Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the petitioners' request to amend the birth certificate of Pamela Celestine Ellis to add Willie Frank Ellis as the listed father be GRANTED. Respectfully submitted and entered this 23rd day of March, 1981, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of March, 1981. COPIES FURNISHED: Marcia A. Cypen Legal Services of Greater Miami, Inc. Post Office Box 47000N Miami, Florida 33147 Morton Laitner Dade County Department of Health 1350 NW 14th Street Miami, Florida 33125 Honorable Alvin Taylor Secretary, Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue At issue is whether Inaaya Limone, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Douglas Stalley is the Guardian Ad Litem for Inaaya Limone, a minor, and Fatima El-Atriss is Inaaya's mother. Inaaya was born a live infant on March 29, 2004, at Florida Health Sciences Center, Inc., d/b/a Tampa General Hospital, a licensed hospital located in Tampa, Florida, and her birth weight exceeded 2,500 grams. Obstetrical services were delivered at Inaaya's birth by William Spellacy, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan as defined by Section 766.302(7), Florida Statutes. The participating physician (Dr. Spellacy) and the hospital (Tampa General Hospital) complied with the notice provisions of the Plan. Inaaya sustained a brain injury caused by oxygen deprivation and was thereby rendered permanently and substantially mentally and physically impaired. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation . . . occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, it is undisputed that Inaaya suffered a brain injury, caused by oxygen deprivation, which rendered her permanently and substantially mentally and physically impaired. What must be resolved is whether the record supports the conclusion that, more likely than not, such injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period" in the hospital, as required for coverage under the Plan. § 766.302(2), Fla. Stat.; Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("According to the plain meaning of the words as written, the oxygen deprivation or mechanical injury to the brain must take place during labor, or delivery, or immediately afterward."). As to that issue, Petitioner was of the view that Inaaya's brain injury was not birth-related (did not result from oxygen deprivation that occurred during labor, delivery, or resuscitation in the immediate postdelivery period), but followed Inaaya's extubation on March 31, 2004, when she stopped breathing, and efforts to re-intubate her were not successful for 7 to 8 minutes. In contrast, NICA was of the view that Inaaya's brain injury likely resulted from oxygen deprivation that occurred during labor, delivery, or resuscitation immediately thereafter. Intervenor agreed with NICA's position, and further contended that the oxygen deprivation caused Innaya to aspirate meconium, which lead to meconium aspiration syndrome, with further injury to her brain following delivery. Inaaya's birth and immediate newborn course At or about 12:01 a.m., March 29, 2004, Fatima El- Atriss, with an estimated delivery date of March 8, 2004, and the fetus post-dates at 43 weeks' gestation by ultrasound (US), presented to Tampa General Hospital complaining of the onset of uterine contractions at 7:00 p.m., the previous evening. There, physical examination revealed Ms. El Atriss to be morbidly obese (5'5", 383 lbs.); external fetal monitoring (begun at 12:11 a.m.) revealed an overall reassuring fetal heart rate in the 160 beat per minute (BPM) range; and vaginal examination (at 12:40 a.m.) revealed the cervix at 1 centimeter dilation, effacement thick, and the fetus high. Ms. El-Atriss was admitted to labor and delivery at or about 1:30 a.m., for induction of labor; was induced with petocin; progressed to complete dilation by 2:07 p.m.; and at 2:14 p.m., Inaaya was born by spontaneous vaginal delivery. In the interim, at 7:50 a.m., Ms. El-Atriss' membranes were artificially ruptured, with thick meconium noted, and the Labor and Delivery Record documents recurrent moderate/severe variable decelerations and prolonged decelerations. However, given Ms. El-Atriss' obesity, at times monitoring was difficult. But, as late as 1:40 p.m., the physicians' progress notes described the fetal heart rate as overall reassuring. At delivery, Inaaya was described as pink and vigorous, but with evidence of mild respiratory distress ("grunting") and was provided blow-by oxygen for 1 minute and suctioned (by bulb and catheter). Otherwise, Inaaya did not require resuscitation. Apgar scores were good (8 and 9, at one and five minutes, respectively).1 Retractions were documented at 5 minutes of life, with improvement at 15 minutes of life. (Joint Exhibit 1A, Labor and Delivery Record, page 2). According to the medical records, Inaaya was transferred to the newborn nursery at or about 2:25 p.m. (Joint Exhibit 1A, Labor and Delivery Record, page 2). There, admission examination was normal, except for skin (meconium stained nails, skin and cord were noted), throat (secretions were noted), and lungs (retractions, grunting, and tachypnea were noted). Impression/Plan was noted as: (1) viable post- term appropriate for gestational age female - routine care; (2) tachypnea/respiratory distress (thick meconium) - required blowby on delivery, now to keep oxygen saturation greater than 90 percent, check chest x-ray. (Joint Exhibit 2, Newborn History and Physical). Insofar as the record reveals, Inaaya did not require intervention until 2:50 p.m., when her respiratory rate was elevated at 84, her oxygen saturation level was low at 87, and she was accorded blow-by oxygen. Thereafter, at 3:15 p.m., notwithstanding she was receiving blow-by oxygen, Inaaya's respiratory rate was still elevated at 98, and her oxygen saturations remained low at 81. (Joint Exhibit 2, Transition Newborn Admission DataBase; Joint Exhibit 10, page 32). Accordingly, Inaaya was immediately tranferred to the neonatal intensive care unit (NICU) for further management. Upon arrival at NICU, the neonatalogist noted that Inaaya was crying, pink, well-perfused, in mild to moderate distress (tachypnea, grunting, and retracting), and on exam breath sounds were described as coarse with rales bilaterally. Neurological exam was described as "normal/nonfocal." Assessment was full-term, appropriate for gestational age baby girl with meconium aspiration syndrome. Respiration plan included NCPAP (nasal continuous positive airway pressure), chest x-ray (CXR), and arterial blood gases (ABGs). Neurological plan noted "[no] issues." Following evaluation, Inaaya was placed on NCPAP, and chest x-ray was obtained at 3:23 p.m., which showed marked prominence of pulmonary vessels consistent with congestive heart failure. However, an "emergency echocardiogram due to [patient's] clinical deterioration to rule out congenital heart disease," ordered at 4:56 p.m., showed normal intracardiac anatomy, and revealed pulmonary hypertension with bi-directional ductus. Initial arterial blood gases drawn at 4:07 p.m., indicated a pH of 7.43, PO2 of 64, PCO2 of 35, and a BE (base excess) of 0, findings inconsistent with acidosis. (Joint Exhibit 6, p. 15). At or about 6:15 p.m., with her respiratory status deteriorating, Inaaya was sedated in preparation for intubation, and at 6:40 p.m., she was intubated and placed on high frequency oscillator ventilation (HFOV) until the early morning of March 30, 2004, when she was switched to synchronized intermittent mandatory ventilation (SIMV). In the interim, at 11:00 p.m., March 29, 2004, Dopamine was added to Inaaya's interventions to support her blood pressure, and when that proved inadequate Dobutamine was added at 4:00 a.m., March 30, 2004. At 3:10 p.m., March 31, 2004, Inaaya was extubated, and immediately clamped down and became apnic, with bradycardia. Code was initiated at 3:11 p.m., with chest compressions and positive pressure ventilation (PPV), and four attempts were made to re-intubate Inaaya, with the fourth attempt at 3:18 p.m., proving successful. Notably, during attempts to re-intubate Inaaya copious secretions were visualized below the cords, and they were suctioned following re-intubation. Following re- intubation, Inaaya was placed on SIMV. According to the Code 19 Flow Sheet, from 3:11 p.m., when the code was called, through re-intubation at 3:18 p.m., "pulse ox[imeter] not reading," and saturations were noted as zero. During the same period, heart rate was noted as 40 to 50 beats per minute. Thereafter, at 3:19 p.m., heart rate was noted as 50, with saturations at 20 percent; at 3:20 p.m., heart rate was noted as 51, with saturations at 80 percent; and at 3:21 p.m., heart rate was noted at 117, with saturations at 77 percent. The Code ended at 3:25 p.m., and post-code heart rate was documented as 210, with saturations at 99 percent. Of note, the last arterial blood gas before the Code was called, was taken at 1:52 p.m., and indicated a pH of 7.39, PO2 of 83, PCO2 of 37, and a BD (base deficit) of 2, which were within the reference range. First arterial blood gas following the Code, at 3:33 p.m., indicated a pH of 7.10, PO2 of 205, PCO2 of 72, and a BD of 8, which were all outside the reference range, and consistent with metabolic acidosis. Arterial blood gases were still abnormal at 4:16 p.m., but by 6:57 p.m., they were within the reference range. Later on March 31, 2004, sedation (Versed and Fentanyl) was decreased, and Inaaya was slowly weaned until April 2, 2004, when Versed and Fentanyl were stopped. In the interim, on April 1, 2004, the nurses note Inaaya's pupil reaction as sluggish bilaterally. However, given Inaaya's sedation, the reliability of such observation as clinical evidence of