., Fla. , 256 F.3d 1095, 1105

(11th Cir. 2001)( citations omitted ).

4 5 . Petitioner presented no direct evidence of discrimination based on race

or age on the part of Covenant. Similarly, the record in this proceeding

contains no statistical evidence of discrimination by Covenant in its

personnel decisions rela ted to Petitioner.

4 6 . In the absence of direct or statistical evidence of discriminatory intent,

Petitioner must rely on circumstantial evidence of discrimination to prove her

case. For discrimination claims involving circumstantial evidence, Florida

co urts follow the three - part, burden - shifting framework set forth in

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

Valenzuela , 18 So. 3d at 21 - 2; see also St. Louis v. Fla. IntÔl Univ. , 60 So. 3d at

458. Under this well - established framework, a petitioner bears the initial

burden of establishing, by a preponderance of the evidence, a prima facie case

of discrimination.

4 7 . When the charging party is able to make out a prima facie case, the

burden to go forward shifts to the employe r to articulate a legitimate,

nondiscriminatory 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

pr oduction, not one of persuasion, and as a result, it is not required to

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).

4 8 . The employee must then come forward with specific evidence

demonstrating that the reasons given by the employer are a pretext for

discrimination. Schoenfeld v. Babbitt , 168 F.3d 1257, 1267 (11th Cir. 1999).

The employee must satisfy this burden by showing directly that a

discriminatory reas on more likely than not motivated the decision, or

indirectly by showing that the proffered reason for the employment decision

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

Cty., Ga. , 207 F.3d at 1336.

4 9 . ÑAlthough the interm ediate burdens of production shift back and forth,

the 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 Foods, 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).

5 0 . Under the McDonnell Doug las framework, a petitioner bears the

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

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

demonstrate that: (1) she is a member of a protected class; (2) she was

qualified for her position; (3) she was subjected to an adverse employment

action; and (4) her employer treated similarly situated employees outside of

her protected class more favorably than she was treated. See McDonnell

Douglas , 411 U.S. at 802 - 04; Burke - Fowler v. Orange Cty. , 447 F.3d 1319,

1323 (11th Cir. 2006). Demonstrating a prima facie case is not difficult, but

rather only requires the Ñplaintiff to establish facts adequate to permit an

inference of discrimination.Ò Holifield v. Reno , 115 F.3d at 1562 (11th Cir.

1997).

Age Discrimination

5 1 . To prevail on her age discrimination claim, Petitioner must prove by a

preponderance of the evidence that: (1) s he is a member of a protected class;

(2) s he was qualified for the position; (3) s he w as subjected to an adverse

employment action; and (4) Respondent treated employees of a different age

more favorably than s he was treated. Moreover, she must show that she

suffered from an adverse employment action that would not have occurred

"but for" he r age. Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 180, 129 S. Ct.

2343, 2352, 174 L. Ed. 2d 119 (2009); King v. HCA , 825 F. App ' x 733, 736

(11th Cir. 2020) ("For age and disability discrimination, the plaintiff must

prove that his age or disability was a 'but - for' cause of the adverse

employment action Ð meaning it had a 'determinative influence on the

outcome' of the employer's decision"); see also Cap. Health Plan v. Moore ,

281 So. 3d 613, 616 (Fla. 1st DCA October 23, 2019)(the ÑÓbut - for causeÔ does

no t 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 that made a differenceÔ . . . Óage must be determinative.ÔÒ) (citing Leal v.

McHugh , 731 F.3d 405, 415 (5th Cir. 2013)).

5 2 . Regarding the first element, the FCRA differs from the American

Discrimination in Employment Act (ÑADEAÒ) in that the ADEA specifically

protects employees aged 40 and older, and the FCRA does not set a minimum

age for a protecte d class. Although under the ADEA an employee must be

40 years old and the comparator must be significantly younger, under the

FCRA a petitioner can simply show that similarly - situated individuals of a

"different" age were treated more favorably. 2 Thus, for the purposes of the

FCRA, being any different age than Petitioner satisfies the "protected class"

requirement for age discrimination.

