Findings Of Fact In October 1985, Dennis J. Donegan, Petitioner, qualified for and took the examination for medical technologist in hematology. He passed the examination and was subsequently so licensed. Effective January 1, 1986 new rules were adopted increasing the requirements for eligibility for applicants to take examinations in the various fields of medical technologist specialties. Although this rule was adopted by Respondent after complying with the procedural requirements for adopting rules, Petitioner was not personally notified of the change and was unaware of the increased requirements until his application to take the fall 1986 examinations in chemistry and microbiology specialties was denied. By letter dated August 27, 1986 Respondent denied the application because Petitioner did not meet the education requirements established by the rule which became effective January 1, 1986. Petitioner contends that had he known of the proposed rule change he would have applied and sat for all of the various laboratory technologist specialty examinations before the rule change became effective. Petitioner further contends that under Rule 10D-41.69(6) he is qualified to sit for the examination by reason of being an applicant who was qualified to sit for an examination prior to January 1, 1986.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the respondent's determination to deny petitioner's application for a certificate of need to institute radiation therapy facilities at its hospital be AFFIRMED. Respectfully submitted and entered this 9th day of June, 1977, in Tallahassee, Florida. DIANE D. TREMOR, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Art Forehand, Administrator Office of Community Medical Facilities 1323 Winewood Boulevard Tallahassee, Florida 32301 Richard R. Paige, Esquire Paige and Catlin Alfred I. DuPont Building Miami, Florida 33131 Eric J. Haugdahl, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Sheldon M. Simons, Esquire Professional Building 3661 South Miami Avenue Miami, Florida 33133 Alex Hofrichter, Esquire Carey, Dwyer, Cole, Selwood and Bernard Post Office Box 450888 Miami, Florida 33145
Findings Of Fact Respondent, Florida Agricultural and Mechanical University (FAMU), is a state university located in Tallahassee, Florida. Dr. Frederick S. Humphries is the President at FAMU. Dr. Richard A. Hogg is the Provost and Vice President for Academic Affairs at FAMU. The University offers a liberal arts education with majors in many areas, including physics. The University also offers masters and doctoral programs, as well as post-doctoral programs. Physics is one of the departments which offers post-doctoral opportunities. The Physics Department operates under the College of Arts and Science at FAMU. Dr. Aubry M. Perry is the Dean of the College of Arts and Science at FAMU. Dr. Charles A. Weatherford is a Professor of Physics and Chairman of the Physics Department. Neither faculty or staff members of the University can hire Petitioner for employment at FAMU. Such personnel however, could recommend that Petitioner be employed at FAMU. Only Dr. Humphries and Dr. Hogg had authority to hire Petitioner for employment at FAMU and to establish the terms and conditions of that employment. A breakdown of the courses taught in the Physics Department are as follows. General Physics is a Calculus based physics course for science and engineering majors and is extremely rigorous. The General Physics course is an extremely high visibility course and is the most important course in the Physics Department for which professors have to do the best job. Consequently, the strongest professors are going to teach this course. College Physics is a non-calculus based course that is taken principally by allied health majors and by biology majors who are not going into graduate biology study. College Physics is no nearly as rigorous as the General Physics course. Elements of Physics is also non-Calculus based service course required by FAMU to fulfill the requirements of general education. This course is below College Physics and basically requires simple Algebra and Trigonometry. Students enrolled in Elements of Physics are traditionally Pharmacy, Business and Architecture majors. Physical Science is the lowest level course in the Physics Department. This course is a service course for non-science majors. The Physical Science course encompasses several disciplines including physics, chemistry, geology, metorology, astronomy, earth science, and oceanography. The course is non- rigorous and requires very elementary Algebra and Trigonometry skills. The post-doctoral (post-doc) opportunities offered in the Physics Department are usually ties to grants or contracts for research which the University has received from a third party. The purpose of creating post- doctoral opportunities is to provide an opportunity for doctoral graduates to get experience that will enhance that person's resume and opportunity for getting a job in academia or elsewhere. Post-doc work enables a doctoral graduate to do research and develop research experience in the graduate's chosen filed of physics. Such research associates or adjunct professors are generally at the University under a specific grant or contract which pays that persons salary. In short, the position and money for post-doc come from a specific grant or contract. Therefore, once the grant or contract expires or is terminated the post-doc position expires or is terminated. Importantly, every grant or contract has a primary investigator (PI) responsible for contract administration and compliance. These PI's are responsible for the ultimate allocation of funds for work or activities which support the research contemplated under a given contract. However, these PI's cannot employ any post-doc, but can only recommend such employment and demonstrate that the position is provided and paid for in the contract or grant for which the PI is responsible. Relevant to this proceeding, were one contract and one grant for research between FAMU and the United States Air Force and FAMU and the United States Army, respectively. Petitioner, Indira Khurana, is a native of India. She received her Bachelors and Masters Degrees from Meerut University in India. In 1988, Petitioner received a Ph.D. in Physics from Roorkee University in India, specializing in Anatomic and Molecular Physics. After she had received her Ph.D., she worked as post-doctoral student for two (2) years and then lectured at Birla Institute of Technology and Science in India during the period of February, 1990, to July 1991. Between July, 1991, and January, 1992, Petitioner was with her husband in Vancouver, Canada and did not work. During Petitioner's stay with her husband in Vancouver, Petitioner was looking for another post-doc position in physics. In October of 1991, Petitioner wrote a letter to Dr. Ashok Jain applying for employment at FAMU and enclosed here curriculum vitae. Dr. Jain was then a Professor of Physics in the Physics Department on a tenure track. Petitioner wrote Dr. Jain because she saw a paper in the library that was published by Dr. Jain and Dr. Baluga and was interested in the work they were performing. Petitioner did not know Dr. Jain before coming to FAMU. However, she did know Dr. Baluga. In 1991, Dr. Jain was the Principal Investigator (PI) on a U.S. Air Force contract and a co-PI on a U.S. Army grant. In a letter dated October 8, 1991, Dr. Jain responded to Petitioner's letter and thanked Petitioner for her initial letter of inquiry and the enclosed vitae. Dr. Jain did discuss in the letter the possibility of a post doctoral position in April-May, 1992, or earlier. Dr. Jain did not mention in his letter that Petitioner would be employed for a period of two years at FAMU and indicated that Petitioner would be recommended for the position. Dr. Jain did not have authority to hire Petitioner for employment at FAMU. Dr. Jain could only recommend that Petitioner be hired at FAMU. Petitioner testified that later, in November of 1991, she received two (2) letters from Dr. Jain in the same envelope. The envelope was postmarked on November 7, 1991. One letter was dated November 1, 1991, and was written to Petitioner from Dr. Jain. The other letter was dated November 12, 1991, addressed to Dr. Eva C. Wanton, Dean, School of General Studies, FAMU, from Dr. Charles A. Weatherford, Professor and Chairman, Physics Department, College of Arts and Science, FAMU. Petitioner testified that it takes four (4) to five (5) days for mail to reach Vancouver, Canada, from Tallahassee, Florida, and that because the envelope was postmarked November 7, 1991, the two (2) aforementioned letters probably were received by her on November 12, 1991. Petitioner asserted that she did not discuss the contents of either of the letters with Dr. Jain. In the letter dated November 1, 1991, Dr. Jain indicated that a Research Associate Fellowship position was available which would be funded by the U.S. Air Force contract and U.S. Army grant. The amount of the fellowship was listed to be $23,000 for twelve (12) months. Dr. Jain did not mention in the November 1, 1991, letter that Petitioner would be employed with FAMU for a period of two (2) years. Dr. Jain did ask that Petitioner indicate whether she would accept the fellowship in writing as soon as possible and also indicate when she could join the Physics Department at FAMU. The November 12, 1991, letter to Dr. Wanton from Dr. Weatherford was for the sole purpose of supplying information to Dr. Wanton's office to begin the process of applying for a J1 visa for Petitioner. A J1 visa would permit Petitioner to enter the United States as long as she worked in a post-doc position at FAMU. The letter was prepared by Dr. Jain for Dr. Weatherford's signature and eventual approval by Dr. Perry. Dr. Weatherford signed the letter without seriously examining its contents. However, the evidence was clear that the letter was not an offer of employment to Petitioner or intended to be part of an employment contract involving Petitioner. Dr. Eva C. Wanton, Dean of School of General Studies, serves as the Responsible Officer for the Visiting Scholars Program at FAMU. As the Responsible Officer, Dr. Wanton prepares forms to invite scholars, students, and researchers to FAMU from foreign countries. Dr. Wanton has been the Responsible Officer at FAMU for twenty (20) years. Dr. Wanton's office assisted the Physics Department in obtaining a J1 visa for Petitioner. In order to obtain a J1 visa from Dr. Wanton's office, a letter must: (1) be submitted from the person wanting to invite the scholar, student or researcher to FAMU; (2) be signed by the dean of college or school inviting