The Issue Whether Keith Jackson, Ph.D. ("Petitioner") should be required to pay FAMU's claimed overpayment of salary as calculated in the amount of $29,141.57, for the pay periods between July 11, 2008 and December 12, 2008.
Findings Of Fact On or about July 1, 2005, Petitioner executed an employment contract with FAMU to serve as Vice President for Research. The contract executed by Petitioner provides that Petitioner "is subject to the Constitution and Laws of the State of Florida and the United States and the rules, policies, guidelines and procedures of the Board of Governors and the University as now existing or hereafter promulgated." On July 11, 2008, Petitioner submitted to the University a letter advising that he was resigning from his administrative position with the University as the Vice President for Research. Petitioner's letter of resignation was accepted by the University effective July 11, 2008. Tenure as a faculty member was granted to Petitioner by the University on May 25, 2007. 12 When Petitioner resigned from his administrative position on July 11, 2008, he was a tenured faculty member at the University. FAMU BOT Policy 2005-15, adopted June 30, 2005 and revised on February 12, 2008, requires that the salary for former administrators, such as Petitioner, be adjusted to "the median salary of the employees within the same professorial rank and discipline." On July 11, 2008, Petitioner's annual salary, based on his service as Vice President for Research, was $166,400.00. According to FAMU BOT Policy 2005-15, his salary, upon resignation from his administrative position as Vice President for Research and movement to his faculty position, should have been adjusted to $72,662.00 in that this amount reflected, at the time, the median salary of employees within Petitioner's rank and discipline. Due to administrative oversight, Petitioner, after the effective date of his resignation, continued to receive his full administrative salary of $166,400.00. Petitioner's salary was adjusted to the correct amount beginning with the biweekly pay period of December 12, 2008. Petitioner was erroneously paid his salary of $166,400.00 from July 11, 2008 through the biweekly pay period of December 12, 2008. This resulted in Petitioner receiving a salary overpayment in the amount of $29,141.27. Petitioner has not refunded any money to FAMU.
Conclusions This matter is now before Florida Agricultural and Mechanical University Board of Trustees ("FAMU," "Respondent," or the "University") for final agency action.
Other Judicial Opinions This Order Constitutes Final Agency Action. A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing an original Notice of Administrative Appeal with the Agency Clerk of Florida Agricultural and Mechanical University, Office of the General Counsel, Lee Hall, Suite 300, Tallahassee, Florida 32307, and a copy of the Notice of Appeal attached to which is a conformed copy of the order designated in the Notice of Appeal, accompanied by filing fees prescribed by law, with the First District Court of Appeal. The Notice of Administrative Appeal must be filed within thirty (30) days of the date this Final Order is rendered. Copy: Teresa Hardee, CFO and Vice President, Administrative and Financial Services Avery D. McKnight, FAMU General Counsel Linzie F. Bogan, Associate General Counsel, Director of Labor Relations Nellie C. Woodruff, Associate Vice President, Human Resources Robert E. Larkin, Ill, Esq. Jacqueline Lester, Associate Director of Payroll Claudio Llado, DOAH Clerk 16
Findings Of Fact Pena was licensed by the Department as a mortgage broker in approximately 1963. Thereafter, he was employed by several different companies as a mortgage broker and did not become an independent mortgage broker until sometime in 1972. By 1974 he was almost exclusively engaged in land development rather than working in the mortgage business. He allowed his mortgage broker's license to expire in 1976. During the time that Pena was employed as a mortgage broker, he primarily handled FHA and VA residential first mortgages. He has almost no experience in handling second mortgages. During his early land development ventures, Pena acted through the Tony Pena Corporation (hereinafter "Pena Corporation") of which he was the sole stockholder and officer. He formed the tony Pena Financial Corporation in 1974 in order to transfer all assets from Pena Corporation to Financial corporation. Pena remained the President and sole stockholder of both corporations. In late 1973 Pena purchased twenty-four acres of land for development into seventy-two lots. He obtained a loan from Tampa Federal Savings and Loan Association in the amount of $424,000. The loan was given to the Pena Corporation, and Pena personally guaranteed it. He subsequently obtained three construction loans from Tampa Federal for homes in this seventy-two-lot subdivision. By sometime in 1975 the Pena Corporation was without funds due to unforeseen financial problems and the transfer of its assets by Pena to the Financial corporation. Eventually, Tampa Federal filed a foreclosure action on fifty-seven of the lots which wee at one time held solely by the Pena Corporation; however, fifty-six of those lots had been transferred to the Financial Corporation. Accordingly, the foreclosure action was filed against Pena individually and both corporations. Pena and Pena Corporation counterclaimed, charging Tampa Federal with fraud. Pena has pursued his dispute with Tampa Federal in the Circuit Court, in the District court of appeal of Florida, Second District, and in the Supreme Court of Florida. There may be as many as five lawsuits between Pena and Tampa Federal arising from the loan made to Pena. Generally, Pena charges Tampa Federal with fraud and/or breach of an oral contract for not providing construction loans to him on 122 lots. Additionally, Pena took his dispute with Tampa Federal into the federal court system when he filed suite, alleging that Tampa Federal had conspired to monopolize the single-family residential housing business. Pena's federal action was dismissed as was his appeal to the United States Court of Appeals for the Fifth Circuit. In 1976 Charles F. Curry and Company filed an action to foreclose a mortgage, which action named Pena as one of the defendants. Pena filed an answer seeking