STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARCELINO D. MATA, )

)

Petitioner, )

)

vs. ) CASE NO. 92-1021

)

DEPARTMENT OF PROFESSIONAL ) REGULATION, BOARD OF MEDICINE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to written notice, a formal administrative hearing was held in this proceeding before Daniel Manry, a duly designated Hearing Officer of the Division of Administrative Hearings, on October 23, 1992, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Marcelino D. Mata, pro se

158 47th Street Hialeah, Florida 33013

For Respondent: Ann Cocheu

Assistant Attorney General Department of Legal Affairs PL01, The Capitol

Tallahassee, Florida 32399-1050 STATEMENT OF THE ISSUE

The issue for determination in this proceeding is whether the denial of a license to practice medicine in the state constitutes unlawful discrimination against Petitioner.

PRELIMINARY STATEMENT

This case has a procedural history dating back to October 26, 1983, when Petitioner first applied for licensure by endorsement. A description of the history of this case is set forth in the excerpt from Respondent's Proposed Recommended Order attached to this Recommended Order.

On August 7, 1989, Petitioner filed a complaint with the Florida Commission On Human Rights (the "Commission") alleging that Respondent engaged in unlawful employment practices by refusing to license Petitioner to practice medicine in the state. The Commission issued a Notice of Determination: No Cause, July 19, 1991, and a Notice of Redetermination: No Cause, October 29, 1991. Petitioner filed a Petition For Relief with the Commission on December 2, 2991.

The Petition For Relief was referred to the Division of Administrative Hearings on February 17, 1992, and assigned to Hearing Officer Arnold H. Pollock on February 20, 1992. A formal hearing was scheduled for May 21, 1992, and continued three times until October 23, 1992. The matter was transferred to the undersigned on October 22, 1992.

The Department of Professional Regulation, Board of Medicine, was the original respondent in this proceeding. A Motion To Dismiss Petition Against Department of Professional Regulation was filed on April 9, 1992. The motion was granted by order entered on May 11, 1992, leaving the Board of Medicine as the Respondent in this proceeding.

Respondent filed a Motion to Dismiss alleging that it was not an employer within the meaning of Section 760.02, Florida Statutes, and that the Division of Administrative Hearings lacked jurisdiction in light of a pending appeal regarding the denial of Petitioner's licensure application. The motion also requested official recognition of the record involving prior litigation between Petitioner and Respondent. Respondent's Motion to Dismiss was denied by order entered on June 22, 1992, but the request for official recognition of approximately 1300 pages of issues previously litigated by the parties was granted. Respondent filed a subsequent Motion To Dismiss which is pending in this proceeding.

At the formal hearing, Petitioner testified in his own behalf and submitted no exhibits for admission in evidence. Respondent submitted the testimony of Dorothy J. Faircloth, Executive Director, Florida Board of Medicine, and submitted no exhibits for admission in evidence.

A transcript of the formal hearing was filed with the undersigned on November 5, 1992. Proposed findings of fact and conclusions of law were timely filed by Respondent on November 16, 1992. Petitioner has not filed proposed findings of fact and conclusions of law. Respondent's proposed findings of fact are addressed in the Appendix to this Recommended Order.

FINDINGS OF FACT

1. Respondent is comprised of 12 physicians and three members of the public. Respondent carries out the provisions of Chapter 458, Florida Statutes (the "Medical Practice Act"). Respondent's primary purpose is to ensure that physicians who practice medicine in the state meet the minimum requirements for safe practice and to prohibit the practice of medicine by those who are incompetent or unsafe.

   
   

2. Respondent is not an employer for the purposes of this proceeding. Respondent does not employ anyone, does not serve as an employment agency or job training service, and is not a labor organization or trade association.

   
   

3. Petitioner is a Cuban born, foreign trained individual who is seeking licensure by endorsement. Respondent graduated from the University of Camaguey, a Cuban medical school.

   
   

   Background

   
   

4. When Petitioner initially applied for licensure on October 26, 1983, the University of Camaguey was not listed in the World Health Organization World Directory Of Medical Schools. The University of Camaguey was listed in a subsequent edition published after Petitioner was denied licensure in 1983.

   Petitioner, received a valid certificate from the Educational Commission on Foreign Medical Graduates on August 16, 1984.