the individual; and (3) contain certain information that Immigration requires on the IAP-66 form such as place of birth, date of birth, the person's title in the country the individual is coming from. The IAP-66 forms are kept in a locked location in Dr. Wanton's office and are serially numbered for tracking purposes. Such security is necessary because the forms if stolen can be used by any person to gain entry to the United States. Once this letter is submitted in the manner described above, Dr. Wanton's office then can complete the IAP-66 form which is necessary to obtain a J1 visa. The November 12, 1991, letter met these criteria. The IAP-66 form is issued to the individual prior to the beginning of employment and is used to bring the individual into the United States. The IAP- 66 form is an immigration document not an employment document or contract. Dr. Wanton's office can only process and issue initial IAP-66 forms for a one (1) year period. The forms can be renewed up to three (3) years. However, Dr. Wanton's office only renews the form on an annual basis. One reason for the annual issuance and renewal of the IAP-66 forms is that FAMU only receives funding for research contracts and grants one year at a time. Dr. Wanton's office fills in the information on the IAP-66 form based on the letter requesting the J1 application. Dr. Wanton testified that the information contained in the request letter is used in filling out the IAP-66 form except for the employment period. Dr. Wanton also testified that the copy of the November 12, 1991, letter which Petitioner allegedly received but did not carry the actual signature of Dr. Perry, Dean of the College of Arts and Science, would not have been accepted by her office and would have been returned to Dr. Weatherford to obtain Dr. Perry's signature. The original version of the November 12, 1991, letter with Dr. Perry's actual signature does not indicate that he approved the contents of the letter but that he approved Petitioner to be considered for a J1 visa. After the IAP-66 form was completed for Petitioner, the form was picked up by someone from the Physics Department. The Physics Department was responsible for getting the IAP-66 form to Petitioner. The Physics Department did not receive the original or a copy of the November 12, 1991, letter from Dr. Wanton's office. The original letter was retained by Dr. Wanton's office. Petitioner explained that she though she was entitled to two (2) years of employment based on the copy of the November 12, 1991, letter from Dr. Weatherford to Dr. Wanton but which was not signed by Dr. Perry. However, Petitioner provided no substantial, competent evidence that she received the copy version of the letter dated November 21, 1991, from Dr. Weatherford to Dr. Wanton absent Dr. Perry's signature in the envelope postmarked November 7, 1991. Petitioner's assertion that she received that letter as previously indicated is not credible given the date on the letter, the mail time between Tallahassee and Vancouver the postmark of November 7, 1991, on the envelope and the fact that the November 12, 1991, letter was time-stamped received in the School of General Studies on November 13, 1991, at 1:33 p.m. Petitioner did received a copy of the version of the November 12, 1991, letter containing Dr. Perry's signature from Dr. Wanton's office in April of 1992. In any event, Petitioner, was under the mistaken impression that her research fellowship would be for two years. That impression came solely from Dr. Jain, who FAMU learned after the events of this case occurred had a tendency to overstate his authority and to think he had more authority than he, in fact, had. On the other hand, Petitioner acknowledged that she neither signed nor received a formal employment contract with FAMU that covered a period of two (2) years. Petitioner's counsel also stipulated to the fact that Petitioner had no formal employment contract with FAMU for a period of two (2) years. Petitioner testified that neither Dr. Humphries nor Dr. Hogg made her an offer of employment for a period of two (2) years. Further, Petitioner indicated that she provided a response to Dr. Jain's letter to her dated November 1, 1991, and to Dr. Weatherford's letter to Dr. Wanton dated November 12, 1991. Petitioner claimed that she sent two (2) letters of acceptance but that she did not have a copy of the first letter of acceptance. Petitioner also claimed that her letter to Dr. Jain, dated November 16, 1991, was the second letter of acceptance. In the November 16, 1991, letter, Petitioner indicated that she would fill the post-doc position in the first week of January, 1992. The letter did not mention a term of employment. No substantial, competent evidence was presented to support Petitioner's allegation that she had indeed sent two (2) letters of acceptance. Petitioner received an IAP-66 form from FAMU that covered a one year employment period of January 1, 1992, to December 31, 1992. Petitioner had to have this form and information to enter into the United States. The IAP-66 form listed the amount of Petitioner's salary to be $23,000.00 per year. Petitioner arrived in the United States on January 7, 1992, and started work at FAMU on the following day. Petitioner was issued and signed four (4) different formal employment contracts to cover the period of employment from January 7, 1992, to December 31, 1992, as a Research Associate. The aforementioned contracts expired by virtue of their own terms. These formal employment contracts had the appropriate approval signature of Vice President of Academic Affairs and Provost Richard Hogg, and recommending signatures of Dr. Franklin Hamilton, Dr. Aubrey Perry and Dr. Charles Weatherford. Petitioner was an Other Personal Services (OPS) employee who was paid $15.00 an hour. Petitioner also signed the FAMU Employment Eligibility Verification 1-9 Form, which stated that Petitioner's employment eligibility expired on December 31, 1992. As acknowledged by Petitioner and stipulated to by Petitioner's counsel, Petitioner received no benefits at FAMU other than her paycheck while employed. The evidence was clear that Petitioner was fully aware that FAMU's obligation to employ her ceased on December 31, 1992, even though she may have initially hoped for a longer term of employment before she came to the United States. On August 31, 1992, Petitioner filed a written complaint with the Office of Equal Opportunity Programs at FAMU. At that time the director of the Office of Equal Opportunity Programs at FAMU, was Ms. Mary R. Vaughn. Petitioner alleged that she had been sexually harassed by Dr. Jain. When Petitioner filed her complaint, she received from Ms. Vaughn a copy of Rule 6C3- 10.103, Florida Administrative Code, Discrimination and Harassment Complaint Procedures. Ms. Vaughn also provided Petitioner with FAMU's Policy Statement on Non-discrimination. FAMU's Policy Statement on Non-discrimination was also posted in the Physics Department and observed by Petitioner. Subsequently, Petitioner wrote a letter dated October 7, 1992, to Ms. Vaughn alleging that "retaliatory actions" had been taken against her since she had filed her complaint against Dr. Jain. The two (2) "retaliatory" issues mentioned in Petitioner's letter concerned her mail-slot and library photocopy card both of which had been taken away from her. The letter mentioned also the issues of the continuation of Petitioner's formal employment contract beyond December, 1992, that a salary balance of $600.00 was due to her, and that Dr. Jain had fraudulently charged $21.66 to her husband's telephone number in Vancouver, Canada. In conducting the investigation of Petitioner's complaint of sexual harassment and retaliation, Ms. Vaughn prepared one (1) report and submitted that report to Dr. Humphries pursuant to Rule 6C3-10.125, Florida Administrative Code. Ms. Vaughn's report addressed Petitioner's sexual harassment complaint and retaliation complaint. Ms. Vaughn found that Dr. Jain had sexually harassed Petitioner. She did not find that any retaliatory action had been taken by anyone in the Physics department other than Dr. Jain regarding her library card. Ms. Vaughn made several recommendations including that: (1) disciplinary action be taken against Dr. Jain in the manner of formal disciplinary action and that he be non-renewed as a professor; (2) Dr. Weatherford assume supervisory responsibility of Petitioner; (3) Petitioner's employment as a Research Associate be continued from January 1, 1993 to June 18, 1993, at a rate of $15.00 per hour; (4) Petitioner be provided with appropriate documentation to obtain a work visa extension through June 18, 1993; (5) Petitioner be re-issued a library photocopy card; (6) Petitioner be reassigned a mail-slot in the Physics Department; (7) Petitioner be paid the sum of $600.00; and (8) Petitioner pursue external remedies available to her by her telephone service carrier for appropriate credit to her personal telephone account. Ms. Vaughn prepared and signed a letter for Dr. Humphries dated December 16, 1992, which indicated that the University had determined that Petitioner's sexual harassment complaint had merit. Before signing the letter, Ms. Vaughn discussed the contents of the letter with Dr. Humphries. Dr. Humphries adopted the aforementioned recommendations contained in Ms. Vaughn's report in an attempt to be "more than fair" to Petitioner even though continuation of employment was not required. The December 16, 1992, letter outlines the actions that were taken to provide further remedy and to settle of Petitioner's complaint as based upon Ms. Vaughn's recommendations including the non-renewal of Dr. Jain. FAMU decided to non-renew Dr. Jain rather than terminate him because the process is easier than firing. Dr. Jain denied the sexual harassment and contested his non-renewal and more than likely would have contested any dismissal for the same reasons. FAMU's decision was upheld through the appeal including arbitration. However, irrespective of FAMU's decision to no-renew Dr. Jain as opposed to dismissal, Dr. Jain would have remained at FAMU pending the outcome of his employment litigation. In short, the fact that Dr. Jain remained at FAMU for a short time while Petitioner was still at FAMU was not a retaliatory action on the part of FAMU and FAMU attempted to alleviate the situation by placing Dr. Weatherford in a supervisory position over Petitioner. Dr. Weatherford wrote a letter evaluation of Petitioner, dated November 2, 1992, which was generated at Ms. Vaughn's request. In the letter, Dr. Weatherford evaluated Petitioner's work-performance on the U.S. Air Force contract for the year of 1992. This letter was based on an