The Issue This is a proceeding pursuant to Section 440.13(1)(m), Florida Statutes, concerning a determination as to whether a specific surgical procedure is of an experimental, investigative, or research nature.
Findings Of Fact As conceded by Petitioner's counsel in his opening remarks, the substantive issue in this case ("whether the proposed thoroscopic disc removal procedure recommended by Dr. Reuter is experimental, investigative, or of a research nature") has already been decided by a Judge of Compensation Claims in a proceeding to which the Petitioner and the employer/carrier were parties. The decision of the Judge of Compensation Claims was adverse to the Petitioner. The Petitioner appealed that decision. The First District Court of Appeal affirmed the decision of the Judge of Compensation Claims.5
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that the Agency for Health Care Administration issue a Final Order dismissing the petition in this case on the grounds that the issues raised are moot by reason of the final decision by the Judge of Compensation Claims, and that further litigation of those issues is barred by res judicata or collateral estoppel. DONE AND ENTERED this 1st day of June, 1999, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 1st day of June, 1999.
Findings Of Fact At the time of his separation, Charles Cutler had been employed by the Florida Department of Labor and Employment Security for approximately eight years, and had achieved permanent status in the Career Service. He was hired as a disabled veteran under a disabled veteran outreach program and worked as an employment interviewer at the Miami Downtown Civic Center office of the Division of Labor, Employment and Training. (Testimony of Charles Cutler, Testimony of Jean Wilson, Petitioner's Exhibit #1). During the months of May, June, July and August 1985, Mr. Cutler's attendance at work was highly sporadic during May, he logged 8 hours of annual leave, 8.5 hours of regular sick leave, 48.5 hours of leave without pay and 16 hours of "other" leave; during June he logged 87.3 hours of leave without pay; during July he logged 19 hours of regular sick leave and 103 hours of leave without pay; during August he didn't work at all. By letter dated August 16, 1985, signed by Ronald Villella, Director of the Division of Labor, Employment and Training, Charles Cutler was notified that he had abandoned his position effective the close of business on August 9, 1985. (Respondent's Exhibit #1; Petitioner's Exhibit #2). Kay Hilton was Mr. Cutler's supervisor at the time of his separation. She knew when he was absent and present and was responsible for receiving his leave requests. She furnished information on absences to the main office. At the hearing she verified the accuracy of the Monthly Absence Reports (Respondent's Exhibit #2) described in paragraph 2, above. Mr. Cutler was hospitalized with bleeding ulcers the evening of May 31, 1985. Surgery was performed on June 4th and he was discharged under doctor's care on June 7, 1985. Several months prior to the hospitalization, Mr. Cutler and Ms. Hilton discussed his medical condition and need for surgery. She felt that it was up to him to decide when to have it done. Mr. Cutler was absent from work the first two weeks in June. About every third day someone would call in to say that he was sick, but it was not until later that someone heard he had surgery. When he returned to work on the 17th of June he was asked for documentation of his illness. He took off work on June 19th to get the documentation. (Testimony of Kay Hilton, Respondent's Exhibit #1, Medical report). On July 2nd, Mr. Cutler did not return to work after lunch. He was charged with the two hours remaining in his regular work-day (2:00-4:00 p.m.), and the monthly absence report reflects those hours as sick leave. He also did not work on July 3rd, or Monday the 8th. The 4th and 5th were holidays. he did not call in sick but said when he returned that he had suffered stomach pains. Those days were also credited to sick leave. Mr. Cutler's last day at work was July 12, 1985. On Monday, the 15th, a lady called to say that he was sick, and on July 18th another worker in the office took a Call that he was sick. Ms. Hilton never received any requests for leave after that date. (Testimony of Kay Hilton, Respondent's Exhibit #2). Mr. Cutler was back in the hospital on July 15 and 16 with an infection from the earlier surgery. He was put ". . .under strict orders for limited activities for two weeks, ending 8/6/85. [sic]" (Medical report, testimony of Charles Cutler). Donald Vetromile is the Office Manager of the Job. Service Office, Division of Labor, Employment and Training at the Miami Downtown Civic Center. He supervises the office through subordinate supervisors. Kay Hilton is a supervisor of one of his units and he is, therefore, a second level supervisor of Charles Cutler. On August 5, 1985, Charles Cutler called him around 8:30 a.m. to ask about his position and he responded, "I don't know, we haven't heard from you. Bring in the medical documents and we will go from there." Cutler told him he would bring them the next day. He didn't. Mr. Vetromile talked to the Regional Manager, Darryl Rutz on August 9th and was told to prepare the paperwork for termination. He talked with Mr. Cutler by phone on August 12th or 13th and told him the matter was turned over to Darryl Rutz. Donald Vetromile keeps a log of his phone calls. He testified both in the Respondent's case in chief and as a rebuttal witness that he did not tell Charles Cutler on August 5th that he was being terminated. (Testimony of Donald Vetromile). Charles Cutler's account of the conversation on August 5th is substantially different. He claims that Vetromile told him the termination had been processed and he would have to discuss the matter with Darryl Rutz. He claims he called Mr. Rutz' office and was told he was out of town. Mr. Cutler also claims that the medical report was delivered to Vetromile's secretary by his (Cutler's) wife on August 6th. He admits that he did not appear for work on August 7, 8 or 9th, but claims that this was based on his belief that he was already fired. (Testimony of Charles Cutler). Darryl Rutz confirmed that he had not commenced termination of Charles Cutler as of August 5th. He was in town but on jury duty on August 5th. He was in the office from August 6 through 9, and was in Tallahassee on August 12 and 13th. (Testimony of Darryl Rutz). Charles Cutler was aware of the abandonment of position provision of the Career Service rules and signed a statement to that effect on Pebruary 11, 1985. (Respondent's Exhibit 1). Mr. Cutler's account of the August 5th conversation with Donald Vetromile and attempt to contact Darryl Rutz, conforms to the substantiating evidence for the following Monday's conversation (on August 12th) when he was told that he was being terminated and Darryl Rutz was out of town. His account of the events of the week of August 5 through 9 is simply not credible. He produced no witnesses to substantiate his claims, even though the person who allegedly delivered the medical report was his wife. Moreover, the date of 8/9/85, which appears in the lower left corner of the second page of his medical report, is inconsistent with his statement that the report was given to Vetromile's secretary on August 6th. Without some substantiating evidence, or at least some basis for a reasonable belief that he was already terminated on August 5th, the Petitioner's sole excuse for failing to appear for work the week of August 5 through 9, is insufficient. The medical report established that his period of limited activity ended on August 6th.
Recommendation That the Department of Administration enter a final order finding that Charles Cutler abandoned his position with the Division of Labor, Employment and Training and therefore, has resigned from the Career Service. DONE and ORDERED this 10th day of February, 1986, in Tallahassee, Florida. MARY W. CLARK, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 10th day of February, 1986. COPIES FURNISHED: Kenneth Hart, Esquire General Counsel Montgomery Bldg., Suite 131 2562 Executive Center Circle, East Tallahassee, Florida 32301 Mr. Charles Cutler 654 N. W. 10th Street Miami, Florida 33136 GiIda Lambert, Secretarv Department of Administration 435 Carlton Building Tallaha~see, Florida 32301 Augustus D. Aikens, Esquire General Counsel Department of Administration 530 Carlton Building Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Pact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Rejected as contrary to the substantial weight of evidence. Adopted in substance in paragraph 4. Rejected. The testimony of this witness was corroborated by other testimony and was found credible. Rejected. The testimony of this witness was found credible. As stated in the Background and Procedural Matters in the Recommended Order, the Medical Record was considered but the letter was not. Rejected as contrary to the weight of evidence. Rejected as contrary to the weight of evidence. Rulings on Respondent's Findings of Fact Adopted in paragraph 1. Adopted as to Petitioner in paragraph 10. The finding as to all employees is irrelevant. Adopted in paragraphs 2 and 3. Adopted in paragraph 5. Adopted in substance in paragraph 7. Adopted in paragraph 7. Adopted in paragraph 11. Adopted in paragraph 8. Adopted in paragraph 7. Rejected as unnecessary. Adopted in substance in paragraph 11.