Race Discrimination

5 3 . To establish a prima facie case of race discrimination, the burden is on

Ms. Baker to show: (1) she belongs to a protected class; (2) she is qualified to

perform the job; (3) she suffered an adverse employment action; and

(4) [Covenant] treated similarly situated employees outside the employeeÔs

protected class more favorably. Holifield v. Reno , 115 F.3d at 1562 .

5 4 . Petitioner established the first two prongs: (1) she is a member of a

protected class as she is African American; and (2) it is undisputed that she

was qualified for the position as she possessed the requisite licensure and

26 years of experience as an LPN.

5 5 . Here, Ms. Baker complains of several actions against her. However,

not everything that makes an employee upset is an actionable adverse action.

See Davis v. Town of Lake Park , 245 F.3d 1232, 1238 (11th Cir. 2001). To

constitut e an actionable Ñadverse employment action,Ò the action must

impact the terms, conditions, or privileges of the job in a real or demonstrable

way. See Henderson v. City of Birmingham, Alabama , 826 F. App ' x 736 (11th

Cir. 2020) (adverse employment actions m ust have a Ñreal and demonstrableÒ

negative impact on terms, conditions, or privileges of employment, typically

affecting continued employment or pay). S ee also Crawford v. Carroll , 529

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

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

641. Nonetheless, 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 t hat individuals similarly - situated to

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

noted that the age ' 40 ' has no significance in the interpretation of the [FCRA].Ò Johnny L.

Torrence v. Hendrick Honda Daytona , Ca se 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 .

F.3d 961 (11th Cir. 2008); Town of Lake Park , 245 F.3d at 1239. In oth er

words, the action must require a material change in terms and conditions of

employment. See McCaw Cellular Comm. v. Kwiatek , 763 So. 2d 1063, 1066

(Fla. 4th DCA 1999).

56 . In the instant case, Petitioner established that her badge was

deactivated and s he was required to complete the preceptorship and

corrective action plan before she returned to work. At no point did Ms. Baker

experience any pay decrease or loss of privileges. Other than being

dissatisfied with the RespondentÔs actions, Ms. Baker has no t established

that any of those measures negatively impacted the terms, conditions, or

privileges of her employment. Thus, Petitioner failed to prove there was

adverse action against her.

57 . Even if Petitioner had proved that she suffered an adverse

empl oyment decision, she could not identify a similarly situated person

outside her protective class to meet the fourth ÑcomparatorÒ element of her

claim. Petitioner must show she is similarly situated in all material respects

to the employee she claims Covena nt gave preferential treatment. See Woods

v. Cent. Fellowship Christian Acad. , 545 F. App ' x 939, 945 (11th Cir. 2013).

58 . As recently explained in Mac Papers, Inc. v. Boyd , 304 So. 3d 406, 409

(Fla. 1st DCA 2020):

Picking a single comparator with inade quate,

irrelevant, or superficial similarities falls short of

what the law requires. Courts require that

comparators be meaningful, which explains why

the Eleventh Circuit Ð which reviewed the

oftentimes discordant caselaw on the topic Ð

recently decided en b anc that comparators must be

"similarly situated in all material respects." Lewis

v. City of Union City, Georgia , 918 F.3d 1213, 1218

(11th Cir. 2019) (rejecting "nearly - identical

standard" as too rigid and rejecting "not useless" as

too lax).

* * *

With Lewis and its progeny as our guideposts,

Swift fails as a valid comparator. Consistent with

Lewis, a "comparator's misconduct must be similar

in all material respects." McPhie v. Yeager , 819

Fed. Appx. 696, 698 Ï 99 (11th Cir. 2020) ( applying

Lewis ).

59 . Regarding comparators, Ms. Baker essentially argues she was

wrongfully disciplined for the fall incident. The investigation against her, an

African - American, was allegedly treated differently than the investigation of

white nurses. However, Ms. Baker did not offer sufficient evidence of any

complaints against her co - workers that were comparable to her actions. In

other words, Ms. Baker did not offer a comparator where a patient suffered a

fall, and then, that nurse later surreptitiously accessed the patien tÔs file

while off - duty. She also complained that she needed additional training

because she did not receive orientation when she began working with The

Residence. As such, CovenantÔs actions related to Ms. Baker cannot be based

on similar conduct. Thus, M s. Baker fails to prove a prima facie case of

discrimination based on race because she has not identified any similarly

situated employees outside her protected class who were treated more

favorably for similar conduct. Because she fail ed to establish a pr ima facie

case of discrimination under the McDonnell Douglas burden - shifting

framework, it is unnecessary to discuss the other burdens relating to non -

discriminatory reasons or pretext.

