Findings Of Fact Petitioner, Joseph F. Friedman, was born January 17, 1926, and was, at the time of final hearing, 58 years of age. In 1980 Petitioner noticed an advertisement for the position of Crimes Compensation Field Representative with the Respondent's Bureau of Crimes Compensation. At that time Petitioner registered with the Department of Administration (DOA) and was certified as eligible by DOA to fill the position. Although certified by DOA, Petitioner did not file a State of Florida Employment Application with Respondent, or take any other action which would have affirmatively apprised Respondent of his interest in any employment position. In 1982 Petitioner again saw an advertisement for the position of Crimes Compensation Field Representative and this time filed a completed State of Florida Employment Application with Respondent on April 23, 1982. By letter dated May 11, 1982, Respondent's Chief of the Bureau of Crimes Compensation, Herbert G. Parker, advised Petitioner that his ". . . application would be retained on file for reference should a vacancy occur in the immediate future. (Emphasis added.) Respondent's personnel manual (Respondent's Exhibit 3) provides in Section 1-A-4A(5): To ensure department wide consistency in accepting applications for vacant positions, the guidelines listed will be followed as positions are advertised and certificates of eligibles are worked. In order to be considered as an applicant and to be considered for appointment, persons must file a properly completed and signed appli- cation for the position applied for. A person who expresses interest in a position but does not file a formal application is not considered an applicant. Persons who have filed an application for a position within an office previ- ously may have their application reactivated by the office at the option of the office manager or at the specific request of the applicant. (f) Offices will retain the applications of all applicants for positions for two years following the filling of a position. Although Respondent's policy requires that applications be retained for two years following the filling of a position, there is no agency policy which requires that they be considered for any future vacancies. Petitioner neither reapplied nor requested that his original application he held in the active file for future consideration. Notwithstanding the absence of a formal agency-wide policy, Mr. Parker has established a policy in his bureau that applications on file will be considered if a vacancy occurs within six months after that application had been previously considered. This six-month period is the "immediate future" referenced in his letter to Mr. Friedman of May 11, 1982. In early 1983 Petitioner noticed an advertisement for an opening for a Crimes Compensation Field Representative in Respondent's office. Petitioner did not formally apply for this position but, rather, engaged the services of an attorney to see why he had not been contacted regarding this vacancy. As a consequence of that contact, Respondent advised Petitioner's counsel that: . . . It is the Rule of the Department of Administration that non-state employees are purged from the list of eligibles every six months. In this case, Mr. Friedman should have asked for recertifi- cation in order to maintain his eligibility for consideration for the position in question. Respondent also advised Petitioner's counsel that Petitioner would be contacted for an interview for the current opening of Crimes Compensation Field Representative and, if found to be the most qualified, would be offered the position. Petitioner was in fact contacted and interviewed by Mr. Parker, along with ten other applicants. Among the applicants interviewed were three who were above 50 years of age, three who were above 40, one who was over 30, and four who were in their 20s. Ms. Sally Heyman, age 28 at the time, was selected to fill the position. Petitioner was advised by letter dated March 10, 1983, that he had not been selected. Mr. Parker evaluated the respective qualifications of Ms. Heyman and Petitioner. He found Petitioner qualified but felt Ms. Heyman's qualifications were exceptional and that she was clearly the better-qualified applicant. An examination of Ms. Heyman's credentials, as evidenced by her application and resume, reflects that in addition to considerable experience in the specific field of victim assistance, she also held a bachelor's degree in criminal justice, a master's degree in criminal justice, and was certified in crimes prevention. Mr. Friedman on the other hand held a bachelor's degree in social sciences (education) and his prior work experience had been as a detective for the New York City Police Department (retired) and as an investigator for Calder Race Course and security director for Gulf Stream Race Course. The respective credentials of Ms. Heyman and Petitioner demonstrate that Ms. Heyman was the better-qualified applicant. Further, Mr. Parker had reservations concerning Petitioner's ability to work closely with crimes compensation victims. The work of a Crimes Compensation Field Representative requires a caring, compassionate person who can empathize with the crime victim and establish a rapport which will engender a feeling of confidence that "This person can help me." Victims of crime are not only brutalized by the crime itself but are often emotionally battered by the Criminal Justice System. Consequently, a Crimes Compensation Field Representative must be capable of exhibiting the care and empathy essential to aid the victims of crime. Mr. Parker's reservations concerning Petitioner's ability to fulfill this criteria, though subjective, are clearly pertinent, job-related, and not discriminatory. On August 23, 1983, Petitioner filed a charge of discrimination with the Florida Commission on Human Relations, in which he alleged that he was not employed for the March, 1983, vacancy because of his age, and that Respondent had a policy of discrimination because of age. Subsequent to the filing of Petitioner's charge of discrimination, two additional positions were filled which Petitioner asserts substantiate his claim that Respondent had a policy of discrimination because of age. The first position was for an opening in the Respondent's Miami field office and was filled by Ms. Carol Springer, age 28, in September, 1983. Ms. Springer was an employee of Respondent in its Tallahassee office at the time in question, and previously had requested a transfer to Miami. Under Respondent's employee policies, current employees are entitled to first consideration when vacancies occur in an area to which they desire to be transferred. The second position, the vacancy created in the Tallahassee office by Ms. Springer's transfer to the Miami field office, was filled by Ms. Barbara Bobo, age 32, in September, 1983. Ms. Bobo's application and resume reflect considerable experience working with child abuse victims, the emotionally and financially disadvantaged, the mentally retarded, the elderly, and the disabled. She also held a Bachelor of Arts degree in special education. Petitioner did not submit an application for either of these positions or otherwise apprise the Respondent of his interest. Therefore, Petitioner was not contacted or considered for either vacancy. The current staffing pattern of Respondent's Bureau of Crimes Compensation reveals that a total of 16 persons are employed, including Mr. Parker. Of that number, 33 percent are over the age of 40, including two over the age of 50 years-- Mr. Parker, age 55, and one George Peters, age 57, a Crimes Compensation Field Representative.