Findings Of Fact The Petitioner, Johnny L. Richardson, was a test technician in the receiving/inspection department of the Respondent, Group Technologies Corporation, when he became ill, had to be hospitalized, and went on a medical leave of absence on September 6, 1990. Before he was able to return to work, in addition to the illness that resulted in his initial hospitalization, the Petitioner suffered two pulmonary embolisms that required hospitization and had a lobectomy (removal of part of one lung). At the time of his ultimate discharge from the hospital, the Petitioner was diagnosed with a number of medical conditions. He had hypovolemic shock, viral myocarditis, with cardiomyopathy and right ventricular failure, pulmonary abscesses, congestive heart failure, leukocytosis, chest wall pain and pleurisy. In addition, he already had insulin dependent diabetes mellitus. Because of the length of the Petitioner's medical leave of absence, and the Respondent's needs, the Petitioner's former position in the receiving/inspection department was filled during his absence, in accordance with standard company policy. The Respondent's treating physicans released him to return to work on or about July 2, 1991. At the time, the Respondent was aware of the Petitioner's preexisting insulin dependent diabetes mellitus, and was generally aware that the Petitioner's health problems had required hospitalization and a medical leave of absence. But the Respondent did not have detailed medical information concerning the Petitioner's other medical diagnoses. On or about July 2, 1991, the Petitioner contacted the Respondent's staff nurse to advise her that he had been released to return to work. She made arrangements for him to be seen on July 8, 1991, by the Respondent's consulting physician, in accordance with standard procedures for employees on leave of absence for over 90 days. The consulting physician was a specialist in occupational medicine and had a working knowledge of the Respondent's work place and the jobs performed by its employees. He was to use this expertise and knowledge to verify that the employee could do the job he was to perform and to determine whether any restrictions or limitations were appropriate in view of the employee's medical condition. The staff nurse also advised the Petitioner to contact the Respondent's Human Resources Representative (HR Rep) to tell her that his treating physicians had cleared him to return to work. The next day, the Petitioner telephoned the HR Rep, but she was out on vacation until July 8, 1991. On or about July 8, 1991, the Petitioner was seen by the company's consulting physician. A routine medical examination was conducted, including taking a history. The Petitioner told the doctor that he had coronary heart disease, diabetes, lung abcess and hypertension and was taking various medications, including Coumadin and Lanoxin for his heart disease, Lasix and Prednisone for his chronic lung disease and breathing disorders, and insulin for his diabetes. He also reported the lobectomy. Based on the medical examination, the doctor prepared a report stating that he needed medical records from the Petitioner's treating physicians and that the Petitioner would need a job check before reemployment to ascertain the suitability of the particular job in which he was placed. In addition, the report stated that the Petitioner would have to avoid physical stress and avoid lifting heavy weight. The report also suggested that the Petitioner's exposure to chemicals may have to be limited. The doctor also filled out and gave the Petitioner a form stating that the "disposition" of the examination was that the Petitioner was to have "no duty." The Petitioner gave this form to the staff nurse, but the evidence is not clear when. On the day of the examination, before the report was sent to the Respondent's medical office, or even typed, the doctor telephoned a report to the Respondent's staff nurse. The nurse in turn telephoned the HR Rep and told her that, per the doctor's instructions, the Petitioner was not to work with chemicals and was to limit lifting to 25 pounds. The HR Rep also was advised that it would be best for the Petitioner not to work night shifts due to the medications he was taking. As can be seen, the information on the "disposition" form was not consistent with the information in the written report or with the information in the telephonic report the staff nurse gave the HR Rep that day. The Petitioner also saw the HR Rep on July 8, 1991. (She had just returned from vacation.) It is not clear from the evidence whether, at the time of her meeting with the Petitioner, the HR Rep already had received the telephonic report from the company's staff nurse. During the Petitioner's meeting with the HR Rep, the HR Rep told the Petitioner that she would have to determine whether the company had any test technician positions, or other positions with status and pay commensurate with the Petitioner's former position, that were open. Under company policies, employees returning to work after an extended leave of absence, during which their former positions were filled, were entitled to be considered for other positions with status and pay commensurate with the employee's former position, if any were available. The HR Rep reviewed her open requisition lists and determined that there were no suitable positions open at the time. (On or about June 28, 1991, the Respondent had extended job offers, with start dates in early July, to eight applicants for test technician positions that the company had been in the process of filling in June.) She telephoned this information to the Petitioner on either July 8 or 9, 1991, and told him that she would have to lay him off with recall rights. Actually, company policy provides for laying employees off with recall rights as a result of reductions in work force. It does not specifically apply to the situation where an employee returns to work after an extended leave of absence, during which the employee's former position was filled, and there are no positions with status and pay commensurate with the employee's former position available. But, since there was no other employment status designated by personnel policies for such an employee, the company felt that it was appropriate to lay off such an employee with recall rights. Under company policy, an employee who is laid off with recall rights has a right to be considered for recall before new employees with similar skills are hired. This is not a guarantee of reemployment but only right to be considered for employment before "external candidates" are considered. Actually, even under this interpretation of company policies, the Petitioner should have been laid off with recall rights only if he was ready to return to duty with restrictions (as indicated in the consulting physician's written report, and in the telephonic report from the staff nurse to the HR Rep). If he was unable to return to duty at that time (as indicated by the "disposition" form), he should have been continued on medical leave of absence. At the conclusion of their meeting on July 8, 1991, the HR Rep told the Petitioner that he would be contacted if there were any openings for him, or words to that effect. On or about July 12, 1991, the HR Rep became aware of an employee requisition request with a position with status and pay commensurate with the Petitioner's former position. She contacted the hiring supervisor and asked if he was interested in hiring the Petitioner for the position. The hiring supervisor quickly replied that he was not interested in hiring the Petitioner. Asked why not, he answered that he knew the Petitioner's attendance and performance history from having worked with the Petitioner in past years, and from knowing the Petitioner's reputation, he was not interested in hiring him. Further specifics about the hiring supervisor's reasons for not wanting to hire the Petitioner were neither given nor asked for until approximately January, 1992, which is after the filing of the Charge of Discrimination in this case. If asked, the hiring supervisor would have said that, during a period of time in which they worked together in the early 1980s, the Petitioner was frequently absent from work, frequently wandered away from his work station, and frequently could not be found when needed. Later, in the late 1980s and early 1990, the hiring supervisor had several occasions to inquire as to the reason for delays and was told that there was a bottleneck in the receiving/inspection department because the Petitioner was absent from work again. The Petitioner's absences made it difficult for those depending on the Petitioner's work to meet production deadlines. To attempt to deal with the Petitioner's absences, the company tried to get the employee in the position in the shifts before and after the Petitioner's shift to work overtime. After talking to the hiring supervisor, the HR Rep reported to her supervisor, who helped her research the Petitioner's personnel file to determine if there was "reasonable justification" for the hiring supervisor's rejection of the Petitioner on the basis given to the HR Rep. They learned from the Petitioner's personnel records that, on or about May 17, 1990, the Petitioner's supervisor counseled him that his attendance had to improve. In June, 1990, the Petitioner's performance appraisal reflected the attendance problems. It indicated some improvement but stated that further improvement was necessary for the Petitioner's attendance record to be within company norms. The appraisal also indicated that the Petitioner's performance no longer was improving, as the prior year's appraisal indicated it had been. It is not clear from the evidence whether the HR Rep and her supervisor also reviewed the Petitioner's attendance records. If they had, they would have also seen that the Petitioner was absent from work a total of 220 hours in 1989, not including 64 hours during plant shutdowns. From January to May, 1990, the Petitioner was absent a total of 46 hours, in addition to 124 hours of vacation leave without prior notice. After Sumner declined to hire the Petitioner, the HR Rep did not ask other hiring supervisors to consider the Petitioner for openings before considering external candidates. She did not tell the Petitioner that he had been rejected for the opening on or about July 12, 1991, or that his recall rights effectively had been terminated (in that she no longer was asking hiring supervisors to consider the Petitioner for openings before considering external candidates.) Nonetheless, the Petitioner was not surprised not to be recalled because he knew that employees who are laid off with recall rights are rarely recalled. The Petitioner acknowledges that he cannot prove, by direct evidence, that the Respondent discriminated against the Petitioner on the basis of a handicap or perceived handicap. Instead, the Petitioner argues that it should be inferred from the evidence that the Respondent, first, laid off the Petitioner instead of maintaining him on medical leave of absence and, second, did not recall him, in furtherance of plan to terminate his employment because of his handicap or perceived handicap. The inference the Petitioner seeks to have drawn was not proven by a preponderance of the evidence. First, as for the decision to lay the Petitioner off, there is no persuasive evidence that it would have been significantly more difficult ultimately to terminate the Petitioner's employment if the Petitioner had been maintained for the time being on medical leave of absence. Second, as to the decision not to recall the Petitioner, it was not proven that the Respondent did not recall the Petitioner for any reason other than the one articulated by the Respondent--namely, hiring supervisor Sumner rejected him for the reasons he gave. The Respondent is an equal opportunity employer and takes affirmative, proactive steps to recruit, hire and retain minorities and handicapped persons. It has completed required affirmative action plans, does adverse impact analyses on a semiannual basis, and advertises and recruits from agencies that deal with disabled persons. While the Respondent did not hire the Petitioner back after his extended medical leave of absence, it has hired others back after medical leaves of absence of 90 days or more. One employee was hired back after heart catheterization and coronary bypass surgery. Another was hired back after rupturing a disc and having back surgery. Both were returned to work with restrictions, after seeing the same consulting physician the Petitioner saw. Their medical conditions were at least as susceptible of being perceived as being handicaps as the Petitioner's. In both of those cases, the employee was able to be returned to the positions from which they had to take leave; they did not have to be laid off. Conversely, other employees who had not been on medical leave of absence but were laid off with recall rights in connection with a reduction in work force also have not been recalled. Three such employees who were laid off during the August, 1990, reduction in force were not even recommended to hiring supervisors for suitable positions that came open during the period of time in which their recall rights were effective, even though they were technically more qualified for the positions, based on their higher job grade levels, than the people ultimately hired for the jobs. The reason they were not recalled was that they had been laid off because their job performance ranked them at the bottom of the "totem pole" of employees subject to possible layoff in the reduction in force. The Petitioner survived the August, 1990, reduction in force because, based on need, no reduction was made in the receiving/inspection department. If there had been, the Petitioner would have been the first to be laid off due his rank at the bottom of the "totem pole" for the test technician positions in his department. The failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But none of those possibilities would constitute, nor do they prove, discrimination on the basis of handicap or perceived handicap.