interview with Petitioner conducted by Dr. Weatherford to determine her knowledge of electron molecule scattering. Both Dr. Weatherford and Petitioner stated that the letter was a fair evaluation. The letter did factor into Ms. Vaughn's recommendation to extend Petitioner's employment on a review of the U.S. Air Force contract under which Petitioner was hired. The Army grant had expired. The U.S. Air Force contract required that technical effort must be completed no later than June 18, 1993. Petitioner was providing technical effort on the U.S. Air Force contract. Therefore, it was appropriate for Petitioner to continue her employment under that contract until its termination date on June 18, 1993. The fact that Petitioner was not extended further was not retaliatory since Petitioner was never entitled to employment beyond the term of the contracts she signed with FAMU and certainly not beyond the term of the remaining Air Force contract under which she had been employed in a post-doc capacity. There is simply no adverse employment action when an employment contract expires by its own terms. Petitioner's employment with FAMU was extended from January 1, 1993, to June 18, 1993. Petitioner also received a J1 visa for this period of time. Furthermore, Petitioner provided no substantial, competent evidence that Dr. Jain had authority to bind FAMU to employ Petitioner for a period of two (2) years. Dr. Jain and Dr. Weatherford could only recommend Petitioner for employment at FAMU. Petitioner also recognized that Dr. Jain alone could not hire her and that Dr. Jain had to get approval from others before she could be hired. Consequently, Petitioner suffered no adverse employment action because once Petitioner's formal employment contract came to an end the employment relationship between FAMU and Petitioner ceased to exist. Petitioner provided no competent, substantial evidence that she was retaliated against because her mail-slot was taken away. The mail-slot was not a guaranteed coemployment benefit, but was provided for the benefit of the University in its mail distribution system. In addition, the mail-slot was taken away. The mail-slot was not a guaranteed employment benefit, but was provided for the benefit of the University in its mail distribution system. In addition, the mail-slot issue was cured by Dr. Weatherford's letter dated November 5, 1992, to Petitioner indicating that her mail-slot had been reassigned due to a mail-slot shortage. The shortage was not shown to be pre- textual and is a valid reason for distributing scarce University resources. Additionally, the evidence was clear that Petitioner had indicated to the Physics Department secretary that she was worried that Dr. Jain was reading or tampering with her mail. The secretary volunteered to keep Petitioner's mail locked in her desk drawer instead of in a mail slot. Petitioner acquiesced in this action and ceased to use her mail slot for a short time. After her disingenuous complaint regarding the lack of a mail slot, Petitioner acknowledged that her mail slot was returned. Given these facts, the evidence was clear that no retaliatory action occurred in regards to Petitioner not having a mail slot for a short period of time. There was no substantial evidence which demonstrated that the remaining allegations of retaliatory actions contained in Petitioner's letter to Ms. Vaughn occurred because of retaliation on the part of FAMU. The $600.00 shortage in pay was not due to any retaliation and was paid. Admittedly, Dr. Jain attempted to reduce Petitioner's salary when she would not comply with his sexual requests. However, these efforts were part of the original sexual harassment complaint, were stopped and cannot be attributed to FAMU. As testified to by Petitioner and stipulated to by Petitioner's counsel, Petitioner's salary was not reduced while employed at FAMU. Petitioner's bi- weekly salary was $1,200.00 for the period of January 1, 1992, to June 18, 1993. Petitioner was paid $45,720.00 while employed at FAMU, which is $280.00 short of what she would have been paid if she had worked two (2) years for $23,000.00 for twelve (12) months. Petitioner also admitted to the fact that she was paid more money than originally agreed upon after her arrival to FAMU and that she was paid more money than $23,000.00 for twelve (12) months. The retaliation by Dr. Jain involving the phone call was personal retaliation on his part and was neither sanctioned nor condoned by FAMU and is not attributable to FAMU. Moreover, these issues were addressed and resolved in FAMU's handling and resolution of Petitioner's complaints to Ms. Vaughn. FAMU took appropriate action for an employer who has had such complaints brought to its attention and took appropriate steps to remedy the situation once it was aware of Dr. Jain's activity. No retaliatory action can be attributed to FAMU. In fact, Petitioner, wrote a letter dated January 4, 1993, to Ms. Vaughn. In that letter, Petitioner stated "Thank you very much for settling the matter and helping me in every way. I wish you a very happy new year." The matter that Ms. Vaughn had settled with reference to Petitioner was the sexual harassment complaint and the retaliation complaint. After January 4, 1993, Petitioner did not indicate to Ms. Vaughn that she was not satisfied with the decision rendered as a result of her sexual harassment complaint and retaliation complaint. Other than the aforementioned complaints, Petitioner stated that she did not file any formal complaints with Ms. Vaughn's office even though she was aware of the process. Petitioner wrote Dr. Weatherford a letter dated January 13, 1993, and indicated that she was interested in filling any openings of regular physics faculty positions available in the Fall of 1993. Petitioner admitted to the fact that she did receive a reply from Dr. Weatherford regarding her letter dated January 13, 1993, in which she requested consideration for a regular faculty position. Later, Petitioner met with Dr. Weatherford allegedly said that "University does not want to hire you." However, Petitioner provided no substantial, competent evidence that she was retaliated against because of an alleged statement by Dr. Weatherford. Petitioner's assertion is not credible given the testimony by Dr. Weatherford and Ms. Sonja Richardson, the Physics Department secretary, that the phrase "university does not want to hire you" is not consistent in the manner in which Dr. Weatherford speaks and was apparent from listening to Dr. Weatherford at hearing. Additionally, Dr. Weatherford denies making such a statement. Subsequently, Petitioner wrote Dr. Weatherford another letter dated April 2, 1993, stating among other things that she wanted to be considered for an adjunct faculty position in the Fall of 1993, and requested that her Research Associate assignment be extended until the beginning of Fall of 1993. In a letter dated April 5, 1993, Dr. Weatherford informed Petitioner that the regular physics faculty positions had not been released by the administration of FAMU and that, if those positions were released, she would be considered for such a position. Dr. Weatherford also explained that Petitioner's Research Associate position could not be extended beyond June 18, 1993. Dr. Weatherford further stated that Petitioner would be considered for an adjunct position for the Fall Semester of 1993. Petitioner admitted to the fact that she did receive Dr. Weatherford's letter dated April 5, 1993, and the he did in fact respond to her letter dated January 13, 1993. Petitioner testified that she taught for three (3) semesters at the Birla Institute of Technology and Science in India beginning February of 1991. While at Birla, Petitioner taught electronics, mathematical physics, optics and rail motion, physical science, and had three (3) labs. During her employment at FAMU, Petitioner testified that she taught two (2) labs in the Spring of 1992, and one (1) course and one (1) lab in the Fall of 1992, and two (2) labs in the Spring of 1993. Petitioner explained that she taught College Physics I and II, and Physical Science Lab repeatedly. Petitioner noted that there was a difference between a course and a lab. Petitioner admitted that the courses and labs she taught were lower level Physics. Petitioner's teaching experience only spanned six (6) semesters. In March of 1993, Dr. Robin Kennedy filled a tenure-track position in the Physics Department. Dr. Kennedy was a former post-doc of Dr. Jack Crow who is the Director of the High Magnetic Field Laboratory. Dr. Kennedy had been at FAMU for at least three (3) years prior to March of 1993. While at FAMU, Dr. Kennedy worked both as a post-doc and adjunct instructor. Furthermore, Dr. Kennedy established FAMU's Condensed Matter Laboratory. Petitioner introduced no evidence or testimony that she applied for this position. Furthermore, Petitioner failed to provide any substantial, competent evidence that she was more qualified than Dr. Kennedy to fill this position or that she suffered retaliation by not being hired to this position. In the Fall of 1993 no regular faculty positions were available. Petitioner provided no testimony or evidence to demonstrate otherwise. In the Fall of 1994, three (3) regular faculty members were hired including Dr. Mogus Mochena, Dr. Edsel Ammons and Dr. Marion Encinosa. Dr. Mochena was a post-doc at FAMU for at least a year and a half. Dr. Mochena worked part of his time directly with Dr. Weatherford. Dr. Mochena worked part of his time directly with Dr. Weatherford. Dr. Mochena taught as a Graduate Assistant at the University of California, Davis. Dr. Mochena taught General Physics at FAMU. Dr. Ammons has taught approximately twenty (2) years, with an extensive background in education. Half of Dr. Ammons twenty (2) years of teaching has been as a Ph.D. Dr. Ammons came for Ohio State University and was a post-doc with Dr. Ken Wilson. Dr. Wilson is a Nobel Prize winner. Dr. Ammons was recommended highly by Dr. Wilson. Dr. Ammons also had a favorable recommendation from Dr. Howard Isenburg of the National Science Foundation. Dr. Encinosa taught at FAMU in the early 1980's for three (3) or four (4) years and then returned in the late 1980's. By 1994, Dr. Encinosa had been at FAMU for some five (5) or six (6) years. Dr. Encinosa was and is an outstanding teacher. Because of his ability, he and Dr. Michael Threapleton were the only adjuncts who were allowed to teach a senior level physics course. The senior level physics course is above General Physics in course difficulty for teaching. While at FAMU, Dr. Encinosa has also taught Quantum Mechanics, Nuclear Physics, Statistics and an honors section of General Physics. During