The Issue The issue is whether Respondent, School Board of Alachua County, Florida, discriminated against Linda Smith, Petitioner, on the basis of her race or gender, or retaliated against her for engaging in protected activities in violation of the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes (2019).1
Findings Of Fact Petitioner worked as a bus attendant for Respondent for several years. During the course of that employment, Petitioner has had a lengthy history of conflict with another black female bus driver, Cynthia Dunmore. The problems first began when the two worked on the same bus route together in 2009, and the animosity continued both at and away from work. While at work on June 20, 2018, Petitioner called the police to ask them to get Ms. Dunmore to leave her alone. Officer Owen Osborne arrived at the transportation facility and spoke with Petitioner and then to Ms. Dunmore. Officer Osborne instructed them both to stay away from each other. Not long after Officer Osborne left the transportation facility, Petitioner spoke with Arlene Ewell, the wife of a school board employee. Following this conversation, Ms. Ewell reported to Ms. Dunmore that Petitioner had just told her that she planned to get a gun and bring it to work after the police did nothing but talk to Ms. Dunmore. Ms. Dunmore then reported this information to David Deas, the operations manager of the transportation department. School Board Policy 4217 requires all staff members to report “knowledge of firearms, weapons and/or threats of violence” to the site administrator. Mr. Deas relayed the conversation he had had with Ms. Dunmore to the Assistant Superintendent, who in turn sent Bart Brooks, a human resources supervisor, and Casey Hamilton, the school district’s security chief, out to the transportation department to assess the situation. Mr. Brooks followed standard operating procedure and placed Petitioner on paid administrative leave so that Respondent could conduct an investigation into the allegation that Petitioner threatened to bring a gun to work to harm Ms. Dunmore. Mr. Brooks and Respondent’s new investigator, Alisha Williams, promptly began an investigation of the alleged threat. In the course of the investigation, they spoke with Petitioner, who denied making a threat to bring a gun or otherwise harm Ms. Dunmore. Consistent with Respondent’s standard investigation procedures, Petitioner remained on paid administrative leave during the pendency of the investigation. On July 31, 2018, before Mr. Brooks and Ms. Williams had completed their investigation, Petitioner elected to retire. As a result of Petitioner’s retirement, the District terminated its investigation of the alleged threat. Accordingly, the District did not make a determination as to whether Petitioner did or did not threaten to bring a gun to work to harm Ms. Dunmore. No one told Petitioner that she would be fired if she did not retire. According to Petitioner, “I resigned to keep from losing my pension. If my pension was not at stake I would have let them terminate me falsely.” Petitioner offered as a comparator Paul Phillips, a white male who was hired as a bus driver for Respondent on January 20, 2015. He was terminated from that position on January 2, 2017, for driver safety violations which would not allow him to drive a bus for three years from the date of termination. Mr. Phillips was rehired as a bus attendant on October 15, 2018, and resigned on February 7, 2019, for personal reasons. Mr. Phillip’s situation is not comparable to Petitioner’s situation. Petitioner was never terminated for safety violations, but rather voluntarily retired from service on July 31, 2018, and there was no disciplinary action taken against her. Petitioner failed to persuasively prove any incidents of race or gender discrimination, or of retaliation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Respondent, School Board of Alachua County, Florida, did not commit any unlawful employment practices, and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 11th day of March, 2020, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 11th day of March, 2020. COPIES FURNISHED: Linda Denise Smith 1120 Northeast 24th Terrace Gainesville, Florida 32641 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Kevin Purvis, Assistant Superintendent Alachua County School Board 620 East University Avenue Gainesville, Florida 32601 Brian T. Moore, Esquire School Board of Alachua County 620 East University Avenue Gainesville, Florida 32601 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes (2015),1/ Petitioner forfeited his Florida Retirement System (“FRS”) Investment Plan account by entering a nolo contendere plea to two counts of violating section 893.13(2)(a)1., Florida Statutes, a second-degree felony.
Findings Of Fact The Events Giving Rise to this Proceeding Mr. Combs began working for DOC on May 25, 2001, as a Correctional Officer Level 1 at the Union Correctional Institution (“Union Correctional”) in Raiford, Florida. Union Correctional is a maximum security facility housing approximately 2,000 inmates, and Mr. Combs assisted with their care and custody. In January of 2006, Mr. Combs earned a promotion to Correctional Officer, Sergeant. While his responsibilities were very similar to those of his previous position, Mr. Combs was now supervising other correctional officers. In October of 2011, Mr. Combs earned a promotion to Correctional Officer, Lieutenant, and was responsible for supervising 50 to 70 correctional officers at Union Correctional. In April of 2013, Mr. Combs earned a promotion to Correctional Officer, Captain, and transferred to Florida State Prison in Starke, Florida. A captain is the highest ranking correctional officer on a given shift, and Mr. Combs supervised approximately 50 correctional officers at a time, including sergeants and lieutenants. Like Union Correctional, Florida State Prison is a maximum security facility housing approximately 2,000 prisoners. A colonel manages Florida State Prison, and it has two separate units. One of those units is a work camp housing lower- custody inmates who may work outside the facility, and the main prison is the other unit. Each of the units is run by its own major. In February of 2015, Mr. Combs was promoted to Major and took charge of the work camp at Florida State Prison. At some point in 2014 and prior to his promotion to Major, Mr. Combs had begun taking Oxycodone recreationally. Mr. Combs typically purchased one Oxycodone pill three to four times a week, and Dylan Hilliard (a Correctional Officer 1 at Florida State Prison) was Mr. Combs’ primary source of Oxycodone. Mr. Hilliard usually worked at the main prison, but he occasionally worked at the work camp. Mr. Combs knew Mr. Hilliard because of their employment with DOC. Mr. Combs purchased Oxycodone from Mr. Hilliard at the latter’s home in Lawtey, Florida. However, some transactions occurred in Mr. Combs’ state-issued housing on the grounds of Florida State Prison. Mr. Hilliard charged Mr. Combs $35 for an Oxycodone pill, and that was a discount from the $38 price Mr. Hilliard charged others. Mr. Combs allowed his subordinates (Sergeants Jesse Oleveros and Evan Williams) to leave Florida State Prison during their shifts in order to purchase illegal drugs from Mr. Hilliard. After returning from their transactions with Mr. Hilliard, Mr. Oleveros and Mr. Williams would give Mr. Combs an Oxycodone pill free of charge. Operation Checkered Flag was a joint task force led by the Bradford County Sheriff’s Office, and its purpose was to arrest individuals involved with the distribution and use of illegal drugs. The authorities arrested Mr. Hilliard after he engaged in an illegal drug transaction with an undercover agent from the Florida Department of Law Enforcement. A subsequent search of Mr. Hilliard’s cell phone revealed text messages between Mr. Hilliard and several other DOC employees, including Mr. Combs. Mr. Hilliard referred to Mr. Combs as “Chicken-Hawk” or “Hawk” in those text messages, and the two of them used car part terminology as a code for different milligram sizes of Oxycodone. Operation Checkered Flag ultimately resulted in the arrest of 10 DOC employees. The authorities arrested Mr. Combs on July 1, 2015, based