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 this case. RECOMMENDED this 15th day of September, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 15th day of September, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1224 To comply with the requirements of Section 120.59(2), Fla. Stat. (1991), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. 1.-6. Accepted and incorporated to the extent not subordinate or unnecessary. Penultimate sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. Accepted and incorporated to the extent not subordinate or unnecessary. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 10.-12. Accepted and incorporated to the extent not subordinate or unnecessary. 13. As to second sentence, not necessarily all such employees see Myint on returning. It depends on the staff nurse's judgment as to the necessity. Third sentence, rejected as not proven. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 14.-16. Accepted and incorporated to the extent not subordinate or unnecessary. 17. Rejected as not proven that the policy itself "entitled" the Petitioner; rather, it was the Respondent's favorable interpretation of the policy. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 18.-19. Accepted and incorporated to the extent not subordinate or unnecessary. 20. As to the last sentence, Sumner gave some specifics at the time, but not many, as reflected in the Findings of Fact. Otherwise, accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Accepted and incorporated to the extent not subordinate or unnecessary. (However, as to 22, at least the last time, everyone under Gonzalez got a "merit" increase, and the Petitioner got the smallest raise because his job performance ranked him the lowest on the "totem pole.") 24. First sentence, accepted and incorporated. The rest is rejected as subordinate to facts contrary to those found. 25.-27. In part accepted, but in part rejected. Rejected as not proven that the Petitioner was not considered for the July 12, 1991, opening. Sumner did consider the Petitioner and rejected him. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." But, if not "reasonable," their actions did not prove discrimination on the basis of handicap or perceived handicap. Rejected as not proven that Wilson "considered Richardson a potential problem employee because of his long illness." Rejected as not proven that the Respondent ever considered the Petitioner "unqualified." Rejected as not proven that the Respondent discriminated against the Petitioner on the basis of handicap or perceived handicap. Rejected in part as argument. Otherwise, generally accepted and incorporated to the extent not subordinate or unnecessary. 28.-32. Accepted but generally subordinate and unnecessary. Respondent's Proposed Findings of Fact. 1.-7. Accepted and incorporated to the extent not subordinate or unnecessary. 8. Rejected as contrary to the greater weight of the evidence that his "performance" declined. Rather, the appraisal would indicate that the rate of improvement in his performance had declined. 9.-20. Accepted and incorporated to the extent not subordinate or unnecessary. 21.-23. Generally, accepted and incorporated to the extent not subordinate or unnecessary. (The information imparted by the doctor was somewhat ambiguous.) 24.-31. Generally, accepted and incorporated to the extent not subordinate or unnecessary. The consideration given to the Petitioner, and the justification for the rejection known to Sumner and Wilson, may or may not have been "reasonable." And the Respondent's failure to notify the Petitioner that he had been considered by a hiring supervisor, in accordance with his recall rights, and had been rejected, or that his recall rights effectively were terminated, arguably may have been against company policy, may have been bad employee relations, or may have been simply rude and inconsiderate. But, as found, those actions did not prove discrimination on the basis of handicap or perceived handicap. 32.-34. Accepted and incorporated to the extent not subordinate or unnecessary. COPIES FURNISHED: Ronald W. Fraley, Esquire Fraley & Fraley, P.A. 501 East Kennedy Boulevard, Suite 1225 Tampa, Florida 33602 Grant D. Peterson, Esquire Haynsworth, Baldwin, Johnson & Harper 1408 North Westshore Boulevard, Suite 1000 Tampa, Florida 33607 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-4149
Findings Of Fact Respondent, Michael J. Osborn, has been employed by the City of Clearwater for 9 years, first as a Service Worker I and then a Service Worker II for the Water Division. He began work with the city on December 5, 1983. He was so employed at all times pertinent to the matters at issue herein. Before coming to work for the city he was employed as a construction worker and has an 8th grade education. His general duties with the Water Division ran the gamut of physical stress and included digging, jack hammering and other tasks of a like nature. Respondent admits that over the years, he has reported a number of injuries to his back. Records of the city reflect 11 reports of incidents involving such injuries. The first took place in March, 1986 and the most recent is the one in issue here. He claims the most serious of his injuries resulted from an automobile accident he had on duty in 1988 when he was rear- ended by a vehicle traveling at a speed of more than 40 miles per hour while he was driving a city truck. As a result of that injury, he was out of work for 3 or 4 days and while he underwent no surgery as a result thereof, he was given treatment and medications for it. When released by the physician, he returned to his regular duties but has complained of continuing soreness in his lower back. After that accident, Respondent complained to his supervisors about his back problems on 3 or 4 occasions and was given intermittent time off. He was also placed on light duty up to December, 1992. This included painting fire hydrants and line spotting, neither of which gave him any trouble unless it involved physical digging. However, he was also assigned to painting lockers and other areas which did cause him pain when it was necessary for him to stretch or bend to reach areas to be covered. He claims never to have been totally free of back pain and discomfort since the 1988 accident. However, he persisted in doing his work because it was his job to do and he claims he didn't want to complain. This latter assertion, however, is contradicted by the testimony of his coworker, Mr. Baxter, who related Respondent was always complaining about something. In any case, Respondent never sought lighter work and no one ever suggested it. On the morning of January 4, 1993, Respondent reported to work as usual. Though his associate, Mr. Baxter, was the one who usually filled the water cooler on their truck, on this morning Respondent did so. He took the cooler, which was about 2 - 3 feet tall, off the truck, dumped out the old water, and refilled it with ice and fresh water. When he thereafter stooped with bended knee to pick it up and carry it back to the truck, he experienced a shooting pain down his left leg. This had happened before, but on this occasion the pain was unusually bad. He immediately told Mr. Baxter what had happened and suggested the incident be reported. When he saw the supervisor, he was told to fill out the required paperwork and then see the nurse, which he did. When Respondent told the nurse what had happened, she questioned him about the incident and then sent him to the walk-in clinic to whom all mobile injured employees are sent. She did not offer him transportation so Mr. Baxter took him there in a city truck. The doctor at the clinic, after examining him, told him there was nothing they could do for him there and referred him to Dr. Sena, an orthopedic surgeon. Respondent's request to see a chiropractor was refused. When the clinic doctor released Respondent, Mr. Baxter drove him back to the city nurse's office where he picked up the paperwork to take to Dr. Sena's office when he met his January 7, 1993 appointment. In the interim, between January 4 and January 7, Respondent stayed at home and took it easy, taking the medications which had been prescribed for him. On January 7, 1993, Respondent drove himself to Dr. Sena's office, even though he had been told not to drive, because he had no other way of getting there. Usually, he did not see Dr. Sena but saw Dr. Rehme, Sena's associate, and also a qualified orthopedic surgeon, instead. After the examination on January 7, 1993, Respondent was given a duty excuse until January 13, 1993, reflecting a total disability. He took that document back to the city nurse's office and went home. The physician's notes of that first examination reflect a diagnosis of acute back strain and spondyolesythesis. He was placed on bed rest and given a duty excuse for one week along with appropriate medications. While Dr. Sena indicated in his testimony that he considered bed rest to mean staying in bed except for meals, toilet, and personal hygiene, Respondent claims he did not understand the doctor's instructions to mean staying in bed for longer than one night. He also asserts the doctor did not tell him what activities he might perform. In any case, he was scheduled to begin physical therapy after his next visit scheduled for January 13, 1993. On that visit, the physical therapy appointment was set up, and he commenced that regimen right away. The doctor's notes concerning the January 13 visit again reflect the Respondent was not to return to work. Dr. Sena indicated that the diagnoses rendered and course of treatment prescribed by either him or Dr. Rheme were based on the representations made as to his condition by the Respondent. Respondent was referred to Ms. Pearson, the physical therapist who first saw him and conducted an initial evaluation and assessment of his condition at her facility on January 27, 1993. At that time, Respondent showed an increased pulling in his lower back muscles, and he was complaining of back pain and pain down his left leg. He said he could not lift or work at that time. As a result, she prescribed very gentle exercises for him and scheduled him for a return visit on January 29, 1993. When she saw him that date, he claimed he had increased pain after exercise and soreness in his buttocks and legs. She repeated the previously prescribed exercises and added some new ones and started him on the treadmill to strengthen his muscles. On his next visit to Ms. Pearson on February 1, 1993, Respondent continued to complain of mid to low back pain and on that date and again on his February 3, 1993 visit, she continued the course of treatment. On the latter date, however, Respondent complained of pain in his left hip when standing or walking but he indicated his leg weakness was decreasing and his back felt stronger. During his visit on February 5, 1993, Respondent reported his back was still painful. He said he had seen the doctor that morning and was given a work excuse for an additional 3 weeks. During their conversation, Respondent said he was worried he would hurt himself more if he went back to work. When he came in on February 8, 1993, Respondent complained he had had pain all weekend and that walking was painful. On February 10 and February 12 Respondent cancelled his appointments due to a head cold and Ms. Pearson did not see him again until February 15, 1993 when he indicated his back was stiff and sore but his leg was "OK." On that date, Ms. Pearson observed him limping on his left leg. On his February 17 visit to the physical therapist, Respondent complained of continued back stiffness and soreness but claimed his leg pain was less. On the 19th he complained of a lot of back pain and spasm. Ms. Pearson verified the spasm through palpation of the muscles but his pain reports are based on his comments. Nonetheless, on February 22, Respondent reported being somewhat better. Ms. Pearson continued the exercises she had prescribed. On February 24, when he came in, he said his back pain was a lot less severe. He related he had been working around the house and on his trailer and reported he thought he'd been videotaped while doing so. At that point, Ms. Pearson advised Respondent that if he had been working on his trailer, he could go back to work and he agreed he could do light duty. He also claims that at one point, on or before February 15, 1993, before he knew he had been video taped, he advised Ms. Pearson he was starting to work on his trailer and she allegedly said it was a good idea. Nonetheless, he failed to show up for his