in excess of one million dollars because his credit and business reputation were ruined by virtue of his being named in the foreclosure action. In 1976 or 1977 the Landmark Bank was desirous of selling a twenty-acre piece of land which had previously been owned by a limited partnership involving James H. Andrews. Andrews arranged for a Dr. Creighton to purchase the parcel as trustee. Pena then approached Andrews and stated that he had a purchaser for the land, that his buyer was Larry Meadows, and the Meadows was willing to pay $269,000 for the land. Andrews told Pena if he could effectuate the sale to Meadows for that price, then Andrews would pay Creighton $30,000 for his role in purchasing the land from the bank and the profits would then be split so that Andrews, Allen Wolfson (one of Andrews' co-investors), and Pena would each receive one-third of the profits form that sale. Pena never presented a contract or offer to purchase from Meadows. Instead, after some time had passed, Pena appeared with a contract for sale reflecting Andrews, Wolfson, Creighton, and Pena as the owners of the property. Andrews told Pena the owners names were not correct and to change the contrat to reflect the proper owner. Pena never again presented that or any contract, and Andrews subsequently discovered that the person named on that contract as the buyer was a girl friend of Pena's, and not someone interested in the property. Thereafter, Andrews entered into a verbal contract whereby a Walter Wright and his partners would purchase the property, handle all pre-development improvements, and develop the property. About the time that all pre-development problems were being resolved and water and sewer connections wee being approved by the appropriate local government, Andrews received in the mail from Pena a copy of the first page of a complaint wherein Pena had filed suit against Creighton, Wolfson, Andrews, Wright, Wright's partners Dwyer and Rositer, City of Tampa, City of Temple Terrace, County of Hillsborough, and the University State Bank (where Creighton had obtained a loan regarding the property). All named defendants received a copy of the first page of the complaint in the mai las Andrews had. Pena filed a list pendens against the property when he filed his complaint. The lis pendens was dissolved by the trial judge, and Pena immediately filed an appeal. A year after the lawsuit was filed, it was dismissed for Pena's failure to prosecute the action. In the meantime, the defendants incurred legal expenses, had their property tied up, and had to continue paying interest on the mortgage on the land while the litigation was pending. Prior to 1978 Metropolitan Bank and Trust Company wrote off as a loss a loan made to either Pena or one of his companies in the approximate amount of $30,000. In 1978 Pena became involved with William Charles Mayo, Walter Wright, and Gerald H. Gould in the development of a subdivision known as Carrollwood South. As the financing was to be obtained from Metropolitan Bank and Trust Company, it was agreed that Gould would pay off the bad debt that Pena had with Metropolitan Bank, wich Gould did. A contract was entered into between Gould Construction Company and Financial Corporation setting forth that Financial Corporation would receive twenty-five percent of the profits from this development but that Pena's debt with Metropolitan Bank and Trust Company and a smaller debt that Pena owed to Mayo would be paid by Gould out of Financial Corporation's share of the profits before any distribution of profits would be made to Financial Corporation. Also during 1978, Pena went into a venture with a Nelson Nicoletto whereby they agreed to form a corporation known as Northwest Properties Corporation, through which corporation they would develop a subdivision known as Keystone Gove Lakes. Based upon Nicolettos financial statement, they were able to borrow from Metropolitan Bank and Trust Company $560,000, which loan was personally guaranteed by Pena and Nicoletto. Pena's co-investors in the Carrollwood project became defendants in a lawsuit filed by Pena which was settled for $20,000. After Pena cashed the settlement check, he filed a second lawsuit against the same persons, alleging, among other things, that he had been tricked into settling the Carrollwood litigation by his partner in the Northwest Properties venture. Accordingly, the style of the new case became Pena v. Wright, gould Construction Corporation, Metropolitan Bank and Trust Company, Nicoletto, and Northwest Properties Corporation. This new suit was accompanied by a lis pendens against the property owned by Northwest Properties Corporation. In order to prevent the lis pendens from being dissolved, Pena made allegations and filed documentation proving that Northwest Properties Corporation was insolvent. Motions to dismiss Pena's new litigation were granted, as was a motion to dissolve the notice of lis pendens unless Pena posted a bond. Pena filed a motion for rehearing and a motion for recusal, charging the judge with bias and prejudice. Pena took this litigation to the District Court of Appeal, Second District, and to the Supreme Court of Florida. He lost. Pena has been married three times and is regularly in arrears in his child-support payments. In February, 1980, Financial Corporation filed an application with the Department for a license as a mortgage broker and named Pena, its President, as its designated applicant. The Department began its required investigation of Pena's background and experience, only to discover that more time than normal would be required to complete that investigation. For example, the Department found that the Pena Corporation had fifty-six claims of lien filed against it in Hillsborough Country amounting to $49,479.79. On May 9, 1980, the Department wrote to Pena confirming a telephone conversation wherein Pena agreed to extend the Department's deadline for review up to and including June 10, 1980. On June 11, 1980, Pena wrote the Department confirming a telephone conversation wherein he agreed to an additional thirty days' extension of time, thereby establishing a new deadline of July 10, 1980. On July 2 the Department requested that Pena extend the new deadline by an additional fifteen days; and on July 7, 1980, Pena wrote to the Department confirming the