The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 October, 2012.
The Issue Whether the undisputed facts of this case support a Final Order of Dismissal against the Respondent, Agency for Health Care Administration.
Findings Of Fact On or about May 3, 2004, after the commencement of the hearing in DOAH Case No. 04-0217RU, AHCA announced it intended to engage in rulemaking for the subject matter addressed by the rule challenge (the statewide rates described above). DOAH Case No. 04-0217RU went into abeyance pending the results of the agency’s rulemaking effort. The Respondent scheduled a “rule development workshop” for June 8, 2004. On or about October 8, 2004, AHCA published a notice in the Florida Administrative Weekly that scheduled the public hearing in the cause, proposed a rate table, and gave persons interested in participating in the matter who wished to provide information regarding the “statement of estimated regulatory costs” to file such information within 21 days. The Petitioners timely responded to the notice. The Petitioners did, in fact, submit information regarding the statement of estimated regulatory costs. Whether or not AHCA was “required” to respond to the information provided by Petitioners is unknown. The Respondent did not notify the Petitioners that it was not “required” to consider the information. The parties participated in a public hearing on the subject matter of the rule on November 2, 2004. The Respondent did not notify the Petitioners at the public hearing that it would not respond to the information regarding the statement of estimated regulatory costs. In fact, AHCA elected to review the information and did prepare a response to the Petitioners. On December 23, 2004, AHCA issued the response to the information provided by the Petitioners regarding the statement of estimated regulatory costs. Whether or not the response was “adequate” under the law is not known. For purposes of this matter, it is undisputed that the Respondent tendered the response. On December 27, 2004, AHCA filed the proposed rule (designated in this record as Rule 59G-8.200) with the Secretary of State. The notice of the filing of the instant rule with the Secretary of State was published in the Florida Administrative Weekly on January 14, 2005. The subject rule became “effective” on January 16, 2005. The Petitioners first challenged the “proposed rule” on January 11, 2005. At that time the publication of filing of the rule was not publicly available. There was no published notice prior to January 11, 2005, to indicate that the proposed rule had been filed with the Secretary of State. After the petition challenging the “proposed” rule was filed with the Division, the case was set for hearing for February 7, 2005. At that time the Respondent filed a series of motions seeking to continue the hearing, limit the Petitioners to specified issues, and to require a more definite statement. Essentially, the Respondent has maintained that the Petitioners did not timely file the proposed rule challenge and that the petition to challenge the existing rule is inadequate. The Petitioners intended to challenge the proposed rule and were unaware that the rule had been filed until January 14, 2005. The Petitioners sought to amend their petition challenging the proposed rule. At the hearing commenced on February 7, 2005, the procedural issues of the matter became more fully evident to all parties. At one point during the proceedings, the undersigned asked counsel for the Respondent when the Petitioners were afforded a point of entry to challenge the proposed rule. While the Respondent maintained the Petitioners had not adequately alleged the factual basis for their challenge, the procedural issue of whether the rule at issue was a “proposed” rule verses an “existing” rule had not been fully deciphered. The Respondent’s legal position, as noted by counsel, continued to be that the rule was an existing rule, that the Petitioners had not fleshed-out their claims sufficiently to meet a due process burden, and that the Petitioners bear the burden of proof in this case. The Petitioners entered an ore tenus motion for summary final order that was later reduced to writing and filed with the Division on February 22, 2005. The Respondent was granted leave to respond to the motion and did so. When the hearing was reconvened on March 3, 2005, both sides had fully addressed the issues of the case. Both sides were afforded additional argument on the matter.
The Issue Whether Respondent violated chapter 440, Florida Statutes (2016), by failing to secure payment of workers’ compensation coverage, as alleged in the Stop-Work Order (“SWO”) and Third Amended Order of Penalty Assessment (“Third AOPA”); and, if so, whether Petitioner correctly calculated the proposed penalty assessment against Respondent.