neurologic injury is fairly debatable. On April 7, 2004, an MRI of the brain was done. The radiologist's impression was "[a]bnormal basal ganglia signal [symmetrically demonstrated bilaterally involving the globus pallidus]. This may be seen with hypoxia or hypoperfusion." Follow-up MRI was done on December 1, 2004, and reported by the same radiologist, as follows: CLINICAL INDICATION: Developmental delay. Abnormal MRI of the brain 04/07/04 performed at Tower Advanced MRI. The previous examination was performed at a time with the clinical history of hypoxic event. April, 2004. Comparison is made. * * * IMPRESSION: SEQUELA ARE NOTED FROM HYPOXIC EVENT. THE AREA OF THE BASAL GANGLIA PREVIOUSLY NOTED AS ABNORMAL HAS EVOLVED INTO ABNORMALLY DECREASED SIGNAL SUGGESTING THE POSSIBILITY OF DYSTROPHIC CALCIFICATIONS.... Notably, while Inaaya's brain injury is consistent with a hypoxic/ischemic event, it is not possible, based solely on the MRIs, to time the onset of the injury (i.e., as birth-related or as related to the Code event). A neurology consult was requested, and on April 9, 2004, Inaaya was evaluated by Maria Gieron-Korthals, M.D., a pediatric neurologist. Dr. Gieron-Korthals reported the results of her evaluation, as follows: REASON FOR CONSULTATION: Abnormal MRI and poor sucking. HISTORY OF PRESENT ILLNESS: This baby was born on March 29th, so it is 12 days old by normal vaginal delivery with meconium- stained amniotic fluid and respiratory distress, subsequently diagnosed with meconium-aspiration syndrome . . . . The baby was initially put on ventilator, subsequently placed on CPAP and subsequently on oxygen by a nasal cannula and now is on room air. On day four of life, the infant apparently coded and needed some pressors for a couple of days. The present concern is that the baby has a poor suck and does not take a lot by mouth. Regarding the feeding, the information I gather is that the sucking ability is inconsistent. At times the baby does suck well, at some other time not. Nevertheless, the baby is gaining weight and the feeding is supplemented by NG. The MRI of the brain was performed a couple of days ago and it was abnormal showing bilateral basal ganglia lesions ie decreased signal on diffusion- weighted images of MRI. We reviewed the MRI today. PHYSICAL EXAMINATION: On physical examination, the baby's behavior was somewhat unusual. The baby had episodes of very strong cry, inconsolable and then suddenly would stop crying, become motionless with eyes widely open and turned down. This behavior occurred intermittently throughout the entire period of evaluation. The head was shaved for IV and all sutures were somewhat overlapping anterior fontanel can be covered with the tip of the fifth finger. There was a swelling and redness of the right lower eyelid more than the left. The pupils seem equal and reactive to light and eye's moved to doll's maneuver. The facial expression was symmetrical and movements were normal. The gag reflex, however, is decreased and the sucking is intermittent and not strong. The other developmental reflexes, such as Moro, palmar and plantar grasps were present, but rooting was not elicited. On motor system examination, even when the baby was crying, there was a marked head lag on pulling up to sitting position. The posture of the rest of the body with flexion at the elbows and knees was normal. In ventral suspension, however, the head was flexed and the back was curved, indicative of mild hypotonia. Deep tendon reflexes were about 1+ biceps and patella and there was no clonus at the ankle. IMPRESSION: This is a 12 day-old baby with meconium aspiration syndrome followed by an episode during which the baby coded and with abnormal MRI for basal ganglia involvement which is most likely secondary to hypoxic event that occurred during the above episode. The baby's suck is indeed of concern and so is the baby's behavior of going from crying to motionless state. One should consider the possibility of seizures and the plan is to obtain one EEG today to capture the episode of going from crying to motionless state and determine whether or not these are seizures . . . . EEG was done and was interpreted as normal. On April 12, 2004, Inaaya was discharged from Tampa General Hospital. The diagnoses at that time included: Meconium Aspiration Syndrome Hypotension, resolved Clinical Sepsis, resolved Respiratory distress syndrome with tacypnea, resolved Poor po intake, resolved Outpatient follow-up with pediatrics, neurology, and cardiology was recommended. Currently, Inaaya presents with severe cerebral palsy, with profound mental and physical disabilities, that indisputably are related to the brain injury she suffered (to the basal ganglia) because of oxygen deprivation. Left to resolve is the likely timing of Inaaya's brain injury. The statutory presumption When, as here, the proof demonstrates that the infant suffered an injury to the brain caused by oxygen deprivation that rendered her permanently and substantially mentally and physically impaired, a rebuttable presumption arises that the injury is a "birth-related neurological injury," as defined by the Plan. § 766.309(1)(a), Fla. Stat. See also Orlando Regional Healthcare System, Inc. v. Alexander, 909 So. 2d 582 (Fla. 5th DCA 2005). In this case, the presumptions is that Inaaya's injury occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period in . . . [the] hospital." Consequently, it must be resolved whether there was credible evidence produced to support a contrary conclusion and, if so, whether absent the aid of such presumption the record demonstrates, more likely than not, that Inaaya's injury "occurred in the course of labor, delivery, or resuscitation in the immediate postdelivery period.2 Here, there should be no serious debate that credible evidence was produced (through the medical records and the various experts and fact witnesses who testified) to support a contrary conclusion. The likely cause and timing of the brain injury that rendered Inaaya profoundly, neurologically impaired To address the likely cause and timing of the brain injury that rendered Inaaya profoundly, neurologically impaired, the parties offered the medical records related to Ms. El- Atriss' antepartal course, as well as those associated with Inaaya's birth and subsequent development. Additionally, the parties offered the testimony (by deposition or live) of many of the health care providers who were involved with Ms. El-Atriss' and Inaaya's care at Tampa General Hospital, including William Spellacy, M.D., the participating physician who provided obstetrical services at Inaaya's birth; Enid Gilbert-Barness, M.D., a pediatric pathologist; Terri Ashmeade, M.D., a neonatologist; Maria Gieron-Korthals, M.D., a pediatric neurologist; and Edward Blum, III, a respiratory therapist. Finally, between them, the parties offered the testimony (by deposition or live) of eight experts retained by them to offer opinions related to the likely cause and timing of Inaaya's brain injury. Offered by Petitioner were Paul Gatewood, M.D., an obstetrician/gynecologist; Michael Duchowny, M.D., a pediatric neurologist; William Rhine, M.D., a neonatologist; and Elias Chalhub, M.D., a pediatric neurologist. Offered by Respondent was Joseph Casadonte, M.D., a pediatric neurologist, and offered by Intervenor were Barry Schifrin, M.D., an obstetrician/gynecologist; Edwina Popek, M.D., a pediatric pathologist; and Marcus Hermansen, M.D., a neonatologist. The medical records, as well as the testimony of the various health care providers, have been thoroughly reviewed. Having done so, it is apparent that Inaaya developed respiratory dysfunction, caused by meconium aspiration in utero, induced by the stresses of labor, that revealed itself following delivery with evidence of grunting and retractions. However, the record failed to demonstrate that, more likely than not, any oxygen deprivation she may have suffered during labor, delivery, or resuscitation in the immediate postdelivery period, as a result of her respiratory dysfunction or otherwise, resulted in brain injury. Rather, the likely cause of Inaaya's brain injury was shown to be the oxygen deprivation she suffered during the Code event. In so concluding, it is noted that, following delivery at 2:14 p.m., March 29, 2004, Inaaya was described as pink and vigorous, albeit with evidence of mild respiratory distress; she required minimal resuscitation measures (blow-by oxygen for 1 minute and suctioning); her Apgar scores were good (8 and 9, at one and five minutes, respectively); her initial arterial blood gases at 4:07 p.m., did not reveal any acidosis; her neurological evaluations before sedation at 6:40 p.m., were normal; the first arterial blood gases following the Code event of March 31, 2004, were consistent with metabolic acidosis; there was evidence of neurologic dysfunction after, but not before, sedation was stopped on April 2, 2004; and the MRI results were consistent with an acute hypoxic ischemic event. Given the proof, it is likely, as opined by the health care providers offered by Petitioner, that the cause of Inaaya's brain injury was the oxygen deprivation she suffered during the Code event on March 31, 2004, and not any oxygen deprivation she may have suffered during labor, delivery, or resuscitation in the immediate postdelivery period in the hospital.3 Consequently, Inaaya was not shown to have suffered a "birth- related neurological injury" as defined by the Plan. § 766.302(2), Fla. Stat. See also Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So. 2d 155, 160 (Fla. 4th DCA 2002)("According to the plain meaning of the words as written, the oxygen deprivation or mechanical injury to the brain must take place during labor, or delivery, or immediately afterward.").
