Recommendation It is recommended the stipulated settlement as described above be accepted. DONE and ENTERED this 26th day of July, 1991, in Tallahassee, Florida. K.N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of July, 1991.
The Issue The issue is whether Parallon Enterprises LLC-HSC Orange Park (“Parallon”) committed an unlawful employment practice against Tina Gainey by subjecting her to disparate treatment based on her national origin.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: The Parties Parallon is a business based in Orange Park, Florida, that contracts with 22 hospitals to provide health information management (“HIM”) services. HIM is a term used to describe the process by which a health care facility secures and maintains a patient’s medical record from admittance to discharge. Parallon’s main purpose is to ensure that a patient’s medical record is complete and accurate upon discharge. Rather than employing nurses, physicians, or other providers of direct patient care, Parallon employs the hospital staff members involved with HIM operations. Ms. Gainey is Hispanic and began working for Parallon in April of 2011 as a health information technician at the Twin Cities Hospital in Niceville, Florida. Ms. Gainey has held the position of health information technician during her entire tenure at Parallon. Ms. Gainey works the night shift and is usually the only HIM employee present at that time. HIM work during the night shift is less complex than HIM work during the day. The nighttime work involves gathering the records of discharged patients, ensuring that all of those records can be traced to a particular patient, and preparing those records for delivery to a document imaging center. Upon beginning her employment with Parallon, Ms. Gainey had high hopes of enjoying a long tenure there. Because she was told that a degree in the HIM field would enable her to advance within Parallon, Ms. Gainey geared her education toward a specialization in HIM. The HIM Director Position at Twin Cities Hospital Opens Ms. Gainey’s previous supervisor, the HIM Director at Twin Cities Hospital, relocated to a different position in approximately March of 2016. A HIM Director with Parallon has a great deal of responsibility. In addition to being a supervisor and responsible for every medical record in a hospital, a HIM Director investigates every unauthorized release of protected health information. Ms. Gainey was interested in the HIM Director position and communicated her interest to Lisa Terrell. Ms. Terrell is one of Parallon’s HIM Regional Directors and oversees Parallon’s operations at eight health care facilities in Florida, including Twin Cities Hospital. Ms. Terrell interviews qualified candidates for vacant HIM Director positions and recommends which candidates will be interviewed by Parallon’s upper management. Ms. Terrell told Mr. Gainey to send her the necessary documentation and Ms. Terrell would then forward that documentation to the appropriate person. Ms. Gainey followed Ms. Terrell’s instructions and provided her with the necessary documentation, an internal transfer form and a resume, via an e-mail transmitted on May 4, 2016. On May 4, 2016, Ms. Terrell forwarded Ms. Gainey’s e-mail to Kimberly Baker, a human resource generalist at Parallon’s headquarters in Orange Park during the time in question. Ms. Baker did not account for that e-mail by adding Ms. Gainey to the list of applicants for the HIM Director position at Twin Cities Hospital. Ms. Baker should have recognized this e-mail as an application for the open HIM Director position because the subject line read “FW: Application for HIM Director position.” Moreover, the line below the subject line indicates two files were attached to the e-mail. Those files were named “Internal Transfer Form rev 9.3.14.doc” and “Tina Gainey Management Resume 2016.docx.” Ms. Baker can only speculate as to why she failed to account for Ms. Gainey’s application. Ms. Baker was on vacation in May of 2016, and she left Parallon at the end of that month. Thus, it is possible that Ms. Terrell’s e-mail was overlooked in a mass of e-mails that accumulated in Ms. Baker’s in-box while she was gone. Also, Ms. Gainey did not follow the formal process established by Parallon for existing Parallon employees to apply for transfers to open positions. Parallon requires existing employees to apply for open positions by transmitting an e-mail to a particular human resource employee such as Ms. Baker. An internal transfer form and the employee’s resume should be attached to the e-mail. That requirement serves multiple purposes. First, Parallon’s human resources department is able to verify that an application is complete. Then, the human resources department screens a particular applicant to ensure that he or she is eligible to apply for the position in question. Parallon also requires that applications be sent to a particular human resources employee because the employee responsible for managing the process for filling a particular opening must track which applicants are interviewed and which receive offers. If the human resources department finds that a particular applicant is eligible, then the human resources department notifies the hiring director that an internal candidate has applied for the position in question. A list of open positions within Parallon on March 29, 2016, indicates that existing employees should have transmitted an e-mail and the required attachments to Ms. Baker. Ms. Baker believes that she would have been more likely to have added Ms. Gainey to the list of applicants for the HIM Director position if Ms. Gainey had followed the established procedure. Nevertheless, Ms. Baker should have recognized Ms. Terrell’s e-mail as an application for the open HIM Director