on allegations that he had committed six felonies relating to the alleged unlawful and illegal purchase and distribution of Oxycodone. DOC fired Mr. Combs on approximately July 1, 2015. Mr. Combs initially denied all of the allegations. However, after spending nearly 56 days in jail, Mr. Combs reached an agreement with the State Attorney’s Office in Bradford County that called for his criminal charges to be reduced in exchange for his cooperation with Operation Checkered Flag. During an interview on August 20, 2015, with members of Operation Checkered Flag, Mr. Combs admitted that he had purchased Oxycodone from Mr. Hilliard. In addition, Mr. Combs admitted that on six or seven occasions he allowed Mr. Oleveros and Mr. Williams to leave the prison grounds so that they could purchase Oxycodone from Mr. Hilliard. The State Attorney’s Office in Bradford County chose to dismiss most of the charges against Mr. Combs. The Information ultimately filed against Mr. Combs set forth two counts alleging that he violated section 893.13(2)(a)1., by illegally purchasing Oxycodone on March 23, 2015, and March 31, 2015. Those purchases occurred approximately 10 miles from Florida State Prison at Mr. Hilliard’s residence in Lawtey, Florida. Neither Mr. Combs nor Mr. Hilliard was on duty during those transactions. On August 25, 2015, Mr. Combs pled nolo contendere. The Bradford County Circuit Court entered judgment against Mr. Combs based on the two violations of section 893.13(2)(a)1., but withheld adjudication. All of the conduct underlying Mr. Combs’ nolo contendere plea occurred while he was employed by DOC. The SBA Determines that Mr. Combs Forfeited his FRS Benefits At all times relevant to the instant case, Mr. Combs was a member of the FRS. The FRS is the legislatively-created general retirement system established by chapter 121, Florida Statutes. See § 121.021(3), Fla. Stat. The SBA is the governmental entity that administers the FRS Investment Plan, a defined retirement benefits contribution plan. § 121.4501(1), Fla. Stat. Via a letter dated August 3, 2015, the SBA notified Mr. Combs that a hold had been placed on his FRS account due to the criminal charges. As a result, no distribution of employer contributions from Mr. Combs’ account would be permitted until the SBA had evaluated the final disposition of those criminal charges. Via a letter dated September 3, 2015, the SBA notified Mr. Combs that he had forfeited his FRS benefits as a result of his nolo contendere plea. In support thereof, the SBA cited section 112.3173, Florida Statutes, which provides for the forfeiture of a public employee’s FRS retirement benefits upon the entry of a nolo contendere plea to certain types of offenses. The SBA’s letter closed by notifying Mr. Combs of his right to challenge the SBA’s proposed action through an administrative hearing. Mr. Combs requested a formal administrative hearing and asserted that the crimes for which he was convicted did not fall within the scope of section 112.3173(2)(e). In other words, Mr. Combs argued that his convictions were not associated with his employment at DOC and thus did not amount to a violation of the public trust. Testimony Adduced at the Final Hearing Mr. Combs testified that he was responsible for the work camp and the supervision of the correctional officers assigned there. He also testified that he would occasionally supervise correctional officers who normally worked in the main prison. Mr. Combs testified that Mr. Hilliard was his primary source of Oxycodone and that Mr. Hilliard occasionally worked at the work camp. Mr. Combs was aware that two Florida State Prison employees who worked directly under him (Sergeant Jesse Oleveros and Sergeant Evan Williams) were purchasing Oxycodone from Mr. Hilliard. Mr. Combs testified that he allowed Mr. Oleveros and Mr. Williams to leave Florida State Prison grounds six or seven times in order to purchase Oxycodone from Mr. Hilliard. Mr. Combs testified that Mr. Oleveros and Mr. Williams would give him an Oxycodone pill after returning from their transactions with Mr. Hilliard. Mr. Combs acknowledged during his testimony that DOC policy prohibits correctional officers from leaving prison grounds during their shift. Mr. Combs acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs also acknowledged that it was a violation of DOC policy and Florida law to allow a correctional officer to be on prison grounds with illegal narcotics. Finally, Mr. Combs acknowledged that as a sworn officer with the Department of Corrections, he had an obligation to report any criminal activity committed by a correctional officer working at Florida State Prison, regardless of whether that correctional officer reported to him. Findings of Ultimate Fact An examination of the circumstances associated with Mr. Combs’ Oxycodone purchases from Mr. Hilliard demonstrates that there is a nexus between Mr. Combs’ employment as a correctional officer with DOC and his commission of the crimes to which he pled nolo contendere. For instance, Mr. Combs came to know his primary source of Oxycodone (Mr. Hilliard) through their mutual employment with DOC. Indeed, Mr. Combs supervised Mr. Hilliard when the latter was assigned to the work camp at Florida State Prison. Also, Mr. Combs knew that these transactions were illegal. As noted above, he and Mr. Hilliard used a code based on car part references to disguise the actual subject of their communications. Contrary to DOC policy and Florida Law, Mr. Combs allowed two of his subordinates (Mr. Oleveros and Mr. Williams) to leave Florida State Prison during their duty shifts in order to purchase illegal drugs from Mr. Hilliard. Mr. Combs would then receive a free pill from Mr. Oleveros and Mr. Williams. Mr. Hilliard sold Oxycodone to Mr. Combs at a reduced price. It is reasonable to infer that Mr. Combs received this discount due to his high-ranking position at Mr. Hilliard’s place of employment and because Mr. Combs facilitated Mr. Oleveros and Mr. Williams’ purchases of Oxycodone from Mr. Hilliard. Mr. Combs willfully violated DOC policy and Florida law by allowing correctional officers to leave prison grounds during a shift for the purpose of purchasing illegal narcotics. Mr. Combs knowingly violated his obligation as a sworn correctional officer by not reporting the criminal activity committed by Mr. Hilliard. Mr. Combs defrauded the public from receiving the faithful performance of his duties as a correctional officer. The public had a right to expect that one of its employees would not purchase drugs from someone he supervised. The public also had a right to expect that Mr. Combs would not use his authority at Florida State Prison to facilitate Mr. Hilliard’s illegal drug sales to other DOC employees. In addition, the public had a right to expect that Mr. Combs would not engage in illegal transactions on the grounds of Florida State Prison. Mr. Combs realized a profit, gain, or advantage through the power or duties associated with his position as a Major at DOC. Specifically, Mr. Combs satisfied his Oxycodone habit through purchases made from a DOC employee who he supervised. Also, Mr. Combs used his position to facilitate other sales by Mr. Hilliard, and Mr. Combs’ assistance led to him receiving free Oxycodone and a discounted price on his Oxycodone purchases. The findings set forth above in paragraphs 49 through 57 are the only ones needed to establish a nexus between Mr. Combs’ public employment and the two counts to which he pled nolo contendere. That nexus is evident from Mr. Combs’ testimony, Mr. Combs’ Responses to the SBA’s Requests for Admissions, and the Stipulated Facts. It was not necessary to consider the exhibits to which Mr. Combs raised objections, i.e., the arrest warrant, the warrant affidavit, and the audio recordings.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner was a public employee convicted of specified offenses that were committed prior to retirement, and that pursuant to section 112.3173 he has forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account, except for the return of his accumulated contributions as of the date of his termination. DONE AND ENTERED this 10th day of May, 2016, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 10th day of May, 2016.