The Issue Whether or not on or about August 16, 1975, Castlewood International Corporation, a licensed vendor and/or its agent, servant or employee, to wit: Brent Hanry Hansell, did permit and/or allow a person, Johnny Pannell, under the age of 18, to consume alcoholic beverages on its licensed premises, contrary to Florida Statute 562.11(1).
Findings Of Fact The Petitioner presented its case based upon certain oral testimony offered in the course of the hearing and certain tangible items of evidence offered at the hearing. Before placing any witnesses on the stand, certain stipulation were entered into the record between the parties. The first such stipulation was to the effect that no violations of the sort alleged in the administrative complaint had been committed by the Respondent in any of the six facilities which it had in the Division of Beverage District Five area, in the two years proceeding the date of the hearing. It was also stipulated that Petitioner's Exhibit 4, which was a drinking glass, allegedly taken from Johnny Pannell on or about August 16, 1975, while Johnny Pannell was in Big Daddy's number 53, which contained a chemical substance which had as a part alcohol, and that the chain of custody of the glass and contents while in the care of the Division of Beverage Authority and their affiliates remained inviolate, up to and including the date of the hearing. It was further stipulated that Petitioner's Exhibit 1, which is a copy of a license issued for 1975-76 could be admitted into evidence without objection. Further stipulations included an agreement that the Respondent had been duly served with a notice to show cause and attendant administrative complaint, and that the Respondent was duly noticed of the hearing date for January 22, 1976. The Petitioner called as its first witness, James Lee Yeager, Jr., an agent for the Division of Beverage. On August 15, 1975, the officer met with a group of other officers for purposes of going to check bars in the Kissimmee area for possible violation of the beverage laws, specifically the sale of alcoholic beverages to minors. At around 12:30 A.M. August 16, 1975, the witness entered the premises of the Respondent and momentarily observed the patrons. He indicated that there were 75 to 100 customers in the bar. He then returned outside and met with the other officers, and together they reentered the bar for purposes of checking identifications of select patrons. On both occasions when the witness entered the bar, he indicated that there was a white female taking cover charge money but that she never asked for any identification. While in the bar, the witness approached one white male, later identified as Johnny Pannell. When requested to produce some identification, Pannell produced an identification card which has been admitted into evidence as Petitioner's Exhibit 2. This identification card is a photo I.D. with the word Identification affixed and the back of the card has finger prints together with a notary seal. It is noted that the notary has certified the signature, photo and thumb prints; however, the date of birth is not notarized. It was later established through the witness, Johnny Pannell, that the matters set forth on the card, with the exception of the age were correct. Officer Yeager indicated that when Johnny Pannell was approached that Pannell had in his hand the glass, which has been stipulated to at the commencement of this hearing as to the chain of custody and as to the contents. When the officer asked for further identification, Pannell produced a drivers license which showed that Pannell was 17 years of age on August 16, 1975. Pannell was therefore placed under arrest for an offense of drinking under age. Officer Cruz, Division of Beverage, took the stand and indicated that he assisted Officer Yeager in the interrogation of Johnny Pannell, while in the Respondent's premises. The witness recalls that Pannell admitted being 17. Officer Cruz also agreed with officer Yeager, in that he did not see the lady at the door check any identification when the officers entered. One additional observation solicited in the course of Officer Cruz's testimony, was to the effect that the premises were dark in the main part of the bar. Agent Perry Lee Lyle of the Division of Beverage, took the stand and testified that he was involved in the identification check in the bar. He further testified that he arrested Brent Hanry Hansell for permitting the sale of alcoholic beverages to a minor. Johnny Pannell took the stand for the Petitioner and testified that he was 17 years old, born September 13, 1958. When he entered the bar, according to the witness, the lady asked him for identification and he showed her Petitioner's Exhibit 2. He had purchased this bogus identification card in Orlando, for a price of $5.00, and had used it 5 or 6 times before the night of August 16, 1975. When the officers entered the bar and approached him, he had a drink in his hand and that drink has been identified as Petitioner's Exhibit 2. When Officer Yeager asked him for further identification the witness said that he did not volunteer that identification but that Officer Yeager found a drivers license which showed the witness to be 17 years of age. One final observation by the witness, was to the effect that he never told the officers that he was under 18 years of age. At the close of the Petitioner's case the Respondent's attorney moved to dismiss the case because the Petitioner had failed to prove that the premises as existing on August 16, 1975, was a premises licensed to sell alcoholic beverages, by the State of Florida, Division of Beverage. Therefore, according to the Respondent, there could be no proof of the consumption of alcoholic beverages on a licensed premises. This motion will be subsequently considered in the findings of fact in the section of this recommended order entitled CONCLUSIONS OF LAW. The Respondent presented a case in chief, notwithstanding its motion to dismiss, because the possibility existed that the motion would not be accepted by the undersigned and/or the Director. The first witness was Enid Marie Hunt. Miss Hunt was working on the door on August 16, 1975, and was the lady that the officers observed in making their entry. Additionally, she was the door checker when Johnny Pannell entered the bar that evening. She recalls checking the identification of Johnny Pannell, specifically the Petitioner's Exhibit 2. She did not ask for further identification although a sign in the foyer indicated that this was a policy of the Respondent to check two identifications. Some of the comments by the witness about policy matters relating to identifications, were to the effect that they look for identification cards with pictures; however, it was not their policy to accept cards with the initials I.D. or the words Identification Card. The witness further stated that she remembers the picture in the particular instance and the fingerprints and notary stamp and other matters reflected on the front side of the card, and found this to be satisfactory. She didn't have any explanation for accepting a card with the word Identification, nor did she think that the photo on the identification card made Johnny Pannell appear to be 18 years of age at the time the card was issued. Nevertheless, she said that she felt that he looked 18 years of age at the time he entered the bar on August 16, 1975. The witness had been working there only two nights, and apparently had not had an opportunity to familiarize herself with the written policy by the Respondent on the subject of identification checks. She did indicate, that Mr. Hansell had instructed her six times on how to check identification cards. Considerations suggested by Mr. Hansell, other than those mentioned before, were that you check identification on persons who appear to be 18 through 22 years old. You do not, as a practice, check those persons who appear to be older. The witness also seemed to suggest that the policy of checking two identifications could be disregarded if the first identification card appeared obviously legitimate. Brent Hanry Hansell who was the manager of Big Daddy's number 53, on the night in question and who is still acting in that capacity, took the stand. He testified that he instructed Miss Hunt that she could accept picture drivers license, a draft card, a voter registration card, and a military identification. He indicated that cards with the word Identification or the initials I.D., birth registration cards were types of identification that were not sufficient. He did seem to believe that the notary stamp attached a certain air of legality to an identification document. He stated that the manual issued by the Respondent to the employees of the Respondent sets out the identification procedures to be utilized. He did not testify that Miss Hunt had had an opportunity to read and familiarize herself with that manual. His comment about Miss Hunts training was to the effect that she was working there on the second night, though usually there is a week training period. In the defense of his position of allowing Miss Hunt to work on the second night, he stated that he had briefed her several times on the duties of an identification card checker. Robert E. Betz took the stand. Mr. Betz is the area supervisor for the Respondent and one of his functions is to assist in the hiring of identification checkers. He stated that the manual discusses those documents which would constitute a sufficient identification. In alluding to the sign found in the foyer of the subject premises, he said that the sign was primarily one designed to discourage under age persons from attempting to purchase or consume alcoholic beverages on the premises. As commented before, the motion to dismiss was made at the close of the Petitioner's presentation. An examination of the testimony offered by the Petitioner's witnesses, together with the tangible items of evidence would seem to support a finding of a violation on the part of the Respondent, were it not for the failure of one necessary element of proof. The element of proof not shown, is the affirmative proof that the premises in question was a premises licensed to sell alcoholic beverages, under the laws of the State of Florida. The Petitioner's Exhibit 1 does not show that a license was in existance on August 16, 1975, and the record is devoid of any other proof of that fact. Consequently, though the facts, as produced by the Petitioner, show that a sale of alcoholic beverages was made to Johnny Pannell, a minor, and that the identification card would not have been accepted by a proprietor using due diligence and that the acceptance has not been effectively defended against in the Respondent's case in chief, the Petitioner has failed to make out a prima facie case or to establish a violation by the standard of proof necessary in this cause.