position. Parallon Offers the HIM Director Position to Karen Truelove Karen Truelove was employed by Parallon and working at the Fort Walton Beach Medical Center (“FWB Medical Center”) in Fort Walton Beach, Florida, in May of 2016. Ms. Truelove was also interested in the HIM Director position at Twin Cities Hospital. She transmitted an e-mail to Ms. Baker on March 30, 2016, with an internal transfer form and her resume attached thereto. Ms. Truelove has over 20 years of experience in the HIM field. From March of 1996 through December of 2000, Ms. Truelove worked for Contra Costa County Health Services in Martinez, California, where she: (a) developed and implemented policies and procedures for medical record maintenance; (b) worked with outlying county medical clinics to ensure proper medical record procedures; and (c) completed and processed workers’ compensation, state disability, social security, and private insurance forms. From January of 2001 to October of 2001, Ms. Truelove worked at the Oasis Sports Medical Group in San Diego, California, where she: (a) prepared charts for daily outpatient visits; (b) requested MRIs, EMGs, and medical records; and (c) proofread medical record dictation. Ms. Truelove was next employed from April of 2002 through July of 2003 at the Rehabilitation Hospital of the Pacific in Hawaii, where she conducted insurance verifications, processed referrals, and scheduled patients. Ms. Truelove’s next position was based at the Queens Medical Center in Honolulu, Hawaii, from July of 2003 through December of 2004, where she reviewed discharged patient medical records for completeness and accuracy. Ms. Truelove has worked for Parallon at the FWB Medical Center since February of 2005. She began her employment with Parallon as an HIM Operations Supervisor for the evening shift. In that position, Ms. Truelove was responsible for: (a) staffing the evening shift; (b) ensuring that the evening shift met productivity and quality goals; (c) preparing charts; and (d) reviewing charts for completeness and accuracy. Ms. Truelove held the HIM Operations Supervisor position until February 21, 2006. She then became the Lead HIM Technician at the FWB Medical Center for issues pertaining to incomplete medical records and patient charts. At some point in 2007, Ms. Truelove became a tumor registrar at FWB Medical Center. A tumor registrar analyzes patient charts for cancer diagnoses. The information is then reported to the American College of Surgeons so that national treatment guidelines for cancer can be developed. In order to hold this position, Ms. Truelove earned a certification from the National Cancer Registrar’s Association. In addition to working full-time, Ms. Truelove is currently pursuing a two-year degree in HIM and hopes to eventually take an examination in order to become a registered health information technician. Because she had visited the FWB Medical Center for department meetings, Ms. Terrell already knew Ms. Truelove prior to her application for the HIM Director position and had a very high opinion of her work. Ms. Truelove’s direct supervisor at the FWB Medical Center gave Ms. Truelove a strong recommendation. As a result, Ms. Terrell considered a face-to-face interview with Ms. Truelove to be unnecessary and interviewed her over the phone on April 17 or 18, 2016. Afterwards, Ms. Terrell recommended that Ms. Truelove be interviewed by Parallon’s upper management. Even if Ms. Gainey’s application had been processed by Ms. Baker, Ms. Terrell would have considered Ms. Truelove to be a better candidate for the HIM Director position. Parallon’s Chief Executive and Chief Operating Officers then interviewed Ms. Truelove. Ultimately, Parallon offered the HIM Director position to Ms. Truelove on or about May 17, 2016, and she has held that position since June of 2016. Because she is much further along in her career and has more than twice as much experience with medical records, Ms. Truelove would have almost certainly been offered the job even if Ms. Gainey’s application had been processed by Ms. Baker. With regard to hiring and/or promotional practices, there is no persuasive evidence to support a finding that Parallon treats similarly situated, non-Hispanic employees more favorably than Hispanic employees, such as Ms. Gainey. Ms. Gainey Requests Training On Friday, May 20, 2016, Ms. Gainey sent an e-mail to Ms. Baker inquiring about the HIM Director position: Hi Kimberly, I have not heard back from Lisa Terrell regarding the HIM Director position at Twin Cities in Niceville. I sent her my transfer form and resume information back on May 2, and wanted to make sure that you had received this as well. Please contact me as soon as possible. Thank you. Tina M. Gainey Ms. Baker responded on May 23, 2016, with the following e-mail: Tina, These always need to be sent to HR for consideration and processing. I can see if Lisa receive[d] it, but unfortunately, they have already selected a candidate for an offer. Ms. Gainey then spoke to Ms. Terrell about receiving training so that she could advance beyond her nighttime technician position. Parallon has offered training to Ms. Gainey so that she could advance into a daytime position. However, given that her nighttime shift ends at 1:30 a.m., it is unclear whether the training has been offered at a time during which it would be reasonable to expect that Ms. Gainey would be able to take advantage of that training opportunity. There was no persuasive evidence indicating that any other Parallon employees were treated more favorably than Ms. Gainey with regard to training opportunities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Tina Gainey’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 5th day of March, 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 2018.
