The Issue Whether Respondent committed the offenses described in the administrative complaint? If so, what penalty should be imposed?
Findings Of Fact Based on the record evidence, the Hearing Officer makes the following Findings of Fact: Respondent has been licensed to practice medicine in the State of Florida since September 4, 1970. Respondent was formerly licensed to practice medicine in the State of New York. By order issued July 3, 1987, by the New York Commissioner of Education, Respondent's New York license was revoked on the ground that he had been convicted of committing an act constituting a crime under the law of another jurisdiction, which, if committed in New York State, would have constituted a crime under New York State Law, in that: On or about January 18, 1984, in the Superior Court of California, County of Los Angeles, in the People of the State of California v. Jose Minaya (No. A344 720), aff'd No. B005332 (Ct. of Appeals, 2nd App. Dist., Oct. 1985), the Respondent, following a jury trial, was convicted of one count of grand theft and six counts of filing false Medi-Cal claims. Upon his conviction, Respondent was sentenced to four years imprisonment, was fined $10,000 for each of the six counts of filing false Medi-Cal claims, and restitution to the State of California was imposed in the sum of $14,866.80. The convictions which resulted in the revocation of Respondent's New York license were more specifically described as follows in the California appellate court opinion referenced in the Education Commissioner's July 3, 1987, order: [Respondent], specializing in ophthalmology, was charged and convicted primarily of filing falsified Medi-Cal treatment authorization requests (hereinafter referred to as TARs) in order to obtain permission to perform elective cataract surgeries on Medi-Cal beneficiaries. The People of California proved that the cataract surgeries were not medically justified and that the TARs were falsified by the appellant himself or at his direction, so that he could obtain payment from the state by false pretenses. * * * Count VIII, grand theft, was proven by the People as larceny by false pretense for the accumulation of all monies received from the surgeries performed on the Medi-Cal recipients named in the false claims counts.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order revoking Respondent's license to practice medicine in the State of Florida based upon the revocation of his New York license. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 29th day of November, 1989. STUART M. LERNER 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 29th of November, 1989. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2120 The following are the Hearing Officer's specific rulings on the proposed findings of fact submitted by Petitioner in the instant case: Rejected because it is more in the nature of a conclusion of law than a finding of fact. Accepted and incorporated in substance, although not necessarily repeated verbatim, in this Recommended Order. Accepted and incorporated in substance. Accepted and incorporated in substance. Accepted and incorporated in substance. Rejected because it is more in the nature of a conclusion of law than a finding of fact. COPIES FURNISHED: David G. Pius, Esquire Department of Professional Regulation Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jose Minaya, M.D. 536 North 19th Street Montebello, California 90640 Jose Minaya, N.D. c/o Carlos Lorente 1018 Cyrus Lane Arcadia, California 91006 Jose Minaya, N.D. c/o P.A. Boyens Parole Agent II 9500 Norwalk Boulevard Santa Fe Springs, California 90670 Dorothy Faircloth, Executive Director Department of Professional Regulation, Board of Medicine Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth D. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792
The Issue The issue in this case is whether Petitioner was subjected to an unlawful employment practice, namely discrimination on the basis of age, with regard to Respondent's hiring of another applicant for the position sought by Petitioner. A secondary issue is whether Petitioner was constructively terminated from employment as a result of age discrimination.