scheduled February 26, 1993 appointment or thereafter. Ms. Pearson's prescribed treatment exercises contained neither lifting nor more than very light exercising. There was nothing she prescribed that was comparable to lifting a small child, pushing down on a seesaw, or unloading or lifting full sheets of plywood. None of those activities would be consistent with what Respondent reported of his condition or what she observed regarding him. For example, muscle spasm is not something that can be faked. If she palpated and felt spasm or no spasm, she would note as appropriate. Her records of Respondent's treatment show a fairly consistent hardness of muscle, more or less, most of the time she observed him. Respondent indicates, however, that he was usually supervised, during his therapy, by Pearson's assistant since Pearson was not there all the time. When he spoke with her, their conversation was casual. Her testimony as to continuing spasm is not particularly persuasive, therefor, and in any case, muscle spasm alone does not necessarily preclude all activity. During the course of his physical therapy, Respondent continued to be seen by the orthopedists. On January 22, the doctor noted he was improving nicely and noted the possibility he could return to work in 2 weeks. On February 5, the doctor continued the prescription for physical therapy and bed rest. Between that visit and the Respondent's next scheduled appointment on March 1, 1993, Dr. Sena was furnished the video tape of Respondent's activities which had been taken between January 13, and February 23, 1993 by a private investigator hired by the city to conduct a surveillance on the Respondent. When Mr. Osborn came in for the scheduled visit, the doctor noted that his lumbar strain was resolved and he could return to full time regular duty. Osborn indicates that when, toward the end of his series of visits, the doctor suggested he might go back to light duty, he, Respondent, said there was no such thing, and the doctor agreed to keep him off work for a few more weeks. This was the only time either doctor suggested he go back to work, however, prior to the termination of his duty excuse. In that regard, Respondent claims he had been placed on light duty after previous injuries and ended up in more pain than before. He claims he was required, as a part of his "light" duties, to bend and stretch, during painting, all of which, he contends, aggravated his condition. Respondent also admits to having been asked to give his testimony by deposition with regard to another litigation to which he is a party. Though his counsel in that action claims Respondent refused to attend the deposition because he was on bed rest, Respondent denies having given that reason. He claims he refused to be deposed because he felt that to do so might create a conflict in the lawsuit. The counsel's testimony, and that of her paralegal who also spoke with Respondent and recalls much the same as counsel, is considered the better evidence on that issue and it is so found. Respondent admits to having worked on his trailer but claims that at that time, when he was taped, he was recovered and felt he could return to full duty after he saw the doctor on his next scheduled visit. Because of this, he was trying to get himself into shape to go back to work. By that time, he claims he had no further physical problems and felt he was cured. With regard to the trailer work, however, Respondent claims someone else took the old paneling off and he was putting new paneling on. The trailer was parked in his front yard and he was making no effort to conceal what he was doing. As to the other matters appearing on the video tape, Respondent denies having pushed the child up and down on the seesaw. Though someone may have been assisting on the child's end, the tape clearly shows Respondent to be bending down and up repeatedly with his hands on the end of the seesaw. This tape, recorded on several different days over the period January 13, through February 23, 1993 shows Respondent walking without any evidence of a limp or of pain, even on the earliest date recorded. He is shown to bend over from the waist, and to squat to place a tag on his auto license plate. On February 15th he is seen carrying 2 filled large trash containers out to the curb, one in each hand and to bend over at the waist to pick up the newspaper. About the same time, he is seen reaching above his head with both arms to affix something to his trailer. Around the same time, he is shown lifting his young granddaughter from the ground, using his arms, and is observed repeatedly climbing up to the top of a slide to help her slide down. He used his arms and his back to push the child up and down on a seesaw, but in all fairness, it must be said he appeared to have been helped in that effort by someone else on the other end. On February 23, 1993, while at the city dump, he is shown to climb into the bed of his pickup truck and pull trash and scrap lumber, including what appear to be numerous 4 by 8 foot sheets of plywood, out of the truck by himself and toss them into the pit. Later that same day, he was observed working on the reconstruction of his trailer, carrying full sheets of plywood and affixing them to the trailer's frame without assistance. He used hand and power tools in his work and repeatedly sat, squatted, got down on his hands and knees, twisted his back and waist and did other things apparently inconsistent with his claimed condition, all without apparent pain or discomfort. His activity was not consistent with his continued limping and claims of pain to Ms. Pearson as she reported it. Dr. Sena opined, from his review of the video tapes referred to above, that if Respondent could do the things he was observed to be doing on the tapes, he would be capable of performing his regular duties and was not temporarily totally disabled from the first day shown on the tapes, January 13, 1993. The functions which Respondent could perform, consistent with his initially reported condition and the instructions as to bed rest given him by the doctor, would include driving to and from the doctor's office and light physical interaction with his grandchild. If Respondent could do those things other than driving to the office visits, however, in the doctor's opinion, he could do light duty. On the other hand, however, he should not be able to work on his trailer if that work included lifting and placing heavy sheets of plywood. If Respondent could accomplish the letter acts, he would most likely suffer no disability and could work at his regular job. It should be noted that none of the notes prepared be either doctor who saw Respondent, Rheme or Sena, specifically indicated what Respondent represented or portrayed his physical condition to be to them or the office staff. The notes are not detailed and reflect only diagnosis, and prescribed treatment. In light of Dr. Sena's comments that the physicians' notes are based, in great part, on what the patient relates to them, it must be found that Respondent made representations consistent with their diagnosis of continued pain and disability. These representations would appear, at least from February 15, 1993 on, to have been less than accurate. On January 4, 1993, Respondent filled out a notice of injury for Josephine Dixon, Water Distribution Operations Supervisor for the city, and a superior in Respondent's chain of supervision. She has observed Respondent come to the work place during his recuperation period driving his pickup truck with his lawn maintenance equipment in tow. He admits he operates a limited lawn maintenance service for four clients in his off-duty time, but denies having engaged in any lawn maintenance activities during the period in question however and there is no evidence he did. Ms. Dixon reiterates Respondent's long series of back injuries and indicates that in the year prior to the instant injury it was sometimes difficult to find a partner for him because of his reputation for not carrying his share of the workload. The only coworker to testify at the hearing was Mr. Baxter who related nothing either to confirm or contradict this allegation. The performance report rendered on Respondent just prior to the injury in question, however, reflects an overall rating of I. (Improvement Needed). Mr. Hackett, Respondent's overall supervisor, discussed his performance with Respondent's immediate supervisor. The general opinion is that while Respondent is technically very capable, he has a history of being somewhat lazy, and many employees did not want to work with him because he did not carry his share of the load. Mr. Hackett has no knowledge of any specific representations Respondent made to his doctor. However, when considering the Respondent's history of repeated back injuries; his apparent lack of disability shown in the tapes recorded by the private investigator, and the indications by coworkers that Respondent did not pull his share of the load, Hackett and other responsible city officials concluded that Respondent's claim was without merit. At this juncture he admits perhaps Respondent should have been counselled on his ability to do his job earlier on, but this was not done. In deciding to initiate the termination action, he coordinated with and secured the concurrence of the city's risk management staff. This action was approved by Richmond Smith, the city's Assistant Director of Public Works who saw Respondent on several occasions when he would come into the building to pick up his check. At no time did Respondent appear to him to show any major evidence of injury. It was Mr. Smith's decision to terminate the Respondent from his city employment for falsifying city records and for making a false claim. His decision was based in large part on his review of the video tapes previously discussed. He asserts, however, that if Respondent had come in with a supported determination that because of this injury he could not do his job, city personnel could and would have made an accommodation and given him alternative work. The initiative for this option rests with the employee, however, and Respondent at no time sought it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent herein, Michael J. Osborn, be terminated from employment with the City of Clearwater for cause, as outlined in the Record of Personnel Action dated March 18, 1993, effective March 26, 1993. RECOMMENDED this 27th day of October, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2819 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner's counsel submitted a Proposed Order which contains Proposed Findings of Fact which are not numerically identified. For the purpose of reference herein, they have been numbered in sequence from 1 to 42 as they appear. Upon review of each individual proposal, they have been accepted and, as appropriate, have been incorporated herein. FOR THE RESPONDENT: Accepted and incorporated herein. First sentence rejected. Balance accepted. First sentence accepted. Second and third sentences rejected. Fourth and fifth sentences accepted. Sixth sentence modified. Doctor's notes show Respondent to be improving nicely Respondent to be "improving nicely." Doctor's comments from notes accepted. Balance accepted. First through third sentences accepted. Fourth sentence rejected in part as it asserts the tapes serve as foundations of the city's charges. This is not totally accurate. They serve as evidence of Respondent's condition which appears inconsistent with the information given by his to his physicians. Balance accepted. First through fourth sentences are a restatement of testimony, not proper finding of fact. Fifth and sixth sentences are a comment on the evidence. Balance, through second next to last sentence, is a restatement of the testimony. Next to last and last sentences are comments on specific testimony. Paragraph is no more than a restatement of evidence. Rejected as contra to the better weight of the evidence. Rejected. COPIES FURNISHED: Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez Post Office Box 639 Tampa, Florida 33601 Barry M. Salzman, Esquire Chambers, Salzman & Brannon Post Office Box 1191 St. Petersburg, Florida 33731-1191 Michael J. Wright City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Gary Fernald, Esquire 501 South Ft. Harrison Clearwater, Florida 34616
The Issue Whether Petitioner was discriminated against in employment by Tampa General Hospital by reason of Petitioner's age, national origin, or in retaliation because Petitioner had filed a complaint with EEOC against a former employer.