the Fall of 1993, Dr. Encinosa was a Visiting Assistant Professor. Petitioner introduced no evidence or testimony that she applied for those positions. Furthermore, Petitioner provided no substantial, competent evidence that she was more qualified than Dr. Mochena, Dr. Ammons or Dr. Encinosa to fill those positions, or that she suffered retaliation by not being hired to those positions. In hiring individuals to adjunct positions, Dr. Weatherford testified that he has to make an estimate, probable a month or two (2) months before each semester starts of what courses will be offered in the Physics Department. Individuals hired to adjunct positions are OPS employees. Providing such an estimate is complicated by the fact that FAMU and FAMU/FSU Engineering School continue to expand at a tremendous rate. Another factor that Dr. Weatherford has to consider is that he does not know, initially, how much money will be available to hire the OPS adjunct instructors. Dr. Weatherford also does not know what classes will materialize because class offerings are determined by the demand of the students taking the class or classes. Dr. Weatherford sends his estimates to Dr. Perry, Dean for the College of Arts and Sciences, who either accepts or rejects the estimate. Once a schedule of courses is finally completed and accepted, Dr. Weatherford explained that he has to get instructors aligned for the adjunct positions. Individuals are required to fill out formal applications forms and apply for the positions. A curriculum vitae is not an appropriate substitute for completing the formal application and is only a supporting document. Sometimes the paperwork has been completed and people do not get paid because the classes did not make. There have also been times when individuals have been selected to teach a course but cannot be found once classes are started. Consequently, the process in hiring adjunct instructors to teach in the Physics Department is precarious, at best. If Petitioner had applied for an adjunct instructor position, her employment could not have been verified until the projected need for a course or courses had been sufficiently determined. For the Summer Semester of 1993, Dr. Snezana Dalafave, Dr. Peter William and Dr. Mario Encinosa were hired as adjunct instructors to teach in the Physics Department. Regular faculty members have first dibs on adjunct instructor position and were also hired to teach during the Summer of 1993. Dr. Dalafave had been an adjunct instructor for at least a year. Dr. Dalafave was teaching about fourteen (14) to fifteen (15) contact hours. Fourteen (14) to fifteen (15) contact hours is considered full time. Dr. William taught as an adjunct for the first time at FAMU in the Fall of 1992. Before coming to FAMU, Dr. William had post-doc experience and had been working several years at the Super Computer Research Institute (SCRI). Dr. William received very high recommendations of the director of SCRI. Petitioner provided no substantial, competent evidence that she was more qualified than Dr. Dalafave, Dr. William, Dr. Encinosa or other regular faculty members to be hired as an adjunct instructor in the Physics Department for the Summer of 1993, or that she suffered retaliation by not being hired to any of these adjunct instructor positions were available after June 18, 1993, for the Summer Semester of 1993. Seven (7) adjunct instructors were hired in the Fall of 1993. Not all of the post-docs were Ph.D. holders but the majority of them were. The adjunct instructors hired were Dr. Salah Aziz, Dr. Mario Enciosa, Ms. Allison Haydel (Ph.D. student at FSU), Dr. Snezana Dalafave, Dr. Romision Nair, Dr. Z. Xiexu, and Dr. Michael Threapleton. All of these individuals had taught at FAMU in the Physics Department before the Fall of 1993 and had more teaching experience than Petitioner. Dr. Dalafave had taught full time for a full year at FAMU. Dr. Xiexu and Ms. Haydel had taught at FAMU for two (2) years. Dr. Aziz had four (4) years teaching experience at FAMU. Dr. Nair had taught at least five (5) years at FAMU. Dr. Threapleton had been teaching for five (5) years at FAMU. Dr. Encinosa had taught more than five (5) years at FAMU. None of the adjunct instructors who were hired in the Fall of 1993 were less qualified than Petitioner. Petitioner provided no substantial, competent evidence that she was more qualified than Dr. Aziz, Dr. Encinosa, Ms. Haydel, Dr. Dalafave, Dr. Nair, Dr. Xiexu or Dr. Threapleton as an adjunct instructor in the Physics Department for the Fall of 1993, or that she suffered retaliation by not being hired to any of these adjunct instructor positions. In sum, Petitioner presented no substantial, competent evidence that she was more qualified or senior than others who were hired to fill an adjunct or regular faculty position in the Physics Department in 1993 or 1994. Petitioner provided no substantial, competent evidence that Dr. Weatherford retaliated against her by accusing her of making international personal telephone calls from the Physics Department. The alleged accusation occurred in a November 2, 1992, letter from Dr. Weatherford to Ms. Vaughn. The letter was generated at the request of Ms. Vaughn for Dr. Weatherford to respond to Petitioner's letter of October 7, 1992, complaining of retaliation over phone calls by Dr. Jain charged to her husband. In order to respond, Dr. Weatherford reviewed the Department's phone records and noted many calls to the Vancouver area. The letter does mention Dr. Weatherford's concern about telephone calls made to Vancouver, the letter is not accusatory in nature. Furthermore, Petitioner admitted that she had made some personal telephone calls from the Physics Department and would reimburse FAMU for those charges. Petitioner also agreed that Dr. Weatherford's concerns were founded. Given these facts, no retaliation can be inputted to Dr. Weatherford and FAMU regarding alleged accusations of improper phone calls. Finally, Petitioner provided no substantial, competent evidence that she was retaliated against because she "was not allowed to attend an academic meeting at Reno." In fact, Petitioner testified that she could have gone to Reno, Nevada, if she had secured funding to cover the expenses of her trip or had paid for the trip herself. In short, the Petitioner was not prevented from going to Reno, Nevada and attending the conference. Petitioner's assumption that her trip to Reno would be funded through some grant or contract is unfounded especially when Petitioner did not even know whether funds were available at all to cover the expenses of such a trip. Dr. Weatherford testified that when Petitioner asked him about going to Reno he responded that he did not have access to funds to pay for her trip. As indicated by Petitioner in her testimony, attending academic meetings was not part of the employment agreement that she had with FAMU and was not a benefit of employment. Additionally, the lack of funds is a legitimate reason not to send someone to Reno, Nevada for an academic conference. Although Petitioner stated that she did not get a reference letter from Dr. Weatherford, Petitioner did list Dr. Weatherford as a reference on her Curriculum Vitae. Dr. Weatherford testified that he never wrote any letters of recommendation for Petitioner because she never asked him to do so. Petitioner failed to provide any substantial, competent evidence to rebut Dr. Weatherford's testimony. Petitioner, however, did receive a letter of recommendation from Ms. Vaughn, Executive Assistant to the President and Director of FAMU Equal Opportunity Programs per Petitioner's written request. Petitioner acknowledged that Ms. Vaughn gave her a good reference letter.
Recommendation Based on the foregoing Findings of Fact and 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 denying and dismissing the Petition of Relief filed by Indira Khurana in its entirety. DONE AND ENTERED: this 31st day of July, 1995, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 31st day of July, 1995. APPENDIX TO RECOMMENDED ORDER The facts contained in paragraphs 1-14 and 16-35 of Respondent's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 15 and 36 of Respondent's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 1, 2, 4-6, 8, 11-12, 17 and 32 of Petitioner's Proposed Findings of Fact are adopted in substance, in so far as material. The facts contained in paragraphs 3, 9, 10, 18, 19, 21, 22, 25, 36, 37, 38 and 39 of Petitioner's Proposed Findings of Fact were not shown by the evidence. The facts contained in paragraphs 7, 13, 14, 15, 16, 20, 23, 24, 26, 27, 30, 31, 33, 34 and 35 of Petitioner's Proposed Findings of Fact are subordinate. The facts contained in paragraphs 28 and 29 of Petitioner's Proposed Findings of Fact are irrelevant and immaterial. COPIES FURNISHED: David Brooks Kundin, Esquire 906 Thomasville Road Post Office Box 430 Tallahassee, Florida 32302 Bishop C. Holifield, Esquire Avery D. McKnight, Esquire Florida A & M University Office of the General Counsel 300 Lee Hall Tallahassee, Florid 32307 Ronald M. McElrath Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
Findings Of Fact Petitioner took the examination for licensure as a laboratory supervisor in 1981, 1982, 1984 and 1985. In the fall of 1984 he passed that portion of the examination covering Immunohistology but failed the portion covering Supervision and Administration. His score on the Immunohemotology portion was 32 with 31 required for a passing grade. On the Supervision and Administration portion his score was 47 with 48 required to pass. On June 6, 1985, the rules affecting laboratory personnel licensing was changed to require candidates for the examination for which Petitioner applied to hold a bachelor's degree. Petitioner does not hold a bachelor's degree and acknowledged that he does not meet the current academic requirements to sit for the examination. Although the required procedures for making rule changes were followed by Respondent, Petitioner contends that he was not advised of the proposed changes, and, had he been so advised, he would have applied to retake the examination in Supervision and Administration before the rule changes became effective and would have qualified to sit for the examination. Respondent's witness presented Petitioner's record. This record shows that Petitioner, in October 1984 passed the Immunohistology portion of the examination and failed the Supervision and Administration portion by one point. This record also revealed that Petitioner applied to retake the examination in Supervision and Administration in January 1985 and sat for this examination in April 1985. On the examination his test score was 39 with 48 required to pass.