telephone conversation wherein he agreed to an additional fifteen-day extension and further advised that if the Department wished to extend its deadline even further, the Department should just let him know. Accordingly, the new deadline for a final decision by the Department became July 25, 1980, and the Department signed its final order denying Financial Corporation's application on July 23, 1980, which order was filed and served on July 24, 1980. In 1974 Pena was arrested and charged with trespassing after warning. In 1975 he filed with the Department an application for registration as a mortgage broker with Southern Mortgage Association, Inc. That application requested information as to whether he had not been. Pena thus answered falsely when he filed that document with the Department. On December 20, 1979, he obtained an Order Expunging Record as to this arrest. In answer to the same question regarding any arrests on the subject application, Pena answered that he had never been arrested. Since the expungement order was not obtained until approximately two months before the Department's most recent investigation began, the information was still available that he had been arrested. In October, 1976, Pena was arrested and charged with obtaining lodging with intent to defraud, which arrest arose from the use of a credit card in April and May of 1976. At the hearing in this cause, Pena moved into evidence an undated, unsigned, and uncertified document purporting to be an order expunging record for the 1976 arrest. Even had such an order been signed, arrest records could not be totally expunged regarding that arrest for the reason that Pena personally made those arrest records part of the public records in Hillsborough County when he sued the owner of the Holiday Inn for malicious prosecution in having him arrested. After a trial by jury, Pena lost that lawsuit. All but one of the fifty-six claims of lien filed between 1975 and 1979 were filed against the Pena Corporation, and not against Pena individually or against the Financial Corporation. However, Pena was and is the only officer, director, and stockholder of both corporations. In addition to those claims of lien, the Department's investigation revealed in excess of twenty lawsuits involving Pena (or his solely owned corporations) since 1972. In almost all of those lawsuits, Pena acted as his own attorney. Almost every person with whom he has had business dealings since he became self-employed has been sued for conspiracy, fraud, or breach of oral contracts, and almost every piece of property with which he has been involved during that same time period has been the subject of a lis pendens which has prevented the sale of those parcels of property for extended periods of time. Generally, Pena has not prevailed in the litigation he has filed, few of the lawsuits have gone to trial, and most of them have been dismissed in preliminary stages. Question numbered 17 of the application filed by Financial Corporation inquires as to the financial solvency of the applicant. Pena answered that question in the affirmative. Since 1978 Pena has realized profits from his ventures with Carrollwood, Northwest Properties, and the sale of an option on a piece of property which he held with Nicoletto. However, other than the efforts required by the bolume of litigation in which he participates, Pena has not been employed or engaged in any new endeavor productive of income. Neither Pena nor his two corporations have a current financial statement, and no financial statement has been prepared during 1979 or 1980. The Financial Corporation does maintain a commercial account at Southeast Bank of Tampa at Westshore, which account was opened in January, 1980. During 1980 the account has been overdrawn four times, and it maintains a zero average balance. Pena describes the amount of money on hand for himself or either of his corporations as minimal." Neither Pena nor his corporations own an automobile. At the time of hearing in this cause, Pena estimated his assets as ranging between $130,000 and $140,000. His primary asset is his stock in Northwest Properties Corporation, which he values at $125.00. The sole asset of Northwest Properties Corporation, which he values at $125,000./ The sole asset of Northwest Properties Corporation was the subdivision known as Keystone Grove Lakes. At the time of the hearing, Northwest Properties no longer owned this land, since ownership had been transferred to avoid foreclosure. Pena had only a twenty-five percent interest in Northwest Properties, and no financial statement for that corporation was introduced in evidence. Although Pena values his stock at approximately $125,000, he also testified he was willing to sell his stock for approximately $55,000. No explanation is given regarding how his stock can be worth $125,000 when the corporation owns nothing, and in view of his position in his litigation against Northwest Properties and Nicoletto that Northwest was then insolvent, and it owns less now. The remainder of Pena's total assets is furniture. Pena acknowledges $50,000 worth of debts and judgements against him, subtracts the $50,000 from the $125,000 assets figure, and determines that his net worth is $75,000. Pena denies being a heavy gambler but admits a gambling debt of $16,000 to Helio Isla Hotel in Puerto Rico. Most of this debt has been paid, but Pena's payment of part of it with a $5,000 bad check resulted in a judgment by the hotel against him.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is, hereby, RECOMMENDED THAT: A final order be entered denying the application of Tony Pena Financial Corporation and Antonio F. Pena, as its President and designated applicant, for a license as a mortgage broker. RECOMMENDED this 11th day of August, 1981, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of August, 1981. COPIES FURNISHED: D. Russell Stahl, Esquire 1101 East Jackson Street Tampa, Florida 33602 Mr. Antonio F. Pena Post Office Box 25454 Tampa, Florida 33622 Walter W. Wood, Esquire Assistant General Counsel Office of the Comptroller Suite 1302, The Capitol Tallahassee, Florida 32301 The Honorable Gerald Lewis Comptroller, State of Florida The Capitol Tallahassee, Florida 32301
The Issue Whether Cubic Western has standing to bring the bid challenge involved in these proceedings.