The Issue Whether Respondent violated the Florida Civil Rights Act 1992, as alleged in the Charge of Discrimination filed by Petitioner on August 10, 2002. of
Findings Of Fact Stipulated Facts 1. Petitioner, Ernest E. Whitehurst, was employed by the Duval County School District (school district) beginning November 26, 1984. 2. Petitioner was discharged from employment effective August 25, 2000. 3. Petitioner was informed of his discharge by a letter signed by Lisa Moore, an employee of the school district, a copy of which was hand-delivered by management. 4. Petitioner suffered an on-the-job injury in September of 1991. 5. After recovering from the on-the-job injury, Petitioner had a permanent injury in that he was restricted in lifting objects. 6. Petitioner filed a charge of discrimination in relation to his termination on or about August 6, 2001. 7. Petitioner is presently suffering from a serious mental disorder. Facts Established by the Evidence of Record 8. The letter of termination stated in pertinent part: Under Civil Service Rule 9.05(1), an employee can be dismissed for inability to perform assigned duties. You were hired as a school [sic] clerk II, after a fitness for duty assessment, job skills inventory and job search, the district has determined that you are unable to perform your assigned duties and that there are no other positions available, 9. Petitioner was hired and worked as a Stock Clerk II. The position description for Stock Clerk II includes the following: KNOWLEDGES, SKILLS AND ABILITIES: Ability to establish and maintain effective working relationships with others. Requires alertness and manual dexterity. Ability to understand and carry out oral and written instructions. Ability to maintain manual and computerized records. Ability to lift 60 pounds. Ability to operate computer. Knowledge of computers regarding maintenance of records and inventories. Knowledge of storeroom methods and procedures. 10. The job description also includes the following as examples of work to be performed: supervising and/or participating in the ordering, receiving, storing, and issuing of a variety of equipment and supplies; assembling, parking, and arranging for transport of stored materials; preparing and maintaining an inventory system using computerized and manual records; and may be required to drive a truck up to 26,000 GUV, as well as to operate a forklift, stock-picker, and other material-handling equipment. Physical Injuries 11. During his first years as a district employee, Petitioner apparently performed his job without serious problem or difficulty. On September 9, 1988, however, he strained and pulled his right arm and shoulder while lifting a gate to open it, which limited his ability to raise his arm over his head and in reaching. Medical records reflect that a long period of limited duty ensued during which Petitioner was medically restricted to lifting no more than 30 pounds and doing no overhead lifting with his right arm. 12. On September 6, 1991, Petitioner was injured on the job again. The description of the accident furnished by the school district, is as follows: Employee was moving storage bins in Warehouse and they fell over on him, hurting his head, nose, back, both shoulders and both knees. 13. Petitioner's treating physician at the time of the 1991 injury, Dr. Lenger, a neurologist, placed work restrictions on Petitioner. The primary work restriction limited Petitioner to lifting not more than 30 pounds. The physical sequela from this accident remained with Petitioner through the time he was dismissed. 14. On August 30, 1995, Dr. Lenger, determined that Petitioner's injury was permanent in nature and irreversible. Petitioner's work restrictions at this point included the following: sitting no more than one hour; driving no more than one hour; standing no more than one hour; no prolonged walking; no repetitive bending; and no carrying or lifting in excess of 30 pounds. These same work limitations were reiterated by Dr. Lenger on March 8, 1996, with the exception of the walking limitation. The last medical report reiterating the physical restrictions was dated April 27, 2000. The restrictions described by Dr. Langer remained in effect when Petitioner was dismissed. 15. In 1999, Petitioner developed carpal tunnel syndrome. On September 17, 1999, Dr. Lenger reported that Petitioner had "worsening CTS [carpal tunnel syndrome] bilat." This finding was reported by Dr. Lenger again on September 27, 1999, along with the notation "requires wrist splints for CTS." Dr. Lenger's January 14, 2000, report indicates "Rt. Carpal 2 This condition also continued to affect tunnel syndrome." Petitioner through the end of his employment with the school district. It hindered his ability to do repetitive work. 16. The school district accommodated Petitioner for his physical disabilities for many years by permitting him to remain on light-duty status. He received generally satisfactory job evaluations. However, his supervisors based these evaluations on the limited amount of work he was able to do, not on the entire scope of the job. Mental Illness® 17. Petitioner also developed manifestations of mental illness during the time frame he was employed with the district. On or about March 8, 1996, Dr. Lenger reported that Petitioner was so upset he couldn't stop crying. Dr. Lenger's progress notes reflect that Petitioner's regular physician put him on an anti-depressant. Petitioner continued to take the anti- depressant through the time he was dismissed from employment by the district. 18. On July 13, 1998, a Monday, Petitioner told his supervisor and another co-worker that he had contemplated suicide during the prior weekend. He also told them that he had hit himself in the head numerous times. Larry McDonald, Director, Consolidated Services Property Manager, told Petitioner to go to the district's Wellness Clinic for counseling, but Petitioner refused. 19. Petitioner admitted to barking from time to time in the workplace. According to Petitioner, he did this to startle people. Petitioner's barking was observed and heard by many district employees, including Larry McDonald, Lee Taylor, Leroy Williams, Michael Myers, Colleen Taylor, and Rufus Harmon. These people found Petitioner's barking disturbing, frightening, strange, or annoying. It occurred frequently, was very loud, and could be heard 300 to 400 feet away, half the length of the warehouse, and while visitors were present in the warehouse. 20. During the course of his employment, Petitioner made threatening remarks concerning management and specifically concerning Larry McDonald, Petitioner's superior through the reporting chain. On one occasion in 1999, Petitioner remarked to a co-worker that he would line management up and shoot them. Petitioner stated that if he lost his job, he would get even, a comment made in a conversation concerning other persons on "light" duty who had been dismissed. 21. Petitioner had a psychiatric examination on August 24, 2000, after he had received his letter of dismissal, but prior to the last day of his employment, August 25, 2000. According to Petitioner's psychiatrist, Dr. Martinez, Petitioner was having intense thoughts of killing himself and his supervisor because of being dismissed. Dr. Martinez hospitalized Petitioner due to suicidal and homicidal ideation on an emergency basis at Ten Broeck Hospital, and recommended long- term psychiatric treatment. It was Dr. Martinez's opinion that Petitioner was not employable at that point. 