21-001786 Angela D. Jones vs. Grand Boulevard Health And Rehab, D/B/A Fl Hud Destin, Llc Status: Closed Recommended Order on Thursday, August 26, 2021.

Summary: Petitioner failed to offer any persuasive or sufficiently detailed evidence that Respondent treated nonminority employees more favorably.

S TATE OF F LORIDA

D IVISION OF A DMINISTRATIVE H EARINGS

A NGELA D. J ONES ,

Petitioner ,

vs. Case No. 2 1 - 1786

G RAND B OULEVARD H EALTH A ND R EHAB ,

D/B/A F L H UD D ESTIN , LLC ,

Respondent .

/

R ECOMMENDED O RDER

Pursuant to notice, a final hearing was conducted on August 2, 2021, via

Zoom , before Garnett W. Chisenhall, a duly designated Administrative Law

Judge of the Division of Administrative Hearings (ÑDOAHÒ).

A PPEARANCES

For Petit ioner: Angela D. Jones , pro se

115 Christie Lane

Panama City, Florida 32404

For Respondent: David Sydney Harvey, Esquire

Lewis Brisbois Bisgaard and Smith

401 East Jackson Street, Suite 3400

Tampa, Florida 33602

S TATEMENT OF T HE I SSUE

The is sue is whether Grand Boulevard Health and Rehabilitation, d/b/a

F L HUD Destin, LLC (ÑGrand BoulevardÒ) , committed an unlawful

employment practice by discriminating against Angela D. Jones based on her

race.

P RELIMINARY S TATEMENT

Ms. Jones filed an Employ ment Complaint of Discrimination with

the Florida Commission on Human Relations (Ñthe CommissionÒ) on

November 14, 2019, alleging the following:

I am an African American female over the age of

40. I was discriminated against for these reasons. I

began wo rking for [Grand Boulevard] on May 15,

2019 as a Certified Nursing Assistant. On June 16,

2019, I was suspended for an incident that occurred

in regard to a resident. From that point forward,

[Grand Boulevard] lodged an attack against me by

attacking my ch aracter. I was accused of being a

criminal, not having proper licens[ure] and stating

that I deliberately did not check a box on the

application. I was accused of having been arrested

in a town where I have not been arrested. I was

treated with great hosti lity by management.

There was and still [are] other employees who are

white who had similar incidents and were not

treated the way I was treated. I was terminated on

July 12, 2019.

The Commission issued a Notice on April 28, 2021, concluding there was

no reasonable cause to conclude that an unlawful employment practice

occurred. Ms. Jones responded by filing a Petition for Relief, 1 and the

Commission referred this matter to DOAH on June 4, 2021, for a formal

administrative hearing.

The final hearing w as convened on August 2, 2021. Ms. Jones testified on

her own behalf but did not attempt to move any exhibits into evidence. Grand

1 Ms. Jones alleged the following in her Petition for Relief: ÑI , Ms. Angela D. Jones, an

African American female, was treated differently than Caucasian co - workers during

employment. Specifically, Heather treats Caucasian employees with respect and dignity

versus African American employees. The most recent incident is that Heather terminated

me, Ms. Angela D. Jones an African American, from working at Gra nd Boulevard Health and

Rehabilitation Center based on the word of a Caucasian male law enforcement [officer] over

my word. I , Angela D. Jones, a CNA, advised Heather several times that I didnÔt get arrested

in the last 5 years [ ]. Heather didnÔt believe me and I was truthful on my application.Ò

Boulevard presented testimony from Shakara Mayberry, Connie Zuraff, and

Heather Hanna. RespondentÔs Exhibits 2, 5, 6, 8, and 10 were accepted into

evidence. In addition, the portion of RespondentÔs Exhibit 1 containing an

affidavit from Phynerrian Manning was also accepted into evidence. 2

The one - volume final hearing Transcript was filed on August 18, 2021.

Both parties file d timely proposed recommended orders that were considered

in the preparation of this Recommended Order.

Unless stated otherwise, all statutory references shall be to the 2018

version of the Florida Statutes. See McClosky v. DepÔt of Fin. Serv. , 115 So. 3d

441 (Fla. 5th DCA 2013)(stating that a proceeding is governed by the law in

effect at the time of the commission of the acts alleged to constitute a

violation of law).

F INDINGS OF F ACT

Based on the oral and documentary evidence adduced at the final hea ring,

the entire record of this proceeding, and matters subject to official

recognition, the following Findings of Fact are made:

1. Ms. Jones is a 49 - year - old African American female. She has a high

school degree and earned certifications or licenses en abling her to work as a

certified nursing assistant (ÑCNAÒ), a home - health aide, a cosmetologist, and

a security guard. However, healthcare has been her primary field of work.