Findings Of Fact On or about March 31, 1989, CUBIC submitted a Proposal in response to DOT RFP-DOT-88-01 for a toll collection system for Florida's Turnpike. After reviewing this proposal, DOT determined CUBIC's proposal was nonresponsive to the RFP, and on May 18, 1989, advised CUBIC of the rejection of its proposal and of CUBIC's right to challenge this determination by filing a petition for administrative hearing. CUBIC timely filed a Formal Written Protest dated June 5, 1989 requesting an administrative hearing challenging this agency action. This protest was forwarded to the Division of Administrative Hearings by DOT order of July 20, 1989, and the case was scheduled to be heard August 4, 1989. On July 31, 1989, CUBIC filed a Notice of Voluntary Dismissal. The Division of Administrative Hearings entered an ORDER OF DISMISSAL closing the DOAH file and returning the matter to DOT for final disposition. DOT entered a Final Order dismissing CUBIC's bid protest. On October 5, 1989, CUBIC filed an Amended Complaint in the Circuit Court, Second Judicial Circuit, in and for Leon County, against DOT, which had been consolidated with an action filed by PRC against DOT as both cases stemmed from action taken by DOT on RFP-DOT-88-01. In this civil action, CUBIC seeks return of the RFP it submitted to DOT. In this civil complaint CUBIC asserts that since its proposal had been rejected by DOT as nonresponsive to the RFP, at that point in time "DOT and the public had no further interest in CUBIC's Proposal, and there is no public interest to be served by disclosing the CUBIC Proposal at this time." On November 21, 1989, DOT posted notice of its intended award of the contract based on the RFP to PRC. On December 6, 1989, CUBIC timely filed the Formal Written Protest that is the subject of this Motion.
Recommendation It is recommended that the Formal Written Protest dated December 6, 1989, submitted by Cubic Western Data, be dismissed. ENTERED this 2nd day of January 1990, 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 2nd day of January, 1990. COPIES FURNISHED: Frank A. Shepherd, Esquire Gernard M. Kouri, Esquire Thomas H. Bateman, 111 Kimbrell and Hamann General Counsel Suite 900, Brickell Center Department of Transportation 799 Brickell Plaza 562 Haydon Burns Building Miami, FL 33131-2805 Tallahassee, FL 32399-0450 Robert Daniti, Esquire Ben G. Watts Department of Transportation Secretary Haydon Burns Building, MS 58 Department of Transportation Tallahassee, FL 32399-0458 Haydon Burns Building 605 Suwannee Street Deborah A. Getzoff, Esquire Tallahassee, FL 32399-0450 David Bressler, Esquire Fowler, White, et al. 101 N. Monroe Street Tallahassee, FL 32301
Findings Of Fact At all pertinent times, respondent Walter C. Rudinsky was employed as a teacher at the Florida School for Boys in Okeechobee. On October 9, 1978, respondent was under the supervision of Thomas V. Lunsford, for eight years an academic principal at the Florida School for Boys. During lunch break on October 9, 1978, respondent, another teacher named Terry Cooper, a teacher's aide named Patricia Morris, and possibly others were discussing grievance procedures, which had recently changed. When Mr. Cooper asked to see a grievance which respondent had prepared, so that Mr. Cooper could use it as a paradigm for a grievance that he wished to file, Mr. Cooper, Ms. Morris and respondent walked to respondent's classroom. There respondent showed Mr. Cooper a copy of a grievance form he planned to file. Attached to the grievance form were various documents, including an evaluation of Mr. Lunsford. Respondent had obtained a copy of the evaluation of Mr. Lunsford from personnel records maintained under the supervision of the personnel manager, Paul S. Timko. Respondent had examined Mr. Lunsford's personnel file on several occasions. On all such occasions, Mr. Lunsford's file, like all personnel records at the school, was available for inspection by any member of the public. Personnel records were not treated as confidential, and it was common knowledge on the campus how various teachers and principals had been evaluated. In all, respondent filed some nine grievances complaining of Mr. Lunsford's conduct over a period of approximately three years. Respondent also filed complaints with the Professional Practices Council, the Equal Employment