The Issue The issue in the case is whether the allegations in the Administrative Complaint, as amended, are correct and if so what penalty is appropriate.
Findings Of Fact The Petitioner is the state agency charged with responsibility for regulation of licensed nursing home administrators in Florida. At all times material to this case, the Respondent was a licensed nursing home administrator. On or about April 13, 1998, the Respondent was hired as the administrator of the “Colonial Oaks” nursing facility (the facility) located in Ft. Myers, Florida. The facility was owned by Vencor and had been operating for about four years by the time the Respondent became the administrator. Prior to her move to Colonial Oaks, the Respondent had 20 years of experience as a nursing home administrator. The Respondent’s previous nursing home employment had been at facilities with superior ratings. She agreed to transfer to this facility because she believed that she could improve the situation and secure a superior rating for it as well. She has never been the subject of a disciplinary proceeding prior to this case. Colonial Oaks had been through 12 administrators and 15 directors of nursing before the Respondent assumed the administrator’s position. There were considerable staff problems at the facility. Continuing management difficulties made if difficult to motivate staff members who apparently assumed that the managers would soon be gone and that new managers with new expectations would arrive. Further staffing problems were related to the type of patients who resided at Colonial Oaks. The facility drew a large population of private pay residents who expected high levels of service from the staff, which the staff was apparently unable or unwilling to provide. At the time of the Respondent’s employment at the facility, there was no director of social services and no director of activities. Additionally, resignations had been submitted by the medical records coordinator, the care plan coordinator, the staff development coordinator, the therapy director, the case manager, and the central supply clerk, all of whom were completing their resignation notice periods. Immediately upon beginning her tenure at the facility, the Respondent began to advertise the job openings in an attempt to fill the positions. She filled a number of open positions and began training new employees. She met with the staff frequently and made daily rounds to review the operation of the facility. Employees seeking to become Certified Nursing Assistants were offered classes to encourage them to complete their training. The Respondent also changed the resident care plan records program from a computerized system, which was allegedly disliked by survey teams from the Agency for Health Care Administration (AHCA) responsible for inspecting the facility, to a paper-based system which provided for easier review by survey teams. There is no evidence that the Respondent failed to make an appropriate effort to address the problems existing at the facility when she assumed control. AHCA inspectors surveyed the facility on August 6 through 8, 1998. While the survey team inspected the facility, the Respondent spent much of the time in her office preparing a package she expected to submit to the survey team which she believed would lead to a superior rating. She also responded to requests for information from the survey team. According to the survey report, the survey team identified numerous deficiencies. The facility received a conditional rating. Among the cited deficiencies were instances where residents were allegedly left in soiled clothing for extended periods of time. Some of the allegations involved residents with skin irritation or sores which could be exacerbated by unsanitary clothing. The facility’s policy and procedure require that residents be “repositioned” every two hours and that incontinent residents should be changed every two hours. Based on the testimony of William Sullivan, the evidence establishes that in at least one case of an incontinent resident sitting in a wheelchair, the facility did not comply with the policy and procedure requirement that he be moved and changed every two hours. Based on the testimony of Joan Cagley-Knight, the evidence establishes that in at least one case of an incontinent resident with a “full diaper,” the facility did not comply with the policy and procedure requirement that the resident be changed every two hours. There is no evidence that the Respondent was aware that some employees of the facility failed to comply with the policy and procedure requirement that the resident be changed every two hours. According to the survey report, other alleged deficiencies included weight loss by some residents. There is no evidence that prior to the August survey, the Respondent was aware that