Recommendation It is recommended that the Respondent, Castlewood International Corporation, t/a Big Daddy's number 53, be released from further prosecution for the matters set forth in this cause. DONE and ENTERED this 18th day of February, 1976, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Stewart McHenry, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 William A. Hatch, Esquire Department of Business Regulation 725 Bronough Street Tallahassee, Florida 32304 Sy Chadroff, Esquire 120 North Biscayne Boulevard Miami, Florida 33132
Findings Of Fact Based upon the Stipulation of the parties, the following facts are found: Joel Davis Laton and Christine Anne Laton are the parents and legal guardians of Rose, and are the “Claimants” as that term is defined in section 766.302(3). On or about August 17, 2019, Rose incurred a “birth-related neurological injury” as that term is defined in section 766.302(2), which was the sole and proximate cause of Rose’s medical condition. David Miller, M.D., rendered obstetrical services in the delivery of Rose and, at all material times, was a “participating physician” as defined in section 766.302(7). SVMCR is a hospital located in Jacksonville, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Rose was born. At birth, Rose weighed 4,650 grams. Rose died on August 17, 2019. Petitioners filed a Petition pursuant to section 766.305, seeking compensation from NICA, and that Petition is incorporated herein by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact The Petitioner's daughter, Nanette Lee Johnson, was born December 1, 1971. At or near the time of birth she was named Milwee Nanette Johnson by her mother, Nancy Ann Johnson, now known as Nancy Ann Blackwell. At the time of the child's birth, her parents were separated and subsequently their marriage was dissolved. Because of the separation, Mr. Johnson was not present when the child was born and did not participate in the decision to name the child Milwee Nanette Johnson. The child was given this name in honor of her maternal grandmother, Milwee Hodge Maye. Mr. Johnson apparently simply does not care for that name, and took steps to unilaterally change the name upon the child's entry into public school, presumably when she was six years of age. The Petitioner's child was still named Milwee Nanette Johnson at the time the dissolution of marriage order was entered, March 13, 1972. In that order Mrs. Blackwell (the Petitioner herein) was awarded custody of all four of the couple's minor children. Subsequent to the dissolution, she apparently suffered some serious emotional problems with the result that custody of the children was awarded to their father, Archie Johnson. The child still, however, has a close relationship with her mother and visits her every other weekend. Mrs. Blackwell purposely named the child Milwee Nanette Johnson in honor of the child's grandmother and not as the result of a mistake. In 1976, before Nanette became seven years of age, Archie Lee Johnson, her father, decided to change her name before she started school so that the permanent school records would reflect the name he chose, Nanette Lee Johnson. Accordingly, he contacted the Bureau of Vital Statistics of the Respondent and requested a change of the name on the basis that a "mistake" had been recorded on the original birth certificate, filing the required supportive affidavit. The name change was thus granted by the Respondent Bureau as the correction of an alleged mistake and the child has been known as Nanette Lee Johnson since that time with that name being reflected on all school records. Her father never consulted her mother when he effected the name change for the child. In fact, Mrs. Blackwell did not learn of Archie Johnson's change of her child's name until sometime in 1980, thereupon petitioning the Respondent to have her original name reinstated on the birth certificate. Mr. Everett Williams testified for the Respondent and Intervenor. He is the Director of the State Office of Vital Statistics and State Registrar. He has held that position since June of 1947. He has been instrumental in setting policies for his Bureau, including drafting Rule 10D-49, Florida Administrative Code, which is germane to this proceeding. He and his Bureau have adopted the policy, in interpretation of the rule and Section 382.49, that given names may be changed or "corrected" when a child is less than seven years of age with a parent's affidavit. An affidavit from both parents is not required by the Respondent. After a child reaches age seven more proof is required before a child's name will be changed. This might consist of grade school records showing the name the parent or parents wish the child to have and which is entered on a school record or some other such supporting documentation. The Respondent takes the position, through the testimony of Mr. Williams, that a mere change of a parent's mind before the child reaches age seven constitutes a "correction which they will honor and alter the original birth certificate accordingly. Mr. Williams acknowledged that his Bureau has always interpreted "correction" loosely to include a change in the parent's mind, but it also follows a policy of so changing a birth certificate one time, even if one parent was shown to disagree with the first alteration and even if, as here, the change was effected without her knowledge. The Respondent thus refuses to reinstate the recording of the child's original name, still contending that it had merely corrected a "mistake" on the face of the certificate, even after ample notice of the mother's protest.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence in the record and the pleadings and arguments of the parties, it is, therefore RECOMMENDED: The the Department of Health and Rehabilitative Services, Bureau of Vital Statistics, change its records, deleting the name of "Nanette Lee Johnson" and substituting therefor that child's original name of "Milwee Nanette Johnson" and to so maintain the record of the child's given name unless a Court of competent jurisdiction orders otherwise. DONE and ORDERED this 12th day of October, 1982, in Tallahassee, Florida P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1982. COPIES FURNISHED: Thomas R. Fay, Esquire 3000 First Florida Tower Tampa, Florida 33602 Janice Sorter, Esquire Department of Health and Rehabilitative Services 4000 West Buffalo Avenue Tampa, Florida 33614 Anthony P. Pireto, Esquire 601 Twiggs Street, Suite 203 Tampa, Florida 33602 David H. Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact Mr. Myers is, and has been at all times relevant to this proceeding, an employee of the Department with permanent status in the Career Service System. Mr. Myers is a member of the Florida Public Employees Council 79, an affiliate of the American Federation of State, County and Municipal Employees, AFL-CIO (hereinafter referred to as "AFSCME"). AFSCME is the bargaining unit for those State employees who are members. AFSCME has entered into a Master Contract with the State of Florida. The Master Contract, which is effective from July 1, 1987 through June 30, 1990, established certain requirements for the treatment of AFSCME members by State employers. The Master Contract applied to Mr. Myers. Since March 2, 1987, Mr. Myers has been employed as an Insurance Specialist III (or similar title) within the Department's Bureau of State Liability Claims (hereinafter referred to as the "Bureau"). The Bureau is part of the Department's Division of Risk Management. Mr. Myers has received satisfactory evaluations while employed by the Department. Mr. Myers has not been subjected to any formal disciplinary action, i.e. oral or written reprimand, suspension, while employed by the Department. The Bureau is responsible for processing and disposing of claims against various agencies of the State of Florida. During 1987 or 1988 the Bureau was organized into two components, a "North" and a "South" group. Each group was supervised by an Administrator C. The two Administrator C's were supervised by Ms. Trilly Lester, the Chief of the Bureau. Ms. Lester has been the Chief of the Bureau since May, 1988. Ms. Lester received a B.A. degree in history with a minor in government from Florida State University. Ms. Lester has been a supervisor for more than eleven years. Each group within the Bureau consisted of an Administrator C, five insurance specialist III's, a secretary specialist, a claims processor and clerk typist specialists. Mr. Myers was assigned to the North group. Lewis "Ray" Williams was the Administrator C of this group. Mr. Williams was Mr. Myers' immediate supervisor at all times relevant to this proceeding. At times Mr. Williams has been critical of Mr. Myers' work and has attempted to inform Mr. Myers how he expects Mr. Myers to perform his duties. Mr. Williams' criticism of Mr. Myers has not been well received by Mr. Myers. A great deal of friction has arisen between Mr. Williams and Mr. Myers. Mr. Myers has, and still does, harbor a great deal of resentment and anger over the way Mr. Williams has supervised his work. During the late summer or early fall of 1988 Mr. Williams reviewed a written document prepared by Mr. Myers. As a result of criticisms of the document by Mr. Williams, the document had to be retyped on more