2 Ms. Jones stated during the final hearing that she had transmitted to DOAH an audio

recording made by Mr. Manning and that she had intended to move that audio recording into

evidence. The audio recording was not receive d by DOAH. Nonetheless, the undersigned has

determined that no prejudice resulted to Ms. Jones because there was no dispute regarding

the event described by Mr. ManningÔs affidavit.

2. In May of 2019, Ms. Jones was working in a nursing home and heard

from a coworker about the substantial benefits and signing bonus that Grand

Boulevard was offering new hires.

3. Grand Boulevard Ôs employment application contained a question asking

each applicant to respond ÑyesÒ or ÑnoÒ as to whether he or she had Ñever ple d

guilty, pled no contest, had adjudication withheld, or been placed in a pre -

trial intervention program as a result of being charged with a crime.Ò

Ms. Jones left that portion of her application blank. 3

4. Ms. Jones responded ÑnoÒ in response to a ques tion asking if she had

Ñever been convicted of any criminal violation of law, or [if she was] now

under pending investigation or charges of violation of criminal law.Ò 4

5. The employment application contained a provision requiring Ms. Jones

to certify th at :

the information provided in this employment

application (and accompanying resume, if any) is

true and complete. I understand that any false,

incomplete, or misleading information given by me

on this form, regardless of when it is discovered,

may disqu alify me from further consideration for

employment, and may be justification for my

3 Ms. Jones testified that she told Shak a ra Mayberry, Grand Boulevard Ôs Director of Staff

Development at the time, that she had a criminal background and that she left that portion

of the application blank because she could not remember specific details about the charges.

Ms. Jones also testified that she offered to supplement her application with precise

information after she had an opportunity to consult documentation in her possession.

According to Ms. Jones, Ms. Mayberry accepted her application and told her to not worry

about disclosing her criminal background . Ms. Mayberry also testified during the final

hearing and denied telling Ms. Jones that she could leave that portion of her application

blank. During the final hearing, Grand Boulevard provided no satisfactory explanation as to

why Ms. Jones was hired wit hout completing that portion of her application.

4 RespondentÔs Exhibit 3 was Ms. JonesÔ s responses to interrogatories from Grand Boulevard.

Via her responses, Ms. Jones provided documentation regarding her criminal history.

However, Grand Bouleva rd did not request that RespondentÔs Exhibit 3 be accepted into

evidence. When being questioned about RespondentÔs Exhibit 3, Ms. Jones acknowledged

that she has: (1) pled no contest to a battery charge; (2) been charged or arrested for resisting

an office r; (3) been arrested for criminal mischief; and (4) entered a plea on a different

criminal mischief charge.

dismissal from employment, if discovered at a later

date.

6. After conducting a background check through the Agency for Health

Care Administration (ÑAHCAÒ) indicating Ms. Jones had no disqualifying

offenses , Grand Boulevard hired Ms. Jones. 5

7. Ms. Jones began working for Grand Boulevard on May 15, 2019, as a

CNA helping nursing home residents with activities of daily living such as

dental hygiene, grooming, and eating.

8. On June 16, 2019, a resident in Ms. JonesÔ s care suffered injuries after

he rolled out of his bed while Ms. Jones was cleaning him. Pursuant to its

policy, Grand Boulevard suspended Ms. Jones while the Walton County

Police Department investigat ed the i ncident. Ms. Jones returned to work at

Grand Boulevard three days later but was suspended again on June 20, 2019,

because she had allowed her CNA certificate to expire. Ms. Jones paid her

delinquen cy fee, and her certificate was reinstated.

9. During the course of the investigation of the June 16, 2019, incident, an

investigator from the Walton County SheriffÔs Office asked Heather Hanna,

Grand BoulevardÔs Director of Nursing at the time , why Grand Boulevard

would hire someone such as Ms. Jones with a cri minal history. Ms. Hanna

then had Ms. JonesÔ s application pulled and noticed that Ms. Jones did not

5 Section 400.9065 , Florida Statutes, mandates that AHCA Ñshall require level 2 background

screening for personnel as required in s. 408.80 9(1)(e) pursuant to chapter 435 and

s. 408.809.Ò Section 408.809(1)(e) , Florida Statutes, requires level 2 background screening of

any person who is expected to provide personal care services directly to nursing home

residents. Section 435.04(2) , Florida Statutes, lists many specific offenses that disqualify

someone from working in a nursing home. Accordingly, the background screening conducted

through AHCA is narrower in scope than Grand BoulevardÔs employment application , which

asks applicants if they ha ve Ñever pled guilty, pled no contest, had adjudication withheld, or

been placed in a pre - trial intervention program as a result of being charged with a crime.Ò

For example, whi le Ms. Jones acknowledged that she ha s pled no contest to a battery charge ,

tha t charge would not necessarily have been a disqualifying offense because section 435.04(2)

only encompasses felony battery, battery on a minor, sexual battery, and battery on a

vulnerable adult. Likewise, resisting an officer and criminal mischief are not disqualifying

offenses.

respond to the question asking if she had ever been charged with a crime.