some residents were losing weight. The weight of the evidence fails to establish that the Respondent should have known that some residents were losing weight. According to the survey report, other alleged deficiencies included random complaints voiced by some relatives of facility residents. The Respondent maintained an “open door” policy so that any person could meet with her and address matters of concern. There is no evidence that prior to the survey, the Respondent was aware of any unresolved relative complaints that had not been addressed. Colonial Oaks had been rated “conditional” previously and was described by the Vencor employee who followed the Respondent as a “yo-yo facility” which would sometimes improve and then falter. The Respondent prepared a plan of correction to address the deficiencies. The plan of correction was apparently approved by AHCA and was implemented by the Respondent. The corporate owner of the facility did not challenge any of the cited deficiencies through a procedure known as Informal Dispute Resolution (IDR). The Respondent was not involved in the decision not to utilize the IDR process. Subsequent to the August survey, the facility’s director of nursing resigned. The Respondent made attempts to hire a new director of nursing. She requested that the corporate owner assist in the search, which extended outside the State of Florida. Apparently the troubled reputation of the facility made it difficult to convince prospective nursing directors to accept the position. Regional nurses assigned by Vencor to assist in the situation resigned rather than work in the facility. Eventually, the Respondent’s immediate supervisor came in to assist with the problems. The supervisor brought in some additional corporate employees including nutritionists, but most refused to become involved in the turmoil. On October 6, 1998, an AHCA team resurveyed the facility. At the time of the October survey, the nursing director was still serving out her resignation notice period. Although as of the October 6 survey a number of deficiencies had been corrected, several deficiencies were again cited. The cited deficiencies included instances where residents were allegedly left in soiled clothing for extended periods of time. In at least one case, based on the testimony of Joan Cagley-Knight, an incontinent resident sat in urine- soaked sweatpants for more than two hours without being assisted by an employee of the facility, in violation of the applicable policy and procedure requirement. The weight of the evidence fails to establish that the Respondent knew or should have known that some employees of the facility failed to comply with the policy and procedure requirement that the resident be changed every two hours. Based on the testimony of William Sullivan, the evidence establishes that some residents continued to lose weight and that nutritional recommendations were not being implemented. There is no evidence that the Respondent was aware that the nutritional issues had not been addressed, after corporate nutritional specialists were brought in following the August survey. There was also an issue related to an injury suffered by a resident who fell while unrestrained. The issue related specifically to an apparently incorrect report made by the facility’s director of nursing to AHCA officials regarding the site where the accident occurred. There is no evidence that the Respondent attempted to mislead the AHCA employees about the incident in any manner. On October 9, 1998, the Respondent transferred to the “Windsor Woods” facility, a superior-rated facility also owned by Vencor, where she continued to achieve a superior rating until the rating program was discontinued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department of Health, Board of Nursing Home Administrators, enter a final order dismissing the Administrative Complaint, as amended, filed against Janice Carol Reeping. DONE AND ENTERED this 30th day of October, 2001, in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM F. QUATTLEBAUM 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 30th day of October, 2001. COPIES FURNISHED: Karen L. Goldsmith, Esquire Goldsmith & Grout, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Mary Denise O'Brien, Esquire Department of Health 2727 Mahan Drive, Mail Stop 39 Tallahassee, Florida 32308 John Taylor, R.Ph., Executive Director Board of Nursing Home Administrators Department of Health 4052 Bald Cypress Way, Bin C04 Tallahassee, Florida 32399-1701 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701
The Issue Whether the Department of Juvenile Justice overpaid Christopher Stokes for pay periods ending May 25, 2000, for 34.5 hours amounting to $274.91; June 8, 2000, for 9.25 hours amounting to $73.81; and June 30, 2000, for 8.0 hours amounting to $63.71.