   
   

5. Respondent denied Petitioner's initial application for licensure on the ground that Petitioner failed to show that he possessed a valid certificate from the Educational Commission on Foreign Medical Graduates. A formal hearing was conducted on August 29, 1984, by Hearing Officer R.T. Carpenter, in Case No. 84- 2684. The Recommended Order issued on October 3, 1984, found that Petitioner had graduated from a recognized medical school and had obtained a valid certificate.

   
   

6. Respondent was to consider the Recommended Order at its regularly scheduled meeting on February 3, 1985. In July, 1984, Petitioner was working at a medical clinic when a patient suffered a cardiac arrest while being administered anesthesia by Petitioner. Petitioner was charged with a felony violation of practicing medicine without a license. Petitioner entered into a plea bargain agreement in the criminal case in which Petitioner withdrew his application for licensure, entered a plea of nolo contendere, and was placed on probation. Respondent permitted Petitioner to withdraw his application for licensure and took no action on the application.

   
   

7. Respondent satisfactorily completed his criminal probation and re- applied for licensure on January 27, 1987. Respondent denied the application on June 7, 1987, on the grounds that the criminal conviction rendered Petitioner morally unfit to practice medicine, that Petitioner had not demonstrated he could practice medicine with skill and safety, and that Petitioner had not graduated from an accredited medical school.

   
   

8. A formal hearing was conducted on January 5, 1989, by Hearing Officer Linda M. Rigot, in Case No. 88-0270. A Recommended Order was issued on March 30, 1989, finding that Petitioner had graduated from an accredited medical school, that Petitioner had been rehabilitated, and that Petitioner should be licensed to practice medicine.

   
   

9. Before Respondent considered the Recommended Order in Case No. 88-0270, Petitioner was charged with practicing medicine without a license in the field of plastic surgery. A subsequent formal hearing was conducted by Hearing Officer Rigot on December 21, 1990. The Supplemental Recommended Order issued on March 6, 1991, found that Petitioner had knowingly practiced medicine without a license in April, 1989, and that Petitioner was not rehabilitated from his prior conviction. The Supplemental Recommended Order recommended that Respondent deny Petitioner's application for licensure. Respondent adopted the Supplemental Recommended Order in a Final Order issued on May 24, 1991, which is currently pending appeal.

   
   

   No Unlawful Discrimination

   
   

10. Respondent did not unlawfully discriminate against Petitioner in denying Petitioner's licensure application. Respondent did not act with any bias or animus against Petitioner. Respondent's denial of Petitioner's licensure application was based upon Petitioner's failure to satisfy applicable statutory criteria for licensure, his commission of acts constituting violations of the Medical Practice Act, and his failure to demonstrate rehabilitation and good moral character.

11. From 1987-1991, Respondent has certified 10,963 applicants for licensure as physicians by endorsement. Approximately 3,479, or 31.7 percent, were foreign-trained applicants.

    
    

    CONCLUSIONS OF LAW

    
    

12. The Division of Administrative Hearings has jurisdiction over the parties and the subject matter of this proceeding. Section 120.57(1), Florida Statutes. The parties were duly noticed for the formal hearing.

    
    

13. Respondent's Motion To Dismiss is granted. Respondent is not an employer for the purposes of this proceeding. State licensure boards are not employers, employment agencies, or labor organizations against which persons are entitled to bring suit under Title VII, 42 USCA Section 2000e, et seq. Woodard

    v. Virginia Board of Bar Examiners, 598 F.2d 1345 (4th Cir. 1979); Haddock v. Board of Dental Examiners of California, 777 F.2d 462, 464 (9th Cir. 1985); George v. New Jersey Board of Veterinary Medical Examiners, 794 F.2d 113 (3d Cir. 1986); National Organization for Women v. Waterfront Commission of New York Harbor, 468 F.Supp. 317, 320 (S.D. NY 1979).

    
    

14. Even if Respondent's Motion To Dismiss is not granted, Petitioner failed to satisfy his burden of proof in this proceeding. The burden of proof in this proceeding is on Petitioner. Petitioner must establish by a preponderance of evidence that the denial of his application for licensure unlawfully discriminated against Petitioner. Department of Transportation v.

    J.W.C. Company, Inc., 396 So.2d 778 (Fla. 1st DCA 1981); Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349 (Fla. 1st DCA 1977).

