Findings Of Fact During early 1993, the St. Petersburg's Times (the Times), a local newspaper, conducted an investigation of the Pinellas County school board's personnel including compiling arrest records of all its employees. Included in the Times' compilation of arrest records was a record involving Respondent which indicates that on September 27, 1978, Respondent pled guilty to the offense of indecent exposure for which he successfully completed a term of six (6) months probation. Respondent also was obliged, as part of his probation, to serve approximately seven (7) hours of community service at the Salvation Army. Respondent satisfied the community service obligation. Respondent has been employed by the Pinellas County School Board in excess of twenty (20) years. His on the job performance has been satisfactory, having been disciplined only on one occasion for being asleep while on duty. Respondent is, and has been since his early childhood, mentally retarded and he suffers from a severe speech impediment. Respondent was arrested when he relieved himself (urinated) in the presence of three or four minor children. A review of the arrest records and the statements of the arresting officers in the case reveal that Respondent was educably handicapped to the point wherein he had little, if any, understanding of the arrest or the reasons for which he was arrested. The officers questioned whether Respondent understood the Miranda rights read to him when he was arrested. Respondent's difficulty stemmed from his learning disability. Respondent was employed as a custodian with the school board. In performing his duties as a custodian, Respondent's contact with students and other personnel is minimal. Other than the subject incident, Respondent has no prior arrest record nor has there been any subsequent arrest record involving Respondent. Petitioner's administrator, James Barker, who recommended Respondent's dismissal, relates that Petitioner's policy for discipline of support service employees is contained in its Rule 6GX52-7.12 entitled Work Performance and Discharge - Support Service Personnel. Administrator Barker admits that Petitioner's policy allows the Superintendent to impose discipline in a less severe manner than Respondent was disciplined, i.e., a reprimand or suspension. Petitioner's policy calls for progressive discipline. Administrator Barker has also reviewed Respondent's personnel file which indicates that Respondent has been a satisfactory employee throughout his tenure with Petitioner. Respondent's mother, Maggie Jordan, had little recall of the 1978 incident other than the fact that Respondent entered a "plea of convenience". Ms. Johnson noted that Respondent, while a student, was classified as being educably handicapped and was educated with students with special learning disabilities (SLD). Respondent takes his job seriously and would like to return to work for Petitioner as a custodian.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Petitioner enter a final order reinstating Respondent to a position of Plant Operator (Custodian). DONE and ENTERED this 2nd day of November, 1993, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL 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 2nd day of November, 1993.
The Issue Whether Petitioner was subject to an unlawful employment practice by Respondent based on her race, national origin, or in retaliation for participating in a protected activity, in violation of section 760.10, Florida Statutes (2016);1/ and if so, what penalty should be imposed.
Findings Of Fact Background Petitioner, Ana-Marie Encui, is Caucasian, a native of Bucharest, Romania, and speaks with a Romanian accent. Petitioner’s son and daughter both reside with her. At all times relevant hereto, Petitioner’s son was 13 years old and her daughter, 11. Petitioner was first employed by Respondent, Department of Children and Families (“Department” or “Respondent”) as a Child Protective Investigator (“CPI”) in the Office of Family Safety in Brevard County, Region 5, on October 26, 2012. Petitioner and her children relocated to Pace, Florida, in Santa Rosa County in 2014. Petitioner was again employed by the Department as a CPI in neighboring Escambia County, Region 1, from May 9, 2014, until her resignation effective February 16, 2017. A CPI’s responsibilities are to investigate allegations of child abuse, neglect, and/or abandonment, received through the Department’s central abuse hotline and other sources. CPIs investigate allegations of abuse and neglect by interviewing children and adults involved in the allegations, as well as “collaterals,” such as relatives living outside the home, teachers, and other caregivers. Through investigation, CPIs assess the validity of allegations, document living conditions, and determine the steps needed to protect children from unsafe environments. CPIs also coordinate with, and refer clients to, social services for support, and conduct follow-up visits to ensure the safety of children is being maintained and supports are