The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2012.
The Issue The primary issue in this case is whether Respondent pleaded no contest to, or was convicted of, crimes which directly relate to the practice of nursing. If so, then it will be necessary to determine an appropriate penalty for each such plea or conviction. In addition, a penalty must be formulated for Respondent's undisputed failures to tell the Board of Nursing about a plea he entered, and a conviction he suffered, within 30 days after the respective events.
Findings Of Fact At all times relevant to this case, Respondent Frankla M. LaFergola, R.N. ("LaFergola"), was a Florida-licensed registered nurse, having been issued license number RN2915432. Petitioner Department of Health (the "Department") has regulatory jurisdiction over registered nurses such as LaFergola. In particular, the Department is authorized to file and prosecute an administrative complaint against a nurse, as it has done in this instance, when a panel of the Board of Nursing has found that probable cause exists to suspect that the licensee has committed a disciplinable offense. Exercising its prosecutorial authority, the Department has charged LaFergola with two such offenses, namely, (1) being found guilty of, or pleading to, a crime which directly relates to the practice of nursing or the ability to practice nursing (two instances); and (2) failing timely to report a conviction or plea to the Board of Nursing (two instances). On September 23, 1999, in the Circuit Court of the Seventeenth Judicial Circuit, Broward County, LaFergola was sentenced to probation with conditions after entering a plea of no contest to one count of child abuse as defined in section 827.03(1)(b), Florida Statutes (1998). The court withheld adjudication of guilt. The elements of the crime to which LaFergola pleaded no contest were defined, in relevant part, as follows: "Child abuse" means: * * * An intentional act that could reasonably be expected to result in physical or mental injury to a child; * * * A person who knowingly or willfully abuses a child without causing great bodily harm, permanent disability, or permanent disfigurement to the child commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 827.03, Fla. Stat. (1998). LaFergola failed to report his no-contest plea to the Board of Nursing within thirty days after entering the plea. At the time LaFergola pleaded no contest to the charge of child abuse, section 464.003(3)(a) defined the term "practice of professional nursing" to mean the performance of those acts requiring substantial specialized knowledge, judgment, and nursing skill based upon applied principles of psychological, biological, physical, and social sciences which shall include, but not be limited to: The observation, assessment, nursing diagnosis, planning, intervention, and evaluation of care; health teaching and counseling of the ill, injured, or infirm; and the promotion of wellness, maintenance of health, and prevention of illness of others. The administration of medications and treatments as prescribed or authorized by a duly licensed practitioner authorized by the laws of this state to prescribe such medications and treatments. The supervision and teaching of other personnel in the theory and performance of any of the above acts. (Emphasis added). There is a negative correlation between (a) the commission of an intentional act that could reasonably be expected to result in physical or mental injury to a child and, e.g., (b) the promotion of wellness, maintenance of health, and prevention of illness of others. That is, there is an inverse relationship between operations (a) and (b) inasmuch as an act of child abuse damages another person's health, whereas the promotion of wellness aims to enhance or restore another person's health; the performance of one, in short, undoes the effect of the other. Because both types of action——child abuse and professional nursing——affect the health and welfare of others, albeit in opposite ways, they are logically connected as diametric behaviors. Consequently, the crime of child abuse directly relates to the practice of nursing. On March 25, 2008, in the Circuit Court of the Nineteenth Judicial Circuit, St. Lucie County, a judgment of conviction was entered against LaFergola, who had been found guilty by a jury of the crime of soliciting a child via computer to engage in lewd behavior. To secure LaFergola's conviction of this particular crime, the government proved the following constituent elements beyond a reasonable doubt: CERTAIN USES OF COMPUTER SERVICES PROHIBITED.--Any person who knowingly utilizes a computer on-line service, Internet service, or local bulletin board service to seduce, solicit, lure, or entice, or attempt to seduce, solicit, lure, or entice, a child or another person believed by the person to be a child, to commit any illegal act described in chapter 794, relating to sexual battery; chapter 800, relating to lewdness and indecent exposure; or chapter 827, relating to child abuse, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 847.0135(3), Fla. Stat. (2005). LaFergola failed to report to the Board of Nursing, within 30 days after being convicted, that he had been found guilty of lewd computer solicitation of a child. Based on this conviction, the court sentenced LaFergola to a term of 28.05 months' incarceration, to be followed by 31 months of Sex Offender Probation. The conditions of Sex Offender Probation generally prohibited LaFergola from having contact with or being near children under the age of 18, among other restrictions on his liberty. The crime of lewd online solicitation of a child directly relates to the practice of nursing for the same reasons, previously discussed, that the crime of child abuse directly relates to the practice of nursing.1/ Ultimate Factual Determinations The Department has established by clear and convincing evidence that LaFergola entered a plea of no contest to a crime (child abuse) which directly relates to the practice of nursing. LaFergola is therefore guilty of the offense defined in section 464.018(1)(c), Florida Statutes (1999). The Department has established by clear and convincing evidence that LaFergola was found guilty of a crime (lewd online solicitation of a child) which directly relates to the practice of nursing. LaFergola is therefore guilty of the offense defined in section 464.018(1)(c), Florida Statutes (2007). The Department has established by clear and convincing evidence that LaFergola failed to report to the Board of Nursing, within 30 days after the event, that he had entered a plea of no contest to a charge of child abuse. Consequently, LaFergola is guilty of the offense defined in section 455.624(1)(w), Florida Statutes (1999). The Department has established by clear and convincing evidence that LaFergola failed to report to the Board of Nursing, within 30 days after the event, that he had been found guilty of lewd online solicitation of a child. For that reason, LaFergola is guilty of the offense defined in section 456.072(1)(x), Florida Statutes (2007).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order finding LaFergola guilty of the offenses charged in the Amended Administrative Complaint. It is further RECOMMENDED that the Board of Nursing revoke LaFergola's license, thereby denying him the right to practice nursing in the state of Florida unless he obtains a new license, for which he may not apply until after the expiration of a period of ineligibility not exceeding 10 years; and impose an administrative fine of $1,500. DONE AND ENTERED this 3rd day of September, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 September, 2014.