22. Petitioner acknowledged that when he visited Dr. Martinez on August 24, 2000, he had been homicidal and that he expressed at that point that he wanted to kill Mr. McDonald. 23. Dr. Martinez has continued to see Petitioner on a very regular basis. Petitioner's diagnosis is intermittent explosive disorder, clinical depression, and personality disorder. Dr. Martinez testified that Petitioner functions on a chronic level of paranoia and distrust, which is psychotic. Dr. Martinez stated that Petitioner continues to be permanently mentally disabled as a result of his industrial accident and the psychiatric sequelae following the accident.‘ 24. It is Dr. Martinez's opinion that Petitioner "has always been severely mentally disturbed," that he is very distrusting on a chronic basis, probably since he was a small boy, and that he is suspicious, hypervigilant and explosive. "I think he's been that way for quite a while." According to Dr. Martinez, behavior such as barking in the workplace is indicative of severe mental disturbance. Employability at Time of Dismissal 25. Mr. McDonald estimated that Petitioner was doing only 35 percent of his job and was not carrying out its essential functions at the time of his dismissal. A supervisor estimated that Petitioner did 40 percent of his job. Another supervisor estimated that Petitioner could do between 15 percent to 25 percent of the job. One co-worker stated that Petitioner did very little work. No one testified that Petitioner was able to do all functions of his job. 10 26. In the opinion of Dr. Martinez, Petitioner was not able to do his work: Q: If he hadn't been terminated, I mean, is there any reason you would suspect he couldn't continue working unless there was another triggering event? A: If he had not been terminated? Q: Yes. A: I think that he needed to be out of this work situation. He couldn't do it. Q: Because there were triggering events other than the termination? A: He's fully disabled. You know, he couldn't do his job. But it's how it was handled that I have the issue with. It was--minimize the damage control. It should have been--human resources screen them before they work with children, you know. 27. In 1998, the district had 65 employees in "light" duty positions who could not perform and who had reached maximum medical improvement ("MMI"). The purpose of "light" duty was to allow employees a reasonable period of time to heal if they were injured. The school district hired a new "Safety Director" who was instrumental in the implementation of a process directed toward this large number of individuals who were not performing the full scope of their jobs. A review of their status commenced to either find jobs for them or separate those individuals who had reached MMI. Petitioner was one of the employees who became a subject of this process. 11 28. The evidence is unclear as to whether every step of this process was undertaken regarding Petitioner. The first step was a fitness for duty evaluation. This step was unnecessary regarding Petitioner because the school district already had Dr. Lenger's opinion that Petitioner's physical injuries were permanent. The termination letter indicated that prior to Petitioner's dismissal, a job skills inventory and search for other possible jobs for him within the district had been conducted, although no business records relating to this search was produced. 29. Vicki Reynolds is the current Assistant Superintendent of Human Resources. While she was not in that position at the time of Petitioner's dismissal, she reviewed school district business records relating to available vacancies which the district had in the months immediately prior to Petitioner's dismissal. She also reviewed business records relating to individuals who had been surplused because their positions had been cut for budgetary reasons. Those persons have rights to positions under the collective bargaining agreement and, in the case of teachers, under the applicable teacher tenure law. Ms. Reynolds' review indicated that the school district had no vacant position in which Petitioner could have been placed at the time of dismissal, taking into consideration Petitioner's limitations. 12 30. At the time of Petitioner's dismissal, there were some persons occupying Stock Clerk II positions who did not regularly do lifting, e.g., persons assigned to the purchasing office. However, according to Mr. McDonald, all Stock Clerk II's "are required to have the ability to lift." Regarding those positions, Mr. McDonald stated: Q: He [Petitioner's attorney] mentioned three things, whether stock clerks do computerized work, telephone, typing. Is that all part of a Stock Clerk II's job that goes along with lifting? Do they all do some of that? A: Yeah. The stock clerks that work in the office, their duties are typical clerical duties. They--they're expected to be able to work on a computer, on a computer networking system. They're expected to work on the telephone with both vendors and school board customers and meet personally with the vendors. Q: Do they go into the warehouse ever? A: Yes, they do. Q: What do they do out there? A: The ones on the warehouse side, they are in charge of certain commodities. We have-- in the warehouse, we have 6,000 items, different items. And we break it up by about a third of those for each one. And their duties are to make sure that we are carrying and maintaining our certain inventory levels. This may require them to go out and physically count, physically inspect, move around items, help with the incoming of the inventory when it comes in as an inspector. 13 Q: And. . . but why could Whitehurst not have been placed in one of those jobs, which is the implication, in August of 2000? A: Well, we didn't have any openings. And you cannot bump a person out of a job. It's illegal under the civil service rules and regulations. Q: And any other reason that you can-- A: Well, his physical impairment. Mr. Whitehurst was limited to sitting, standing, walking. He had carpel tunnel on his wrist. He had several reasons that he wouldn't be a candidate for one of those jobs, if I had an opening at the time. 31. Petitioner did not identify a specific vacant position which the district had at the time he was dismissed for which he was qualified. 32. Petitioner had been issued a statement of eligibility for a teaching certificate. However, Petitioner had been evaluated by the school district and found not to be suitable for teaching positions. Dr. Martinez concurred that it would not have been appropriate for Petitioner to work at a school either before or after he was dismissed. 33. Petitioner was dismissed on August 11, 2000, effective August 25, 2000, for inability to perform his assigned duties and because no other position for him was available pursuant to Civil Service Rule 9.05(1). Civil Service Rule 9.05(1) provides that employees may be dismissed for cause. A determination of 14 cause may be predicated on "inability to perform assigned duties."