in place. CPIs may be called upon to testify in court regarding the circumstances of cases under investigation. Abuse Complaint Involving Petitioner’s Household On August 15, 2016, the Department received an anonymous complaint through the central abuse hotline regarding Petitioner’s household. Petitioner was not named as the perpetrator of abuse or neglect of children in the household. The complaint implicated other adult members of the household. Department Policy 170-16 (the “Policy”), Chapter 5, governs the procedure to be followed when Department employees are the subject of a report of abuse, neglect or exploitation. Such reports are designated as “special handling” reports. When a “special handling” report is received, the hotline supervisor must notify the appropriate manager, in this case the Region 1 Program Administrator, who must review the report immediately upon receipt. Section 5-6b. of the Policy provides, as follows: To maintain confidentiality, provide an objective assessment, and avoid the appearance of impropriety, the Circuit or Regional Program Administrator or Program Manager shall determine if the report needs to be reassigned to a different region or county. According to the Policy, in all cases in which the employee is the alleged perpetrator, the employee must be removed from customer contact while the investigation is pending, and the employee’s access to the Florida Safe Families Network (“FSFN”) database must be restricted by the close of business the following day. The Policy further provides that investigative activities on “special handling” cases “shall be expedited to ensure a timely but thorough investigation.” The decision regarding when, or if, the employee may return to assigned duties is at the discretion of the appropriate manager, which, in the case at hand is the regional manager. Stacy Amaro, DCF Region 1 Program Administrator, was notified of the “special handling” report involving Petitioner’s household. She approached Santa Rosa CPI, Katelyn Paschal, who was in line for assignment of the next case in the normal course of business. Ms. Amaro questioned Ms. Paschal about whether she knew Petitioner, who was a CPI in neighboring Escambia County. Ms. Amaro determined that Ms. Paschal had never worked directly with Petitioner, although the two had collaborated on out-of-town inquiries (“OTIs”) over the phone and via electronic mail, and may have attended Department trainings events together. Ms. Paschal was not friends with Petitioner, did not have social or personal interactions with Petitioner, and did not discuss Petitioner’s family or personal life with Petitioner. Ultimately, Ms. Amaro determined Ms. Paschal would be impartial and investigate the report fairly and thoroughly. Ms. Amaro decided to keep the report in the Santa Rosa office and assign it to Ms. Paschal for investigation. Ms. Paschal investigated the complaint from the date it was assigned to her--August 16, 2016--through October 22, 2016, when she closed the investigation finding the allegations of maltreatment of Petitioner’s children non-substantiated. During her investigation, Ms. Paschal interviewed Petitioner’s son at his school. Ms. Paschal asked Petitioner’s son questions about all the members of the household, activities in the household, arguments between adults, and the adults’ use of alcohol. During this interview, Petitioner’s son shared with Ms. Paschal that his sister had a learning disability. What Ms. Paschal said in response to that information was a subject of debate at the final hearing and is the crux of Petitioner’s complaint in this case. According to Petitioner, in Ms. Paschal’s subsequent interviews with collaterals, Ms. Paschal referred to her daughter as “slow” or “retarded,” or both. Ms. Paschal denied ever referring to Petitioner’s daughter as either “slow” or “retarded.” Petitioner’s Whistleblower Complaint On December 9, 2016, Petitioner filed a complaint with the Department’s Inspector General’s Office (“IG’s Office”), in Tallahassee, alleging the Department failed to follow correct procedures in investigating the abuse complaint involving her family. Petitioner alleged, and insisted at final hearing, that the complaint involving her family should have been assigned to a “neutral” county. Petitioner further alleged the CPI disclosed confidential health information regarding her daughter during interviews with collaterals, and failed to follow Department policy in other aspects of the investigation. On January 31, 2017, after a “preliminary review” of the complaint, the IG’s office responded to Petitioner in writing, as follows: [T]his office has determined that your complaint “does not demonstrate reasonable cause to suspect that an employee or agent of an agency or independent contractor has violated any federal, state, or local law, rule or regulation, thereby creating and presenting a substantial and specific danger to the public’s health, safety, or welfare or has committed an act of gross mismanagement, malfeasance, misfeasance, gross waste of