Opportunity Commission and the Office of Civil Rights. The filing of these grievances caused additional work for the school's personnel office, and took up as much as a quarter of the personnel manager's time. Another person at the same school filed five grievances in one week, however. Many of the grievances respondent filed alleged harassment of respondent by Mr. Lunsford. Nor was respondent the only person who filed grievances complaining of Mr. Lunsford's conduct. Mr. Charles Coles filed such a grievance, and prevailed. Mr. Richard Rye resolved his complaint against Mr. Lunsford informally without filing. Ms. Elaine Beck filed a grievance protesting a suspension Mr. Lunsford recommended and the superintendent imposed. She won informally. Evaluations Mr. Lunsford had made of two employees other than respondent were expunged as a result of proceedings they instituted. Respondent prevailed on the grievance he filed alleging that Mr. Lunsford had retaliated against him for the filing of previous grievances. The Department of Health and Rehabilitative Services decided that Mr. Lunsford had retaliated against respondent on more than one occasion. Respondent lost at least one grievance. The charges filed by respondent with the Equal Employment Opportunity Commission were determined to be well founded. As a result of grievance procedures initiated by respondent, an evaluation of him by Mr. Lunsford was expunged. School policy at the Florida School for Boys permits the union steward to discuss grievances with employees during school time. This is in accordance with Art. 6, Section 1 of the contract between labor and management. Occasionally, the union steward was released to go talk to Mr. Rudinsky during feedback or planning time. Otherwise, respondent did not use his planning period for the preparation of grievances, although he often worked on grievances during his lunch hour. Whenever he left for participation in grievance proceedings, he always had leave to do so. Mr. Lunsford and respondent have not been on friendly terms during their time together at the Florida School for Boys. Respondent said a number of uncomplimentary things about Mr. Lunsford and made no secret of the fact that he hoped Mr. Lunsford would leave the school one way or another. Fortunately for the school, the friction between respondent and Mr. Lunsford ceased to be the problem it once was, when Mr. Lunsford's direct supervision of respondent came to an end. In the summer of 1978, respondent and another teacher, Mr. Hofstetter, were responsible for evaluating the work of Deborah A. Bourgault, a teacher's aide. In June of 1978, Ms. Bourgault saw an employee performance evaluation work sheet signed by respondent on which her overall performance was rated "outstanding." Even though the period for which Ms. Bourgault was to be evaluated did not end until August of 1978, this work sheet was submitted to the personnel office in June. From there, it made its way to the office of James A. Williams, educational supervisor at the Florida School for Boys. On June 29, 1978, respondent telephoned Mr. Williams and asked that the evaluation form be returned. The following morning, respondent retrieved the form. Later an evaluation, rating Ms. Bourgault's overall performance as "conditional," was submitted. At no time has respondent ever made any improper advances to Ms. Bourgault. Both parties submitted proposed recommended orders which have been considered in preparation of the foregoing findings of fact. To the extent the proposed findings of fact conflict with the findings of fact recited in this recommended order, the same are hereby rejected.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the petition for revocation of teacher's certificate be dismissed. DONE AND ENTERED this 3rd day of January, 1980, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 904/488-9675 COPIES FURNISHED: Robert J. Vossler, Esquire 110 North Magnolia Drive Suite 224 Tallahassee, Florida 32301 Michael C. Canar, Esquire 609 South Andrews Avenue Suite 2 Ft. Lauderdale, Florida 33301
The Issue The issue in this case is whether an interpretation of Section 458.331(1)(jj), Florida Statutes, by the Board of Medicine is an agency statement which violates Section 120.54(1)(a), Florida Statutes (2007), pursuant to Section 120.56(4), Florida Statutes.