6 0 . Even though Ms. Baker believes Covenant should have done more to

address her complain t s about the perceived inappropriate behavior, it

responded to her complaints with Ñimmediate and appropriate corrective

actionÒ that was Ñreasonably likely to prevent any perceived misconduct from

recurring.Ò See Watson v. Blue Circle , Inc. , 324 F.3d 1252, 1260 - 61 (11th Cir.

2003); Kilgore v. Thompson & Brock Mgmt., Inc. , 93 F.3d 752, 754 (11th Cir.

1996). Thus, the undersigned finds that Ms. BakerÔs claim of discrimination

based on her race and age is not supported by the evidence. Se e Gadling Cole

v. Bd. of Trs. of the Univ. of Ala. , 2015 U.S. Dist. LEXIS 127161, at *2 (N.D.

Ala. Sep. 23, 2015) (granting employer summary judgment in race

discrimination case even though employee testified about negative behavior

from co - workers and mic roaggressions).

Hostile Work Environment

6 1 . Ms. Baker also alleges Covenant caused her to be subject to working in

a hostile workplace. The FCRA protects an employee from a hostile

workplace. See Webb v. Worldwide Flight Serv. , 407 F.3d 1192 (11th Cir.

Fla. 2005).

6 2 . To be hostile, the workplace must be so Ñpermeated with

discriminatory intimidation, ridicule, and insult, that [it] is sufficiently

severe or pervasive to alter the conditions of the victimÔs employment and

create an abusive working env ironment.Ò Harris v. Forklift Sys., Inc. ,

510 U.S. 17, 21, 114 S. Ct. 367, 370, 126 L. Ed. 2d 295 (1993)(citations and

quotations omitted). The requirement that the harassment be Ñsevere or

pervasiveÒ contains both a subjective and objective component. Id . (citations

omitted). Thus, to be actionable, the behavior must result in both an

environment that a reasonable person would find hostile or abusive, and an

environment that the victim subjectively perceives to be abusive. Id .

6 3 . If a p rotected group su ffered unwelcome harassment, which was based

on a protected characteristic and was sufficiently severe or pervasive to alter

the terms and conditions of employment and created a discriminatorily

abusive environment, the employer is responsible for that env ironment under

a theory of direct liability or vicarious liability. See Fernandez v. Trees, Inc. ,

961 F.3d 1148, 1153 (11th Cir. 2020).

6 4 . Factors to be considered when determining the objective standard

include the frequency of the conduct; the severity of the conduct; whether the

conduct was physically threatening or humiliating, or a mere offensive

utterance; and whether the conduct unreasonably interfered with the

employeeÔs performance. Id . Behavior amounts to a hostile work environment

when instances are repetitive or escalate in frequency. See Jones v. UPS

Ground Freight , 683 F.3d 1283, 1303 (11th Cir. 2012). Though all of these

factors should be taken into account, Ñno single factor is required.Ò Id .

Finally, but equally important, in making this de termination, the court can

only consider instances of harassment that were based on a protected class.

See Zhou v. Intergraph Corp. , 2019 U.S. Dist. LEXIS 2438, at *18 (N.D. Ala.

Jan. 7, 2019)(finding harassment was too infrequent where it occurred 15

time s over a three - to - four - year period, but was severe in that they were

indirect propositions for sex).

6 5 . Here, Ms. Baker complains that Ms. Scheurer and Ms. StrangeÔs

conduct in asking about her progress and asking her to return to work was

harassment. How ever, there is no evidence that these actions were motivated

by Ms. BakerÔs race or age.

Retaliation

66 . T o establish a prima facie case of retaliation, Petitioner must

demonstrate by a preponderance of the evidence: Ñ(1) that [she] engaged in

statutoril y protected expression; (2) that [she] suffered an adverse

employment action; and (3) there is some causal relationship between the two

events.Ò (citations omitted). Holifield v. Reno , 115 F.3d at 1566; see also

Muhammad v. Audio Visual Servs. Grp. , 380 F. App ' x 864, 872 (11th Cir.