Findings Of Fact Petitioner was employed by Respondent on February 15, 1984, as a Pharmacy Technician assigned to the 8 a.m. to 4:30 p.m. shift (Exhibit 12). At this time Petitioner was also working at University Community Hospital and attending classes at the University of South Florida. In his application for this position, (Exhibit 8) Petitioner indicated he desired to work the night shift. However, Respondent does not hire employees for a particular shift and Petitioner accepted employment on the day shift. On May 21, 1984, Petitioner completed the Pharmacy Technician Training Program at Tampa General Hospital and was awarded a Certificate showing such completion (Exhibit 7). Petitioner was unable to work his assigned 40 hours per week with his other job and school and on October 5, 1984, he was transferred from permanent full-time (40 hours per week) to permanent part time (20 hours per week) at his request (Exhibit 13). Petitioner requested assignment to the night shift but there were few openings on the night shift as that popular shift was given to more senior (in length of service) employees. Petitioner was unable to be available 20 hours per week, and on November 6, 1984, he was transferred to a part-time position in the Pharmacy PRN pool. By letter dated November 21, 1984 (Exhibit 4), Petitioner resigned his position at Tampa General Hospital giving as a reason that he had not been assigned to the night shift and could not keep up with his schooling and other job working his assigned hours at Tampa General Hospital. During the latter stages of Petitioner's employment at Tampa General Hospital, his attendance at work became less frequent and he was considered somewhat unreliable by his supervisors and his coworkers. Although he was given a satisfactory performance rating in July, 1984 (Exhibit 5), shortly before his resignation, his supervisor was contemplating disciplinary action to improve Petitioner's performance or terminate his employment with Respondent. In late 1986, Petitioner suffered chest pains which he initially thought stemmed from heart problems. However, these were subsequently diagnosed as being of muscular skeletal origin (Exhibit 9). In February, 1987, Petitioner was dismissed from his position as Pharmacy Technician at University Community Hospital on allegations he was insubordinate. Petitioner called the office of the Director of Pharmacy at Tampa General Hospital, Monroe Mack, several times to inform him of his situation and tell him that he was trying to get some kind of worker's compensation. Petitioner requested Mack give him a letter of recommendation and provided a list of things he would like covered in the letter of recommendation (Exhibit 10). Mack accommodated Petitioner with a letter (Exhibit 3) dated July 13, 1987. Petitioner contacted Respondent's director of employee relations (Harris) to advise that he would like to return to work at Tampa General Hospital and to obtain Harris's assistance with Mack who had the authority to hire employees in the pharmacy department. On November 23, 1987, Petitioner submitted an application to Respondent requesting employment (Exhibit 6). In this application, he listed under "hours not willing to work" 7:30 a.m to 2:30 p.m. and indicated he was still pursuing his education. At Petitioner's request and with the help of Harris, a meeting was arranged with Mack in August, 1988. At this meeting Petitioner again iterated his desire to work the night shift and Mack told Petitioner that he would not rehire Petitioner as a pharmacy technician because his work had not been satisfactory when he earlier worked at Tampa General Hospital and his then co- workers and supervisors had recommended against his reemployment. Petitioner was born April 1, 1938, (Exhibit 6). Accordingly, when he was denied reemployment in 1988, he was 50 years old. The only evidence submitted, which in any way relates to age discrimination, is the list of pharmacy technician personnel showing their age, race and gender (Exhibit 1). This shows that in 1988 the oldest pharmacy technician at Respondent working as a technician was 41 years old with the average age of the 33 technicians listed around 30 years old. The list also shows that 28 of the 33 are females and 10 are black. No evidence was submitted indicating in any manner or implying that older applicants had applied for work at Tampa General Hospital as pharmacy technicians and had been turned down for employment for any reason. No pattern of such discrimination was shown, nor was any evidence submitted, even suggesting that such a pattern was extant at Tampa General Hospital. Nor was any evidence submitted that Petitioner was not rehired at Tampa General Hospital in retaliation for filing.a complaint with the Equal Employment Opportunities Commission against his former employer (presumably University Community Hospital).
Recommendation It is RECOMMENDED that the Petition for Relief from an unlawful employment practice filed by Yacob Morowati against Tampa General Hospital be DISMISSED. DONE and ENTERED this 23rd day of August, 1989, at Tallahassee, Florida. K. N. AYERS 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 23rd day of August, 1989. COPIES FURNISHED: Yacob Morowati P. O. Box 270489 Tampa, FL 33688 E. John Dinkel, III , Esquire P. O. Box 1531 Tampa, FL 33601 Joe Harris Post Office Box 1289 Tampa, FL 33601 Margaret A. Jones Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 =================================================================
The Issue Whether Petitioner was subjected to age, marital status, and disability or perceived disability discrimination while employed by Respondent, in violation of Subsection 760.10(1)(a), Florida Statutes (2009).1 Whether Petitioner was subjected to retaliation while employed by Respondent, in violation of Subsection 760.10(7), Florida Statutes.
Findings Of Fact Petitioner, Deborah McRae, is a registered pharmacist, licensed in Florida and Georgia since January 25, 1978. Petitioner has been employed by Respondent, Kash N' Karry, d/b/a Sweetbay Supermarket (Sweetbay or Respondent), from January 2005 to the present. Petitioner is currently on an extended leave of absence, but remains employed by Respondent. Respondent is an employer under the Florida Civil Rights Act (FCRA) of 1992. Petitioner’s Employment at the Daniels Parkway Store From January 2005 until December 2008, Petitioner worked as an assistant pharmacy manager inside Sweetbay store located on Daniels Parkway in Fort Myers, Florida. Her job duties included filling and dispensing prescriptions, counseling customers, screening for drug interactions or patient allergies, communicating with physicians to clarify prescriptions, and contacting insurance companies when necessary. Although the Daniels Parkway pharmacy was relatively slow, Respondent never promised Petitioner that she would not be required to work at a high-volume store. In fact, during the time she was employed at the Daniels Parkway store, she covered shifts at higher-volume stores, including the North Fort Myers store, whose pharmacy had at least double the weekly volume of the Daniels Parkway store. Although upper management had not been informed of problems with Petitioner’s job performance at the Daniels Parkway store, the pharmacy manager and store management received some complaints from customers about Petitioner being rude and providing poor customer service. Store management handled these complaints informally by speaking directly to Petitioner about them. Petitioner’s pharmacy manager at the Daniels Parkway store was Patrick Fung (Fung). In addition to a few customer complaints to Fung, Petitioner would leave a lot of tasks for Fung to complete the following day and would create difficulties with respect to the pharmacy schedule. In February 2009, Respondent permanently closed the Daniels Parkway store. Earlier, in mid-January 2009, the company announced to the associates that the Daniels Parkway store would be closing. In December 2008, Petitioner took a medical leave of absence for back surgery. Although she mentioned that she was having back surgery, Petitioner did not inform anyone in Respondent's management that she had a permanent disability concerning her back or that she had any other disability. Respondent's management did not know Petitioner had, nor did it regard Petitioner as having, a permanent disability. Petitioner never asked for an accommodation for her back pain or any mental health disability. Indeed, Petitioner never submitted any documents to Respondent, stating that she had a disability or any type of mental health condition. Petitioner never told Respondent that she had a mental health condition. No one in Respondent's management knew or thought that Petitioner had a mental condition and never saw any documentation to that effect. Petitioner was still on a medical leave of absence in early February 2009, when the Daniels Parkway store closed. Employment and Promotion to Pharmacy Manager Position at Lehigh Acres In mid-January 2009, when the company announced the Daniels Parkway store closing, there were only two open pharmacy positions in the region: the assistant pharmacy manager position at the store in Lehigh Acres near Fort Myers, Florida, and the assistant pharmacy manager position in the store in Estero, Florida. The regional pharmacy business supervisor during the relevant time period was Diane Fagan (Fagan). Fagan made an effort to place Petitioner and Fung into the two open pharmacy positions. Fagan felt both Fung and Petitioner were good pharmacists and wished to retain them with Respondent. Because Fung was a pharmacy manager and actively on the payroll, he was given the option of accepting either of the two open assistant pharmacy manager positions or, alternatively, to accept a severance package. Fung voluntarily selected the Estero position, to become effective after the Daniels Parkway store closed. In doing so, Fung voluntarily accepted a demotion with a concomitant reduction in pay. It is undisputed that Fung was qualified for the Estero position, he was Petitioner’s supervisor at the time, and, therefore, it was reasonable that he be offered the position first. By allowing Fung to decide between the two positions, Fagan did not consider Petitioner’s or Fung’s age, marital status, or disability status. Petitioner failed to provide any evidence as to Fung’s age, marital status or disability status, and whether they differed from Petitioner’s. There is no evidence on this issue that demonstrated that any decisions made by Respondent regarding Petitioner’s employment were made because of age, her marital status, disability or the perception that she had a disability. After Fung selected the Estero position, Petitioner was offered the remaining assistant pharmacy manager position at the Lehigh Acres store, to become effective after the Daniels Parkway store closed, and when she returned from medical leave. At the time, Petitioner did not yet have a projected release date to return to work. Alternatively, she was offered a severance package. In late February 2009, the pharmacy manager at the Lehigh Acres store abruptly resigned her position. On March 5, 2009, the two positions were offered to Petitioner. The following day, Petitioner voluntarily accepted the position of pharmacy manager. This was a promotion for Petitioner, which came with an increase in salary and additional benefits. During these discussions, Petitioner was offered the option of either a 30-hour or 36-hour work week (the 36-hour week came with the pro rata increase in pay). Petitioner voluntarily selected the 30-hour work week. Petitioner expressed that a 30-hour work week would be a positive for her. Petitioner never informed Respondent that she could not go to the Lehigh Acres store or that working at the Lehigh Acres store, in any way, would or did affect her back condition or any other alleged disability she may have had. Petitioner never informed Respondent that she had a permanent disability of any kind. Petitioner claims that she told Fagan that “she does not do well under stress.” Assuming that to be true, that statement does not qualify as informing Respondent that she had a mental health disability, and Petitioner never asked for a reasonable accommodation for any mental condition or disability. She never filed a request in writing for reasonable accommodation. The discussions about the job transfer and promotion were communicated to Petitioner while she was out on leave for the back surgery. Petitioner never indicated that the phone calls made to her by Fagan were inappropriate or unwelcomed. To the extent Petitioner contends the Lehigh Acres store was stressful due to high volume, the evidence shows that the Lehigh Acres pharmacy, although busier than the Daniels Parkway store, was a low-volume pharmacy, in comparison to other pharmacies in the region. Petitioner started in her pharmacy manager position at the Lehigh Acres Pharmacy on March 15, 2009, after she had been released by her doctor to return to work