Findings Of Fact Petitioner, Robert Jones, was born October 27, 1941. He was 52 years of age in March of 1994. Respondent is National Healthcare Center, a retirement home for elderly persons. Prior to March 28, 1994, the maintenance department at Respondent's facility consisted of one supervisory employee and one part-time employee, Jones. On March 28, 1994, Jones' immediate supervisor within the maintenance department resigned, effective April 8, 1994. In addition to his employment three days a week in the maintenance department, Jones also worked two days a week on the payroll of Respondent's facility in the housekeeping department. The administrator for Respondent's facility advertised the vacant maintenance supervisor position in the local newspaper. Approximately 35 applicants, including Petitioner, applied for the position. The administrator interviewed Petitioner and eight other applicants for the position, including the applicant who was eventually hired for the position. James French, the applicant hired for the position of maintenance supervisor, was serving as the head of maintenance at a 17 story, 163 unit condominium facility at the time of the interview. French supervised maintenance assistants at the condominium facility and was responsible for a wide array of maintenance services ranging from electrical, carpentry, plumbing, heating and air conditioning repairs to tests and maintenance of an emergency backup generator. The administrator, Steven Rykiel, was impressed by French and his eight years of maintenance experience. Rykiel was no novice in the hiring of personnel to run departments in facilities like Respondent's, having supervised the opening of a similar facility in Niceville, Florida where he hired department heads. Rykiel particularly liked French's expressed approach to performing maintenance: Fixing or repairing problems before the problems were pointed out by the boss. A comparison of French's candidacy for the maintenance supervisor position with Petitioner's reveals that French had recent experience in the supervision of maintenance personnel. While Petitioner had prior supervisory experience in other employment, he had not supervised employees since 1989. Rykiel followed his normal procedure in selecting the person to head the maintenance department at Respondent's facility. He reviewed the applications, interviewed the applicants, and checked the references of the one applicant who impressed him, James French. Ages of the respective applicants were not considered by Rykiel in his hiring decision. He was unaware of the age of either French or Petitioner at the time of their respective interviews. As previously noted, Petitioner was 52 years of age. French was 36 years of age. At the final hearing, Petitioner recanted his notarized statement in the Charge Of Discrimination dated July 18, 1994, which, in pertinent part, reads as follows: I trained the new supervisor and familiarized him with the inner workings of the nursing home until my resignation became effective on May 6, 1994. As explained by Petitioner at the final hearing, his sworn statement is technically untrue but he felt that he would be required to train the new supervisor and, consequently, decided to resign his position. Respondent's employee manual provides a procedure for employees to seek transfers and promotions. The manual does not set forth a directive requiring existing employees to be promoted over hiring a new employee. Specifically, the manual provides "[w]hen possible, a vacancy could be filled by a qualified employee of the health care center." Respondent does not have any policy that directs employment decisions be based on age of applicants. Rykiel did not hired French over Petitioner because of Petitioner's age. Petitioner was not told that he would have to train French. Consequently, there is no evidence to establish that such a directive placed Petitioner in intolerable working conditions. Although Petitioner has never failed, in the course of employment throughout his life, to obtain promotions sought by him, failure to obtain promotion in this instance does not constitute an intolerable working condition. Petitioner did not request a meeting with either Rykiel or any other higher superior in Respondent's organization, an opportunity provided by Respondent's procedures manual, prior to Petitioner's submittal of his voluntary resignation. Petitioner's resignation was submitted prior to French commencing employment with Respondent. Although Petitioner continued in Respondent's employment for a period of two days after French began work, Petitioner had little or no interaction with him. The hiring of French for the position of maintenance supervisor at Respondent's facility, as articulated by Respondent's personnel at the final hearing, was accomplished on the basis of legitimate, non-discriminatory reasons. French had more recent supervisory experience, experience in maintenance, and presented himself more dynamically in the course of the interview process.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying the Petition For Relief. DONE and ENTERED in Tallahassee, Florida, this 8th day of November, 1995. DON W. DAVIS, 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 8th day of November, 1995. APPENDIX In accordance with provisions of Section 120.59, Florida Statutes, the following rulings are made on the proposed findings of fact submitted on behalf of the parties. Petitioner's Proposed Findings 1.