than one occasion. Mr. Myers did not believe the criticisms were justified and filed a grievance concerning Mr. Williams because he believed that Mr. Williams was harassing him and his typist about the document. An "oral step grievance" was held at Mr. Myers' request on September 23, 1988. An "oral step grievance" is the first step required by the AFSCME Master Contract for processing grievances filed by State employees who are members of AFSCME. The September 23, 1988, conference was held in a vacant office in the building where the Department was then located. The conference was attended by Mr. Myers, Helen Burgess, a staff representative of AFSCME, Ms. Lester and Mr. Williams. During the September 23, 1988, conference Mr. Myers was angry about what he believed was Mr. Williams' mistreatment. Mr. Myers' face became ashen and his mouth was dry during the conference. Mr. Myers was visibly upset and angry. During the September 23, 1988, conference, Mr. Myers was "emotionally upset". At least four times during his testimony in this case Mr. Myers stated that he had been "emotionally upset" during the September 23, 1988. During the September 23, 1988, conference Mr. Myers stated that it was hard for him to concentrate on his work because he sat at his desk "boiling." Mr. Myers also stated that if Mr. Williams did not "back off" and stop criticizing his work, he did not know what he might do; after all, he was only human. (These statements will hereinafter be referred to as the "Comments"). The evidence concerning whether Mr. Myers made the Comments was not consistent. The weight of the evidence, however, supports a finding that Mr. Myers made the Comments. Both Ms. Lester and Mr. Williams remembered the Comments being made. Mr. Williams took notes during the oral step grievance meeting and, at the end of the meeting, wrote the following summary concerning his notes about the Comments: After rec'g criticism from Mr. W he became so upset he could not conc on his work as he sat at his desk "boiling" If Mr. W does not "back off" and stop criticizing his work, he did not know what he might do - after all he was only human See the last page of Respondent's exhibit 8. Mr. Williams' summary of the Comments was made immediately after the oral step grievance meeting and was based upon notes made by Mr. Williams at the same time that Mr. Myers made the Comments. Mr. Myers testified that he did not use the term "boiling" or say that he did not know what would happen. Mr. Myers' testimony concerning whether he made the Comments is not, however, credible because his testimony is inconsistent with the following: (1) Ms. Lester's and Mr. Williams' recollection of what was said; (2) the notes taken during the meeting by Mr. Williams; (3) the fact that Ms. Lester repeated the Comments on several occasions immediately after the Comments were made; (4) the fact that Mr. Myers did not deny making the Comments at a meeting with Ms. Lester and Mr. Williams on October 10, 1988; (5) the fact that Mr. Myers did not deny making the Comments in a memorandum from Mr. Myers of October 11, 1988, and a message Mr. Myers wrote to Ms. Lester on October 12, 1988; and (6) the fact that Mr. Myers stated during a meeting held after October 10, 1988, that he simply did not remember whether he had used the term "boiling" and stated that his comment about not knowing what he might do was simply not complete because he had ended it by saying "if Mr. Williams comes and has a confrontation with me." The Comments were not shouted by Mr. Myers. They were made in a normal tone. Mr. Myers was, however, emotionally upset and he admitted at the formal hearing that the tone or volume of his voice during the September 23, 1988, conference was "a little bit above average." Line 9, Page 95 of the Transcript. Mr. Myers also admitted the following during the formal hearing: A I felt that I was being provoked, and I am a human person. And sometimes when some people want to press on something again and again, you get worked up, and I was worked up. Lines 19-22, Page 93 of the Transcript. Based upon Mr. Myers' Comments, Ms. Lester and Mr. Williams believed that Mr. Myers was bitter toward his work environment and that his bitterness was affecting his ability to be an effective employee. They also believed that Mr. Myers' comment about not knowing what he might do was a threat. Ms. Lester's and Mr. Williams' concern about Mr. Myers' attitude during September, 1988, and their interpretation of the Comments was reasonable. The nature of the Comments and the manner in which they were made support this conclusion. Additionally, Mr. Myers made the following statements in a letter dated September 23, 1988, which support Ms. Lester's and Mr. Williams' concern: As a condition to resolve this grievance I will accept a transfer over to Southern region under Charles Paintor. I will not accept any direction or supervision from Ray Williams after this transfer is made. In the interim I request that Ray Williams and I have no personal or oral contact. Material should pass through our secretaries or through you the Bureau [sic] Chief. Respondent's exhibit 4. Mr. Myers was no longer willing to even deal directly with his immediate supervisor in a strictly professional capacity. Mr. Myers' difficulty with Mr. Williams was also evidenced by the fact that he filed four grievances with the Department, all of which were either filed specifically against Mr. Williams or involved Mr. Williams' supervision of Mr. Myers. Three of the grievances were decided in favor of the Department and the fourth was withdrawn by Mr. Myers. Ms. Lester was concerned about the Comments and believed that steps needed to be taken to diffuse Mr. Myers' bitterness. Therefore, Ms. Lester spoke to Lynn Dickinson, the Division Director, about the Comments. Ms. Dickinson suggested that Ms. Lester speak to Rene Ash, a senior personnel manager in the Department's personnel office. Ms. Lester spoke with Ms. Ash a few days after the September 23, 1988, conference. Ms. Lester told Ms. Ash that Mr. Myers had made the Comments and expressed her concern that Mr. Myers' bitterness needed to be diffused. Ms. Ash agreed and suggested that Ms. Lester suggest to Mr. Myers that he consider using the Department's Employee Assistance Program (hereinafter referred to as the "EAP"). Ms. Ash is the coordinator of the Department's EAP. The purpose of the Department's EAP was described by Ms. Ash as follows: A The purpose of the program is to assist employees who may be experiencing work-related problems, which may be caused by emotional problems, financial, drug, alcoholism. . . . Lines 13-17, Page 122 of the Transcript. The EAP is not a disciplinary program. Participation in the EAP is strictly voluntary. All records concerning an employee's participation in the EAP are treated by the Department as confidential. Documentation concerning participation in the EAP is maintained in a confidential file, separate from an employee's official personnel file. The Department does not keep offers of the availability of the EAP to employees confidential. If participation in the EAP is suggested to an employee during a counseling session, the Department's policy is to document the EAP offer. On October 10, 1988, Ms. Lester met with Mr. Myers to discuss the Comments, to inform Mr. Myers of the availability of the EAP and to discuss the role of the Bureau's clerk typist and insurance specialists. Mr. Williams also attended the October 10, 1988, meeting. The October 10, 1988, meeting was considered a "counseling session" by Ms. Lester and the Department. It was not, however, a formal disciplinary meeting. During the October 10, 1988, meeting, Ms. Lester indicated her concern over the fact that Mr. Myers had made the Comments during the September 23, 1988, conference, repeated the Comments and offered to assist Mr. Myers to coordinate with the EAP in an effort to diffuse his bitterness. Ms. Lester offered her assistance to Mr. Myers to coordinate his participation in the EAP in order to assist Mr. Myers with his bitterness toward Mr. Williams and the apparent affect his bitterness was having on his work. Ms. Lester did not take the actions she took because she bore Mr. Myers any personal animosity. At the October 10, 1988, meeting, Mr. Myers did not deny making the Comments. Mr. Myers merely informed Ms. Lester that he was in control of his emotions and did not believe that his participation in the EAP was necessary. On October 11, 1988, Ms. Lester prepared a memorandum (hereinafter referred to as the "Memorandum") memorializing the October 10, 1988, meeting. The contents of the Memorandum are correct and trustworthy. Ms. Lester accurately reflected the events described in the Memorandum. A copy of the Memorandum was sent to the Department's personnel office before it was provided to Mr. Myers. Ms. Ash reviewed and approved the Memorandum. A copy of the Memorandum was provided to Mr. Myers. It is the Department's policy to document counseling sessions and to file a copy of such documentation in the employee's personnel file. It was reasonable for the Department to document reasonable actions it takes in the management of Department employees. Consistent with the Department's policy of documenting offers to employees concerning the availability of the EAP, a