Findings Of Fact Based on the oral and documentary evidence admitted at the final hearing, and the entire record in this proceeding, the following Findings of Fact are made: Background The Department is the state agency responsible for enforcing the requirement of the Workers' Compensation Law that employers secure the payment of workers' compensation coverage for their employees and corporate officers. § 440.107, Fla. Stat. The Department is the agency responsible for conducting random inspections of jobsites and investigating complaints concerning potential violations of workers’ compensation rules. Gregg Construction is a corporation engaged in business in the State of Florida. Gregg Construction has been operating as a business since November 9, 2007. William Gregg is the owner of Gregg Construction and its sole employee. The address of record for Gregg Construction is 166 Big White Oak Lane, Crawfordville, Florida 32327. On June 15, 2017, the Department’s investigator, Lewis Johnson, conducted a routine visit to a jobsite to conduct a compliance investigation. Mr. Johnson observed Mr. Gregg use a table saw, measure, and cut a piece of wood. Mr. Johnson then observed Mr. Gregg nail the wood to the exterior wall of the home at the jobsite. After Mr. Johnson inquired about the work Mr. Gregg was performing, Mr. Gregg ultimately told Mr. Johnson that he was working as a subcontractor for Respondent. Based on Mr. Johnson’s observations, Mr. Gregg was performing construction-related work at the job site. Mr. Johnson then conducted a search of the Department’s Coverage and Compliance Automated System (“CCAS”), which revealed that Respondent did not have active workers’ compensation coverage for Mr. Gregg. Based on the results of his investigation, on May 10, 2017, Mr. Johnson issued a SWO to Respondent for failure to maintain workers’ compensation coverage for its employees. On May 10, 2017, Mr. Johnson hand-served a Request for Production of Business Records for Penalty Assessment Calculations (“Records Request”) on Respondent. The Records Request directed Respondent to produce business records for the time period of May 10, 2015, through May 11, 2017. While Respondent provided tax returns, it did not provide sufficient business records to the Department. Penalty Assessment To calculate the penalty assessment, the Department uses a two-year auditing period looking back from the date of the SWO, May 10, 2017, also known as the look-back period. Generally, the Department uses business records to calculate the penalty assessment. If the employer does not produce records sufficient to determine payroll for employees, the Department uses imputed payroll to assess the penalty as required by section 440.107(7)(e) and Florida Administrative Code Rule 69L-6.028. Eunika Jackson, a Department penalty auditor, was assigned to calculate the penalty assessment for Respondent. Based upon Mr. Johnson’s observations at the jobsite on May 10, 2017, Ms. Jackson assigned National Council on Compensation Insurance (“NCCI”) classification code 5645 to calculate the penalty. Classification code 5645 applies to work involving carpentry. Ms. Jackson applied the approved manual rates for classification 5645 for the work Mr. Johnson observed Mr. Gregg perform. The application of the rates was utilized by the methodology specified in section 440.107(7)(d)1. and rule 69L- 6.027 to determine the penalty assessment. The manual rate applied in this case was $15.91 for the period of May 11, 2015, through December 31, 2017; and $16.92 for the period of January 1, 2016, through June 10, 2017. The statewide average weekly wage, effective January 1, 2017, was used to calculate the penalty assessment. Mr. Johnson discovered that Mr. Gregg previously held an exemption, which expired on April 26, 2013. Although Mr. Gregg currently has an exemption, his exemption was not in effect during the audit period. On June 6, 2017, the Department issued its first AOPA that ordered Respondent to pay a penalty of $46,087.72, pursuant to section 440.107(7)(d). On August 1, 2017, Petitioner issued the Second AOPA based upon records submitted by Respondent, which reduced the penalty assessment to $14,752.62. After this matter was referred to the Division, on January 23, 2018, Petitioner filed a Motion for Leave to Amend Order of Penalty Assessment and issued the Third AOPA based upon records submitted by Respondent. Based on the Department’s calculation, the record demonstrates that the penalty assessment, based on records provided by Respondent, would be $9,785.50.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Financial Services, Division of Workers’ Compensation, enter a final order finding the following: that Respondent failed to secure and maintain workers’ compensation coverage for Mr. Gregg; and that Respondent shall pay a penalty of $9,785.50.1/ DONE AND ENTERED this 23rd day of March, 2018, in Tallahassee, Leon County, Florida. S YOLONDA Y. GREEN 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 23rd day of March, 2018.
Findings Of Fact By letter dated May 1, 1989, HRS gave petitioner formal notice of a moratorium on new admissions to petitioner's intermediate care facility for the developmentally disabled, effective two days earlier. Thereafter, HRS terminated the moratorium. As far as the record shows, the moratorium had no effect on the facility's census. HRS never filed an administrative complaint or took other steps to institute proceedings to restrict, suspend or revoke petitioner's license, in accordance with section 120.60(7), Florida Statutes (1989), and has no intention of doing so.
Recommendation It is, accordingly, RECOMMENDED: That HRS enter an order rescinding the moratorium it imposed on new admissions to petitioner's facility, effective April 28, 1989. DONE and ENTERED this 12th day of February, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 13th day of February, 1990. COPIES FURNISHED: Thomas D. Watry, Esquire The Perkins House 118 North Gadsden Street Suite 101 Tallahassee, FL 32301 Michael O. Mathis, Esquire Senior Staff Attorney Office of Licensure and Certification 2727 Mahan Drive Tallahassee, FL 32308 John Miller, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES FT. WALTON BEACH DEVELOPMENTAL CENTER, Petitioner, CASE NO.: 89-3741 vs. DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Respondent. /