-2. Accepted. Rejected, not materially dispositive. Rejected, subordinate to HO findings. 5.-6. Adopted by reference. Rejected, not materially dispositive. Rejected, relevance. Accepted. 10.-12. Rejected, not materially dispositive. 13. Rejected, Jones continued as the only maintenance person. No evidence suggests that he was ever permanently given the supervisor position. 14.-15. Accepted. 16.-25. Rejected, subordinate. 26. Accepted. 27.-34. Rejected, subordinate and not materially dispositive. 35. Rejected, relevance. 36.-38. Rejected, not materially dispositive. 39.-44. Rejected, subordinate to HO findings. 45.-53. Rejected, not materially dispositive. 54. Rejected, not supported by the weight of the evidence. 55.-57. Rejected, subordinate. Accepted. Rejected, mischaracterization of testimony, argumentative. 60.-63. Rejected, not materially dispositive. 64.-65. Rejected, relevance, weight of the evidence, mischaracterization of testimony. The budget increase reflected increased tasks being performed in house that were previously contracted. 66.-68. Rejected, not materially dispositive. 69. Rejected, weight of the evidence. Respondent's Proposed Findings 1.-2. Accepted. 3. Rejected, relevance. 4.-19. Accepted, though not verbatim. COPIES FURNISHED: Jonathan S. Grout, Esq. Goldsmith & Grout, P.A. 307 W. Park Ave. Tallahassee, FL 32301 Cecile M. Scoon, Esq. 36 Oak Ave. Panama City, FL 32401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750 Dana Baird, Esquire Commission on Human Relations 325 John Knox Rd., Bldg. F, Ste. 240 Tallahassee, FL 32399-1750
The Issue Whether the Department of Revenue has violated the requirements of Section 120.54(1)(a), Florida Statutes, by failing to adopt the June 1998 edition of its Code of Conduct and the July 1995 edition of its Disciplinary Procedures and Standards as rules pursuant to the rulemaking procedures of Section 120.54, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, including the Prehearing Stipulation of the parties, the following findings of fact are made: Facts which the parties admitted and which required no proof1 The Department of Revenue is an agency within the meaning of Section 120.52(1), Florida Statutes. Ms. Obinyan was a career service employee of the Department until she was discharged on January 12, 1999. Ms. Obinyan has standing to challenge the June 1998 edition of the Code of Conduct Guidelines, Department of Revenue Policy Statement #1141-2 ("Code of Conduct"), and the July 1995 edition of the Disciplinary Procedures and Standards, Department of Revenue Policy Statement #1141-9. The Code of Conduct and the Disciplinary Procedures and Standards are official policy statements of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements of general applicability that are generally and equally applicable to all Department employees and were applicable to Ms. Obinyan when she was an employee of the Department. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that prescribe and implement policy. The Code of Conduct and the Disciplinary Procedures and Standards are agency statements that are intended by their own effect to require compliance. The Department has a policy and practice of requiring all of its employees to sign a written acknowledgement of receipt of the Code of Conduct and the Disciplinary Procedures and Standards and an acknowledgement that the employee understands that his or her violation of any of the conduct standards contained in the Code of Conduct or in the Disciplinary Procedures and Standards shall be grounds for disciplinary proceedings pursuant to the disciplinary action procedures contained in the Disciplinary Procedures and Standards. It is the Department's policy and practice to require its employees to comply with the procedures and standards reflected in the Code of Conduct and the Disciplinary Procedures and Standards. It is the Department's policy and practice, in administering discipline, to follow the disciplinary procedures set forth in the Disciplinary Procedures and Standards and to apply the disciplinary standards set forth therein to avoid disparity as to the type and severity of discipline administered for the violations specified in the Disciplinary Procedures and Standards. It is the Department's policy and practice to take disciplinary action in accordance with the Disciplinary Procedures and Standards when an employee violates the Code of Conduct or the disciplinary standards contained in the Disciplinary Procedures and Standards. The Department has taken disciplinary action against its employees, including Ms. Obinyan, pursuant to the disciplinary procedures and standards in the Disciplinary Procedures and Standards since its adoption in 1995. The Department has not adopted the Code of Conduct or the Disciplinary Procedures and Standards as rules or initiated the rulemaking process to adopt either of these statements as a rule. Additional facts established by the evidence The Code of Conduct compiles in one twenty-page document both conduct prescribed or proscribed in statutes and rules and conduct which is prescribed or proscribed by Department policy. It is not intended to be all-inclusive, but an employee is subject to disciplinary action if he or