Findings Of Fact These findings of fact, with a few changes based upon the stipulated record in this case, are facts contained in the Joint Stipulation: The Parties. Petitioner Franciso Vazquez, M.D., is a licensed medical doctor within the State of Florida, having been issued license number ME 68742. Respondent Board of Medicine (hereinafter referred to as the “Board”), is charged with regulating the practice of medicine pursuant to Section 20.43 and Chapters 456 and 458, Florida Statutes. Dr. Vazquez’s address of record is 4595 Palm Beach Boulevard, Fort Myers, Florida 33905. DOAH Case No. 07-0424PL, Dr. Vazquez’s Disciplinary Case. Dr. Vazquez signed a written opinion in the form of an Affidavit on September 5, 2003, as required by Section 766.104(1), Florida Statutes (2003), in support of a medical malpractice action related to the death of C.L. Dr. Vazquez named approximately 40 doctors and one hospital in the sworn statement. The sworn statement generally stated that each of the defendants committed medical negligence and a breach of the prevailing professional standard of care in a multitude of ways, but did not specify which doctor committed which negligent act or how any individual doctor breached the prevailing standard of care. Dr. Vazquez further asserted in this sworn statement that the negligence and breach of the prevailing professional standard of care of all the doctors caused injury, damage and ultimately the death of C.L. That sworn statement ultimately formed the basis for a civil malpractice action filed on February 2, 2004, in the Circuit Court of the Sixth Judicial Circuit of Florida, in and for Pinellas County, Civil Division, Case Number 04-875CI-7. On or about February 22, 2005, circuit court judge Bruce Boyer of the Circuit Court of the Sixth Judicial Circuit of Florida, in an for Pinellas County, Civil Division, in case Number 04-875CI-7, entered an order of dismissal as to two defendant doctors. In the order of dismissal, Judge Boyer stated that the Dr. Vazquez was not a gastroenterologist and did not otherwise appear to be qualified to comment on the defendants’ care and did not appear to have made any reasonable effort to investigate and determine what role the [two] defendants played in C.L.’s care. Dr. Vazquez was not provided with any notice of the hearing on February 22, 2005, and neither he nor anyone acting on his behalf was present at the hearing to defend his interests. The court forwarded its order to the Division of Medical Quality Assurance as required by Section 766.206(5)(a), Florida Statutes (2003). On or about May 3, 2006, an Administrative Complaint was issued against Dr. Vazquez charging him with a one count violation of Section 458.331(1)(jj), Florida Statutes (2003), which subjects a physician to license discipline for “being found by any court in this state to have provided corroborating written medical expert opinion attached to any statutorily required notice of claim or intent or to any statutorily required response rejecting a claim without reasonable investigation.” The recommended penalties for a violation of Section 4458.331(1)(jj), Florida Statutes (2003), include revocation of the physician’s license. Dr. Vazquez is the first and only physician in Florida who has been formally charged with violating Section 458.331(1)(jj), Florida Statutes (2003). On or about January 22, 2007, the Department of Health referred Case No. 2005-03579 (DOH v. Francisco Vazquez, M.D.) to the Division of Administrative Hearings (hereinafter referred to as the “DOAH”) for a formal evidentiary hearing on the Administrative Complaint pursuant to Chapter 120, Florida Statutes. The case was assigned DOAH Case Number 07-0424PL. The case was assigned to the undersigned. On or about March 1, 2007, Dr. Vazquez filed a Motion to Relinquish Jurisdiction in the administrative proceeding, advising the court of his intent to file his constitutional challenge to Section 458.331(1)(jj), Florida Statutes, in circuit court and arguing the DOAH should relinquish jurisdiction until after the Leon County Circuit Court has ruled on his constitutional challenge. On or about March 5, 2007, Dr. Vazquez filed a Petition for Declaratory Action and/or Injunctive Relief in the Second Judicial Circuit Court in and for Leon County, Florida, alleging that Section 458.331(1)(jj), Florida Statutes, is unconstitutional under the U.S. and state constitutions, in that it allows disciplinary action against a physician’s license based exclusively on the existence of a court order entered in a proceeding in which the physician, acting as a presuit medical expert, is not a party and has no right to notice and an opportunity to be heard. The case was assigned case number 2007-CA-0663. On or about March 19, 2007, an Order Denying Motion to Relinquish was entered by the undersigned. On or about March 21, 2007, a hearing was held before the undersigned on Dr. Vazquez’ Motion to Continue Hearing. At the hearing, counsel for the Department of Health, argued that it is her client’s position that Section 458.331(1)(jj), Florida Statutes, only requires proof of the existence of a court order that includes the language mentioned in the statute and that, once this is proven, there is no opportunity for the physician to dispute the findings of the court order. The Department of Health’s argument was accepted by the undersigned. On or about April 17, 2007, after a formal administrative hearing was conducted but before a recommended order was issued, the Department of Health filed a Motion to Reopen the Hearing and Record and Schedule Evidentiary Formal Hearing. In the motion, the Department of Health urged the undersigned that a new interpretation of Section 458.331(1)(jj), Florida Statutes (2003), should be accepted, stating: It is the [Department of Health’s] position that Section 458.331(1)(jj), Florida