Ms. Hanna sent the following report to Connie Zuraff on June 28, 2019:

I receive d a visit from Investigator Donna

Armstrong with Walton County PD and Julianne

Dalton APS investigator. The investigator

questioned why we would have an employee who

had a recent arrest record, she stated that she

knew Angela Jones from the community and t hat

she was concerned that she was employed here.

We reviewed her application and found that she

had not checked the boxes related to history of

arrests. [ 6 ] I called Ms. Jones with Tuwanna RN

Risk Manager and [Shakara] Mayberry LPN SDC

present in the roo m. I placed Ms. Jones on speaker

phone and asked if she had been arrested for any

recent criminal activity and she confirmed that she

was arrested for battery, petty theft and fighting.

I notified the employee that failure to disclose this

information c ould lead to termination and

suspended her at that time.

The DCS did pull her background through the

AHCA clearing house and we confirmed that she

still showed eligible for employment.

10. Grand Boulevard then suspended Ms. Jones and ultimately

terminat ed her on June 27, 2019, on the basis that she Ñknowingly falsified

[her] employment application.Ò

11. There was no persuasive evidence of Grand Boulevard giving more

favorable treatment to nonminority employees who neglected to fully disclose

whether they had Ñever pled guilty, pled no contest, had adjudication

withheld, or been placed in a pre - trial intervention program as a result of

being charged with a crime.Ò Any testimony from Ms. Jones on that point was

6 The pertinent question on the application does not require applicants to disclose arrests.

The question asks applicants if they have Ñever pled guilty, pled no contest, had adjudication

withheld, or been placed in a pre - t rial intervention program as a result of being charged with

a crime.Ò

either unpersuasive , unsubstantiated, or i nsufficiently specific. Accordingly,

the greater weight of the evidence does not demonstrate that Grand

Boulevard committed an unlawful employment practice.

C ONCLUSIONS OF L AW

12. D O AH has jurisdiction over the parties and the subject matter of this

proce eding pursuant to sections 120.569 and 120.57, Florida Statutes, and

Florida Administrative Code Rule 60Y - 4.016(1).

13. The State of Florida, under the legislative scheme contained in

sections 760.01 through 760.11 and 509.092, Florida Statutes, known as t he

Florida Civil Rights Act of 1992, 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 s eq .

14. Section 760.10 prohibits discrimination Ñagainst 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 .Ò £ 760.10(1)(a), Fla. Stat.

15. Ms. Jones alleges that she was the victim of disparate treatment.

See Reeves v. C.H. Robinson Worldwide, Inc. , 594 F.3d 798, 808 n.2 (11th Cir.

2010)(en banc)(ÑWe reiterate that disparate treatment under 42 U.S.C.

§ 2000e - 2(a)(1) is the proper framework under which to evaluate hostile work

environment claims.Ò). The United States Supreme Court has noted that

Ñ[d]isparate treatment . . . is the most easily understood type of

discrimination. The employer simply treats s ome people less favorably than

others because of their race, color, religion, sex, or [other protected

characteristic].Ò Teamsters v. U.S. , 431 U.S. 324, 335 n.15 (1977). Liability in

a disparate treatment case Ñdepends on whether the protected trait . . .

actually motivated the employer's decision.Ò Hazen Paper Co. v. Biggins , 507

U.S. 604, 610 (1993). ÑThe ultimate question in every employment

discrimination case involving a claim of disparate treatment is whether the

plaintiff was the victim of intention al discrimination.Ò Reeves v. Sanderson

Plumbing Prods., Inc. , 530 U.S. 133, 153 (2000).

16. Discriminatory intent can be established through direct or

circumstantial evidence. Schoenfeld v. Babbitt , 168 F.3d 1257, 1266 (11th Cir.

1999). Direct evidence of discrimination is evidence that, if believed,

establishes the existence of discriminatory intent behind an employment

decision without inference or presumption. Maynard v. Bd. of Regents , 342

F.3d 1281, 1289 (11th Cir. 2003).