she fails to conform to the provisions contained in the Code of Conduct. The proposed Code of Conduct was submitted to the Governor and Cabinet, as agency head, for review prior to implementation. The Department's Disciplinary Procedures and Standards contain forty-five standards, and violation of any of these standards is grounds for disciplinary action. The disciplinary procedures must be complied with whenever discipline is to be administered to career service employees of the Department. The proposed Disciplinary Procedures and Standards were submitted to the Department of Management Services for approval prior to implementation, as required by Rule 60K-9.002, Florida Administrative Code. The proposed procedures and standards were approved by the Department of Management Services after they were reviewed for consistency with the standards of other agencies and after they were submitted to the American Federation of State, County, and Municipal Employees (AFSCME) for review and comment. The Code of Conduct and the Disciplinary Procedures and Standards do not apply to anyone other than the Department's employees and include disciplinary standards and conduct prescriptions and prohibitions unique to those employees. The provisions of the Code of Conduct and the Disciplinary Procedures and Standards are detailed and precisely describe the disciplinary procedures, disciplinary standards, and prescribed and proscribed conduct which govern the Department's employees.
Findings Of Fact In April, 1986, Lee was employed by HRS as a secretary in the Human Services Program Office. She reported to work on April 25, 1986, which was a payday. On the next regular day of work (April 28, 1986), Lee telephoned her office to request leave, explaining that her daughter had sprained her ankle and had to be taken to the doctor. Leave for this day was approved. Lee did not report to work on April 29, 30, or May 1, 1986, and she did not speak to her supervisor, Charles Lauria, on any of these dates to request leave. She testified that her sister notified the office that she was taking more leave, but the sister was not at the hearing to verify this statement. Lee did not report to work on May 2, 5, 6, 7 or 8, 1986, all of which were normal work days. Lee did not contact her supervisor or her office during this period. Charles Lauria was Lee's supervisor. When he had not heard from Lee by May 7, 1986, he reported to the local personnel office that Lee had abandoned her job and should be terminated. Lauria had previously warned Lee that failure to appear at work without prior approval could result in disciplinary action or termination. Lee signed a disciplinary memorandum indicating that she should personally contact Lauria in the event she would have to miss work for any reason. The HRS personnel office (David Porter) recommended to the District Administrator that Lee be terminated for violating the abandonment provision of the HRS personnel rules. On May 7, 1986, a letter of termination was mailed to Lee, notifying her that she had been terminated as of this date. On May 9, 1986, Lee reported to work. May 9 was a payday, the first payday since Lee's last appearance at work on April 25, 1986. She was given verbal notice of her termination at this time. Lee was aware of the abandonment provision in the HRS rules. She had acknowledged receipt of a copy of the rules upon commencing work at HRS. She had previously had problems regarding attendance, and had been counseled as to the importance of personally contacting her supervisor when she could not report for work. Lee missed seven consecutive days of work prior to being terminated by HRS. HRS attempted to contact Lee prior to terminating her, but was unable to locate her.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order terminating the employment of the Respondent, Rebanner Lee, from her position as a secretary in the Human Services Program Office, for abandonment, pursuant to Rule 22A-7.010(2), Florida Administrative Code, effective May 7, 1987. THIS Recommended Order entered on this 19th day of November, 1986, in Tallahassee, Leon County, Florida. WILLIAM B. THOMAS 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 19th day of November, 1986. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-2072 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties in this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner: 1-11. Accepted. Rulings on Proposed Findings of Fact Submitted by the Respondent: Accepted, but prior authorization to take leave had not been granted. These are argumentative and not proposed factual findings. They are thus rejected. COPIES FURNISHED: William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steven W. Huss Department of Health and Rehabilitative Services General Counsel 1323 Winewood Boulevard Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Augustus D. Aikens Department of Administration General Counsel 530 Carlton Building Tallahassee, Florida 32301 R. Bruce McKibben, Jr., Esquire 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Rebanner Lee, in pro se Post Office Box 192 Starke, Florida 32091
The Issue The basic issues in this case are whether the Respondent committed the violations alleged in the Petitioner’s Notice of Specific Charges and, if so, whether such violations warrant a ten-day suspension from work.