Findings Of Fact Gene Flinn (Flinn), filed Complaint Number 95-156 dated October 31, 1995, with the Commission on Ethics against John G. Tomlinson, Jr., (Tomlinson) alleging that Tomlinson committed the following unlawful acts: Advising or instructing his attorney to suborn perjury by denying to the Executive Director and Chairman of the Ethics Commission the existence of Rose Upton. Advising or instructing his attorney to certify false and misleading information to the Ethics Commission concerning himself and Rose Upton with the intent to influence the Supreme Court in Flinn's disbarment proceedings. Conspiring to or participating in the act of tampering with jurors in the 1991 trial of Flinn v. Shields. Forwarding misstatements concerning the Shield litigation to clerks of the Florida Supreme Court to effect Flinn's disbarment and to foreclose appeals. Advising or instructing his attorney to falsely inform the Ethics Commission concerning the status of law enforcement investigations being conducted of Flinn. Committing acts in violation of federal and state racketeering laws by providing false information to other Judges of Compensation Claims, resulting in loss of fees and costs to Flinn. Filing a fraudulent application with the Governor for reappointment. On January 8, 1996, Bonnie Williams, Executive Director of the Commission on Ethics, filed a Recommendation of Legal Insufficiency with the Commission, recommending that the Commission dismiss Complaint Number 95-156 without investigation as legally insufficient. On January 25, 1996, the Commission entered a Public Report and Order Dismissing Complaint, dismissing Complaint Number 95-156 for failure to constitute a legally sufficient complaint. The order stated, "No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the Complaint." The unrebutted testimony of Tomlinson is that the allegations in the Complaint are false. Based on the testimony of Tomlinson and the case, The Florida Bar v. Flinn, 575 So.2d 634 (Fla. 1991), I find that Flinn filed Complaint Number 95-156 with a reckless disregard for whether the allegations in the Complaint were false. The only evidence presented relating to the amount of the attorney's fee requested is Exhibit Number 9 which is a letter from Stephen Slepin (Slepin) to Tomlinson, stating that the fee for representing Tomlinson regarding Complaint Number 95-156 was $10,000 plus expenses. On December 1, 1995, Slepin did file a five-page response to the Commission on behalf of Tomlinson. No evidence was presented as to the amount of time that Slepin spent in representing Tomlinson relative to Complaint Number 95-156. No evidence was presented as to the nature of the actual work performed by Slepin other than the written response submitted by Slepin to the Commission. Exhibit 9 did indicate that Slepin would review the Complaint, the previous Compliant, Flinn's disbarment proceedings and Flinn's federal actions and research the applicable law. However, no evidence was presented to show what work was actually done. No evidence was presented to show what the customary charge in the community is for such services. No evidence was presented concerning the experience, ability, and reputation of the lawyer performing the services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying John Tomlinson, Jr.'s petition for attorney's fees. DONE AND ENTERED this 1st day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of July, 1996. COPIES FURNISHED: Stephen Marc Slepin, Esquire Stephen Marc Slepin, P.A. 1114 East Park Avenue Tallahassee, Florida 32301 Gene Flinn 5100 Southwest 87th Avenue Miami, Florida 33165 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact At all times relevant hereto, respondent, Arthritis Medical Center, Inc. (AMC), operated a facility at 901 Southeast 17th Street, Fort Lauderdale, Florida. According to its business card, AMC provides a "Hormone Balance Treatment" to patients suffering from arthritis and uses a "medication" that "combines three separate hormones - glucocorticoid and the male and female sex hormones." The card represents that AMC collaborates with a "medical staff" and that its registered nurse administrator was one Donna Pinorsky. 