2010) ; Tipton v. Canadian Imperial Bank , 872 F.2d 1491 (11th Cir. 1989).

6 7 . PetitionerÔs claim of retaliation is in part based on her allegation that

she was retaliated against as a result of her complaint about failure to

saf eguard social security numbers of employees. That is simply not a

statutorily protected expression. She also argued that Ms. Scheurer

retaliated against her because she reported complaints of discrimination. She

argued Ms. Scheurer asked her many questions about her progress with the

skill competencies and made negative comments toward her progress with

the action plan. Her allegations have nothing to do with whether the alleged

wrongful conduct was based on her race.

68 . The FCRAÔs retaliation provision c omes in two forms -- opposition - based

or participation - based conduct. With regard to those forms of conduct, it is

established that Ñ[a]n employee is protected from discrimination if (1) Óhe has

opposed any practice made an unlawful employment practice by th is

subchapterÔ (the opposition clause) or (2) Óhe has made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or

hearing under this subchapterÔ (the participation clause).Ò Clover v. Total

Sys. Servs. , Inc., 176 F .3d 1346, 1350 (11th Cir. 1999).

69 . ÑSection 760.10(7), Florida Statutes, is virtually identical to its

Federal Title VII counterpart, 42 U.S.C. § 2000e - 3(a). The FCRA is patterned

after Title VII; federal case law on Title VII applies to FCRA claims.Ò H inton

v. Supervision Int'l, Inc. , 942 So. 2d 986, 989 (Fla. 5th DCA 2006)( quoting

Guess v. City of Miramar , 889 So. 2d 840, 846 n.2 (Fla. 4th DCA 2005)).

7 0 . In construing 42 U.S.C. § 2000e - 3(a), the Eleventh Circuit has held

that:

[t]he statute's parti cipation clause Ñprotects

proceedings and activities which occur in

conjunction with or after the filing of a formal

charge with the EEOC.Ò . . . The opposition clause,

on the other hand, protects activity that occurs

before the filing of a formal charge w ith the EEOC,

such as submitting an internal complaint of

discrimination to an employer, or informally

complaining of discrimination to a supervisor.

(citations omitted).

Muhammad v. Audio Visual Servs. Grp. , 380 F. App ' x at 872 (11th Cir. 2010).

The divi sion of section 760.10(7) into the Ñopposition clauseÒ and the

Ñparticipation clauseÒ is recognized by Florida state courts. See Blizzard v.

Appliance Direct, Inc. , 16 So. 3d 922, 925 - 26 (Fla. 5th DCA 2009). In

explaining the difference between the two cla uses, the Second District Court

of Appeal has held that:

FCRA's Ñopposition clause [protects] employees who

have opposed unlawful [employment practices].Ò . . .

However, opposition claims usually involve

Ñactivities such as Ómaking complaints to

management , writing critical letters to customers,

protesting against discrimination by industry or by

society in general, and expressing support of

coworkers who have filed formal charges.ÔÒ . . .

Cases involving retaliatory acts committed after

the employee has fi led a charge with the relevant

administrative agency usually arise under the

participation clause.

Carter v. Health Mgmt. Assoc. , 989 So. 2d 1258, 1263 (Fla. 2d DCA 2008).

7 1 . Regarding the broad coverage afforded under the participation clause,

the Elev enth Circuit has explained:

Congress chose to protect employees who

Ñparticipate[ ] in any mannerÒ in an EEOC

investigation. The words Ñparticipate in any

mannerÒ express CongressÔ intent to confer

Ñexceptionally broad protectionÒ upon employees

covered by Title VII . . . . Ñthe adjective ÓanyÔ is not

ambiguous . . . . [It] has an expansive meaning,

that is, one or some indiscriminately of whatever

kind . . . . [A]ny means all.Ò Because participation

in an employerÔs investigation conducted in

response to a notice of charge of discrimination is a

form of participation, indirect as it is, in an EEOC

investigation, such participation is sufficient to

bring the employee within the protection of the

participation clause.