Findings Of Fact The Respondent, Rafael M. Mejia, is presently employed as a police officer by the School Board. He has been so employed at all times material to this case, having been first employed in that position on or about January 27, 1999. As a general matter, the Respondent is regarded by his immediate supervisors (his supervising sergeant, lieutenant, and captain) as being a good policeman. During the course of his present employment he has received a number of commendations. On at least one occasion, he was selected as “officer-of-the- month.” Even though the Respondent generally does good police work, his disciplinary record is not without blemish. On June 5, 2001, a conference-for-the-record (CFR) was held to address the Respondent’s non-compliance with School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, School Police Departmental policies, the Respondent’s failure to attend scheduled court dates, and the Respondent’s pattern of sick leave abuse. As a result of the June 5, 2001, CFR referenced above, the Respondent was issued a verbal warning and a written reprimand, and was directed as follows: You are directed to adhere to all departmental rules and directives. You are directed to follow all lawful orders given to you by one with proper authority. The Respondent was further advised in writing as follows: You were directed to follow the proper procedures by notifying the clerk of the court when unable to attend court. You were also verbally warned concerning your abuse of sick leave. You are expected to conduct yourself professionally with a positive demeanor that is consistent with the position of police officer. On July 11, 2002, the Respondent was involved in a motor vehicle accident while on duty. He was injured in the accident and was treated at the scene of the accident by fire rescue personnel who then took him to the emergency room at Baptist Hospital. At Baptist Hospital the Respondent was examined, evaluated, and treated by a physician’s assistant named Christopher Pecori. Mr. Pecori concluded that the Respondent had contusions to his chest and to his right forefinger. Mr. Pecori also concluded that the Respondent was experiencing mild to moderate pain at that time. Mr. Pecori wrote prescriptions for small amounts of several pain medicines, enough to control pain for four or five days. Mr. Pecori advised the Respondent that the Respondent did not require hospitalization, but that the Respondent should seek follow-up care by a physician the next day. Mr. Pecori also arranged for a note entitled “Return to Work Instructions” to be prepared. That note included the opinion that the Respondent “should be able to return to work in 4-5 days.” That note was supposed to be included in the paperwork that was given to the Respondent when he was discharged from the emergency room.3 Mr. Pecori's opinion that the Respondent “should be able to return to work in 4-5 days," was an estimate, perhaps best described as an experience-based approximation. Mr. Pecori could not state with any certainty that it would take at least four days for the Respondent to be able to return to work. Similarly, he could not state with any certainty that by the fifth day the Respondent would surely be able to return to work. Two of the Respondent’s supervisors, Acting Lieutenant Juan Seabolt and Acting Sergeant Howard Giraldo, responded to the scene of the Respondent’s accident on July 11, 2002, and saw the Respondent lying on the ground being attended by fire rescue personnel. Seabolt then went to the hospital for a few minutes while the Respondent was being treated in the emergency department. Giraldo also went to the emergency department at Baptist Hospital and stayed there for a couple of hours. Later that evening Giraldo called the Respondent at home to see how he was doing. Based on their observations of the Respondent at the scene of the accident and at the emergency room, Acting Lieutenant Seabolt and Acting Sergeant Giraldo both knew that the Respondent had been injured in the line of duty and they both expected the Respondent would miss several days of work while recuperating from his injuries. As far as these two supervisors were concerned, it was not necessary for the Respondent to call in each day to remind them that he was still recuperating from his injuries, because they already had a pretty good idea of what his circumstances were, and it was primarily just a matter of waiting until the Respondent felt good enough to return to work. On more than one occasion after the