Statutes, creates a rebuttable presumption. Under this interpretation, to create a prima facie case, the Department must prove that [Dr. Vazquez] was found to have provided a corroborating written affidavit in support of a notice of a claim without reasonable investigation. [Dr. Vazquez] may rebut such a showing by demonstrating that, notwithstanding the finding, his investigation was in fact reasonable. On or about May 8, 2007, the undersigned denied the Department of Health’s Motion to Reopen, holding that its new interpretation of Section 458.331(1)(jj), Florida Statutes (2003), is contrary to any reasonable reading of the statute. On or about July 5, 2007, the Department of Health filed its Exceptions to the Recommended Order of the undersigned in DOAH Case No. 07-0424PL, in which it reasserted that the correct interpretation of Section 458.331(1)(jj), Florida Statutes (2003), is the one set forth in its Motion to Reopen Hearing (quoted in paragraph 20, supra). On or about July 6, 2007, Dr. Vazquez filed his Reply to Petitioner’s Exceptions urging that, even if Petitioner’s new interpretation of Section 458.331(1)(jj), Florida Statutes, were to be adopted and applied to this case, the case should be dismissed and sent back to the probable cause panel for a determination made based upon the new interpretation. On or about August 10, 2007, a meeting of the Board was held in Fort Lauderdale, Florida at which the Board approved the Department of Health’s Exceptions to the Recommended Order and entered an Order remanding the case back to the DOAH for a “de novo hearing so that findings may be entered consistent with the Board of Medicine’s reading of Fla. Stat. § 458.331(1)(jj), as set forth in this order.” By accepting the Department of Health’s Exceptions, the Board adopted as its own, the interpretation of Section 458.331(1)(jj), Florida Statutes (2003), asserted by the Department of Health in its Motion to Reopen the Hearing and Record and Schedule Evidentiary Formal Hearing and quoted in paragraph 20, supra. In light of the fact that the Board has the final authority over its interpretation of the laws it is charged with applying, the Order of Remand was accepted by Order Accepting Remand and Reopening File entered September 17, 2007. On or about January 8, 2008, Dr. Vazquez filed his Motion to Dismiss Administrative Complaint and Remand to Agency for Probable Cause Determination, again arguing that the probable cause determination made against him was based on a reading of the statute which is substantially different than the reading that the Board adopted in the Order on Remand. The Department of Health opposed this motion. The motion was denied by an Order entered by the undersigned on January 18, 2008. The final hearing on remand in DOAH Case No. 07-0424PL was held on January 29, 2008, pursuant to Section 120.57(1), Florida Statutes. In his Amended Petition, Dr. Vazquez has challenged the statement adopted by the Board through its Order of Remand. That statement, which is quoted in paragraph 20, supra, will hereinafter be referred to as the “Challenged Agency Statement.” The Challenged Agency Statement has not been adopted a rule pursuant to Section 120.54(1), Florida Statutes, and the Board has not initiated any rule-making procedures in this regard. The Board has not argued or presented evidence to support a finding that rule-making is not feasible and practicable under Section 120.54(1)(a), Florida Statutes.
The Issue Whether Petitioner, Marlowe D. Robinson ("Petitioner"), was unlawfully discriminated against by Respondent, Broward County School District ("BCSD"), his employer, based on his disability and in retaliation for complaining about discrimination, in violation of chapter 760 of the Florida Statutes, the Florida Civil Rights Act; and, if so, what is the appropriate remedy.
Findings Of Fact Petitioner worked for BCSD for approximately 20 years prior to the termination of his employment on May 8, 2018. Petitioner is a disabled veteran. At the time of his termination, Petitioner was employed as the Head Facility Serviceperson at BCSD's office in the Katherine C. Wright Building ("KCW"). On February 5, 2016, Richard Volpi began working at KCW as the Manager of Administrative Support and as Petitioner's immediate supervisor. During Mr. Volpi's third day on the job, Petitioner told him that he was not happy that Mr. Volpi was at KCW and that KCW was "his house." He also told Mr. Volpi that he did not work because he "delegated to his crew." On February 18, 2016, Petitioner filed two internal labor grievances. In the first, he asked to have his job title changed to "Building Operations Supervisor." In the second grievance, Petitioner alleged that Mr. Volpi and Jeff Moquin, Chief of Staff, created a hostile and unclean work environment. Mr. Volpi processed the grievances by having a meeting with Petitioner on February 25, 2016. Finding no basis for the grievances in the collective bargaining agreement, Mr. Volpi denied them. On October 10, 2016, Mr. Volpi met with Petitioner to discuss a significant pattern of Petitioner coming in late, failing to notify BCSD when arriving late, staying after his scheduled shift to make up time without authorization, failing to call in as required for sick days, and failing to have pre- authorization for using accumulated leave. After the meeting, Mr. Volpi issued a written "Meeting Summary," which included counseling, based on Petitioner having come in late 24 days since August 1, 2016, and only notifying Mr. Volpi's assistant of the tardiness on three of those 24 days. The "Meeting Summary" was not considered discipline and stated, "If for any reason you need to change your shift hours to assist you in getting to work on time, please let me know." On October 19, 2016, Petitioner filed his third internal labor grievance after Mr. Volpi became his