without restrictions of any kind. The job duties of a pharmacy manager are substantially the same as the job duties of an assistant pharmacy manager, the position Petitioner held at the Daniels Parkway store. The primary additional duty was that Petitioner was charged with the duty of working out the schedule between her and the assistant pharmacist and has input as to the pharmacy technician’s work schedule. Petitioner’s assistant pharmacist at the Lehigh Acres store was Opal Gagliardo (Gagliardo). Petitioner presented no evidence as to Gagliardo’s age or disability status, but testimony showed that she was married. In addition, Eron Goffena worked as a pharmacy technician at the Lehigh Acres pharmacy on Mondays and Tuesdays. Shortly after Petitioner started at the Lehigh Acres store, Respondent started receiving customer complaints about her. These included complaints about disorganization, inaccurate and incomplete filling of prescriptions, failure to fill prescriptions in a timely manner, and talking on the phone while ignoring customers for extended periods of time. Some customers became so dissatisfied that they transferred their prescriptions to another store. The Lehigh Acres pharmacy was open six days per week and was closed on Sundays. Petitioner was scheduled to work three 10-hour shifts per week. When Petitioner started at the Lehigh Acres store, Gagliardo was scheduled to work two 10-hour shifts per week, and the other shift was covered by another rotating pharmacist. Soon thereafter, in March 2009, Gagliardo agreed to become full-time and, like Petitioner, worked three 10-hour shifts per week. Consistent with normal practice, Petitioner and Gagliardo worked together to agree to a mutually-acceptable schedule: two-day-on/two-day-off, with each having every other weekend off. However, Petitioner later decided she no longer wanted to work this schedule and sought to make changes to it. This gave rise to an ongoing disagreement between Petitioner and Gagliardo regarding the schedule, which was not resolved by the time Petitioner went out on her second leave of absence. In addition, Petitioner failed to complete many of her daily pharmacist duties. The testimony is credible that she failed to consistently fill the prescriptions that came in during her shift; instead, leaving them for the next shift’s pharmacist. Petitioner was disorganized and did not follow the proper workflow procedures. This resulted in customers’ prescriptions not being completed in a timely manner. Additionally, Petitioner did not answer the telephone often while she was working, failed to put up the stock that came in during her shift, left the pharmacy messy, and would not empty her garbage, leaving it overnight for the next pharmacist to do. Petitioner did not work well with her coworkers and, unlike other pharmacists, delegated problems and insurance issues to the pharmacy technicians, or left them for Gagliardo. On Saturday, March 21, 2009, Gagliardo wrote a note to Petitioner setting forth her concerns about her work and customer complaints, and how it was affecting Gagliardo’s working conditions. Gagliardo left the note next to the pharmacy computer for Petitioner to read during her next scheduled shift. When Fagan learned of customer complaints about Petitioner and issues regarding the timeliness of processing prescriptions, she asked her pharmacy specialist, Christine Stills (Stills), to visit the store to introduce the company’s pharmacy workflow program to Petitioner, in order to reduce the level of stress and improve customer service. On March 23, 2009, Stills, Anna Winters (Winters), and Petitioner met in Winters’ office to discuss the workflow procedures. In response, Petitioner indicated that she wanted additional technician hours to help with the workflow. Petitioner did not express or suggest that her desire for more technician hours was, in any way, due to, or a request for accommodation for any disability. Respondent has company-wide guidelines for determining the number of pharmacy technician hours that can be used in each store, based on the number of prescription filled by the store per week. The staffing at the Lehigh Acres pharmacy was consistent with these guidelines and was consistent with staffing before and after Petitioner worked there. Although Petitioner disagreed with the guidelines, Petitioner’s pharmacy technician hours actually exceeded the company guidelines. Pursuant to the guidelines, a pharmacy with Lehigh Acres’ volume was allotted six hours of technician help per week. During Petitioner’s tenure, the Lehigh Acres pharmacy was provided at least 13 hours of technician help. In addition, Petitioner had a trainee helping her on the cash register for at least two days. The Lehigh Acres pharmacy also was staffed similarly pursuant to the guidelines under the previous pharmacy manager, Anna Lowry. The customer volume (and number of technician hours) at the Lehigh Acres pharmacy has remained approximately the same since Petitioner went out on a second leave of absence. Following the March 23, 2009, meeting, Petitioner went back to the pharmacy and found the note Gagliardo had left by the computer. Petitioner returned to Stills and accused Gagliardo of “sabotaging” her. Petitioner also called Gagliardo at home that evening and was very belligerent, accusing Gagliardo of “sabotage” and stating that Gagliardo had “crucified her” and “nailed her to the cross.” On Friday, April 3, 2009, a meeting was held at the Lehigh Acres store between Petitioner, Fagan, Stills and Winters. This meeting was to be a fact-finding meeting to let Petitioner know her performance was not at the expected level, to discuss the customer complaints and concerns, and to get some feedback from Petitioner as to why this was happening. During this meeting, Petitioner was counseled with respect to the customer complaints about her. In response, Petitioner blamed Gagliardo for at least one of the complaints and again accused Gagliardo of “sabotaging” her. The only example Petitioner could provide of purported “sabotage” was that a box of paper clips she had placed on the pharmacy counter had been moved, and she believed that Gagliardo hid them (although the paper clips later were found in a drawer marked “pharmacy supplies”). Fagan asked Petitioner for other examples of “sabotage,” to which Petitioner pulled out a bundle of notes, which, she suggested may reflect additional examples, but Petitioner would not turn them over or allow anyone to read them. Petitioner also responded that the pharmacy manager duties were overwhelming. When asked for specifics, she could not provide any examples of duties she had as a pharmacy manager that were over and above what she previously had as the assistant pharmacy manager. Instead, Petitioner again requested that she needed more pharmacy technician hours. The pharmacy staffing guidelines were again explained to her, and her request was denied. Near the conclusion of the meeting, Fagan asked Petitioner if she had any questions or comments in response to what had been presented, but Petitioner did not offer any questions or comments. At no time during the meeting did Petitioner say anything about age or disability discrimination, or retaliation. At no time during the meeting was Petitioner ever told that her employment was being terminated, that she was being suspended or demoted, or that she was being subjected to a reduction in salary or benefits, or any other adverse employment action. Petitioner’s counseling had no tangible impact on terms, conditions, or privileges of her employment. Petitioner was never suspended, her employment was not terminated, and her salary and benefits were not reduced. Following the meeting, Petitioner went to the store pharmacy, gathered her personal belongings and pharmacy license, packed them up, and left the store. She was not asked to do this, nor was it even suggested; rather, she took it upon herself to behave as if she would not be returning to the store. A Counseling Memo was prepared specifying the concerns and issues shared with Petitioner during the meeting. A Counseling Memo is a document on which company management highlights an issue related to job performance. It coaches an associate, as to, how that issue can be addressed and resolved. Neither the meeting nor the Counseling Memo were in any way based on Petitioner’s age, marital status, disability or any perceived disability. Because Petitioner had removed her possessions from the pharmacy, management was concerned she may not be returning for her next scheduled shift: Monday, April 6, 2009. Thus, Stills (who was responsible for insuring pharmacy coverage) called Petitioner and asked her if she was reporting to work on Monday. Winters also called Petitioner to see how she was doing. Although Petitioner was offended, these calls did not constitute adverse employment actions. Petitioner reported to work for her next shift on Monday, April 6, 2009, where she was presented the Counseling Memo. Petitioner was not being demoted, fired, suspended or otherwise suffering adverse employment action. In response, Petitioner wrote management, stating that she “did not realize the full responsibilities of pharmacy manager,” but did not make any reference to age or disability discrimination, or retaliation. Petitioner’s Second Leave of Absence The following day, April 7, 2009, was the last day Petitioner worked before going back out on a medical leave of absence. The reason for this second leave of absence was a recurrence of her back pain. Prior to taking this leave of absence, Petitioner had not told anyone that her back condition was bothering her while at the Lehigh Acres store. Since going out on this second leave of absence, Petitioner has not submitted any documentation to Respondent, which indicated that she is able to return to work in any capacity. Petitioner did testify that she expects to be released to return to work in the future. In June 2009, Petitioner did receive documentation from her physician indicating she was able to return to light-duty work, but Petitioner never submitted this documentation to Respondent and never requested Respondent to provide her any kind of light-duty work. Instead, she went to a different doctor, who stated that she was unable to return to work at that time, and submitted that documentation to Respondent. Petitioner remains employed by Respondent and is still on a leave of absence. She received short-term disability benefits of 100 percent of her salary for six months after going out on a leave of absence on April 7, 2009. Following the expiration of short-term disability benefits, and up to the present, Petitioner has received long-term disability benefits equivalent to one-third of her monthly salary. Since going out on a leave of absence, Petitioner has not sought any other employment except to submit an application for employment to Publix. She did not disclose to Publix that she had a disability. Alleged Discrimination/Retaliation Respondent has an anti-discrimination policy, which contains a complaint procedure under which employees are required to report any discrimination that they feel they are experiencing in the workplace. Petitioner was familiar with this policy and knew how to report perceived discrimination. Petitioner never reported any form of discrimination to Respondent. Therefore, no decisions made by Respondent regarding Petitioner’s employment were made in retaliation for reporting discrimination. The evidence does not show that any decisions made by Respondent's officials regarding Petitioner’s employment were made due to her age, marital status, disability, or any perceived disability. Petitioner speculates that Respondent's management may have viewed her personal pharmacy records and saw that she took anti-depressants and/or anti-anxiety medication and, from that, concluded that she suffered from a mental disability. Petitioner introduced no evidence supporting this theory. Petitioner admitted that she has no personal knowledge whether Respondent's management viewed her personal pharmacy records. Petitioner admits that the conditions she alleges were discriminatory (e.g., the allegedly stressful environment at the Lehigh Acres store) were not in any way related to her back condition. Rather, Petitioner theorizes that the allegedly stressful environment exacerbated her alleged mental condition. Petitioner failed to prove that she suffered age, marital status, or disability discrimination.
Recommendation Based upon the above Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's petition for age and disability discrimination and retaliation under the Florida Civil Rights Act. DONE AND ENTERED this 29th day of October, 2010, in Tallahassee, Leon County, Florida. S DANIEL M. KILBRIDE 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 October, 2010.
The Issue Whether Petitioner, pursuant to Rules 22A-7.010(2)(a) and 22A-8.002(5)(a)3, Florida Administrative Code, abandoned her position and resigned from the State of Florida Career Service System.