accident, Acting Sergeant Giraldo called the Respondent’s house by telephone to inquire as to how the Respondent was doing. On those occasions Acting Sergeant Giraldo spoke to the Respondent’s wife and was advised by her of the Respondent’s condition. From July 11, 2002, until July 22, 2002, the Respondent recuperated at home from his injuries. During that time period he did not call his supervisors to advise them of his condition because they were aware of his basic condition and Acting Sergeant Giraldo was calling the Respondent from time-to- time. The Respondent did not think he needed to call in each day. Similarly, his immediate supervisors saw no need for daily calls and his immediate supervisors were not concerned about the Respondent’s failure to call in daily.4 About ten days after the Respondent’s accident, top management in the police department began to make inquiries about the Respondent’s status. Major Claudia Milton called Lieutenant Leon Sczepanski, who at that time was Acting Captain for Stations 5 and 6, and asked him to advise her of the Respondent’s current status. After some difficulty locating the Respondent’s residence, on July 22, 2002, a note was left at the Respondent’s residence asking him to contact Lieutenant Leon Sczepanski. Later that same day, the Respondent contacted Sczepanski and asked what Sczepanski needed to see him about. Acting Captain Sczepanski asked the Respondent what his status was. The Respondent stated that he was out on workers’ compensation. However, when Sczepanski asked the Respondent if he had consulted with the workers’ compensation doctor, the Respondent stated that he had not. Sczepanski told the Respondent that it was the Respondent’s responsibility to contact the Office of Risk Management in order to get an appointment to see a workers’ compensation doctor. During the morning of the next day the Respondent was seen by an approved workers' compensation doctor and sometime near noon on July 23, 2002, the Respondent reported to Acting Captain Sczepanski and gave Sczepanski a note from the workers’ compensation doctor stating that the Respondent was fit to return to duty with some work limitations. On or about July 24, 2002, the Respondent failed to report to work. Sczepanski telephoned the Respondent to inquire why he had failed to report to work. The Respondent indicated that since the workers’ compensation doctor’s note stated that the Respondent was not to lift anything over ten pounds, the Respondent could not return to work. Sczepanski informed the Respondent that the workers’ compensation note cleared the Respondent to return to work on light-duty status, and instructed the Respondent to promptly report to work. In the meantime, Major Milton had asked Acting Captain Sczepanski to arrange for a CFR. The purpose of the CFR was to address the fact that the Respondent had been out on leave and had failed to follow the workers' compensation rules. The CFR was scheduled for August 8, 2002. On or about July 24, 2002, after a twelve-day absence, the Respondent returned to work. Upon his return, Acting Captain Sczepanski requested that the Respondent provide medical documentation to support his twelve-day absence. The Respondent stated that he would provide the medical documentation requested.5 The School Board's Rule 6Gx13-4E-1.13 addresses the subject of illness or injury that occur in the line of duty. The rule provides that employees injured while on duty are entitled to leave. With regard to the duration of that leave, subsection I.A. of that rule provides, in pertinent part: A medical evaluation conducted by a physician approved by the Office of Risk and Benefits Management will be the determining factor as to when the employee is able to return to duty. If the physician indicates that the employee is not able to assume his/her regular duties, but is able to return to a less strenuous work assignment, the employee may be directly appointed to the Workers' Education and Rehabilitation Compensation Program (W.E.R.C.) or to a job commensurate with his/her medical and educational capabilities. Consistent with the above-quoted language of Rule 6Gx13-4E-1.13, as well as with the emergency room discharge instructions that he follow-up with a physician the next day, it would have been in the Respondent's best interests (in more ways than one) for him to have been seen promptly by "a physician approved by the Office of Risk and Benefits Management." Yet, for reasons not adequately explained in the record in this case, the Respondent did not go to