public funds, or gross neglect of duty” as required under section 112.3187-112.31895, Florida Statutes, also known as the “Whistle- blower’s Act.” The IG’s office simultaneously forwarded Petitioner’s complaint to the Department’s Northwest Region Manager, Walter Sachs, for “any action deemed appropriate by [his] office.” Finally, because Petitioner’s complaint raised the possibility of a HIPPA violation, the IG’s office also forwarded Petitioner’s complaint to Herschel Minnis, Human Resources Administrator, Civil Rights Division. Petitioner’s Corrective Action Plan On January 24, 2017, Petitioner was presented with a Performance Corrective Action Plan, or PCAP, by her supervisor, Shavon Terrell. The PCAP noted seven different performance expectations for which Petitioner had fallen short, along with a summary of the particular reasons Petitioner’s performance was substandard. In each and every section, the summary included, “see write up for specific case information.” The “write-up” referred to an Employee Disciplinary Action Proposal Form, completed by Julie Yeadon, Ms. Salter’s assistant. The Form summarized specific cases with deficiencies in case follow-up, danger assessments, and case notes, and documented untimely submission of her cases to her supervisor when danger was identified. The Form documented Petitioner’s historic case backlog and past efforts to address the backlog by transfer of her cases to other CPIs. The PCAP period was two months--January 24 through March 24, 2017--during which Petitioner was expected to correct the noted performance expectation deficiencies by completing the specific corrective actions noted in the plan. The PCAP expressly stated the corrective actions must be taken “to attain satisfactory performance in your current position.” The PCAP expressly stated, “Non-compliance may result in: Disciplinary action, up to and including dismissal may be initiated.” The PCAP provided that the plan was in accordance with “Standards of Conduct and Standards of Disciplinary Action for Department Employees CFOP 60-55, chapter 1.”2/ Petitioner refused to sign the PCAP agreeing to participate in the corrective action plan. Petitioner’s Resignation On January 31, 2017, Petitioner informed Ms. Terrell that she would not agree to the PCAP and would, instead, resign her position. In her resignation letter, Petitioner explained that she was resigning due to retaliation, unfair treatment, and negative job action taken against her for expressing her concerns regarding the “unlawful, unprofessional, and disrespectful manner that [her] children and family were approached and treated” during the investigation of the complaint involving her household. Petitioner’s resignation was effective February 16, 2017. Retaliation Claim Petitioner maintains the PCAP was a means of retaliation against her for filing the IG Complaint with the Department. Respondent presented Petitioner with the PCAP on January 24, 2017, 26 days after Petitioner filed the IG Complaint on December 9, 2016. The decision to place Petitioner on a PCAP was made by the following employees of the Escambia County office: Petitioner’s supervisor, Ms. Terrell; Operations Management Consultant, Julie Yeadon; and Program Administrator, Ms. Salter. Although the IG Complaint concerned the actions of, and was investigated by personnel in, the Santa Rosa office, Ms. Salter was aware in December 2016 that Petitioner had filed the IG Complaint. Ms. Yeadon was not aware of the IG Complaint until she began preparing for testimony in the instant proceeding. The record does not support a finding of whether Ms. Terrell had knowledge of the IG Complaint prior to participating in the decision to place Petitioner on a PCAP. Between May 2014 and September 2015, Petitioner was supervised in the Escambia County office by CPI Supervisor (“CPIS”) Tonja Odom. On January 28, 2015, Ms. Odom issued Petitioner a Documented Counseling for Poor Performance. The following excerpt is notable: As you are aware, the Family Functioning Assessment (FFA) is a valuable tool we use to help determine whether a child is safe or not. If a child is determined to be unsafe, then the family is referred to services with a Family First Network (FFN) provider. We have 14 days to complete [the FFA] and turn the case over to our FFN provider. Lately, you have missed the 14 day deadline and have cases that have exceeded 30 days. * * * In one of the overdue cases, (14-316539), the children were deemed unsafe; yet your FFA documents were not complete and the transfer to the provider did not take place timely. On January 22, 2015, this case was scheduled to be heard [by a judge] for a Case Plan approval. Your lack of action resulted in the FFN caseworker not being able to fulfill their duties and could have potentially harmed a child. Fortunately, the agency did not receive a penalty and the children are safe. Prior to this latest incident, I had several conversations with you, individually and within our group, stressing the importance of completing the FFA timely. The