2/ The card reflects also that AMC has a facility at 2025 Broadway, #19D, New York City. The parties have stipulated that respondent holds no licenses or permits from any state regulatory agency. Further, it has no pending application for any permit. Petitioner, Department of Health and Rehabilitative Services (HRS), is charged with the responsibility of protecting the public health regarding commerce of drugs, devices and cosmetics. Through its pharmacy services program, HRS issues permits to those persons or establishments, other than pharmacies, who provide or sell legend drugs, devices or cosmetics to the public. Also, the agency inspects both permitted and unpermitted facilities that hold drugs, devices or cosmetics to ensure that adulterated, misbranded or unsanitary drugs are not dispensed to the public. To this end, HRS employs licensed pharmacists who make random, unannounced inspections of such facilities. This case arises out of two unsuccessful efforts by HRS inspectors to inspect respondent's facility. The inspections were prompted by HRS' receipt of a letter from the Department of Professional Regulation. The contents of the letter were not disclosed. On the afternoon of January 16, 1987, HRS inspectors Jones, Loudis and White, all licensed pharmacists, visited AMC's facility in Fort Lauderdale for the purpose of inspecting any legend drugs, devices or cosmetics that might be on the premises. They were met by Pinorsky, the facility's administrator. After identifying themselves, Pinorsky picked up a hand-held tape recorder and began taping the conversation. Pinorsky first acknowledged that a "Doctor Kline," whose sign was on the outside of the building, had offices at the facility but was not present. She also gave the inspectors an AMC business card which contained the information set forth in finding of fact 1. When the inspectors asked if any hormones were kept on the premises, Pinorsky responded by asking if the inspectors had a subpoena. After being told there was none, she read the inspectors the following statement: On advice of counsel, under the United States Supreme (Court) decision See's vs City of Seattle, Washington, I must decline to allow a search without a search warrant signed by a Judicial officer. And, if such warrant has been issued on advice of counsel I decline to consent to a search until a Court has ruled on a motion to quash under the Fourth & Fourteenth Amendments to the United States Constitution. My local attorney is Larry Altman Post Office Box 402404 Miami Beach, FL 33140 My general counsel is John Burgess 2000 Powell Street Suite 1680 Emoryville, CA 94608 The inspection ended at that point. Around 4:15 p.m. on March 13, 1987 Jones and Loudis returned to AMC's place of business for the purpose of conducting an inspection. They were met by one Kathy Bentley, a secretary, who was told the purpose of the visit. Bentley would not allow the inspection to be made because the "nurse" was not present. Pinorsky then entered the room carrying a "toddler." After putting the child down, Pinorsky immediately set up a tape recorder and began recording the conversation. After identifying themselves, the inspectors requested they be permitted to inspect the facility to ensure compliance with Chapter 499, Florida Statutes. Pinorsky denied their request saying there was ongoing "litigation" over their right to inspect the facility. The inspection ended at that point. Based upon the two unsuccessful efforts to inspect AMC's facility, an administrative complaint was issued by HRS in January, 1988. The complaint is the second administrative action taken against respondent. The first culminated in a Final Order issued on October 22, 1986 imposing a $500 fine on respondent for refusing to allow inspectors to inspect its facility on April 30, 1986. The inspectors had no search warrants to inspect AMC's facility nor had there been any finding of probable cause by a judge or magistrate that a statutory violation may have taken place on AMC's premises. Also, the inspectors did not know the precise nature of respondent's business or whether any drugs were actually kept on the premises. Indeed, Pinorsky never admitted that any were kept at the facility. The inspectors estimated that approximately forty percent of all inspections are on nonpermitted facilities. The inspections are made on a random basis or after the receipt of information from other agencies suggesting that one be made. In 1986-87, HRS inspected more than 350 health maintenance organizations, doctor's offices and medical centers as well as other establishments that hold drugs, devices and cosmetics. The basis for and criteria used in such inspections are set forth in a written HRS "operational guide." This document is not of record. Based upon (a) the representations in AMC's business card that it "treats" arthritis patients and that a "medication" is given to them, (b) the use of the term "medical center" in respondent's business name, and (c) the fact that a physician has offices at AMC's facility, it may be logically inferred that AMC is an establishment that holds or maintains drugs on its premises.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that respondent be found guilty of violating Subsection 499.005(6), Florida Statutes (1987), and Rule 10D-45.0545, Florida Administrative Code (1987), on two occasions and that it pay $5,000 for each violation, or a total of $10,000, said fine to be paid within 30 days from date of the Final Order rendered in this matter. DONE AND ORDERED this 30th day of August, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 1988.