supervisor. The third labor grievance made numerous allegations against Mr. Volpi, including, but not limited to, sexual harassment, unspecified Family and Medical Leave Act ("FMLA") violations, and retaliation for filing prior grievances. On October 26, 2016, Petitioner submitted a request for intermittent leave pursuant to FMLA. The next day, Petitioner was notified that his FMLA leave request was incomplete, and was therefore denied. Petitioner was later granted intermittent FMLA leave with the agreement that he was to provide advance notification of his anticipated absences. On November 9, 2016, Petitioner was notified in writing to appear at Mr. Volpi's office on November 16, 2016, for a pre- disciplinary conference to discuss Petitioner's failure to adhere to the directive of October 10, 2016, to notify Mr. Volpi if he was going to be late, out for the day, or working outside his scheduled hours. The letter specified that Petitioner was late October 11, 13, and 17, 2016, without notifying Mr. Volpi, and that Petitioner was late and worked past his regular scheduled hours on October 21, 25, and November 7, 2016. The letter also specified that Petitioner "called out" (took time off) without notifying Mr. Volpi on October 31 and November 1, 2, 3, 4, and 8, 2016. In response, Petitioner filed a fourth grievance against Mr. Volpi alleging retaliation, bullying, and violations of the Americans with Disabilities Act ("ADA") and various policies of BCSD. On November 16, 2016, Mr. Volpi memorialized in writing that Petitioner failed to show up for the November 16, 2016, pre-disciplinary meeting. On November 21, 2016, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on November 30, 2016, for a pre-disciplinary meeting to replace the original meeting scheduled for November 16, 2016. Petitioner was not disciplined for not showing up to the November 16, 2016, meeting. The meeting on November 30, 2016, went forward as scheduled and Petitioner was issued a verbal reprimand on December 5, 2016, his first discipline from Mr. Volpi, for Petitioner's ignoring the prior directive to contact his supervisor if he was going to be late, absent, or wanted to work beyond his scheduled shift. He was again reminded that he had to make such notifications and have permission in advance of working hours other than his regular shift. On January 12, 2017, Petitioner was granted a reasonable accommodation pursuant to the ADA. The accommodation granted permitted Petitioner to report to work within one hour of his scheduled work time and leave within one hour of his scheduled end time ("flex time"). Additionally, Petitioner was required to notify his supervisor in advance of using flex time. Mr. Volpi assisted Petitioner in the accommodation process. Mr. Volpi provided Petitioner the accommodation paperwork and advocated for Petitioner to be granted an accommodation. On January 26, 2017, Petitioner again came in late without providing Mr. Volpi advance notice of intent to use his flex time. On January 27, 2017, Mr. Volpi sent an email to Petitioner reminding Petitioner that he was required to notify him if he is going to be late. This was not considered discipline. On March 21, 2017, Petitioner was notified in writing that he was to appear at Mr. Volpi's office on March 27, 2017, for a pre-disciplinary meeting regarding ongoing excessive tardiness and failure to adhere to his work schedule. On March 23, 2017, Petitioner filed his fifth internal labor grievance, again alleging harassment (among other claims) against Mr. Volpi. On March 28, 2017, Petitioner filed his sixth internal labor grievance, again making harassment allegations against Mr. Volpi. On April 6, 2017, Petitioner was issued a Written Reprimand by Mr. Volpi for his nine days of tardiness in February and March and his failure to notify Mr. Volpi in advance. On April 7, 2017, Petitioner appealed the Written Reprimand. Petitioner also filed his seventh and eighth internal labor grievances alleging discrimination on the basis of disability and retaliation. Petitioner filed his Charge with the FCHR on April 13, 2017. Mr. Volpi conducted a first-step grievance hearing on April 27, 2017, and as a result of the discussion with Petitioner, who agreed to notify Mr. Volpi in advance of his inability to arrive at work as scheduled, the April 6, 2017, Written Reprimand was reduced to a verbal warning. The FCHR dismissed Petitioner's Charge with a No Reasonable Cause Determination on October 10, 2017. Between January 1 and February 15, 2018, Petitioner came to work late 14 days without providing prior notice, was absent without leave two days, and worked overtime one day without prior authorization. As a result, BCSD issued a three- day suspension on February 21, 2018. On February 22, 2018, Mr. Volpi met again with Petitioner to go over the expectations and provided a reminder memo not to work unauthorized hours without prior approval. On March 13, 2018, Mr. Volpi asked BCSD to issue a ten-day suspension to Petitioner for his ongoing failure to report to work at assigned times, unauthorized overtime, and absences without leave. In response, Petitioner filed yet another labor grievance. BCSD approved the ten-day suspension on April 10, 2018. Despite the ADA accommodation, increasing discipline, multiple counseling meetings and reminders, Petitioner continued his pattern of tardiness, unauthorized overtime, and absences. Accordingly, BCSD terminated Petitioner's employment on May 8, 2018. Petitioner's discipline and ultimate termination were not performance based, but rather, related solely to ongoing attendance issues.
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 FCHR Petition 201700954. DONE AND ENTERED this 6th day of December, 2018, in Tallahassee, Leon County, Florida. S MARY LI CREASY 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 6th day of December, 2018.