Findings Of Fact At all times pertinent to the issues herein, the Petitioner, Emily D. McGee, was employed by the Respondent, Department, as a Public Assistance Specialist II in the Department's Medically Needy Unit #87 in New Port Richey, Florida. In that assignment, Petitioner's immediate supervisor was Public Assistance Specialist Supervisor Dorothy White. It is established policy at the HRS facility in question for employees who will be absent to notify their supervisors as soon as possible when they know they will be absent. During her employment, Petitioner had received printed copies of this general policy and of the State rules governing the presumption of abandonment of position in cases where an employee is on unexcused leave for three consecutive workdays. On April 13, 1990, Petitioner was overcome with job stress and was admitted to a residential mental health care facility for four days, which was drawn against Petitioner's earned sick leave. Subsequent to her release, she received outpatient psychological therapy at the Center for the Treatment of Depression in New Port Richey, Florida, with Howard L. Masco, M.D., as her treating physician. On April 20 and again on April 25, 1990, Petitioner was advised by White that in order to properly draw against earned sick leave she must provide a doctor's statement that she was disabled and unable to perform her duties and the projected date of her return to work. On April 25, 1990, a doctor's statement was received, but it did not contain a projected date of return. On April 26, 1990, Petitioner applied to draw against the District V Sick Leave Pool, beginning on May 1, 1990 for an indeterminate period of time. This request was denied by the Committee Administrator. On May 9, 1990, White advised the Petitioner, telephonically and in writing, that her request to draw against the sick leave pool was denied. If she was unable to return to work, Petitioner must submit a written request for leave without pay for her current absence from work, with a beginning date of May 4, 1990 and a projected date of return to work. A physician's statement would also be required. After a period of misunderstanding, a written request with a physicians' statement was submitted by the Petitioner and Leave Without Pay was approved on June 18, 1990 retroactive to May 4, 1990. The physician's statement, dated May 18, 1990, stated that Petitioner has been unable to work since her hospitalization on April 13, 1990 and was still unable to work at the present time. Dr. Masco indicated that he was unable to determine when Petitioner would be able to return to work but that the present diagnosis was depression. Petitioner was advised, in writing, that additional leave could not be granted beyond July 17, 1990 and that Petitioner was required to return to work with medical certification at that time as to her ability to perform her assigned job functions. On the dates between July 18 and July 20, 1990, inclusive, Petitioner neither appeared at work nor informed her supervisor or anyone at HRS that she was going to be absent or was medically unable to return to work. No leave was authorized for her. This period constitutes in excess of three consecutive workdays of absence without approved leave. By letter dated July 27, 1990, Petitioner was advised in writing by the District Administrator that her failure to return to work on July 18 and thereafter constitutes abandonment of position. At the hearing, Petitioner attempted to show that her disability continued beyond July 20, 1990 and up to the present day, and that she had no intention of abandoning her position. That in fact she was physically unable to perform her duties due her continuing stress and depression.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered finding that Petitioner, Emily D. McGee, abandoned her position with the Department of Health and Rehabilitative Services and resigned from the Career Service when, on July 18, 19 and 20, 1990, without authority, she absented herself from her workplace for three consecutive days. DONE AND ENTERED this 1st day of February, 1991, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 1st day of February, 1991. COPIES FURNISHED: Emily D. McGee Post Office Box 1223 Port Richey, Florida Thomas W. Caufman, Esquire Assistant District Legal Counsel Department of Health and Rehabilitative Services 701 94th Avenue North St. Petersburg, Florida John Pieno, Jr. Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Linda Stalvey Acting General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
Findings Of Fact Petitioner Jose A. Torres was a licensed medical doctor, having been issued License No. ME0029982. By Administrative Complaint filed March 23, 1982, he was charged with 31~counts of violations of Chapter 458, Florida Statutes. Dr. Torres entered an admission as to seven counts of that Administrative Complaint and the other counts were dismissed prior to hearing. The matter came before the Board of Medical Examiners as an informal hearing and the Board voted to revoke Dr. Torres' license to practice medicine (P-3). The undersigned ruled at formal hearing, contrary to Petitioner's urging, that it is inappropriate to go behind the formal final order of revocation to vary the circumstances leading up to that revocation.9 At that time, by requesting an informal proceeding pursuant to Section 120.57(2), Torres admitted not simply to conclusions of law as to what statutory violation was found, but also to there being no disputed issues of material fact as alleged in the Administrative Complaint. Accordingly, the specific facts admitted by Torres related to the treatment of seven different patients and the prescription of controlled substances to each of those patients in the following amounts over the following time period: John Dodge 852 Dilaudid Less than 3 months Joann Diaz 425 Dilaudid Less than 2 months Robert Pendegar 427 Dilaudid Two and one half months Richard Pendegar 168 Dilaudid Less than 1 month Charles Penno 330 Dilaudid Less than 3 months Robin Simpson 174 Dilaudid Less than 6 months Graham Boylan 130 Dilaudid Less than 1 month In addition to admitting the facts relating to the number of pills prescribed over a specified period of time as to each individual patient, Torres admitted (See P-3-4) that each patient: Was a drug abuser, a fact that was or should have been known to Respondent [Dr. Torres]. Respondent did not prescribe above- prescribed controlled substance for a medically-justified purpose. Said prescriptions were inappropriate or excessive and inappropriate quantities.10 It was based upon those admissions of fact that the Board of Medical Examiners determined that Torres had violated Section 458.331(1)(q), Florida Statutes, for prescribing a controlled substance other than in the course of his professional practice in each of the seven counts and revoked his medical license. He has been without his license for approximately 29 months at this writing. It was stipulated, and is accordingly found, that Petitioner has never previously nor subsequently been charged with or been found in violation of any provision of the Medical Practices Act (Chapter 458, Florida Statutes) nor any rule of the Board of Medical Examiners, other than those which were committed in 1981 and which led to the revocation of Petitioner's license on June 15, 1983. It was stipulated, and is accordingly found, that Petitioner falls in the category of persons applying for and eligible for reinstatement pursuant to Board policy in effect prior to June 5, 1983. There are no statutes or written rules or policies of Respondent defining what is a "grave" violation nor what "grave" violation(s) would show "such a lack of judgment and lack of ability or willingness to conform to the law" so as to guide Petitioner in applying such criteria in the reinstatement process. Both Drs. Katims and Bass testified that each Board member's decision on what was or was not a "grave" offense was based upon their own subjective interpretation and criteria, and that for persons in the Petitioner's pre-June 5, 1983 category, the Board did not consider any particular formula nor any one factor but looked at the totality of the circumstances in arriving at conclusions concerning who should be reinstated and who should not be reinstated. Respondent had not, prior to the time Petitioner filed his Petition for Reinstatement, adopted any written reinstatement rules which covered persons in Petitioner's category of those applying for reinstatement. Rule 21M-20.03 Florida Administrative Code became effective on January 3, 1985. Any effect or lack of effect thereof is considered infra under "Conclusions of Law". Petitioner's Exhibit 6 seeks to establish incipient policy by a summary of prior actions taken by the Board of Medical Examiners. Of the seventeen cases listed in the summary, all but one involved charges of inappropriate and excessive prescriptions. Only three involved revoked licenses. One of those three with revoked license was Petitioner herein; one was Dr. Richard S. Flatt, one was Dr. Newell Griffith.ll All of the other cases documented in P-6 were ones in which the initial discipline imposed fell short of revocation,l2 and one of those was the acceptance of a voluntary relinquishment of licensure with leave to request reinstatement. In addition, documentation on which the summary was based was introduced as Composite P-17. A review of those materials reveals that procedurally, only five of the cases cited, in addition to the case of Petitioner Torres, were before the Board for informal proceedings. Five were stipulations accepted by the Board, none of which contained admissions as to the truth of the allegations of fact in the Administrative Complaint. Four were before the Board after formal hearings at which the case was fully tried and evidence of violations or defenses thereto was fully available. The remaining cases involved one voluntary relinquishment (Major) and one case (Flats) in which the documents relate to reinstatement and do not reveal the procedural posture of the underlying discipline. Of all of the informal hearings reflected in the documentation, only two of the Respondents failed to make an appearance, either in person or through counsel, to offer an explanation of their conduct or offer evidence in mitigation at the time the Board was imposing discipline: this Petitioner Torres and Dr. Newell Griffith. Petitioner Torres states that he did not appear at his April 9, 1983, hearing due to faulty advice concerning the date thereof given him by his former attorney. Dr. Newell Griffith's situation is discussed in greater detail, infra. In only one of the other cases (Seller) involving an informal hearing did the Administrative Complaint contain the specific allegations of fact that the patient was a known drug abuser and that the Respondent did not prescribe the controlled substance for a medically-justified purpose (Seller). In one other case (Waldheim) the allegations did include an allegation that the prescriptions were not for a medically-justified purpose, but there was no allegation therein with respect to the fact that the patient was a known drug abuser. Although both parties have argued a variety of similarities of the various aspects, issues, Respondents, etc. of the seventeen cases by which Petitioner has attempted to demonstrate incipient policy, the only ones specifically found relevant and material are those involving revocation: Torres, Flatt and Griffith.l3 The charges against Dr. Richard S. Flatt were couched in terms of bargaining with not-medically justified prescriptions for the sexual favors of a single female patient. Although Dr. Flatt's license was revoked, the initial revocation was stayed and the license was suspended for three years. A specific time limit was placed on the revocation (which probably is more correctly termed a suspension) with no further conditions for the stay imposed, but nonetheless it is found, for purposes of comparison re incipient policy, to be a revocation case. Dr. Flatt was without his license for 35 months. Thus, we come to the sole case which appears to be closely comparable, in any real sense, to the circumstances of Petitioner Torres: the case of Newell Jerome Griffith. Dr. Griffith was initially charged in 1981 with excessive and inappropriate prescribing of controlled substances to three patients, and was, at that time, given a disciplinary penalty of a revocation of the privilege to prescribe Schedule II controlled substances, with stay of such revocation, and a suspension of those privileges until after certain continuing medical education courses were completed, at which time the privileges would be reinstated on probation. Subsequently, Dr. Griffith was charged with prescribing Schedule II controlled substances to five patients while his privilege to do so was revoked. The final order in that cause indicates that Dr. Griffith did not attend the hearing on the charges, either in person or through counsel, that