Conclusions For Petitioner: Arthur G. Santorius, Esquire 1919 Atlantic Boulevard Jacksonville, Florida 32207 For Respondent: Ernst D. Mueller, Esquire Office of the General Counsel 117 West Duval Street, Suite 480 Jacksonville, Florida 32202
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is 24 RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by Ernest E. Whitehurst. DONE AND ENTERED this aot aay of June, 2003, in Tallahassee, Leon County, Florida. iS Administrative™Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20 aay of June, 2003.
The Issue Should Petitioner's request for exemption from disqualification from employment in a position of trust or responsibility be granted?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The Department is the agency of the State of Florida charged with the responsibility of requiring security background investigations of persons employed by employers under the Department's jurisdiction and licensing powers in positions designated by law as positions of trust or responsibility. The purpose of the security background screening is to determine if there are individuals who have committed an offense which would disqualify the individual from working in positions designated by law as positions of trust or responsibility. Petitioner was employed in a position of trust or responsibility by Polk Opportunity Council (the Council) located in Polk, County, Florida. The Council cared for children which required licensure by the Department. Petitioner's job with the Council required that she be screened in accordance with level 2 standards for screening set forth in Chapter 435, Florida Statutes. The screening revealed Petitioner's arrest on September 14, 1992, for spouse battery (domestic violence), under Section 784.03, Florida Statutes. The screening further revealed that on December 3, 1992, Petitioner: (a) entered a plea of nolo contendere to the charge of spouse battery, a misdemeanor; (b) was adjudicated guilty and; (c) placed on probation for a period of one year. After being placed on probation, Petitioner successfully completed, although not timely, the community service hours and the Domestic Violence Program required by the court's probation order. Petitioner timely completed all other requirements of her probation. On January 5, 1994, the court terminated Petitioner's probation but due to the untimely completion of the Domestic Violence Program and the community service hours the record reflects that her probation was terminated unsatisfactorily. The arrest and subsequent adjudication of guilt disqualified Petitioner from employment in a position of trust or responsibility. Subsequent to the screening, the Department notified Petitioner and the Council of Petitioner's disqualification. Thereafter, Petitioner was discharged from her employment with the Council. The Council has agreed to hire Petitioner back in her old position if she is granted exemption from disqualification by the Department. Petitioner would be working in the kitchen in the morning and working with children in the afternoon. There is no record of Petitioner being charged with any other crime (domestic violence or otherwise) since her arrest on September 14, 1992. Petitioner is no longer married to the person involved in the incident on September 14, 1992, which resulted in Petitioner's arrest. In fact, her former husband was charged and served time with the Department of Corrections for subsequently beating Petitioner. Since Petitioner completed her probation, she has worked to support her children. Petitioner is presently supporting her seven children. It appears that the Department or its predecessor, Department of Health and Rehabilitative Services, has, since Petitioner's completion of probation, allowed Petitioner to care for children in her home. Petitioner has worked hard and diligently to stay off of welfare, to support her children, and to better her and her children's position in life. In addition to her regular work, Petitioner is always first to volunteer for charitable projects. Petitioner has been sufficiently rehabilitated so as to be employed in a position of trust and responsibility and that she will not present a danger if allowed to be employed in a position of trust or responsibility
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Petitioner's request for an exemption from disqualification for employment in positions of trust and responsibility. DONE AND ENTERED this 19th day of February, 1999, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6947 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of February, 1999. COPIES FURNISHED: Stacey C. Andrews, pro se Post Office Box 3298 Lakeland, Florida 33802 Jack Farley, Esquire Department of Children and Family Services 4720 Old Highway 37 Lakeland, Florida 33803 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether or not Petitioner may be granted an exemption to work in a position of special trust.
Findings Of Fact Petitioner has been continuously employed with North Florida Evaluation and Treatment Center (NFETC) since November 9, 1994. NFETC is a facility operated by DCF. NFETC houses mentally unstable, criminally charged adult male patients. Petitioner began work at NFETC as a custodial worker. In 1996, he was sought out by his superiors to be trained as a Unit Treatment and Rehabilitation Specialist (UTR). UTRs have direct care and treatment of patients. He completed 180 training hours on or about December 31, 1996. In early 1997, he was promoted to the position of UTR. On January 10, 1997, Petitioner was certified as having completed ACT training. ACT involves DCF-approved methods for safely subduing violent patients. Since his promotion to UTR, Petitioner has performed adequately as a UTR. He has never been involved in a violent incident involving patients. He has not had any disciplinary actions taken against him. A letter from Petitioner's supervisor at NFETC was admitted in evidence without objection. That letter attests to a four-year working relationship with Petitioner during which he has always been "intelligent, creative, dedicated, energetic, and resourceful. . . . He has always remained calm and served as a stabilizing force for others." Prior to the summer of 1998, the position of UTR was not considered a "position of special trust." In the summer of 1998, DCF authorities at NFETC designated all UTR positions as "positions of special trust," and a screening revealed Petitioner's criminal record, which barred him from employment as a UTR. Since then, and pending resolution of the issue herein, Petitioner has continued to be employed at NFETC in a non-direct care position, at a lesser rate of pay. Petitioner's disqualifying criminal offense involved his plea of nolo contendere to a charge of domestic battery (statute number unspecified) on June 16, 1995. At that time, the court withheld an adjudication of guilt; placed Petitioner on probation for one year, with a special condition that he attend the Batterer's Intervention Program; and waived all court costs. On October 4, 1995, Petitioner was in court for violating his probation. Although Petitioner testified that this court appearance was the result of missing or being late for a scheduled meeting with his probation officer due to his brother's death, court documents indicate that Petitioner once again had been arrested for domestic battery (statute unspecified), a charge to which he plead guilty. Petitioner conceded that he spent seventeen days in jail on this occasion. Where Petitioner's version of the facts differs from the court documents admitted in evidence, I find the court documents to be more credible. However, the court documents also show that on this occasion, Petitioner was reinstated to supervised probation. By July 1996, Petitioner had completed all 26 sessions of the Batterer's Intervention Program, spanning six months. Apparently, he did not begin the program until after the last act of domestic violence. During these sessions, Petitioner participated in "acting out" possible physical altercation scenarios and was trained in new methods of avoiding them, new ways of dealing with anger, and how to anticipate ways in which to handle similar situations without violence in the future. On August 5, 1996, a Petition for Unsuccessful Termination of Probation was presented to the court, because Petitioner "would be unable to comply with the [probation] requirements in a timely manner." As a result of this petition, the court discharged Petitioner from probation unsuccessfully and waived the remaining costs of supervision. The most information that can be gleaned from the court documents and Petitioner's testimony concerning the reasons behind the unsuccessful termination of his probation in 1996, is that Petitioner was unable to pay all supervision costs on time, had lost some period of reporting to his probation officer due to his jail time in October 1995, and had unsuccessfully completed his probation due to the domestic battery guilty plea on October 4, 1995. Petitioner testified that he has not been arrested since October 4, 1995. However, he also acknowledged that prior to the initial June 16, 1995, domestic violence charge, there may have been as many as three other arrests as a result of physical altercations with his ex-wife. Petitioner testified that the nature of the June 1995 incident which gave rise to the disqualifying offense was merely that he "put his hands on" his wife to stop her from hitting him, during a period of time in which he was under great stress due to several deaths in his immediate family, the birth of a new baby, and his job as a long-haul trucker. His ex-wife confirmed each of these elements of stress in Petitioner's life at that time, but she was asked no questions concerning the physicality of the disqualifying June 1995 incident, and Petitioner's continuous employment at NFETC since November 1994, would seem to negate his story of being a long-haul trucker in June 1995. Upon all the evidence, I do not find Petitioner credible as to his description of the disqualifying incident. Upon all the evidence, I also do not find credible Petitioner's and his ex-wife's testimony that Petitioner did not strike his wife after 1994. At some point subsequent to October 1995, the couple divorced. Petitioner pays his child support regularly. His NFETC employment provides insurance for his two children. He visits his children regularly at his ex-wife's home and entertains them in his own home. He has a good relationship with both children. He has become friends with his ex-wife Petitioner lives with and cares for his aged and infirm mother. Petitioner attends no church regularly but does attend several churches occasionally. He contributes to the Boys and Girls Clubs of America through the United Way collection at NFETC. He has completed sixteen hours of a writing class in spelling and grammar, which should enhance his performance as a UTR.