families we serve do not receive the needed services available if the FFA is not completed timely. * * * Your actions are unacceptable and any future violations may result in disciplinary action, up to and including dismissal. Petitioner acknowledged receipt of the Documented Counseling by her signature dated January 28, 2015. Ms. Salter was the Program Administrator in 2015 and was aware of the performance issue with Petitioner and issuance of the Documented Counseling. Ms. Salter testified, credibly, that Petitioner’s performance improved “for a brief while” after the Documented Counseling. Within a couple of months, Ms. Salter and Petitioner’s then-supervisor, Ms. Terrell, were discussing with her again the importance of timely follow up with victims and inputting notes in the system. In October 2016, the Department reassigned a number of Petitioner’s cases to other CPIs in order to address Petitioner’s backlog. When the cases were reviewed upon reassignment, the Department discovered that follow-up investigations had not been conducted timely, victims were not being seen according to protocols, OTIs were not processed timely, and documented appropriately, and there was an overall lack of documentation of Petitioner’s cases. In October and November 2016, Ms. Salter, Ms. Yeadon, and Ms. Terrell embarked on an effort to get Petitioner back on track with her investigations and case work. Following a meeting in which Department management discussed how to address backlogs with a number of CPIs, Ms. Yeadon, at Ms. Salter’s direction, reviewed Petitioner’s case files and documented specific deficiencies in follow up and documentation. That documentation was recorded on the Employee Disciplinary Action Form which was later used in conjunction with Petitioner’s PCAP. Ms. Yeadon subsequently drafted the PCAP which is the subject of the instant proceeding. Prior to presenting the PCAP to Petitioner, Ms. Yeadon discussed the PCAP with Petitioner’s supervisor, Ms. Terrell; Ms. Salter; and, ultimately, the Northwest Region Operations Manager for District 1. The PCAP provided Petitioner with specific performance improvement objectives to be performed within a two-month period. The PCAP provided that failure to comply may result in disciplinary action, up to and including termination. PCAP as Pretext Petitioner claims the PCAP and the Department’s allegations of poor work performance in late 2015 through 2016 are false and a mere pretext for unlawful retaliation. Petitioner argued that her performance evaluations from the Department were very good. Further, she argued that the Department would not have continued to assign her heavy caseloads in 2015 and 2016 if her performance were substandard as the Department represented. In support of her argument, Petitioner introduced spreadsheets reporting individual monthly totals of cases assigned to CPIs for the years 2014, 2015, and 2016 in the Escambia office. Petitioner was assigned only 64 new cases in calendar year 2015; however, in 2016, Petitioner was assigned a total of 231 new cases. For 2016, out of 44 CPIs, Petitioner was one of only nine assigned more than 200 cases. Twice in late 2016, Ms. Salter directed the transfer of cases from Petitioner in order to address her case backlog. Ms. Salter first directed the transfer of 40 of Petitioner’s cases, followed by another 20 in late December to Ms. Yeadon for management. Three of Petitioner’s relevant performance evaluations were introduced in evidence. For the review period July 1 through December 31, 2013, Petitioner received an overall rating of Satisfactory, scoring 3 out of a possible 5. Notably, the supervisor commented, “CPI Encui at times struggles to provide timely information to bring her cases to closure. She is actively working to improve in this area.” For the review period January 1 through June 30, 2014, Ms. Odom rated Petitioner Satisfactory, assigning a score of 3 out of 5. This performance evaluation was made prior to Ms. Odom’s January 2015 Documented Counseling to Petitioner. For the review period July 1, 2014 through June 30, 2015, Ms. Odom again rated Petitioner Satisfactory, assigning a score of 3 out of 5. Ms. Odom made the following relevant comments: Ana has improved greatly in completing her assignments timely. She is learning how to prioritize her workload. * * * If provided a weekly list of cases needed to be submitted, Ana works diligently to get these files submitted to supervisor on time. * * * Ana’s cases have been submitted for closure prior to the 60 day deadline with supervision from management. Ana often needs to be prompted by management to complete her FFA corrections within 24 hours. This performance evaluation was made during the year in which Ms. Odom issued the Documented Counseling to Petitioner. No performance evaluation for FY 2015-2016 was introduced in evidence. Tina Cain is the Northwest Region Operations Manager for Circuit 1. She transferred to the Escambia County office as Program Administrator in June 2016. At that time, Ms. Cain was confronted with