Findings Of Fact Rubin Klein, M.D., dispenses radiation therapy treatments at his office in Hollywood, Broward County, Florida, just north of the Dade County line. He uses two cobalt machines for this purpose. Cobalt's radioactivity fades at an approximate rate of one percent per month, and at least one of Dr. Klein's machines has deteriorated to the point that it cannot be used much longer. Dr. Klein would like to see the failing machine replaced by a linear accelerator, but he does not want to bear the expense of acquiring a linear accelerator, particularly since his practice fell off sharply two or three years ago with the opening of a radiation therapy department at Hollywood Memorial Hospital. Dr. Klein has offered to donate his equipment to petitioner, and petitioner proposes to accept Dr. Klein's donation of his better cobalt unit, to bear the expense of moving the cobalt unit, to acquire a linear accelerator, to construct an appropriate facility, and to install the equipment. Petitioner estimates that it would cost approximately eight hundred twenty-three thousand dollars ($823,000.00) to accomplish this. On the other hand, Dr. Klein estimates that it would cost approximately two hundred five thousand dollars ($205,000.00) to acquire a linear accelerator and to install it in his office. Once the physical changes which it proposes have been accomplished, petitioner proposes to hire Dr. Klein's office staff, including a full-time radiation physicist and two radiation therapy technicians. In August of 1977, petitioner submitted its application for certificate of need, joint exhibit No. 1, receipt of which was acknowledged by Mr. Robert E. Straughn on behalf of the Office of Community Medical Facilities, on August 29, 1977. Joint exhibit No. 2. The staff of the Health Systems Agency of South Florida, Inc. prepared an analysis of petitioner's application, which concluded with a recommendation against approval of the application. Joint exhibit No. 4, p. 31. Because of petitioner's proximity to Broward County, the Health Systems Agency of South Florida, Inc. solicited the views of the Health Planning and Development Council for Broward County on petitioner's application, but these views were never made known. A review committee of the Health Systems Agency of South Florida, Inc. voted against granting petitioner's application. In a memorandum from the review committee's chairperson to the Health Systems Agency's Board of Directors, the committee's reasons were stated as follows: Although this is a transfer and upgrade of existing equipment, it still represents excess capacity for the total community. The project does not foster cost containment since construction costs represent the expense of building a new unit. (The committee felt that such expense would be asking the community to absorb unnecessary costs.) Joint exhibit No. 7. On October 18, 1977, the Board of Directors of the Health Systems Agency of South Florida, Inc. adopted the staff's analysis and voted to recommend denial of petitioner's application because, inter alia, "[i]t is less costly to maintain the facility in its present location." Joint exhibit No. 8. On November 16, 1977, Mr. Art Forehand wrote petitioner that the Office of Community Medical Facilities had also reviewed the application and had also concluded that it should be denied. Joint exhibit No. 9. Petitioner's hospital is located in Dade County on Biscayne Boulevard one fifth of a mile south of the Broward County line. Petitioner has six or seven oncologists on its medical staff and 20 percent of its beds are filled by cancer victims, half of whom receive radiation therapy. The demographic data suggest that cancer patients will continue to occupy petitioner's beds in like or greater numbers. Seventy-eight percent of petitioner's patients are 65 years old or older, an age group three or four times more vulnerable to cancer than the general population. As things now stand, petitioner's patients must leave the hospital in order to receive radiation therapy. This ordinarily necessitates transportation by ambulance. The cost for such transportation to Dr. Klein's office and back is sixty-five dollars ($65.00). Dr. Klein's office is four and one half miles from petitioner's hospital. Approximately three percent of Dr. Klein's patients are hospitalized at Biscayne Medical Center, Inc., and travel to and from his office by ambulance. The practice of radiation medicine occurs more and more in hospitals rather than in radiologists' offices, and this trend is generally believed to be desirable. Tumors may be treated surgically or chemically instead of or in addition to being treated with radiation. Physicians sometimes disagree among themselves as to whether surgery, medicine or radiation is indicated in a given case. Petitioner's cancer patients would benefit from examination by a radiation oncologist as well as by other medical specialists. A cancer victim who presents himself at a radiologist's office may not have been examined beforehand by a medical oncologist or by a surgical oncologist; a cancer patient who has been admitted to a hospital is perhaps more likely to be examined by these specialists before a course of treatment is settled on. Chemotherapy and various heat treatments, which are more readily administered in a hospital setting, may enhance the beneficent effects of radiation in some cases. Hospitalization facilitates observation of patients and detection of untoward side effects. In practice, however, nine outpatients for every one inpatient "tends to be the normal spread for a radiation therapy department." (R326) Radiation emitted from a linear accelerator can be focussed more sharply than radiation emitted from a cobalt unit. For Hodgkin's disease, certain pituitary and other disorders, a linear accelerator is a much better means of treatment than a cobalt unit is. Since radiation tends to destroy human tissue, whether diseased or healthy, the linear accelerator's relative precision can be a significant advantage in a wide range of cases. Treatment takes more time with a cobalt unit, especially one with a failing source of radiation. Dr. Klein estimates he could treat a fifth again as many people in the same time, with a linear accelerator. What constitutes optimum utilization of radiotherapy equipment is a matter of debate. Dr. Richard Johnson testified that six to seven thousand patients annually constitute "the maximum you can give good treatment," (R153) apparently on the basis of a 35 hour work week. (Rl54) On the other hand, the staff of the Health Systems Agency of South Florida, Inc. used a 48 hour work week in its calculations and concluded that both Dade and Broward County have substantial excess capacity in radiotherapy equipment. Both Dade and Broward Counties do, in fact, have excess capacity in radiotherapy equipment. On the assumption that Dr. Klein's practice would grow, if removed to petitioner's hospital, and on the assumption that Dr. Klein would charge (in addition to the hospital's charges) twenty dollars per procedure (which he indicated was the very minimum he might charge), Mr. Donald Dahlfues testified that the federal government might be billed less for the same number of treatments if Dr. Klein performed them in petitioner's hospital than if he performed them in his present office. The foregoing findings of fact should be read in conjunction with the statement required by Stuckey's of Eastman, Georgia v. Department of Transportation, 340 So.2d 119 (Fla. 1st DCA 1976), which is attached as an appendix to the recommended order.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's application for certificate of need. DONE and ENTERED this 17th day of April, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of April, 1978. APPENDIX Paragraphs one, two, three, four, five, six, seven, eight, nine, ten, eleven, fourteen, fifteen, and nineteen of petitioner's proposed findings of fact are generally supported by the evidence and have largely been adopted, in substance, insofar as relevant. Paragraph thirteen of petitioner's proposed findings of fact recites an "optimum accepted utilization rate" which was not established by the evidence. Paragraph sixteen of petitioner's proposed findings of fact is not supported by the evidence and has not been adopted for that reason. One of petitioner's witnesses indicated that 90 percent of the anticipated use of the equipment would be on an outpatient basis. While another of petitioner's witnesses claimed that hospital bed time would be reduced in some cases, petitioner's administrator is looking to "increased inpatient days as a result of having the equipment" (R43) to help defray the cost of the equipment. Paragraph seventeen of petitioner's proposed findings of fact states a debatable policy conclusion rather than a fact established by the evidence at the hearing. Paragraphs eighteen, twenty and twenty-one of petitioner's proposed findings of fact are not supported by the evidence as a whole and have not been adopted for that reason. Paragraphs one, three, four, five, six, seven, eight, nine, ten, thirteen, fourteen, sixteen, seventeen, eighteen, nineteen and twenty-one of respondent's proposed findings of fact are generally supported by the evidence and have largely been adopted, in substance. COPIES FURNISHED: Edward R. Rumin, Esquire Adams and Adams 2870 East Oakland Park Boulevard Fort Lauderdale, Florida 33306 Milton E. McRay, Esquire 6502 Powers Ferry Road, N. W. Atlanta, Georgia 30339 Steven W. Boss, Esquire 1323 Winewood Boulevard Room 309 Tallahassee, Florida 32301
The Issue The issue in this case is whether the Petitioner's application for certification by examination as a basic X-ray machine operator should be approved or denied.