Recommendation Based upon the findings of fact and conclusions of law, it is, RECOMMENDED: That the Department of Children and Family Services enter a Final Order denying the requested exemption to work in a position of special trust at this time and specifying therein the earliest date that Petitioner may reapply (one year from his last application) if he chooses to do so. DONE AND ENTERED this 5th day of February, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of February, 1999. COPIES FURNISHED: Lucy Goddard, Esquire Department of Children and Family Services 1000 Northeast 16 Avenue, Box 3 Gainesville, Florida 32601 Willie Williams, Jr. 821 Southeast 12th Avenue Gainesville, Florida 32601 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner' termination from employment was in violation of Section 760.10, Florida Statutes.
Findings Of Fact On March 9, 1999, the Petitioner was an employee of the State of Florida, Department of Corrections (Department) working as a correctional officer at the Santa Rosa County Correctional Institution in Milton, Florida. The Petitioner was employed as a Correctional Officer, on probationary status. On February 25, 1999, the Petitioner was arrested for a purported traffic violation by a law enforcement officer in Escambia county. An officer of the Escambia County Sheriff's Department, at approximately 1:08 a.m., on that day, observed the Petitioner's blue Toyota Tercel run a stop sign. The officer pulled in behind the vehicle and the vehicle made a quick turn off the road behind a closed business establishment and turned off its lights. The officer stopped near the vehicle and approached the driver's side and asked the driver for identification. The driver was later identified as the Petitioner, Perry Foster. Mr. Foster told the officer that his one-year-old son had torn up his driver's license. While the officer was talking with the Petitioner the officer detected a strong odor of marijuana emanating from inside the vehicle. Believing a narcotic violation was taking place the officer summoned another officer with a drug-detecting dog. The dog detected marijuana in the vehicle. Both the Petitioner and his passenger, Eric Adams, were placed outside the vehicle while the investigation was continuing. Officer Price, who brought the dog to the scene, detected the odor of marijuana on the person of Eric Adams. Ultimately, Eric Adams allowed a search and Officer Price retrieved a small package of marijuana from Mr. Adams shirt pocket. Mr. Adams was arrested for "possession of marijuana under 20 grams." The officer found no marijuana or drugs inside the vehicle although the dog strongly alerted on the driver's seat where the Petitioner had been sitting. There was the odor of marijuana along with signs of blunt cigar usage. Blunt cigars are typically used, hollowed out and packed with marijuana to smoke marijuana, without revealing its presence and use. In any event, the Petitioner was not arrested for possession or use of marijuana, none was found on his person, and he was given a traffic citation and released. The friend or family member who was his passenger was arrested for possession of marijuana. The evidence is unrefuted that the Petitioner was driving the vehicle with a passenger, knowing that that passenger possessed and was using marijuana in his presence. The Petitioner's employer, specifically Warden Ardro Johnson, was made aware of the Escambia County Sheriff's Office offense report that detailed the above facts and circumstances concerning the Petitioner's arrest and the arrest of his companion on the night in question. While the Petitioner remonstrated that he only was charged with running a stop sign and had not been using drugs and that he later passed a drug- related urinalysis, that position misses the point that his termination was not because of drug use. Rather, the Petitioner was dismissed by Warden Johnson from his position as a probationary employee pursuant to Rule 60K-4.003(4), Florida Administrative Code, because his employer believes that he committed conduct unbecoming a correctional officer. The true reason the Petitioner was terminated was because, as delineated by Warden Johnson in his letter to the Petitioner of March 23, 1999 (in evidence as Petitioner's Exhibit 1), the Petitioner made a personal choice to overlook, ignore, or fail to report a criminal violation occurring in his immediate presence. Warden Johnson thus explained that this leaves a clear question as to whether the Petitioner had, or would in the future, perform his correctional officer duties in the same manner by ignoring, overlooking or failing to report infractions. Because of this and because he was a probationary employee and thus had not yet established his full job qualifications, the Petitioner was terminated. There is no evidence that he was terminated based upon any considerations of his race. There is also no evidence that he was replaced in his position. Moreover, there is no evidence that if he was replaced he was replaced by a new employee who is not a member of the Petitioner's protected class. The evidence that the Petitioner was in the car at approximately 1:00 a.m., on the morning in question with a passenger who was possessed of and using marijuana is unrefuted and is accepted as credible.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the subject Petition in its entirety. DONE AND ENTERED this 2nd day of August, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 2nd day of August, 2002. COPIES FURNISHED: Mark J. Henderson Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399-2500 Perry A. Foster 1882 Gary Circle Pensacola, Florida 32505 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent abused its discretion in denying Petitioner’s request for an exemption from disqualification for employment in a position of trust.