Findings Of Fact Petitioner, Christopher Stokes, was employed by the Department of Juvenile Justice (Respondent) as a painter at the Dozier School for Boys in Marianna during the period at issue, May 12, 2000, through June 30, 2000. Petitioner continues to be employed by Respondent in the same capacity. Respondent's Policy and Procedure 3.26 (FDJJ 3.26), which is available in hard copy at the workplace and via the internet, delineates the agency's Sick Leave Transfer Policy.1 FDJJ 3.26 is based upon the requirements and provisions of Rule 60L-5.030(3), Florida Administrative Code. FDJJ 3.26, Procedure A provides that in order to donate sick leave, the donor must complete the Interagency Sick Leave Transfer (Request to Donate) form and submit it to the Bureau of Personnel. FDJJ 3.26, Procedure B provides that in order to receive donated sick leave, the employee must complete the Interagency Sick Leave Transfer (Request to Use) form and submit it to the Bureau of Personnel.2 The Department of Juvenile Justice is a centralized agency and the Bureau of Personnel is located in Tallahassee. A request to donate or to use donated sick leave may be made directly to the Bureau of Personnel via U.S. Mail, courier, or fax. FDJJ 3.26, Procedure C provides that sick leave credits donated to the receiving employee shall be credited on the last day of the pay period. Transferred leave must be processed by the last day of the pay period in order to be credited to the employee. This includes checking to see if the donor has leave to transfer and is permitted to transfer it by the donor's employer. The Department of Juvenile Justice has 26 pay periods per year. Requests to donate leave to use donated sick leave that are timely submitted to the Department of Juvenile Justice, Bureau of Personnel, located in Tallahassee, will be accepted by the Department of Juvenile Justice even when the request may be incomplete or incorrectly submitted. Requests to donate leave or to use donated sick leave will be processed by the Department when the error or delay is attributable to the Bureau of Personnel. During the pay period ending May 25, 2000, Petitioner had a medical emergency requiring him to miss several days of work during that period and those that followed. Lynn R. Price, a Department of Children and Families employee, completed a request to donate 25.5 hours of sick leave to Christopher Stokes on May 24, 2000. Christopher Stokes submitted the Lynn Price Request to Donate Sick Leave Hours to the personnel office at Dozier School on May 25, 2000, the last day of the pay period. The Department of Children and Family Services, donator's agency, approved the donation of the leave on June 29, 2000, seven days after the last day of the three pay periods in question. The leave donated by Lynn Price was "not approved per criteria" by the Department of Juvenile Justice on September 12, 2000. This leave could not be credited to the employee's leave account for the next pay period. Earma J. Hendrix, Department of Children and Family Services employee, completed a request to donate 8 hours of sick leave to Christopher Stokes on June 8, 2000, the last day of the period. The Department of Children and Family Services, Donator's Agency, approved the donation of the leave on June 9, 2000, the day after the last of the second pay period at issue. The leave donated by Earma Hendrix was "not approved per criteria" by the Department of Juvenile Justice on September 11, 2000. This leave could not be credited to the employee's leave account for the next pay period. The Department of Juvenile Justice paid Christopher Stokes for 34.5 hours of donated sick leave during the pay period of May 12 through May 24, 2000. Because the attempt to donate sick leave by Earma Hendrix during that pay period was not approved as untimely submitted, Mr. Stokes should not have been paid for the 34.5 hours of donated sick leave, totaling $274.91, on the June 2, 2000, warrant. The Department of Juvenile Justice paid Christopher Stokes for 9.25 hours of donated sick leave during the pay period of May 26 through June 8, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 9.25 hours donated sick leave hours of donated sick leave, totaling $73.81, on the June 16, 2000, warrant. DJJ paid Christopher Stokes for 8 hours of donated sick leave during the pay period of June 9 through June 22, 2000. Because the attempt to donate sick leave by Earma Hendrix and Lynn Price was not approved as untimely submitted, Mr. Stokes should not have been paid for the 8 hours of donated sick leave, totaling $63.71, on the June 30, 2000, warrant.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter a final order upholding the Agency's determination of a salary overpayment. DONE AND ENTERED this 8th day of November, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 8th day of November, 2001.
The Issue A notice dated July 2, 1996 and an administrative complaint dated September 30, 1996, charge Respondent with willful neglect of duty. The issue for disposition is whether he committed this violation and if so, whether he should be terminated as a member of the instructional staff of the Palm Beach County School Board.