Findings Of Fact In February 2009, the Petitioner submitted an application to the Respondent for certification by examination as a basic X-ray machine operator. The application was submitted by “Ultimate Medical Academy” (UMA), where the Petitioner obtained his basic X-ray training, but the Petitioner provided the information contained therein and was responsible for the accuracy of the application. On the Petitioner’s application, he stated that he was employed in “basic x-ray” at Palm Harbor MRI, and indicated that “100%” of his time at Palm Harbor MRI was related to duties other than radiography, nuclear medicine, or radiation therapy. On February 19, 2009, the Respondent notified the Petitioner that the application was incomplete because it lacked a criminal history record from the Florida Department of Law Enforcement. On April 14, 2009, the Respondent received the Petitioner’s criminal history record, which revealed convictions between the years 1993 and 2002, and related periods of incarceration, for retail theft, felony grand theft, felony uttering of forged checks, other forgeries, and failure to appear. The Petitioner was also convicted of federal crimes, including possession of counterfeited checks in 2000 and felony uttering a forged check in 2002. The Petitioner spent three years in federal prison and, in December of 2003, was transferred to a halfway house after his release. His most recent sentence included a probationary period that expired at the end of May of 2007. As part of the application process, the Petitioner advised the Respondent that his civil rights had been restored on January 31, 2008. The Petitioner provided documentation to the Respondent that spelled his first name as “Erin.” For purposes of this Recommended Order, the restoration of civil rights has been deemed applicable to the Petitioner. The Respondent reviewed the Petitioner’s application, including the criminal history and the restoration of civil rights, and denied the application because of the Petitioner’s criminal history. The specific basis for the denial was the Respondent’s concern with the access an X-ray operator has to the personal belongings and medications of a patient while X-ray images are obtained, as well as to the personal and medical information contained within patient records. After receiving the Respondent’s decision, the Petitioner requested an administrative hearing to challenge the denial. After issuing the initial Notice of Intent to Deny, the Respondent became aware of potential issues related to the Petitioner’s employment during and after his training at UMA. As part of his educational training, UMA placed the Petitioner into an externship at Palm Harbor MRI for a six-week period of clinical practice. The externship ended on April 4, 2008, when he graduated from the UMA. The quality of the Petitioner’s job performance at Palm Harbor MRI is not at issue in this proceeding. There is no evidence that he was not competent to perform the tasks assigned to him during the externship. On April 9, 2008, the Petitioner began working as a full-time employee at Palm Harbor MRI. He performed some customer contact duties, greeting patients and gathering information. His duties also included placing and positioning patients on the X-ray table, imputing the machine settings (“technique”) and operating the X-ray machine, including the administration of radiation to obtain the desired images. Positioning patients for X-rays, machine technique, and operating the radiation equipment constitutes the practice of radiologic technology. The Petitioner was supervised by a licensed technician at all times during his positioning of patients and operation of the machine. The Petitioner performed these duties without being properly licensed. After the Respondent learned of the Petitioner’s job responsibilities at Palm Harbor MRI, the Respondent issued an Amended Notice of Intent to Deny that identified the alleged unlicensed activity as an additional basis for denial of the application. The Respondent also initiated a review of the Palm Harbor MRI facility’s operating procedures that was continuing at the time of the hearing. The application information originally disclosed by the Petitioner was inaccurate because it failed to reveal that he was involved in performing radiography at Palm Harbor MRI. In May 2009, the office manager at Palm Harbor MRI requested that the Petitioner provide a copy of his certificate, apparently unaware that the Petitioner had no license at that time. When he was unable to provide the certificate, his employment was terminated on May 18, 2009. The Petitioner has asserted that he was exempt from licensure because he was a student attending St. Petersburg College (SPC) with the intention of being admitted to the SPC radiologic technology program, and ultimately to become licensed as a radiography technologist. Students attending a medical school or “enrolled in and attending” a radiologic technology educational program are statutorily exempt from licensure during their educational period; however, there is no evidence that UMA students are entitled to the exemption. Although SPC has a radiologic technology educational program, the Petitioner has neither been admitted to the program nor attended any classes within the program’s curriculum. Additionally, Palm Harbor MRI is not an approved clinical training site for students enrolled in and attending the SPC radiography program. The Petitioner had not applied to the SPC radiography program prior to termination of his employment from Palm Harbor MRI, and the applications subsequently submitted by the Petitioner for application to the SPC radiography program were denied. There was no credible evidence presented at the hearing that the Petitioner was a medical student or was enrolled in and attending a radiologic technology educational program at any time relevant to this proceeding.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health enter a Final Order denying the Petitioner's application for certification by examination as a basic X-ray machine operator. DONE AND ENTERED this 29th day of December, 2009, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 29th day of December, 2009. COPIES FURNISHED: Donna Erlich, Esquire Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703 C. Erica White, Esquire Quintairos, Prieto, Wood & Boyer, P.A. 215 South Monroe Street, Suite 510 Tallahassee, Florida 32301 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Dr. Ana M. Viamonte Ros, Secretary State Surgeon General Department of Health 4052 Bald Cypress Way, Bin A00 Tallahassee, Florida 32399-1701
The Issue Whether the Respondent, Reichhold, Inc., has committed an unlawful employment practice contrary to Section 760.11, Florida Statutes.
Findings Of Fact Respondent owns a chemical plant that produces resins, copolymers, polymers, alkyds, amines and hardeners, for various applications in paints and coatings. It is an equal opportunity employer. Its policy prohibiting discrimination is posted on the company’s intranet site, to which all employees have access. In order to produce its products, Respondent uses a variety of chemicals in its production process. The chemicals used in the plant are volatile substances which, if dealt with improperly, can cause explosions, flashes, or fires, endangering plant employees and the surrounding community. These chemicals are expensive, dangerous, and are subject to tight safety and environmental regulation. In addition, many of the products are created under heat and pressure conditions inside a closed mixing and/or distilling chamber known as a reactor or kettle. The reactors are connected in a production line by a system of pipes. Each reactor has a set of controls which allow the reactor to be opened and closed for the addition of chemicals to the reactor. Failure to close other reactors in the line can cause a chemical to be added to the wrong reactor. Respondent has developed a number of written procedures that operators must follow when mixing chemicals or performing certain tasks, such as cleaning the reactors products. Written procedures for operating a reactor are known as Standard Operating Procedures and are available at all times for operators to consult in performing their duties. Operators must also follow a recipe for a product known as a batch ticket. The batch ticket provides the formula for a given product, including quantities of specific materials, plus instructions on when and how to add chemicals to the mix to produce the desired product. If the responsible operator follows the batch ticket for a given product, the resulting batch of chemicals should meet all applicable quality standards for that product. If the operator does not follow the batch ticket, then the product will not meet quality standards. A non-conforming product can sometimes be salvaged by adding additional raw materials to bring it within product specifications. Such corrections increase the price of the batch. However, it is not always possible to salvage a non-conforming product. This results in a loss of raw materials and sometimes causes disruption in product delivery schedules and significant clean-up costs for the Respondent. Therefore, it is very important for operators to follow operating and batch ticket procedures precisely and to communicate immediately with their supervisors if they notice any problems with the batches they are working. The production system at the plant is continuously monitored by a computer system that logs actions taken by an operator for a line of reactors. The system also monitors the internal environment of the kettle such as temperature and pressure and sets off alarms when certain processes are not met. Inventory logs are also maintained by computer via operator input. Individual reactors are also monitored by the assigned operators. The United Steel Workers Union represents the operators at the Pensacola plant. The collective bargaining agreement between the union and Reichhold contains a non-discrimination clause. All employees in the unit, including Petitioner, have the right to file a grievance whenever they believe that the company has violated a provision of the collective bargaining agreement. Petitioner has not filed any grievance regarding any alleged discriminatory action discussed in this order. The union collective bargaining agreement also provides for the discipline of employees through a progressive disciplinary system. The progressive disciplinary system was instituted at the Pensacola facility in 2004 after consultations with the President of the United Steel Workers Union and eventually placed in the union contract. The policy defines four categories of misconduct: minor, major, severe, and termination. The category of “major misconduct includes “violation of product quality standards,” “violation of safety procedures,” and “activities that create product delivery problems.” The category of “severe” misconduct includes a “ mischarge or mispump” and a “misadjustment.” A “mischarge” occurs when the wrong material is added to a batch. After implementation of the progressive discipline policy, discipline began to be administered more frequently in the Pensacola plant. The increased level of discipline affected everyone regardless of race. The record contains 36 exhibits reflecting disciplinary actions issued to both white and black employees during and after 2004. Petitioner is a black male. Petitioner was hired by the Respondent at its Pensacola plant, on September 7, 1993. Petitioner was terminated from his job on April 3, 2006. At the time of his termination, he was 54 years old. Petitioner began his employment with Respondent as a laborer. He worked as a laborer until January 1994. In