copy of the Memorandum was filed in Mr. Myers' personnel file. The Memorandum includes the following statement: I also discussed with you my concern over some remarks you made concerning your feelings during your recent Oral Step conference. Specifically you had stated that you were emotionally upset and sat in your office "boiling". Also that you were only human and did not know what might happen. I expressed my concern to you over what I perceive as a bitter attitude toward your work and work environment. I offered my assistance to you in coordinating with the Employee Assistance Program to perhaps diffuse your feelings. You advised this was not necessary. Marlin, should you change your mind, please let me know. Joint exhibit 1. Ms. Lester's actions in this matter were consistent with Department policies and procedures concerning participation in the EAP. The Department failed to adequately explicate why documentation concerning participation in the EAP by an employee should be confidential but a direct suggestion to an individual employee that he or she should consider participating in the EAP should be documented and not kept confidential. The weight of the evidence failed to prove that a direct suggestion to an individual employee that he or she should participate in the EAP should be treated differently than actual participation in the program. Prospective employers with whom Mr. Myers may seek employment may review Mr. Myers' personnel file, and may, therefore, read the Memorandum. The weight of the evidence failed to prove, however, that the Memorandum will have any adverse affect on Mr. Myers. No competent substantial evidence proved how prospective employers would view a suggestion that Mr. Myers participate in the EAP. Additionally, the weight of the evidence failed to prove that the information in the Memorandum is so inflammatory or untrue that prospective employees should not be informed of the actions described in the Memorandum. Article 12 of the AFSCME Master Contract provides the following: There shall be only one official personnel file for each employee, which shall be maintained in the central personnel office of the employing agency unless a different location is approved by the Secretary of the Department of Administration or his designee. Duplicate personnel files may be established and maintained within an agency. Such duplicate personnel files may contain part or all of the items filed in the official personnel file, but may not contain any items which are not filed in the official personnel file. Information in an employee's official personnel file shall only refer to matters concerning (affecting) the employee's job or related to his State employment. If any derogatory material is placed in an employee's official personnel file, a copy will be sent to the employee. The employee will have the right to answer any such material filed, and his answer will be attached to the file copy. An employee will have the right to review his own official personnel file and any duplicate personnel files at reasonable times under the supervision of the designated records custodian. Where the Agency Head or his designee, the State Labor Relations Director, the Public Employees Relations Commission, the courts, an arbitrator, or other statutory authority determines that a document has been placed in an employee's personnel file in error, or is otherwise invalid, such document will be placed in an envelope together with a letter of explanation. The envelope shall be sealed, stamped "NOT VALID" and returned to the employee's personnel file. Provided, however, that nothing in this provision shall grant any official, officer, or other person the authority to take any action not otherwise authorized.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered rejecting Mr. Myers' request that the October 11, 1988, memorandum be removed from his State of Florida personnel file and dismissing Mr. Myers' Petition with prejudice. DONE and ENTERED this 4th day of November, 1990, in Tallahassee, Florida. LARRY J. SARTIN 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 4th day of November, 1990. APPENDIX The parties have submitted proposed findings of fact. It has been noted below which proposed findings of fact have been generally accepted and the paragraph number(s) in the Recommended Order where they have been accepted, if any. Those proposed findings of fact which have been rejected and the reason for their rejection have also been noted. Mr. Myers' Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 and 3. Hereby accepted. 3 4-5. 4 30, 35 and 38. 5 13, 32, 35 and 39. 6 14-18, 32, 35 and 39. The third sentence is not supported by the weight of the evidence. Although the last five sentences of the first paragraph, all of the second paragraph and all of the fourth paragraph of proposed finding of fact 6 are correct, they are not relevant to this proceeding. The last two paragraphs of proposed finding of fact 6 are not supported by the weight of the evidence. 7 See 42. 8-10 Although generally true, these proposed findings of fact are not relevant. 11-12 28. See 41. Conclusion of law. Not supported by the weight of the evidence. Not supported by the weight of the evidence or not relevant to this proceeding. The Department's Proposed Findings of Fact Proposed Finding Paragraph Number in Recommended Order of Fact Number of Acceptance or Reason for Rejection 1 1 and 3. 2 10. 3 7-8. 13-18. The next to the last sentence of the first sentence of these proposed findings of fact is not supported by the weight of the evidence. The first paragraph is hereby accepted. The second paragraph is not relevant to this proceeding. Not supported by the weight of the evidence or not relevant to this proceeding. 7 22. Although generally true, this paragraph is argument. 20-21. The last two sentences are not supported by the weight of the evidence. 10 33. 11 40. 12 23-24. 13 35 and 38. Hereby accepted. Not relevant to this proceeding. 16 26-27. 17 29 and 38. But see 41. 18 36. 19-20 43. 21-22 See 42. 23 28. Copies Furnished To: Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315 Dennis Silverman, Esquire Division of Legal Services Department of Insurance 412 Larson Building Tallahassee, Florida 32399-0300 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol, Plaza Level Tallahassee, Florida 32399-0300
The Issue Whether the Respondent committed an unlawful employment practice by discriminating against the Petitioner on the basis of national origin,1 in violation of the Florida Civil Rights Act of 1992, as amended, Section 760.10 et seq., Florida Statutes (2005).2
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: Neiman Marcus Group, Inc., owns and operates specialty retail stores. Its headquarters are located in Dallas, Texas. In the summer of 2005, Neiman Marcus began hiring personnel to work in a new store that would open in the fall of 2005 in the Town Centre mall in Boca Raton, Florida. Ms. Jean-Pierre is a permanent resident alien in the United States. She was born in Haiti in 1970 and entered the United States in 1983. In September 2005, Ms. Jean-Pierre was employed as a sales associate in the accessories section of the Nordstrom department store in the Town Centre mall when she was approached by two women who inquired about Chanel sunglasses. They requested her business card and later called to tell her that they were very impressed with her sales skills. They asked if she was interested in working as a sales associate at the new Neiman Marcus store. Ms. Jean-Pierre applied for a position with Neiman Marcus, went through an interview and a drug test, and was hired to begin work on October 24, 2004. Hurricane Wilma hit South Florida on October 24, 2005, and the Neiman Marcus employees were not able to go to the hiring site during the week following the hurricane. As a result, the newly-hired employees who were to begin work on October 24, 2005, including Ms. Jean-Pierre, were told to report to work on November 1, 2005. Ms. Jean-Pierre's group of newly-hired employees joined the group of newly-hired employees that were to report to work on October 31, 2005. Because there were a large number of people, they were split in two groups. Ms. Jean-Pierre's group went to the store site to begin training on the first day they reported for work, while the other group reported to the hiring center to receive training and to complete the paperwork required of newly-hired employees. Ms. Jean-Pierre's group went to the hiring center on November 3, 2005, for training and to complete their paperwork. All newly-hired employees of Neiman Marcus are required to complete an Immigration and Naturalization Service Employment Eligibility Verification form, known as the "I-9 Form." The I-9 Form consists of three pages. The first page is divided into three sections, two of which must be completed for newly- hired employees. The second page consists of the instructions for completing the I-9 Form, and these instructions "must be available during completion of this form." The third page is headed "Lists of Acceptable Documents" and consists of List A, List B, and List C. Section 1 on the front of the I-9 Form, Employee Information and Verification, must be completed and signed by the employee. The employee must include his or her