a number of employees with performance issues including a number of CPIs with case backlogs. Evaluations were due to be performed in June and July, but, as Ms. Cain explained, unless an employee was on a performance improvement plan prior to their evaluation, the employee could be rated no lower than Satisfactory, a 3 out of 5. Ms. Cain met with her supervisors and instructed them to prepare improvement plans for employees who were not meeting expectations. She directed her supervisors, many of whom were new, to coordinate with Human Resources to prepare the plans appropriately. Ms. Yeadon was instructed to assist Ms. Salter in preparation of Petitioner’s PCAP, as well as plans for other employees under her supervision. Ms. Yeadon prepared the specific case “write-up” on the Employee Disciplinary Action Form out of ignorance, as she was not familiar with the correct forms to use. Once the error was brought to her attention, Ms. Yeadon prepared the PCAP form with reference to specific case notes on the “write-up.” At Ms. Cain’s direction, PCAPs were developed for several employees in the Escambia office in October, November, and December 2016. Petitioner did not prove the PCAP was a pretext for retaliation. The evidence supports a finding that Petitioner’s performance issues were documented in the years prior to Petitioner’s IG Complaint, and that Petitioner’s supervisor and other management discussed and began preparing the PCAP to improve Petitioner’s performance months prior to Petitioner’s IG Complaint. PCAP as Disciplinary Action The Department contends that the PCAP itself is not disciplinary action. The Department follows a progressive disciplinary policy. The first step is a verbal counseling. If the issue is not resolved after a verbal counseling, it is followed by a documented counseling. If the issue is not resolved following a documented counseling, the employee is placed on a performance improvement plan. Ms. Salter testified that, if the employee fails to meet the expectations in a performance improvement plan, the employee may be subject to discipline in the form of termination or placement on a probationary period. The PCAP form stated, “Non-compliance may result in: Disciplinary action, up to and including dismissal[.]” The PCAP did not materially alter the terms, conditions, or privileges of Petitioner’s employment. Racial Discrimination Claim Petitioner was directly supervised in Escambia County first by Ms. Odom, an African-American female, then by Ms. Terrell, also an African-American female. Ms. Salter, also an African-American female, supervised Ms. Odom and Ms. Terrell and directly participated in the decision to place Petitioner on a PCAP. Ms. Salter’s second in command was Ms. Yeadon, who is a Caucasian female. Ms. Yeadon directly participated in drafting Petitioner’s PCAP. Ms. Cain, who is a Caucasian female, directed Ms. Yeadon and Ms. Salter to prepare Petitioner’s PCAP. Petitioner contends that her African-American supervisors discriminated against her by creating a hostile work environment and disciplining her unfairly. When asked to recount specific remarks made by her supervisors that were derogatory in nature, Petitioner could only recall references such as “this type of people” or “those people.” Petitioner admitted that the remarks were not “really clear cut” discrimination. National Origin Discrimination Claim Finally, Petitioner claims her supervisors discriminated against her and created a hostile work environment based on her national origin. Specifically, Petitioner claims that her supervisors and other employees made fun of, or picked on her about, her accent. When asked by the undersigned to identify the specific individuals and statement made by them, Petitioner identified Ms. Odom as rude and disrespectful to her for the entire period in which Ms. Odom was Petitioner’s supervisor. Petitioner stated Ms. Odom frequently responded to Petitioner’s questions with, “I think this is a language problem” or “This must be a comprehension problem.” Petitioner identified no additional specific comments made by Ms. Odom regarding Petitioner’s national origin or her accent. Petitioner never complained to anyone at the Department regarding Ms. Odom’s treatment of her prior to her resignation. Ms. Odom was Petitioner’s supervisor from May 2014 to September 2015. Ms. Terrell became Petitioner’s supervisor in September 2015 and continued as Petitioner’s supervisor until Petitioner’s resignation. Although Petitioner testified that Ms. Terrell made derogatory remarks about Petitioner’s national origin and her accent, she was unable to give any specific example. Petitioner also complained that Ms. Salter made fun of her accent, but could not remember any specific statement.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss the Petition for Relief from an Unlawful Employment Practice filed by Petitioner against Respondent in Case No. 201700691. DONE AND ENTERED this 17th day of October, 2017, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of October, 2017.