Findings Of Fact Respondent, Walter Auerbach, has been employed as a classroom teacher with the Palm Beach County school district since the 1976-77 school year and is employed pursuant to a continuing contract from which he may be discharged only in accordance with the terms of section 231.36, Florida Statutes. (Stipulation of the parties) Respondent was administratively placed in the district’s Department of Information Management in the 1994-95 school year pending resolution of allegations of misconduct brought by a female student. He was transferred to the district’s textbook/library media service office for the 1995-96 school year. (Stipulation of the parties) The reassignment was by agreement between Respondent’s representative, Clarence Gunn, Associate Executive Director of the Palm Beach County Classroom Teachers’ Association (CTA) and district staff. In December 1994, Respondent entered into a deferred prosecution agreement in the criminal case related to the student’s allegations. An investigation and proceedings by Professional Practices Services continued, however, and any disposition of that proceeding is not a matter of record here. Respondent satisfied the terms of his deferred prosecution agreement in December 1995. Jane Terwillegar was Respondent’s supervisor in the district’s library media services department. His duties were primarily computer searches for bibliographic records. When he came to work Respondent did his assignments, worked quietly and left; there were no concerns about his performance. However, he attended only sporadically in the fall of 1995, and starting in January 1996 he attended very rarely. At one point Ms. Terwillegar said something to him about showing up to earn his money, but he responded that he had a great deal of sick leave. By early 1996, Respondent had depleted all of his sick leave, but continued to be absent far more than he attended. Vernon Crawford is the district’s director of multimedia services and is Jane Terwillegar’s immediate supervisor. Because of budget cuts in his department, Mr. Crawford has a standing request for assistance from employees with available time. He is happy to take on individuals placed on special or temporary assignment by Dr. Walter Pierce, assistant superintendent for personnel relations. The understanding that he has with the personnel department is that the individuals are assigned on a temporary or day-to-day basis. Mr. Crawford does not question why the individual is assigned and he usually asks his staff not to question the circumstances. From time to time, Ms. Terwillegar advised Mr. Crawford that Respondent was absent; and after the first part of 1996, when the absences were increasing, Mr. Crawford sought the guidance of Dr. Pierce’s office in addressing the problem with Respondent. On the advice of Paul LaChance, an administrative assistant for employee relations, Mr. Crawford sent this letter to Respondent on April 17, 1996: Dear Mr. Auerbach: Since your interim assignment to the Department of Multimedia Services on August 15, 1995, you have taken one hundred twenty five (125) days of sick leave without medical documentation. You have not requested nor received approval for short term or long term leave of absence. Consequently, I am directing you to provide Jane Terwillegar, Specialist for Library/Media Support and your assigned supervisor, with a written, signed statement from your doctor documenting the necessity of your sick leave as well as a date when s/he projects you able to return to work. Your failure to provide this information within ten (10) days of receipt of this letter may result in my recommending disciplinary action for violation of proper reporting procedures and use of sick leave as outlined in School Board Policy 3.80, Leaves of Absence, and leave provisions contained in Article V, Section A.2 and Section B.1(f), and any other pertinent provision of the Agreement between the School Board of Palm Beach County and the Classroom Teachers Association. (Respondent’s exhibit 1) Respondent took the letter to his representative, Mr. Gunn, who told him to take a doctor’s statement to his supervisor, so that he could work out the appropriate leave based on the doctor’s determination. In response, Respondent turned in to Jane Terwillegar a statement from his chiropractor, Dr. Brian Soroka, dated April 26, 1996 stating: This is to certify that Walter Auerbach has recovered sufficiently to be able to return to regular work. Restrictions: none. (Petitioner’s exhibit 1) Instead of returning to work, Respondent continued his practice of calling in every morning early and leaving a message on the office answering machine. Jonathan Leahy, an employee in the Library/Media Services Department at the McKesson Building answered the phone when Respondent called in after 8:00 a.m., but most frequently he took Respondent’s messages from the answering machine. Starting in mid-April, at Mr. Crawford’s instruction, he wrote the messages down, verbatim. The messages were typically brief: “I’m not going to make it today”; or “I’m under the weather”; or, on a couple of occasions, Respondent said that he needed to meet with his lawyer. Between April 16 and June 14, 1996, Respondent was absent forty-two work days. Meanwhile, on May 7, 1996, Mr. Crawford sent another letter to Respondent: Dear Mr. Auerbach: Yesterday, May 6, 1996, Jane Terwillegar, your assigned supervisor, brought me a work release form from the Family Chiropractic Center, dated April 26, 1996, that you were able to return to regular work duty with no restrictions. Be advised that your actions to date remain in noncompliance with my April 17, 1996 letter to you. Further, even though the Family Chiropractic Center cleared you on April 26, 1996, to