name, address, maiden name (if applicable), date of birth, social security number, and an attestation, given "under penalty of perjury," that the employee is either a "citizen or national" of the United States, a "Lawful Permanent Resident," or an "Alien authorized to work" in the United States. Section 2 of the I-9 Form, Employer Review and Verification, must be completed and signed by the employer. The employer is required to examine one document from List A ("Documents that Establish Both Identity and Employment Eligibility"), or one document from List B ("Documents that Establish Identity") and one document from List C ("Documents that Establish Employment Eligibility"). The document or documents provided by the employee must be listed in Section 2, and the employer or a representative of the employer must sign the form, attesting, "under penalty of perjury," that he or she has "examined the document(s) presented by the above-named employee, that the above listed document(s) appear to be genuine and to relate to the employee named, that the employee began employment of (month/day/year) and that to the best of my knowledge the employee is eligible to work in the United States." The "Instructions" sheet that must be available during completion of the I-9 Form directs the employee to complete Section 1 of the form "at the time of hire, which is the actual beginning of employment." The instructions direct the employer, in pertinent part, to complete Section 2 by examining evidence of identity and employment eligibility within three (3) business days of the date employment begins. If employees are authorized to work, but are unable to present the required document(s) within three business days, they must present a receipt for the application of the document(s) within three business days and the actual document(s) within ninety (90) days. . . . Employers must record document title; 2) issuing authority; 3) document number; 4) expiration date, if any; and 5) the date employment begins. Employers must sign and date the certification. Employees must present original documents. Employers may, but are not required to, photocopy the document(s) presented. These photocopies may only be used for the verification process and must be retained with the I-9. (Emphasis in original.) When newly-hired employees report to the hiring site for training, they are placed at a computer to type in the information required in Section 1 of the I-9 Form. It is Neiman Marcus's policy to provide all newly-hired employees, at the time they are completing Section 1 at the computer, a copy of the page setting forth the "Lists of Acceptable Documents," with a copy of the "Instructions" page stapled to that document. When the information required in Section 1 is complete, the I- 9 Form prints out of the computer with the employee's information included. The employee signs the form, and the Neiman Marcus representative examines the documents presented by the employee and completes and signs Section 2 of the I-9 Form. Neiman Marcus requires all newly-hired employees to present original documents from List A or List B and List C for verification within 72 hours of the beginning of employment. If an employee fails to provide the necessary original documents or a receipt for the application of the documents within the 72- hour timeframe, it is Neiman Marcus's policy to suspend the employee's employment with Neiman Marcus and to allow them a week to provide documents required for identification and employment verification. If the newly-hired employee is unable to produce the necessary documents, the employee is terminated, but the employee is advised that they are welcome to re-apply for a job when they are able to produce the original documents that satisfy the requirements on the I-9 Form. It is not Neiman Marcus's policy to specify the documents a newly-hired employee must present to verify his or her identity and employment eligibility. Rather, Human Resource Managers at the various Neiman Marcus stores have been told not to specify any document that must be produced to satisfy the identification and employment verification requirements on the I-9 Form. Donna Bennett is, and was at the times pertinent to this proceeding, the Human Resource Manager for the Neiman Marcus store in Boca Raton. Amy Wertz was the Human Resources Coordinator and worked for Ms. Bennett at the times pertinent to this proceeding. When Ms. Jean-Pierre reported to the hiring center on November 3, 2005, she completed Section 1 of the I-9 Form on the computer provided by Neiman Marcus and, to verify her identity, presented her Florida driver's license to Ms. Wertz, who was the Neiman Marcus representative verifying employment eligibility for the newly-hired Neiman Marcus employees in Ms. Jean-Pierre's group. Ms. Jean-Pierre advised Ms. Wertz that her "Green Card"3 and her Social Security card had been in her car, which was stolen from the parking lot of her condominium building after the Hurricane Wilma. Ms. Jean-Pierre did not provide Ms. Wertz an original document from either List A or List C to verify her employment eligibility on November 3, 2005. She did give Ms. Wertz her Social Security number and a copy of her Permanent Resident Card, income tax return, and pay stub from her previous employment. Ms. Wertz would not accept these documents for purposes of satisfying the I-9 Form requirement of verification of employment eligibility. On November 3, 2005, Ms. Wertz advised Ms. Bennett that Ms. Jean-Pierre had failed to produce the original document from List A or List C required to verify her employment eligibility. Ms. Bennett directed Ms. Wertz to send Ms. Jean- Pierre home to look for an original document that would satisfy the requirements for establishing her employment eligibility. Ms. Jean-Pierre reported for work on November 4, 2005, without an original document from List A or List C. Ms. Bennett went to the official website of the United States Citizenship and Immigration Services to verify the government policy on the production of documentation to establish employment eligibility. After reviewing the information on the website, Ms. Bennett advised Ms. Jean-Pierre that, if she produced a receipt showing she had applied for a replacement document among those on List A or List C, she could have an additional 90 days in which to produce the original document. Ms. Bennett did not contact Neiman Marcus's corporate legal department with regard to this information before she passed it on to Ms. Jean-Pierre. On November 5, 2005, Ms. Jean-Pierre provided either Ms. Wertz or Ms. Bennett a document printed from the United States Citizenship and Immigration Services website entitled "I-90 Form: Application to Replace Permanent Resident Card" and told them that she had an appointment with the Immigration and Naturalization Service at the end of November 2005.4 Ms. Bennett believed that this document was an acceptable receipt for an application for a replacement document, and she advised Ms. Jean-Pierre that she had 90 days from November 5, 2005, in which to produce the original document. A notation was made on the I-90 Form that "[y]ou have 90 days from today." Ms. Bennett did not consult with anyone at Neiman Marcus corporate headquarters regarding the sufficiency of the document provided by Ms. Jean-Pierre or receive authorization to allow Ms. Jean-Pierre an additional 90 days in which to produce the original document. In late November 2005, Ms. Wertz told Ms. Bennett that Ms. Jean-Pierre had missed her appointment with the Immigration and Naturalization Service because of a death in her family. Ms. Bennett became concerned that Ms. Jean-Pierre did not take seriously the requirement that she provide original documents to establish her employment eligibility within the 90-day grace period, which, according to Ms. Bennett's understanding, began to run on November 5, 2005. Ms. Bennett called Ms. Jean-Pierre into her office and spoke with her about the importance of providing the necessary original documentation. Ms. Jean-Pierre told her that she would take care of the matter. On or about December 15, 2005, Ms. Jean-Pierre produced to Ms. Bennett a document identified as a Citizens and Immigration Services form I-797C, Notice of Action. The "Case Type" specified on the document was "I-90 Application to Replace Alien Registration Card"; the "Receipt Number" noted on the document was "MSC-06-800-46861" the date on which the application was received was noted as December 14, 2005; the applicant was identified as "A37 888 854 Jean-Pierre, Nita"; and the "Notice Type" specified on the document was "Receipt Notice." When she gave Ms. Bennett this document, Ms. Jean- Pierre told Ms. Bennett that it would take between six months and one year to receive the replacement card because of September 11, 2001. Ms. Bennett became concerned that Ms. Jean- Pierre would not be able to provide the required original document within the 90-day grace period. At this time, she contacted Susan Moye, a manager in Associate Relations at Neiman Marcus's corporate headquarters in Dallas, Texas, and arranged to have the I-797C form faxed to Ms. Moye. Ms. Moye consulted with Neiman Marcus's legal department about the sufficiency of the I-797C Form Ms. Jean- Pierre had provided on December 15, 2005. Ms. Moye was advised