Dr. Griffith was found guilty after filing an Election of Rights admitting the facts, and that Dr. Griffith's license to practice medicine was revoked. When Dr. Griffith was asked by the Respondent in a second disciplinary action whether he knew at the time of the subsequent prescriptions that his license to do so was suspended and why under those circumstances he did so, Dr. Griffith replied: "I guessed I hoped it would not be picked up . . ." (P- 7, page 19). The final revocation was because Dr. Griffith prescribed 488 tablets of Schedule II drugs to five patients while his privileges to prescribe Schedule II drugs had been suspended. Respondent's proposals concede "that particular offense does appear to show an inability or unwillingness to conform to law," and it is so found. It is also found that the quantity and gravity of the drugs involved in Dr. Griffith's ultimate revocation case is less than those which led to Petitioner Torres' license revocation. When both the suspension and revocation cases are considered there is great similarity in quality and quantity of Griffith's prescriptions with those of Torres. In the revocation situation of Griffith however, there was no showing of prescription to drug abusers or prescription for a non-medically justifiable purpose and it involved fewer patients and pills than prescribed by Petitioner. Despite the fact that Dr. Griffith has violated the Medical Practices Act on two separate occasions (Petitioner having done so only once), and prescribed similar total quantities of controlled substances, including Dilaudid, and despite the fact that Dr. Griffith the second time around expressly engaged in conduct clearly showing "lack of judgment" and "his unwillingness to conform to the law", the Respondent has permitted Dr. Griffith to be reinstated and he is now practicing medicine. His license revocation was for a total of 24 months (P-6). Dr. Griffith's license was reinstated by the Board of Medical Examiners after repeated Petitions for Reinstatement had been denied and the appellate court had ordered the Board to articulate a basis for the denial and standards for Dr. Griffith to use in determining when the Petition for Reinstatement would be "mature" for presentation to the Board.14 After Petitioner Torres was charged with the specific violations of the Medical Practices Act involving improper prescription of controlled substances, he took and successfully completed a six and one- half hour Continuing Medical Education (CME) course involving the specific activities (prescription of controlled substances) for which his license was revoked. After successfully completing this Drug Law Seminar, Petitioner continued to take and complete continuing medical education courses including attendance at conferences and seminars and the reading of numerous medical periodicals and journals. These included three books or pamphlets concerning drug abuse, heroin, and other aspects of drug dependence. After the revocation of his license, the Petitioner and his wife jointly agreed that he would do everything he could to stay in touch with the medical profession so as to enhance the possibility of eventual reinstatement of his license. Both the Petitioner and his wife have continuously struggled at menial jobs to support their family of four children. Petitioner took a job providing audio visual materials at Hollywood Memorial Hospital for other doctors. Dr. Seidel, Director of Medical Education and In-House Chief of Staff for Hollywood Memorial Hospital, found the Petitioner to be an honest and hardworking person who completed all audio visual, chart review auditing, and quality assurance tasks assigned to him in an exemplary fashion. Petitioner viewed many of the continuing medical education programs and courses as part of this audio visual job. Petitioner urges that over 100 hours of CME have been completed, but Respondent argues these hours should be discounted because many hours were admittedly part of Petitioner's audio visual tasks. Based on the testimony and exhibits, it is impossible to separate which "hat" Petitioner was wearing for which topics or for how many hours, but it appears most logical that he was present in the room while at least 54 hours of Florida Medical Association-approved CME material was being presented by audio visual techniques. Without contrary evidence, one must assume Petitioner was at least as attentive as the Hollywood Memorial Hospital physicians required to attend these presentations by the hospital's quality assurance program. Certainly, hope of reinstatement of his license must have been an effective motivator for Petitioner. Even if there were some question concerning Petitioner's attention to these audio visual programs, which there is not, there remain 46 hours of CME accomplished by the Petitioner through other means. Most of the letters and petitions signed by physicians (P-1C) in support of Petitioner being permitted to practice medicine, though admitted into evidence by stipulation, are simply not probative of the basic issue of current safety to practice. Their probative value on this point is diminished on the same weight and credibility grounds as are most of the physicians' live and deposition testimony, or they fail because they are undated, stale, or at least confused about the fact that revocation has already occurred. By expert testimony, of Drs. Coopersmith, Shabanah, Di Giorgi, Piskur, Rand, and Bautista,l5 all testified that in their opinions, the Petitioner could now safely engage in the practice of medicine. Drs. Coopersmith, and Shabanah base their opinions upon Petitioner's CME hours and qualify the Petitioner's safety to practice in terms of being properly supervised or monitored. With the exception of Dr. Seidel and Dr. Bautista, most of the physicians who testified or gave affidavits in support of Petitioner Torres testified that he had practiced with reasonable skill and safety all along: this clearly was not so. These physicians' assertions show a lack of awareness of the full nature of Torres' practice before revocation, and, therefore, a lessened ability to judge whether Torres has changed in a manner sufficient to assure the Board and the public that he will practice with reasonable skill and safety within the confines of the requirements of the applicable Florida Statutes. Testimony by Drs. Coopersmith, Shabanah, Di Giorgi, Piskur and Rand specifically fall in this category of lessened weight and credibility. For the same reasons, the testimony of Mr. Tom Mulroney, a retirement village operator, and Mr. Lawrence Esteban, a paramedic/fireman, is equally lacking in weight and credibility. All written as well as oral evidence originating with Dr. Seidel has been weighed. Although Dr. Seidel apparently knew the entire prescribing history of Petitioner's medical career and of this case, he expressed the opinion that Petitioner's license should be reinstated and it is found that inherent in that opinion of Dr. Seidel is his belief that Petitioner can now safely practice medicine even though Dr. Seidel did not employ those "magic words." Dr. Seidel has known Petitioner for many years and his opinion in favor of reinstatement is particularly impressive in light of his almost daily observation of Petitioner since his license revocation and in light of Dr. Seidel's past knowledgeable observation and supervision of him as a house physician at Hollywood Memorial Hospital when Torres was first practicing there in 1977. The weight of Dr. Seidel's opinion is further amplified by Dr. Seidel's continuing service on peer review committees for this hospital. Dr. Bautista's knowledge of Petitioner's entire past prescribing went beyond just talking to Petitioner. Although she had agreed to oversee him if a probationary period were ordered with reinstatement, she also gave her unqualified professional opinion that Torres may now safely practice medicine. Since revocation, Petitioner has taken and passed both a physical and mental examination. Each examining physician concluded he could now safely engage in the practice of medicine. The description in psychiatrist James S. Weiner's report of the status of Petitioner's legal case before the Board and/or theDivision of Administrative Hearings and the apparent discrepancies between the facts as established by the initial final order of revocation by the Board and Petitioner's explanation to Dr. Weiner of what had occurred from Petitioner's point of view are as attributable to a non-lawyer's misunderstanding of the legal terms "suspension" and "revocation" and of the finality and legal consequences of the Board's 6/15/83 order as they are attributable to any alleged misrepresentation or lack of candor by Petitioner. Contrary to Respondent's urging in its proposals, Petitioner's credibility is not thereby diminished. While there were many patients who testified through affidavit or whose testimony was proffered without admission, as to how much they liked Petitioner and how much they wanted him back in practice, patients are not in a position either to judge Petitioner's ability to practice with reasonable skill and safety before revocation where, as here, they had no clear knowledge of his prescribing practices before revocation, and where, as here, they were not knowledgeable concerning his rehabilitation efforts, if any, since revocation. However, it is clear that despite newspaper publicity, Petitioner continues to enjoy a good reputation among many in the community. Petitioner's Plan of Re-Instatement was part of his Petition for Reinstatement affixed to his Petition for Administrative Hearing. It contains two (2) distinct Plans of Supervision during any probationary period Respondent might elect to set as a condition for Petitioner's re-instatement, including one plan where the practicing physician would supervise the Petitioner on a day-to-day basis and the other plan would include direct supervision within the confines of a publicly-owned and regulated medical facility with the parameters of that supervision to be set by the Respondent. As part of the first Plan of Supervision, an affidavit of a presently practicing physician in good standing with the Respondent, Videonia Bautista, M.D. was provided. She agreed, within her affidavit (and in live testimony recounted, supra) to supervise Petitioner on a day-to-day basis in her own office for as long as the Respondent felt such supervision was reasonably necessary. Petitioner also testified personally regarding his rehabilitation. Petitioner readily and candidly admitted that what he did in 1981 was wrong. The totality of his testimony and his general demeanor reveal that the acute embarrassment and subsequent financial and familial hardships and sacrifices that he and his family have endured since his downfall have instilled in him a valuable lesson which will constantly serve as a reminder to him of the standards of conduct required of one licensed in the medical profession. The Petitioner expressed remorse and regret for the actions he took in 1981. He apologized to his family, his peers and his patients. He expressed his frustration and disappointment in not being able to continue to serve his patients because of what he views as his past errors in judgment. Petitioner admitted to having a flaw in his character, that flaw being too trusting and too naive as to the subjective complaints of his former patients. Such a flaw of character is not inconsistent with the earlier disjunctive admission/finding that Torres "knew or should have known" (emphasis supplied) that he was prescribing to drug abusers. Torres explained that the experience he has endured has brought that flaw vividly to his attention and he has done everything within his power to reasonably ensure that the same problem never happens again. When the Petitioner was asked if he had learned anything from his experience, he testified: I have each and every time of the day pondered upon the mistake that I committed and the result that it has done to me and my family and my patients. That because of that, I will never do it again. Petitioner, a church-goer, and his wife and four children have suffered newspaper publicity, public humiliation, and a drastic reduction in their standard of living throughout this lengthy revocation period. Petitioner acknowledged and agreed to adhere to the Plan for Re-Instatement contained in the Exhibits to his Petition. He also agreed to abide by any reasonable requirements set by the Respondent to ensure that he would continue to safely engage in the practice of medicine and would not repeat the errors in judgment which led to the revocation of his license. The potential for Petitioner, if reinstated, to commit the same offense(s) is very dim.
Recommendation It is recommended that the Florida Board of Medical Examiners enter a final order reinstating Petitioner's license to practice. DONE and ORDERED this 24th day of October, 1985, in Tallahassee Florida. ELLA JANE P.DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675