return to work, you have not done so and have remained continuously absent. At this point, I am directing you to provide me with the information I directed you in my April 17, 1996 letter to provide me: medical verification from your attending physician as to the specific reason(s) and need for your continual absenteeism. Such documentation is to be provided to Jane Terwillegar or to my office within five (5) working days from your receipt of this letter. Failure to provide this information may result in my recommending disciplinary action outlined in my April 17, 1996, letter which you received and signed for on April 18, 1996. (Petitioner’s exhibit 3) There was no response by Respondent to the May 7th letter and a meeting was convened on June 14, 1996 with Respondent, Mr. Gunn, Mr. LaChance and Mr. Crawford. Respondent was given another opportunity to present a physician’s statement justifying his absences. Respondent returned to Dr. Soroka and obtained this statement dated June 18, 1996: Mr. Auerbach has been treating in this office for low back pain and stress related complaints. He treats on a supportive care basis as his symptoms necessitate. On occasion, he is unable to work due to the severity of his symptoms. (Respondent’s exhibit 3) On July 2, 1996, the superintendent, Dr. Kowal, notified Respondent of her recommendation that he be terminated for willful neglect of duties based on his excessive use of sick leave without approved leave and his failure to return to duty after being released by his doctor. There are leave forms indicating that Respondent’s sick leave was “approved”. These forms are ordinarily turned in when an employee returns from an illness. Many of the forms were not completed or signed by Respondent, but rather were signed by someone else, when he never returned during a pay period and the forms needed to go to the payroll office. The leave forms are marked “approved”. Mr. Crawford approved the leave because Respondent called in and because Respondent was only a temporarily-assigned employee. Nevertheless, after the early part of 1996 when the absences increased in frequency, Mr. Crawford appropriately sought advice of the personnel office and he followed that advice regarding a physician’s statement to justify Respondent’s absences. Dr. Soroka was the only medical professional treating Respondent during the relevant period. Based on Respondent’s complaints to him, Dr. Soroka performed chiropractic adjustments to relieve muscle strains and irritations to his nervous system. Nothing in Dr. Soroka’s records indicated that Respondent was incapable of working and he never told Respondent to not return to work. Respondent contends that his absences were justified by the stress that he was suffering from his legal problems. He was the caregiver for aged and ailing parents; and he also suffered from anxiety attacks, headaches and lower back pain. Respondent’s contract with the district was for 196 days in the 1995/96 school year. Of those 196 days, he was absent approximately 167 days. The Collective Bargaining Agreement between Palm Beach County Classroom Teachers Association and the School District of Palm Beach County, Florida, July 1, 1995 - June 30, 1997, governs Respondent’s employment during the relevant period. Paid leave is available for illness of an employee and the employee’s family. All absences from duty must be covered by leave applications which are duly authorized. Leave for sickness or other emergencies will be deemed granted in advance if prompt report is made to the proper authority. When misuse of sick leave is suspected, the superintendent may investigate and require verification of illness. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Section A). When employees have used all accumulated leave, but are still qualified for sick leave, they are entitled to sick leave without pay. Except in emergency situations, short or long-term leaves of absences without pay must be approved in advance. As with paid leave, leave for sickness or other emergencies may be deemed granted in advance if prompt report is made to the proper authority. An eligible employee may be granted family medical leave under procedures described in the collective bargaining agreement. (Respondent’s exhibit 2, Collective Bargaining Agreement, Article V, Sections C and D) Respondent did not request leave in advance for his own illness or for that of his parents or for his meetings or depositions related to his pending professional practices case. Instead, he apparently relied on the automatic approval process described above when he called in day after day, for weeks at a time. By April it was entirely appropriate for his supervisor and her superiors to require that he provide some evidence of his need for leave. He failed to comply with two requests for that evidence. The collective bargaining agreement describes procedures for discipline of employees, including this: Without the consent of the employee and the Association, disciplinary action may not be taken against an employee except for just cause, and this must be substantiated by clear and convincing evidence which supports the recommended disciplinary action. The collective bargaining agreement also requires progressive discipline (reprimand through dismissal) ...[e]xcept in cases which clearly constitute a real and immediate danger to the district or the actions/inactions of the employee constitute such clearly flagrant and purposeful violations of reasonable school rules and regulations. (Respondent’s exhibit 2, Collective Bargaining Agreement, Section M)
The Issue The issues to be determined are whether Respondent committed the acts alleged in the Administrative Complaint and if so, what penalties should be imposed?