Findings Of Fact AHCA is the state agency charged with protecting vulnerable persons, such as Medicaid recipients and the Medicaid program, and, in that capacity, it maintains discretion to approve or deny requests for exemption from disqualification. Petitioner is seeking to work as a certified nursing assistant. Petitioner’s employment goals require her to have a Level 2 criminal background screening to ensure she does not have any disqualifying offenses to prohibit her from working with AHCA-regulated facilities. Petitioner’s background screening of February 5, 2020, identified the following five criminal offenses: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting executive officer with minor injury. By letter dated February 5, 2020, AHCA notified Petitioner that she was disqualified from employment due to the disqualifying offense of “04/22/2017 Sheriff’s Office San Diego, Obstruct/Resist Exec Off.” The letter also informed Petitioner that she may be eligible to apply for an exemption from disqualification and how to apply. On or around February 7, 2020, Petitioner submitted a request for exemption from disqualification and supporting documentation to AHCA. By letter dated February 18, 2020, AHCA denied Petitioner’s request for exemption. On April 6, 2020, Petitioner submitted a second Application for Exemption (“exemption package”) to AHCA. Petitioner’s exemption package contained documentation including employment history, education/training, a criminal history report, arrest reports, investigation reports, a California Department of Public Health investigation report, and a 12-month suspension of nurse assistant certification. By letter dated April 7, 2020, AHCA denied Petitioner’s request for exemption, stating Petitioner is not eligible for the exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: ELDER/DEP ADULT CRUELTY, Case number CN3772399 Petitioner contested the denial and requested a formal administrative hearing. AHCA acknowledged the disqualifying offense error in the denial letter of April 7, 2020, and corrected its denial letter. The corrected denial letter dated September 8, 2020, deemed Petitioner not eligible for an exemption based on the following grounds: A disqualifying felony offense(s) and you have not been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felony 3 years prior to the date you applied for the exemption. Our records indicate you met the above criteria for the following: Corrected Disqualifying Offense: 04/22/2017 SHERIFF’S OFFICE SAN DIEGO, RESISTING AN OFFICER (California Penal Code section 148,) Case Number CN372399. Hearing At hearing, Petitioner testified about the incident that occurred on April 22, 2017, while working at Fallbrook Skilled Nursing (“Fallbrook”) in California. Petitioner explained that three police officers came to her job at Fallbrook while she was working her shift and asked to speak to her outside the facility about allegations of resident abuse. Petitioner testified she refused to leave the facility upon multiple instructions from the police to leave. Petitioner admitted that after an officer told her several times he was going to arrest her, she told the police “you don’t have a right to arrest me.” Petitioner detailed how she did not allow the police to put handcuffs on her because she believed the reports about her were lies. Ultimately, the incident escalated--Petitioner testified that when she did not allow the police to handcuff her, the three police officers put her on the ground, one put his knee on her back, and she was handcuffed. Petitioner weighed approximately 125 pounds when arrested. After the police got Petitioner outside, the three police officers picked her up, put her in the police car, and took her to jail. Petitioner was charged with: elder abuse/neglect; trespass (refuse to leave property, peace officer’s request); and three counts of obstructing/resisting an officer, all stemming from the same April 22, 2017, incident. The elder abuse and trespass charges against Lalanne were dismissed. On January 30, 2018, Petitioner proceeded to a bench trial before a judge on the resisting an officer charge. At trial, Petitioner was found guilty and convicted of “count 1 PC 148 (a)(1), resisting an officer” in case number CN372399. That same day, the judge sentenced Petitioner to three years’ probation2 and community service for the resisting an officer conviction. Subsequently, the County of San Diego, California, probation department provided Petitioner a certificate of completion for completing her three days of public work service on or about September 13, 2018. Petitioner testified that she made a mistake when she did not listen to the officers and it was a lesson for her. She also testified that she believed there was no harm to the police and her offense is a misdemeanor not a felony. Vanessa Risch (“Risch”), AHCA’s operations and management consultant manager in the Background Screening Unit, testified that because Petitioner’s offense occurred in California, AHCA had to evaluate the nature of the offense, what occurred during the incident, and the final outcome of the case to determine the correlating criminal offense in Florida. Risch testified that she contacted the California Clerk of Courts to validate the outcome of Petitioner’s case and probationary status. Risch testified that, through her investigation, she confirmed that Petitioner’s probation started on January 30, 2018, and terminates on January 30, 2021. Risch also detailed how AHCA converted Petitioner’s California resisting an officer charge to a Florida resisting arrest with violence felony offense, after determining the officers in California had to force Petitioner’s body to the ground after Petitioner did not comply with the officers’ repeated instructions. AHCA concluded that Petitioner’s actions of opposing the three 2 The compelling evidence at hearing supports Petitioner’s probationary sentence. The undersigned finds that Petitioner failed to testify honestly and forthright regarding her three-year probationary period. First, Petitioner denied knowledge of any probationary period even though probation was listed on the sentencing documents Petitioner presented as Exhibit 1. Also, Petitioner’s Exhibit 3 is from the probation department. Additionally, Petitioner testified that her lawyer told her she had probation, which confirms Petitioner’s knowledge of her probationary period. officers is equivalent to the criminal offense of resisting arrest with violence in Florida. Risch testified that resisting an officer with violence is a disqualifying felony offense. Risch testified further that AHCA ultimately concluded that Petitioner was not eligible to apply for an exemption. Risch explained that Petitioner’s current probationary status prohibited her from being eligible to apply for an exemption because eligibility starts three years after Petitioner’s probationary period for the disqualifying felony offense is terminated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration, enter a final order denying Shaddainah Lalanne’s, request for an exemption from disqualification. DONE AND ENTERED this 9th day of December, 2020, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY 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 9th day of December, 2020. COPIES FURNISHED: Shaddainah Sherly Lalanne Apartment 206 6609 Woods Island Circle Port St. Lucie, Florida 34952 (eServed) Katie Jackson, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 7 Tallahassee, Florida 32308 (eServed) Shena L. Grantham, Esquire Agency for Health Care Administration Building 3, Room 3407B 2727 Mahan Drive Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Bill Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Shevaun L. Harris, Acting Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed)
The Issue The following issues were presented by the Petitioner or arose at hearing: Was a proper investigation and showing of interest made in this Petition? Should Assistant Sorensen be included or excluded from the proposed unit? Whether the appropriate unit should be composed solely of personnel within the Road and Bridge Department.