that this document was not sufficient to meet the I-9 Form requirement that the employer examine the original of one of the documents included on List A or List C to verify employment eligibility. Ms. Bennett was absent from work for a period of time due to the illness and death of her father. During her absence, Ms. Wertz was in communication with Ms. Moye regarding Ms. Jean- Pierre's employment status. Ms. Moye directed Ms. Wertz to notify Ms. Jean-Pierre that the I-797C form she had provided was not sufficient to verify her employment eligibility and that she was suspended from employment for one week to give her the opportunity to obtain an acceptable original document. Ms. Jean-Pierre did not provide the required documentation by the end of the one-week period of her suspension. Ms. Bennett returned to work on December 27, 2005. Ms. Bennett spoke with Ms. Moye about the matter on December 27, 2005, and Ms. Moye told her that Ms. Jean-Pierre needed to provide an original document in order to establish her eligibility for employment and that the document Ms. Jean-Pierre had provided on December 15, 2005, was not an acceptable original document. Ms. Moye advised Ms. Bennett that she would need to terminate Ms. Jean-Pierre. At the time she directed Ms. Bennett to terminate Ms. Jean-Pierre, Ms. Moye was not aware of Ms. Jean-Pierre's race or national origin.5 Ms. Bennett called Ms. Jean-Pierre into her office and explained to her that it was Neiman Marcus's policy to require original documentation of identification and employment eligibility within three days of beginning employment; that the document she provided on December 15, 2005, was unacceptable; and that she was terminated. During this meeting, Ms. Jean-Pierre argued that the document she had provided on December 15, 2005, was acceptable. Ms. Bennett explained to Ms. Jean-Pierre that, in accordance with Neiman Marcus's policy, she needed to produce the original document, not the receipt for an application for a replacement document. When she terminated Ms. Jean-Pierre, Ms. Bennett told her that she was welcome to re-apply for a job when she was able to produce the appropriate documents to establish her employment eligibility. Ms. Bennett did not tell Ms. Jean-Pierre that a "Green Card" was the only acceptable document to establish her employment eligibility. Nor did she tell Ms. Jean-Pierre that she needed to provide more documentation than others because she was Haitian. In January 2006, Ms. Jean-Pierre returned to the Neiman Marcus Boca Raton store and provided Ms. Bennett with a receipt showing that she had applied for a Social Security card on January 10, 2006. Ms. Bennett faxed this document to Ms. Moye, who responded that the receipt was insufficient and that Ms. Jean-Pierre needed to produce an original document. On January 5, 2006, Ms. Jean-Pierre obtained a stamp on her passport indicating that employment was authorized for her, which authorization would expire on January 4, 2007. Ms. Jean-Pierre received her replacement Social Security card on January 16, 2006. Ms. Jean-Pierre did not present an original Social Security card to Neiman Marcus or her stamped passport to Neiman Marcus as verification of her employment eligibility. Ms. Bennett has previously terminated newly-hired employees who failed to timely provide the documents required to establish employment eligibility. Those employees were invited to re-apply when they received their original documents. Several re-applied, provided their original documents, and were re-hired. Of the more than 59 newly-hired employees reporting to work on or about November 1, 2005, Ms. Jean-Pierre was the only employee who failed to produce to Neiman Marcus the required original documentation verifying her employment eligibility. Summary The direct evidence presented by Ms. Jean-Pierre is not sufficient to establish that Neiman Marcus discriminated against her on the basis of her national origin. Ms. Wertz and Ms. Bennett were aware that Ms. Jean-Pierre was from Haiti residing in the United States, but the evidence establishes that both Ms. Wertz and Ms. Bennett were concerned about her failure to produce any original documents as required for verification of employment eligibility and that Ms. Bennett talked to her about the seriousness of the issue and urged her to get the necessary document. Ms. Jean-Pierre's testimony that Ms. Bennett told her she needed more documentation because she was a Haitian is unsupported by any other testimony or documentary evidence. Finally, Ms. Moye, the person who directed Ms. Bennett to terminate Ms. Jean-Pierre, was not aware that she was born in Haiti. Ms. Jean-Pierre's testimony that both Ms. Wertz and Ms. Bennett insisted she must provide a "Green Card" to verify her permanent residence is, likewise, unsupported by any other testimony or documentary evidence. In any event, this evidence would not, of itself, establish that either Ms. Wertz or Ms. Bennett was motivated by the intent to discriminate against Ms. Jean-Pierre because she is Haitian. The evidence presented is sufficient, however, to support an inference that Ms. Jean- Pierre misunderstood the information she received from Ms. Wertz and Ms. Bennett and assumed that they were referring to an original Permanent Resident Card rather than an original document included on the "Lists of Acceptable Documents."6 Ms. Jean-Pierre acknowledged in her testimony that, when Ms. Wertz told her she needed to verify her permanent residence, she interpreted this to mean that she needed to get a replacement copy of her Permanent Resident Card. Similarly, Ms. Jean-Pierre may have interpreted Ms. Bennett's statements that she needed to produce an original document as requiring that she produce a Permanent Resident Card. The evidence presented by Ms. Jean-Pierre is sufficient to establish that Ms. Jean-Pierre is entitled to protection from employment discrimination on the basis of her national origin; that she was qualified for the position of sales associate with Neiman Marcus; and that she was subjected to an adverse employment action because she was terminated from her employment. Ms. Jean-Pierre stated unequivocally in her testimony, however, that she did not know of any other person who failed to verify their employment eligibility that was allowed to work at Neiman Marcus. She has, therefore, failed to establish a prima facie case of employment discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief from an Unlawful Employment Practice filed by Nita Jean-Pierre on September 20, 2007. DONE AND ENTERED this 29th day of February, 2008, in Tallahassee, Leon County, Florida. S PATRICIA M. HART 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 29th day of February, 2008.
The Issue At issue is whether Wesley Dunaway, III, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Daphne Waller is the natural mother of Wesley Dunaway, III, a minor. Wesley was born a live infant on February 11, 2003,2 at North Florida Regional Medical Center, a licensed hospital located in Gainesville, Alachua County, Florida, and his birth weight exceeded 2,500 grams. The physician providing obstetrical services at Wesley's birth was Anthony Agrios, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes. Coverage under the Plan Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat. Here, indisputably, Wesley is permanently and substantially mentally and physically impaired.3 What remains to resolve is whether the record supports the conclusion that, more likely than not, Wesley's neurologic impairment resulted from an "injury to the brain . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period," as required for coverage under the Plan. The cause and timing of Wesley's neurologic impairment To address the cause and timing of Wesley's neurologic impairment, the parties offered medical records related to, inter alia, Ms. Waller's antepartum course; those associated with Wesley's birth and subsequent development; and the opinions of Dr. Michael Duchowny, a pediatric neurologist, and Dr. Donald Willis, an obstetrician, regarding the likely etiology of Wesley's impairment. (Exhibits 1-13). As for the etiology of Wesley's neurologic impairment, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Wesley on October 25, 2004, and review of the medical records, that, while of unknown etiology, Wesley's neurologic impairment was most likely prenatal (developmental) in origin, having occurred prior to the onset of labor, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. As for Dr. Willis, he, like Dr. Duchowny, was of the opinion that the medical records failed to support a conclusion that Wesley's brain damage was associated with the birth process. Finally, the medical records, including the observations of the physicians who have treated Wesley, while unrevealing as to etiology, also speak to the likelihood of a developmental disorder, as opposed to birth trauma, as the cause of Wesley's neurologic impairment.4 Given the record, it must be resolved that Wesley's impairments were, more likely than not, occasioned by a developmental abnormality, that preceded the onset of labor, and not by an injury to the brain occurring in the course of labor, delivery, or resuscitation. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable explanation.")