Findings Of Fact Petitioner is the state agency responsible for regulating the practice of nursing assistance pursuant to Section 20.43 and Chapters 456 and 464, Florida Statutes. At all times relevant to these proceedings, Respondent was a certified nursing assistant, having been issued license number 84961. Her address with the Department of Health is Post Office Box 402, McIntosh, Florida 32664. On June 25, 2007, a Final Order was entered by the Board of Nursing against Respondent. The Final Order required Respondent to pay a fine of $50.00, enroll in and successfully complete courses in Legal Aspects for Nursing Assistants, and placed Respondent on probation for two years. A condition of the two-year probation was “[w]hether employed as a nurse or not, the licensee shall submit written reports to the Nursing Compliance Officer which shall contain the licensee’s name, license number, and current address; the name, address, and phone number of each current employer; and a statement by the licensee describing her employment. This report shall be submitted to the Nursing Compliance Officer every three (3) months in a manner as directed by the Nursing Compliance Officer.” (Emphasis supplied.) Respondent’s probation required that she “be responsible for assuring that reports from nursing supervisors will be furnished to the Nursing Compliance Officer every three (3) months. That report shall describe the licensee’s work assignment, work load, level of performance, and any problems." Quarterly self-reports and reports from her nursing supervisor, if any, were due to the Department on September 24, 2007, December 24, 2007, March 24, 2008, June 24, 2008, September 24, 2008, December 24, 2008, March 24, 2009, and June 24, 2009. Failure to comply with the terms of probation contained in the Final Order without prior written consent from the Board of Nursing was a violation of Respondent’s probation. As part of the Final Order a Notice of Appeal Rights was included, indicating that Respondent had 30 days to file a Notice of Appeal with the clerk of the department pursuant to Section 120.68, Florida Statutes, if she wanted to challenge the Final Order. Shaila Washington, a compliance officer for the Board of Nursing, was Respondent’s compliance officer. As Respondent’s compliance officer, Ms. Washington mailed Respondent the Board of Nursing's standard information packet on July 18, 2007. The packet outlines the terms imposed by the Board and summarizes what the Respondent needed to do in order to comply, including definite due dates listed above. The letter accompanying the information packet states in bold, "Remember, it is your responsibility to read the final order and ask questions if you do not understand it." Respondent did not contact her compliance officer regarding the information packet mailed to her. She also did not appeal the final order. Ms. Washington testified, and Respondent confirmed, that Respondent failed to submit any of the quarterly reports, by Respondent or any supervisor, as required pursuant to the terms of Respondent’s probation. Respondent stated that she did not file any of the reports because she was not working as a CNA. However, the Final Order was clear that even if Respondent was not employed, she was required to follow the probation terms and submit the reports.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That the Florida Board of Nursing enter a Final Order finding that Respondent has violated Section 464.204(1)(b) and Section 456.072(1)(q), Florida Statutes. It is further recommended that Respondent’s license to practice nursing assistance be reprimanded and that Respondent’s license be suspended, with the suspension stayed for 60 days to allow Respondent to comply with the terms of the Board’s prior Final Order. If within 60 days Respondent has not complied with the terms of the Board’s prior Final Order, it is recommended that the stay will be lifted and the suspension be imposed. The suspension will be lifted upon Respondent’s compliance with the Board’s prior Final Order. DONE AND ENTERED this 3rd day of December, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 3rd day of December, 2009.
The Issue Whether respondent discriminated against petitioner on account of her race in not promoting her to executive director, denying her a salary increase, threatening her with a demotion and/or placing her on medical leave?
Findings Of Fact At the time and place noticed for hearing, petitioner failed to appear and nobody appeared on her behalf.
Recommendation It is, accordingly, recommended that the FCHR enter an order denying the petition for relief. RECOMMENDED this 22nd day of January, 1992, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 22nd day of January, 1992. COPIES FURNISHED: Margaret 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 Anita I. Parker 7740 Southside Blvd., #501 Jacksonville, FL 32256 Glenn R. Padgett, Esquire Kinsey Vincent & Pyle P.O. Box 3096 Daytona Beach, FL 32018-0096