    
    

15. Petitioner must make a prima facie showing of discrimination. McDonnell Douglas Corporation v. Green, 411 U.S. 792, 802 (1973). Petitioner must show that he or she was a member of a protected group, that an adverse employment action took place, that Petitioner and a similarly situated unprotected group received dissimilar treatment, and that sufficient direct or circumstantial evidence exists to infer a causal connection between Petitioner's group status and the disparate treatment. See Pugh v. Heinrich, 695 F.Supp. 533, 540 (M.D. Fla. 1988) affd. 933 F.2d 1020 (11th Cir. 1992).

    
    

16. If Petitioner satisfies the threshold requirement of a prima facie showing, then the employer has the burden of articulating a legitimate, nondiscriminatory reason for the action complained of. If the employer articulates such a reason, then Petitioner must prove by a preponderance of evidence that the reasons offered by the employer are a pretext for discrimination.

    
    

    If the plaintiff meets [the] initial burden, the burden shifts to the defendant employer to articulate some legitimate,

    non-discriminatory reason for rejecting the plaintiff. If the defendant carries this burden, the plaintiff must prove by preponderance the reasons offered by the employer were a pretext for discrimination by showing, for instance, discriminatory intent. The employer may rebut the pretext charge by proof of absence of discriminatory motive.

    See also Chalk v. Secretary of Labor, U.S. Dept. of Labor, 565 F.2d 764, 766-67 (D.C.

    Cir. 1977), cert. den., 435 U.S. 945, 98

    S.Ct. 1527, 55 L.Ed.2d 542 (1978). When

    the burden shifts initially after plaintiff establishes a prima facie case, the employer need not prove that it was actually motivated by articulated non-discriminatory reasons or that the hired applicant was more qualified than plaintiff. Texas Dept. of Community Affairs v. Burdine, U.S. , 101 S. Ct. 1089, 67 L.Ed.2d 207 (1981).

    
    

    School Board of Leon County v. Hargis, 400 So.2d 103, 108 n.2 (Fla. 1st DCA 1981); See also, Department of Corrections v. Chandler, 582 So.2d 1183, 1185- 1186 (Fla. 1st DCA 1991); School Board of Leon County v. Weaver, 556 So.2d 443,

    444 (Fla. 1st DCA 1990).

    
    

17. Petitioner failed to satisfy the threshold requirement of a prima facie showing of discrimination. Petitioner's testimony and the article he read into the record failed to establish that an adverse employment action took place, that Petitioner and a similarly situated unprotected group received dissimilar treatment, and that sufficient direct or circumstantial evidence exists to infer a causal connection between Petitioner's group status and the disparate treatment.

    
    

18. Even if Petitioner made the requisite prima facie showing in this proceeding, Respondent submitted competent and substantial evidence of a legitimate, nondiscriminatory reason for denying Petitioner's application for licensure. States and municipalities have the right to exercise their police powers in determining whether to grant licenses. Title VII cannot be used to challenge those powers. Darks v. City of Cincinnati, 745 F.2d 1040, 1042 (6th Cir. 1984). Respondent's denial of Petitioner's licensure application was based upon Petitioner's failure to satisfy applicable statutory criteria for licensure, his commission of acts constituting violations of the Medical Practice Act, and his failure to demonstrate rehabilitation and good moral character.

RECOMMENDATION

Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be issued denying Petitioner's claim of

unlawful discrimination.

DONE AND ENTERED this 14th day of January, 1993, at Tallahassee, Florida.

DANIEL S. MANRY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-1021

Petitioner did not submit proposed findings of fact. Respondent's Proposed Findings of Fact

COPIES FURNISHED:

Marcelino D. Mata

158 East 47th Street Hialeah, Florida 33013

Ann Cocheu

Assistant Attorney General Department of Legal Affairs PL01, The Capitol

Tallahassee, Florida 32399-1050

Dorothy Faircloth, Executive Director Department of Professional

Regulation/Board of Medicine 1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

Jack McRay, General Counsel Department of Professional

Regulation

1940 North Monroe Street Northwood Centre, Suite 60 Tallahassee, Florida 32399-0792

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions to this Recommended Order. All agencies allow each party at least 10 days in which to submit written exceptions. Some agencies allow a larger period within which to submit

written exceptions. You should contact the agency that will issue the final order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 92-001021

Orders for Case No: 92-001021