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 Respondent failed to comply with a valid order of the Board of Dentistry and, if so, what disciplinary action should be taken against Respondent’s license to practice dentistry.
Findings Of Fact Petitioner, the Department of Health, is the state agency charged with regulating the practice of dentistry pursuant to Chapters 455 and 466, Florida Statutes. However, at the time the complaint in this cause was filed, this responsibility was assigned to the Agency for Health Care Administration. At the time the Final Order which is the subject of this proceeding was entered, this responsibility was assigned to the Department of Business and Professional Regulation. Respondent, Arnold G. Clement, is now and was at all times material hereto a licensed dentist in the State of Florida, having been issued license number DN 0002500. Respondent’s last known address is 1405 Lennox Road East, Palm Harbor, Florida 34683. On April 22, 1993, the Department of Business and Professional Regulation, Board of Dentistry, entered a Final Order in DPR Case Nos. 90-3628, 90-4117, 0092038, and 0092039 (Final Order), a prior disciplinary action against Respondent. The Final Order, which incorporated by reference an Order issued on February 16, 1993, and a Stipulation approved August 31, 1991, set forth the conditions of Respondent’s probation. Respondent’s signature is on the Stipulation and copies of the Order and Final Order were mailed to counsel representing Respondent in that proceeding. Respondent was aware of the Final Order and Order entered by the Department of Business and Professional Regulation. The Final Order suspended Respondent’s license for six months, and after the period of suspension, placed Respondent’s license on probation for three years. As a condition of probation, Respondent was required to: (1) pay an administrative fine of $2,000; (2) perform ninety-six (96) hours of community service during each year of probation; and (3) complete sixty (60) hours of continuing education in removable prosthetics. Prior to the end of his six-month suspension period, Respondent was required to submit for Board approval, a written practice plan that provided for supervision by a Board approved licensee and for submission to the Board of written reports by the supervising licensee. During the probationary period, Respondent’s practice was restricted to work involving removable prosthetics. On or about October 23, 1993, and December 7, 1993, respectively, Respondent submitted to the Board the required Medical Practice Plan and Dental Practice Plan. These plans were apparently approved by the Board. By letter dated February 15, 1997, the agency reiterated the terms and conditions of Respondent’s probation. That letter provided in pertinent part the following: Pursuant to the final order filed April 22, 1993, the “hearing” held October 23, 1993 concerning the “Dental Practice Plan”, and the subsequent receipt and review of this practice plan, please note the following: * * * Probationary Conditions - 60 hours continuing education in “Removable Prosthetics. Quarterly Written Reports from Woodrow D. Wheetley, DDS, effective March/94, and continuing on a three (3) month quarter thereafter, ending December/96. Submit proof of 96 hours community service, with the first report due December/94, and continuing through December each year ending in 1996. We are requesting “Proof” be in the form of a notarized affidavit from the community service organization. The required fee of $2,000.00 is due April 24, 1994. It is your responsibility to assure that all reports are submitted timely and as specified in the final order filed April 22, 1993. . . . In the Medical Practice Plan submitted by Respondent on October 23, 1993, he agreed to: egin doing his community service work which if approved by the [B]oard would consist of seeing indigent patients at Dr. Wheetley’s office for either no fee or for the cost of the dentures only. In the Dental Practice Plan that Respondent submitted to the Board, he agreed to: egin doing his community service work consisting of removable prosthetics, which if approved by the [B]oard would consist of seeing patients referred to Dr. Clement by the Department of Health and Rehabilitative Services, Pasco Community Health Agency or any other agency as directed by the Board of Dentistry. . . . Respondent failed to submit the requisite proof that he performed ninety-six hours of community service hours for the years ending December 1994 and December 1995. In fact, no such proof was submitted at any time during Respondent’s during entire probationary period. Respondent failed to comply with the requirements of the Final Order relative to submission of quarterly written reports. Pursuant to the terms of Respondent's probation, these reports were to be submitted quarterly