January 1994, Petitioner was promoted to a material handler position, also known as a “C” operator. The primary responsibility of a material handler is to load chemicals into the reactors. Petitioner held this position for approximately one year. Eventually, Petitioner was promoted to the position of an “A” operator and was an “A” operator at the time of his discharge. “A” operators are the highest level operators in the plant. The principal responsibility of an “A” operator is to monitor the reactors to which he has been assigned at the beginning of his shift. On October 22, 2004, Petitioner was working the night shift with two other operators, Ernest Anderson (African- American) and John Monti (White). Petitioner was assigned to monitor two reactors during his shift on October 22, 2004. Monitoring a reactor requires the operator to monitor the Johnson Yokagawa Control (JYC) system for any alarms or adverse conditions it detects in the reactors. All three of the operators on the night shift were responsible for monitoring the JYC system. During Petitioner’s shift on October 22, 2004, the temperature in one of the tanks tripped the alarm. The alarm was shut-off without any action being taken to address the issue of the elevated temperature in the tank. Over the next ten hours, the alarm continued to sound every ten minutes and was continuously manually silenced without any steps being taken to resolve the underlying problem that was causing the elevated temperature. When the day shift arrived, an “A” operator noticed the problem, immediately stopped the reaction and called an outside contractor to come in and repair a chiller that had broken and had caused the elevated temperature in the reactor tank. Had the overheating tank not been caught by the day shift employees, it could have exploded, causing major damage to the plant and the surrounding community. During most of the shift, but not all, Petitioner had been cleaning a filter on one of his reactors and was away from the room where the JYC system is housed. He, therefore, did not see or hear the alarm. Petitioner admits that he did not monitor the JYC system for both of his reactors throughout his shift as procedures require him to do. The company investigated the incident. None of the operators admitted to hearing or silencing the alarm. Because all three operators failed to respond to the alarm and because of the very serious potential consequences of their failure, Respondent issued a suspension for negligence to all three operators on duty during the night shift on October 22, 2004. There was no evidence that any other employee who failed to report a JYC alarm were not disciplined. The evidence did not demonstrate that Respondent’s disciplinary action was unreasonable or discriminatory. On March 17, 2005, Petitioner was responsible for adding VMP solvent to help cool product 16901-00, lot #217946, for the second stage reflux distillation. During this process, the disc in the reactor ruptured because of a build-up of pressure and temperature due to moisture entering the reactor. The JYC log showed that the pressure in the reactor had reached 25.24 psi and the column temperature had reached 125 C. As a consequence of the rupture, the sight glass gasket on the column was damaged and had to be replaced. As a result, Respondent incurred significant costs in repairing the blown disc and sight glass. These costs included the actual cost of the disc and the sight glass gasket. In addition, the reactor could not be operated during the repairs, which cost the company production time. Respondent also conducted an investigation of this incident. The investigation revealed that the decanter was found to be over half full of resin. Based upon the investigation, the JYC information and the nature of the chemical distillation process, Respondent concluded that Petitioner either: (1) did not control the cooling solvent for the second stage of cooling and caused a violent reaction that triggered an overflow and pressure build- up that resulted in the blown disc; or (2) failed to properly drain all of the water from the decanter before adding the VMP, which caused an overflow back into the reactor and the blown disc. Petitioner thought the water may have been in the solvent pipes used to pump the chemicals into the reactor. Under any scenario, Petitioner failed to follow the operating procedures for his reactor and he failed to take appropriate action to prevent the failure of a pressure relief device. On April 5, 2005, due to the progressive disciplinary policy and the serious nature of uncontrolled temperature and pressure build-ups in a reactor, Respondent placed Petitioner on a three-day suspension for negligence. The written notification given the Petitioner stated: “Any recurrence of this or any other poor work performance will result in termination from Reichhold, Inc.” At the hearing, Petitioner was unable to specifically identify any other white or younger employee who blew a rupture disc and was not disciplined. Although Petitioner claims that other employees blew rupture discs, his knowledge is based on hearsay or speculation. The one instance that Petitioner was aware of occurred after Petitioner’s discharge, but prior to the hearing in this matter. In that instance a rupture disc blew on a reactor being operated by a white employee. However, the disc blew because the disc was faulty, not because of operator error. The disc was not supposed to rupture until ten pounds or more of pressure occurred in the reactor. According to the computer log, the disc ruptured prematurely at only 6.7 pounds of pressure. Because there was clearly no operator error no discipline was imposed. The incident is not comparable to Petitioner’s situation and there was no evidence that showed Respondent’s disciplinary action was unreasonable or discriminatory. On July 23, 2005, Petitioner was working with two “D” operators, Robert Atkins (African-American) and Ralph Davis (African-American), all of whom were responsible for a batch of 16827-00, lot 215786, a type of chemical that Respondent mixed for sale to a customer. During the process, Petitioner added too much Pentaerythritol Pure Mono to the batch causing a mischarge of the product. Later, Petitioner sampled the product and found that it was running high in acid value and was out-of-specification. He added glycerin to the reactor to try to bring the product back into specification. Petitioner’s action, however, was not sufficient to correct the problem and the product remained out- of-specification. In the end, the product could not be salvaged and two shipments to the customer were missed. Respondent conducted an investigation into this incident and concluded that Petitioner was responsible for the mischarge and had failed to follow the batch ticket recipe. Petitioner admitted that he was responsible for this mistake. Even though Petitioner could have been discharged under the progressive disciplinary policy, he was not. By disciplinary action issued on August 3, 2005, the company issued Petitioner a three-day suspension for negligence. The written notification received by Petitioner again stated: “any recurrence of this or any other poor work performance will result in termination from Reichhold, Inc.” The two “D” Operators, who were substantially younger than Petitioner, received final written warnings for the same incident. Final written warnings are lower levels of discipline under the progressive disciplinary policy. They received less discipline because it is ultimately the "A" operator’s duty to ensure the correct material is charged into the reactor. There was no evidence of any other employees who committed mischarges and who were not disciplined. On the other hand, there was evidence that Respondent has disciplined white operators for similar mistakes. For example, on January 25, 2006, Doyle Caudell was responsible for a mischarge to reactor number two. Like Petitioner, he was issued a three-day suspension for the mischarge. There was no competent evidence that the discipline imposed on Petitioner was unreasonable, discriminatory or pretextual. On June 25, 2005, Petitioner was responsible for batch 16070-00, lot 239480. During his shift, Petitioner mistakenly entered 1,919 pounds of castor oil, code 4016 to the company’s inventory tracking system known as "SAP." The amount that should have been entered was 2,919 pounds of castor oil that he actually used in the production process. One of the responsibilities of an “A” operator is to accurately enter all raw materials into the company’s computer system to ensure other Reichhold employees order the necessary supplies for upcoming production needs. Because of Petitioner’s error, the company’s inventory showed that it had 1,000 more pounds of castor oil than it actually possessed. Petitioner’s error was not discovered until August 8, 2005, when Respondent planned to mix another batch of 16070-00. The company did not have enough castor oil on hand to mix the batch. As a result, Respondent was forced to delay production of 16070-00, until enough castor oil could be delivered to the plant. On August 18, 2005, Petitioner was not discharged, but issued a final written warning for negligence. The disciplinary notice again stated: “any recurrence of this or any other poor work performance will result in termination from Reichhold, Inc.” The evidence showed that Respondent has disciplined a white operator for the same type of mistake. Jimmy Dickens received a one-day suspension for transposing numbers on a calculation which shorted inventory and created an off specification batch. There was no evidence that Respondent’s disciplinary action was unreasonable, discriminatory or pretextual. On March 17, 2006, Petitioner was responsible for the production of batch 16827-00, lot 309864 in Reactor 7(R7). During the processing and sampling of the product, Petitioner found that it was running high in acid value. He added two 700 pound hits of glycerin to the reactor to try to bring the product into specification. The product, however, could not be saved and was placed into storage until the company could prepare a plan to try to salvage the materials. While Petitioner was working on his batch of 16827-00 in R7, a batch of 16406, lot 309785 was processing in Reactor 1 (R1), a different reactor on the same line as R7. During the sampling of R1 batch, it was observed to be running low on viscosity and acid value. As a result, 2,421 pounds of Phthalic Anhydride was added to R1 to bring batch 16406 back into specification. Respondent investigated the problem. The computer log showed that Petitioner had logged that he added 2,393 pounds of glycerin to R7. However, Respondent tested the Hydroxyl values of both batches (16827-00 and 16406) which did not corroborate the addition of the glycerin to R7. The process information (PI) data showed a drop of 17 degrees in R1 during the time the glycerin was supposed to be cooling R7, showing that the glycerin had been charged or fed into the wrong reactor on the line. The only way the glycerin was able to enter R1 was because Petitioner failed to close the glycerin valve on R1 prior to attempting to pump the glycerin into R7. Thus the glycerin flowed into R1 instead of R7. Within the 18-month period prior to his discharge, Petitioner had engaged in conduct prompting three suspensions and a final written warning. Based upon Petitioner’s mischarge on March 17, 2006, and his prior record of negligence in performing his duties, Respondent terminated Petitioner on March 30, 2006. There was no evidence of any other employees with five similar disciplinary actions within an 18-month period that were not discharged. Petitioner was replaced by Phillip Nared (Black). Mr. Nared