Clover v. Total Sys. Servs., Inc. , 176 F .3d at 1353.

7 2 . In order to establish a prima facie claim of retaliation under the

participation clause, a petitioner must, Ñin addition to filing formal charges

with the Equal Employment Opportunity Commission (EEOC) or its

designated representative, [a petitioner] was required to demonstrate:

(1) a statutorily protected expression; (2) an adverse employment action; and,

(3) a causal connection between the participation in the protected expression

and the adverse action.Ò Hinton v. Supervision IntÔl, In c. , 942 So. 2d at 990.

7 3 . As addressed in the Findings of Fact herein , PetitionerÔs complaint to

the director of human resources of race discrimination was predicated on

allegations that non - African - American nurses were treated differently when

a patient experienced a fall. That reason is insufficient, alone, to establish

that Petitioner was subjected to retaliation as a result of her opposition or

participation in a lawful employment practice as defined in section 760.10.

Moreover, she did not file forma l charges with the EEOC before the alleged

retaliatory action.

7 4 . Claims under the opposition clause are not subject to the same degree

of Ñexpansive protectionÒ that arises after a claim of discrimination is filed

with the appropriate civil rights agen cy. Rather:

Opposition clause acts, however, are taken outside

of the context of a government review and, instead,

are taken in the context of the ordinary business

environment and involve employers and employees

as employers and employees. As in this case ,

whether to fire an employee for lying to the

employer in the course of the business's conduct of

an important internal investigation is basically a

business decision; this decision, as with most

business decisions, is not for the courts to second

guess a s a kind of super - personnel department.

EEOC v. Total Sys. Servs. , 221 F.3d at 1176 ( citing Damon v. Fleming

Supermarkets of Fla., Inc. , 196 F.3d at 1361).

7 5 . Overall, the crux of Ms. BakerÔs dispute in this matter is that she has

being treated poorly by Respondent, and the actions taken against her were

unfair. Even if the undersigned agreed that Covenant handled the fall

incident and subsequent action plan poorly, it did not violate the FCRA.

See Sunbeam TV Corp. v. Mitzel , 83 So. 3d 865, 872 (Fla. 3d D CA 2012)(Ñbad

business decisions do not necessarily correlate with decisions that violate the

law.Ò); see also Damon , 196 F.3d at 1361 (ÑWe have repeatedly and

emphatically held that a defendant may terminate an employee for a good or

bad reason without vi olating federal law. . . . We are not in the business of

adjudging whether employment decisions are prudent or fair.Ò); Alexander v.

Fulton Cty., Ga. , 207 F.3d at 1341 (Ñ[I]t is not the courtÔs role to second - guess

the wisdom of an employerÔs decisions as long as the decisions are not racially

motivated.Ò).

76 . Consequently, Ms. Baker did not meet her burden of proving by a

preponderance of the evidence that CovenantÔs actions were discriminatory

based on her race, age, or retaliation. Thus, there has been no violation of the

FCRA found in this matter. Accordingly, the Petition for Relief must be

dismissed.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relations issue a

f inal order finding that Petitioner, Glenda Baker, did not prove that

Respondent, Covenant Hospice, Inc., committed an unlawful employment

practice against her; and dismissing her Petition for Relief from an unlawful

employment practice.

D ONE A ND E NTERED t his 22nd day of February , 2021 , in Tallahassee, Leon

County, Florida.

S

Y OLONDA Y. G REEN

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Admin istrative Hearings

this 22nd day of February , 2021 .

C OPIES F URNISHED :

Glenda L. Baker Tammy S. Barton, Age ncy Clerk

Apartment B Florida Commission on Human Relations

1030 Sable Drive 4075 Esplanade Way , Room 110

Pensacola, Florida 32514 Tallahassee, Florida 32399 - 7020

Russell F. Van Sickle, Esquire Cheyanne Costilla, General Counsel

Beggs & Lane Florida Commission on Human Relations

Post Office Box 12950 4075 Esplanade Way Room 110

Pensacola, Florida 32591 Tallahassee, Florida 32399 - 7020

N OTICE OF R IGHT T O S UBMIT E XCEPTIONS

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

cas e.