beginning March 1994, and continuing thereafter on at three month intervals, with the last report due December 1996. While these quarterly reports were to be prepared by the dentist supervising Respondent, it was Respondent’s responsibility to assure that all reports were timely submitted. In 1994, only two quarterly reports, not the required four, were submitted on Respondent’s behalf. The first report, due the end of March 1994, was not received by the Board until May 6, 1994. The second report was due at or near the end of June 1994, but was not submitted to the Board until November 1994. Thus, the only two quarterly reports received by the Board in 1994, were untimely submitted. Moreover, no quarterly reports were submitted by or on behalf of Respondent during the 1995 and 1996 calendar years. If Respondent had complied with the terms of and conditions of his probation as set forth in the Final Order, his probationary status would have ended in December 1996. Respondent violated the provisions of the Final Order entered in DPR Case Nos. 90-04117, 90-03628, 0092038, and 0092039 by failing to comply with the terms and conditions of his probation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that Petitioner, the Department of Health, Board of Dentistry, enter a Final Order finding that Respondent violated a lawful order of the Board and revoking his license to practice dentistry. DONE AND ENTERED this 3rd day of December, 1997, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUMCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of December, 1997. COPIES FURNISHED: Craig A. McCarthy, Esquire Greg W. Files, Esquire Thomas E. Wright, Esquire Agency for Health Care Administration Office of the General Counsel Allied Health Post Office Box 14229 Tallahassee, Florida 32317-4229 Arnold G. Clement, D.D.S. 1405 Lennox Road East Palm Harbor, Florida 34683 Angela T. Hall, Agency Clerk Department of Health 1317 Winewood Boulevard Building Six Tallahassee, Florida 32399-0700
The Issue Whether the Petitioner's position of employment with the Respondent was properly reclassified from Career Service to Selected Exempt status.
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: Dr. Edouard is a physician who was employed by the Department as the Senior Human Services Program Manager for the Miami-Dade County Childhood Lead Poisoning Prevention Program. This program operates under a grant from the federal Centers for Disease Control, and Dr. Edouard worked out of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department. Prior to July 2001, Dr. Edouard's position was classified as a Career Service System position. As Senior Human Services Program Manager, Dr. Edouard supervised a staff of four to five persons, including an epidemiologist, an environmental specialist, a nurse, and a secretary specialist, and she spent the majority of her time supervising these employees: Dr. Edouard prepared the work assignments for her staff; trained the members of her staff; monitored the progress of the staff members in completing their assignments; prepared evaluations for each staff member and made recommendations for improvement; approved or disapproved requests for leave; had the authority to recommend members of her staff for disciplinary action; had the authority to recommend salary increases and/or to recommend promotion for members of her staff; and prepared the budget for her program grant. Dr. Edouard was considered by her supervisor to be a very creative, hardworking, dedicated healthcare professional who established Miami-Dade County's Childhood Lead Poisoning Prevention Program. In July 2001, Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position because the position included substantial supervisory responsibilities. After the reclassification, the formal job description for the Senior Human Services Program Manager position remained the same in all material respects as the job description for the Career Service System position. Dr. Edouard was terminated from her position several months after it was reclassified. At the time Dr. Edouard's position was reclassified from a Career Service System position to a Selected Exempt Service position, there were other supervisory employees of the Epidemiology and Disease Control Department of the Miami-Dade County Health Department whose positions were not reclassified but remained Career Service System positions. These employees were registered nurses serving as nursing program specialists.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the decision to reclassify the position of employment with the Department of Health formerly held by Marie-Michelle Edouard be sustained. DONE AND ENTERED this 16th day of April, 2004, in Tallahassee, Leon County, Florida. S PATRICIA HART MALONO 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 16th day of April, 2004.