voluntarily resigned after 120 days and was replaced by Jason McGruder, also Black. Petitioner testified that Terry King caused a spill from a monomer tank and was not disciplined. Terry King is a White A operator at the Pensacola plant. However, Petitioner does not know when the alleged spill occurred, and did not witness Terry King engage in any conduct that caused the spill. Rather, Petitioner walked up on the spill after it had already occurred. All of Petitioner’s knowledge regarding this incident is based on either speculation or hearsay. Petitioner did not present any other evidence corroborating his allegations regarding Terry King. Therefore, this evidence is inadmissible and insufficient as comparator evidence. Moreover, Petitioner introduced no other competent evidence about Mr. King’s disciplinary history or other alleged incidents he was involved in for which he received no discipline. Therefore, no meaningful comparison of the disciplinary histories of Mr. King and Petitioner can be made. Petitioner also testified about David Blair. David Blair is a white A operator at the Pensacola plant. Petitioner contends that Mr. Blair also caused a spill from the monomer tank. However, the spill was caused by faulty equipment. As with Mr. King, Petitioner did not see Mr. Blair engage in any conduct that caused the spill. Rather, he saw the spill after it had already happened and was unaware of its cause. Therefore, Petitioner’s evidence of Mr. Blair’s alleged involvement in the spill is not based on his own personal knowledge but rather is speculation. Again, Petitioner introduced no evidence about Mr. Blair’s disciplinary history or other alleged incidents he was involved in for which he received no discipline. Therefore, no meaningful comparison of the disciplinary histories of Mr. Blair and Petitioner can be made. Doyle Caudell is another white A operator at the Pensacola plant that Petitioner felt received more favorable disciplinary treatment than he did. Petitioner contends that Mr. Caudell was not disciplined for (1) and alleged mischarge to the monomer tank; and (2) a flash fire incident in May 2005. Petitioner learned about the alleged mischarge to the monomer tank based on a statement from Carl Martion who was repeating an alleged statement from Doyle Caudell. Petitioner introduced no other evidence regarding this alleged mischarge. Consequently, it is based on uncorroborated hearsay and is not as comparator evidence. Similarly, Petitioner was not working when the flash fire incident occurred, and again, his knowledge of the incident is based on uncorroborated hearsay. Respondent investigated the flash fire incident. The incident occurred when a reaction inside a reactor caused the reactor to “flash” while two operators, one of whom was Doyle Caudell, were in the process of charging (loading) the reactor. The force of the flash knocked one of the operators backwards, causing injury to the operator. Respondent concluded that the flash fire was not caused by operator error but rather by a faulty nitrogen valve and faulty procedures regarding when to apply heat to the reactor. The company changed its procedures after the incident to specify that heat should not be applied to the reactor during the charging process. As a result of the investigation, the operators were not disciplined for the incident. Respondent concluded that Mr. Caudell did not violate any operating procedures and was not responsible for the flash fire. Petitioner introduced no competent evidence to rebut the Company’s conclusion that the flash fire was caused by faulty equipment and procedures. Petitioner testified that he was trained by Respondent that heat should never be applied to a reactor while loading chemicals because the pressure created by the added heat could cause the chemical being added to “blow back” out of the reactor. However, the evidence showed that this “Procedure” was not consistent or in place for all types of batches made by the Pensacola plant. Such procedures varied depending on the product being made. Therefore Petitioner’s testimony is insufficient to overcome the data records maintained by the Respondent for the batch that caused the flash fire. Moreover, Mr. Caudell’s disciplinary history was not comparable to Petitioner’s record. In the same 18-month period, Mr. Caudell only received two disciplinary actions. Thus, even if Mr. Caudell had been disciplined for the flash fire incident, his disciplinary record still would not have been as extensive as Petitioner’s record. Petitioner also testified that in June 2006, Jimmy Dickens (white) falsified company records. Again Petitioner was not present during the time of the alleged falsification. The evidence showed that Mike Weaver, Mr. Dickens supervisor, suspected Jimmy Dickens of falsifying company records. The records did not affect safety or production issues. Mr. Weaver investigated but did not find sufficient evidence of falsification and did not feel comfortable with drawing a formal conclusion that Mr. Dickens had, in fact, falsified records. Therefore, Mr. Weaver verbally counseled Mr. Dickens and documented the incident in Mr. Weaver’s own files. There was no evidence that Mr. Weaver’s actions were unreasonable or that Mr. Dickens alleged falsification was similar to Petitioner’s actions. Likewise, this one incident does not support a finding of preferential treatment for white employees over black employees. Lastly, in 2006, Respondent terminated Jimmy Dortch, a white manager who was over 40 for poor performance. Petitioner offered no competent evidence on the issue of age discrimination and the evidence does not demonstrate that Petitioner was discriminated against or that Respondent’s disciplinary actions were a pretext to cover up discrimination. Therefore the Petition For relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 2nd day of August, 2007, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 2nd day of August, 2007. COPIES FURNISHED: R. John Westberry, Esquire 1308 Dunmire Street, Suite B Pensacola, Florida 32504 Gretchen W. Ewalt, Esquire Ogletre, Deakins, Nash, Smoke and Stewart, P.C. 2301 Sugar Bush Road, Suite 600 Raleigh, North Carolina 27612 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based upon all of the evidence, including the stipulation of counsel, the following findings of fact are determined: Petitioner, First Environmental Laboratories, Inc. (FEL), is a Delaware corporation organized on April 10, 1989, for the purpose of owning, operating and carrying on an environmental laboratory testing business. It has no divisions or subsidiaries. Its principal place of business is located at 2 Stewart Court, Bridgeview Business Park, Denville, New Jersey. The corporation was issued a certificate of authority to transact business in the state of Florida on September 1, 1989. Under that certificate, FEL has engaged in business operations and transactions with public entities as defined by Section 287.133, Florida Statutes. One such entity is the Department of Environmental Protection for whom FEL has provided services and bid on contracts. FEL commenced active business operations on May 1, 1989. Effective the same date, Richard D. Posner was employed by FEL to be president of the company and to manage its business. Prior to joining FEL, Posner had been employed for many years by a company named United States Testing Corporation (USTC) in a senior management position. USTC also provides environmental laboratory testing services and is registered to do business with the state of Florida. Posner caused FEL to employ certain other individuals who worked for him at USTC. Among others, they included Jane Dunn, Stephen Pevera, Seyed Dastgheyb, Hossein Behzadi and Eliezer Patxot (Posner associates). In August 1989, FEL was served with a complaint in a civil lawsuit filed by USTC in Superior Court of New Jersey. Named as defendants were Posner, the Posner associates, FEL and Inchcape Inspection & Testing Services Limited, an affiliate of FEL located in England. The lawsuit alleged, among other things, that Posner and the Posner associates, while employed at USTC, had committed certain wrongful acts at issue in a government investigation of USTC. FEL received a notice of temporary suspension from the Environmental Protection Agency (EPA) dated June 15, 1990, for a period of one year. The notice was based on what Posner and the Posner associates were alleged to have done while with USTC and the fact that they were subsequently employed by FEL. The EPA determined that FEL and Posner and his associates were "affiliates." The notice did not cite, however, any wrongdoing on the part of FEL, nor was it alleged that Posner and the associates committed any wrongful acts while employed by FEL. By notice dated May 17, 1991, FEL's notice of temporary suspension by the EPA was amended to include allegations with respect to certain laboratory testing work performed by FEL in connection with a contract being performed by a company named EG&G for the Air Force. Subsequently, the suspension period was extended for a period of six months. Posner and the Posner associates received individual notices of temporary suspensions from the EPA on June 19, 1990. The suspensions were for a period of one year and were based on acts committed by them while with USTC. None of the improper activities contained in the notices involved FEL. FEL has not had any fines or damages imposed against it which would require payment. Moreover, FEL has cooperated with the EPA and the Department of Justice. More specifically, it submitted proposals to restructure the company, realign positions and duties, terminate certain personnel, including Posner and the Posner associates, and institute new quality assurance procedures. In addition, when it learned of the federal criminal investigation, it cooperated by providing copies of documents in its possession to the federal government. The federal government's investigation centered on the activities of Posner and the Posner associates while with USTC, and included inquiry into the activities of Posner and the others while they were with FEL. The inquiry also focused on FEL's laboratory testing work in connection with the EG&G/Air Force contract. No charges were ever brought against FEL in connection with this investigation. Posner was later convicted in Federal District Court on two counts of violating Title 18, United States Code, Sections 1001 and 1002, a public entity crime. He was thereafter placed on the Florida convicted vendor list on May 17, 1993, by order of respondent, Department of Management Services (DMS). FEL fully cooperated with DMS in connection with this investigation. It has disassociated itself from Posner, the Posner associates, and certain other employees hired by Posner by terminating their employment. Their termination occurred prior to Posner's conviction of a public entity crime and thus Posner was not active in the management of FEL after being convicted. FEL's temporary suspension by the EPA expired on December 20, 1991. The EPA did not seek to extend or reimpose the suspension of FEL or to debar or otherwise preclude FEL from bidding on or performing government contracts. FEL is not now subject to any suspension, debarment or other similar action by any federal, state or local government department or agency. Placing FEL on the convicted vendor list will reduce competition in the procurement of laboratory testing services. Also, both parties agree that FEL has demonstrated good citizenship by voluntarily terminating Posner's employment after it became evident that there was apparent substance to the charges against him by the EPA and the Justice Department, and by cooperating with investigations by those agencies and DMS.