17. Ñ [ D ] irect evidence is com posed of only the most blatant remarks,

whose intent could be nothing other than to discriminate on the basis of some

impermissible factor.Ò Schoenfeld , 168 F.3d at 1266 .

18. Ñ[D]irect evidence of intent is often unavailable.Ò Shealy v. City of

Albany , 89 F.3d 804, 806 (11th Cir. 1996). For this reason, those who claim to

be victims of intentional discrimination Ñare permitted to establish their

cases through inferential and circumstantial proof.Ò Kline v. Tenn. Valley

Auth. , 128 F.3d 337, 348 (6th Cir. 199 7).

19. Those seeking to prove discriminatory intent via circumstantial

evidence use the shifting burden of proof pattern established in McDonnell

Douglas Corp oration v. Green , 411 U.S. 792 (1973). See Holifield v. Reno , 115

F.3d 1555, 1562 (11th Cir. 1997 ).

20. Under the shifting burden pattern developed in McDonnell Douglas :

First, [Petitioner] has the burden of proving a

prima facie case of discrimination by a

preponderance of the evidence. S econd, if

[Petitioner] sufficiently establishes a prima facie

case, the burden shifts to [Respondent] to

Ñarticulate some legitimate, nondiscriminatory

reasonÒ for its action. Third, if [Respondent]

satisfies this burden, [Petitioner] has the

opportunity to prove by a preponderance that the

legitimate reasons assert ed by [Respondent] are in

fact mere pretext.

U.S. Dep't of Hous. and Urban Dev. v. Blackwell , 908 F.2d 864, 870 (11th Cir.

1990)(housing discrimination claim); accord , Valenzuela v. GlobeGround N.

Am., LLC , 18 So. 3d 17, 22 (Fla. 3d DCA 2009)(gender disc rimination

claim)("Under the McDonnell Douglas framework, a plaintiff must first

establish, by a preponderance of the evidence, a prima facie case of

discrimination.").

21. Ms. Jones did not present statistical or direct evidence of

discrimination. Therefo re, in order to prevail in her claim against Grand

Boulevard , Ms. Jones must first establish a prima facie case by a

preponderance of the evidence. Id. ; § 120.57(1)(j), Fla. Stat. ("Findings of fact

shall be based upon a preponderance of the evidence, exce pt in penal or

licensure proceedings or except as otherwise provided by statute and shall be

based exclusively on the evidence of record and on matters officially

recognized.").

22. "Demonstrating a prima facie case is not onerous; it requires only that

th e plaintiff establish facts adequate to permit an inference of

discrimination." Holifield , 115 F.3d at 1562; cf. Gross v. Lyons , 763 So. 2d

276, 280 n.1 (Fla. 2000)("A preponderance of the evidence is 'the greater

weight of the evidence,' or evidence that 'more likely than not' tends to prove

a certain proposition.") (citation omitted) .

23. Ms. Jones Ôs discrimination claims are based on alleged , disparate

treatment. In order to establish a prima facie case for discrimination based

on disparate treatment, Ms. Jones must show that : (a) she belongs to a

protected class; (b) she was subject to an adverse employment action; (c) her

employer treated similarly - situated employees outside her protected class

more favorably; and (d) she was qualified to do the job. Hol ifield , 115 F.3d at

1562.

24. The first, second, and fourth elements of a prima facie case are not at

issue in the instant case. As for the third element, Ms. Jones failed to present

any specific, persuasive evidence that similarly - situated employees outsi de

her protected class were treated more favorably. As a result, Ms. Jones failed

to carry her burden of proof.

R ECOMMENDATION

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

R ECOMMENDED that the Florida Commission on Human Relati ons enter a

final order dismissing Ms. JonesÔ s Petition for Relief.

D ONE A ND E NTERED this 2 6 th day of August, 2021 , in Tallahassee, Leon

County, Florida.

S

G. W. C HISENHALL

Administrative Law Judge

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 30 60

(850) 488 - 9675

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 2 6 th day of August, 2021 .

C OPIES F URNISHED :

Tammy S. Barton, Agency Clerk David Sydney Harvey, Esquire

Florida Commission on Human Relations Lewis Brisbois Bisgaard and Smith

4075 Esplanade Way, Room 110 401 East Jackson Street, Suite 3400

Tall ahassee, Florida 32399 - 7020 Tampa, Florida 33602

Angela D. Jones Stanley Gorsica, General Counsel

115 Christie Lane Florida Co mmission on Human Relations

Panama City, Florida 32404 4075 Esplanade Way , Room 110

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 t o this Recommended

Order should be filed with the agency that will issue the Final Order in this

case.