an approved physician until July 23, 2002.6 On August 8, 2002, in an effort to comply with the instructions that he provide medical documentation to support his twelve-day absence from work, the Respondent returned to the emergency room at Baptist Hospital to request another return-to- work note from Christopher Pecori, the physician assistant who had attended the Respondent when the Respondent was seen in the emergency room on July 11, 2002. The Respondent told Mr. Pecori that he had lost the original return-to-work note that had been issued to him and that he needed another one for work. Mr. Pecori instructed a nurse, Carl Krome, to issue Respondent a copy of the original return-to-work note. Instead of simply locating and copying the original return-to-work note, Mr. Krome embarked upon the process of preparing a new return-to-work note for the Respondent, because the Respondent explained to Mr. Krome that it had taken him twelve days to recover from the injuries resulting from the July 11, 2002, motor vehicle accident, and the Respondent needed to have some sort of documentation to support the time he was unable to report to work. Mr. Krome took the Respondent at his word and, against his better judgment, agreed to prepare a return-to-work note reflecting twelve days of recuperation, because the Respondent was insisting that he needed a note that covered all twelve of the days he was absent from work. The Respondent conducted himself in a pleasant manner while communicating with Mr. Krome. Mr. Krome prepared the substitute return-to-work note on a hospital computer. What he prepared on the computer reads as follows: Patient: RAFAEL MEJIA, Date 08/08/2002 Time: 15:02 Baptist Hospital of Miami 8900 N. Kendall Drive Miami, FL 33176 (305) 596-6556 RETURN TO WORK INSTRUCTIONS We saw RAFAEL MEJIA in our Emergency Department on 08/08/2002. RAFAEL should be able to return to work in 1 days [sic]. RAFAEL needs the following work limitations: OUT OF WOR [sic] FROM 7/12/02-7/23/02 DUE TO INJURIES FROM MVA. Thank you for allowing us to care for your employee. CHRISTOPHER PECORI, PA-C After Mr. Krome had printed the document, the Respondent pointed out that the first sentence had an incorrect date and a number of days that was inconsistent with the second sentence. Rather than correct the document in the computer and re-print it, Mr. Krome made the corrections by hand. He crossed out the date 08/08/2002, handwrote above it “07/11/02,” and placed initials next to the handwritten date. Near the end of the sentence, Mr. Krome added a “2” after the 1 and again placed initials next to the change. As corrected by hand by Mr. Krome, the first sentence of the substitute return-to-work note read as follows: “We saw RAFAEL MEJIA in our Emergency Department on 07/11/02. RAFAEL should be able to return to work in 12 days.” The Respondent took the substitute return-to-work note provided to him by Mr. Krome and presented it at the CFR that was held later on August 8, 2002. Representatives of the School Board management became concerned about whether the Respondent had modified the substitute return-to-work note and they were also concerned about the fact that the substitute note mentioned twelve days, but the original note mentioned only four or five days. Because of those concerns an investigation was conducted to determine the circumstances under which the Respondent obtained the substitute note. The results of that investigation revealed that the circumstances were essentially as described above. A suspension of the Respondent on the basis of the conduct described in the foregoing findings of fact would be inconsistent with prior disciplinary practices of the Miami-Dade School Police Department. In the past, conduct of the type described in the foregoing findings of fact has not resulted in the suspension of the officer who performed the acts. The Respondent's failure to call in during the twelve days following the July 11, 2002, accident and the Respondent's conduct while requesting a substitute return-to-work note do not constitute misconduct that warrants disciplinary action.7
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the charges in the Notice of Specific Charges be dismissed and that the Respondent not be suspended. If the Respondent has already served the suspension, it is RECOMMENDED that the School Board take appropriate action to restore the Respondent to the status he would have been in but for the suspension. DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 1st day of April, 2005.
