The Issue Whether Respondent committed the offenses as set forth in the Administrative Complaint dated June 13, 2000, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent is a licensed Certified General Contractor in the State of Florida. At all times material to this case, Respondent was the qualifying agent for Rivero Construction, Inc. On or about June 20, 1996, Respondent contracted with Manuel Chamizo (Chamizo) to construct a parking lot with drainage at 4735 Palm Avenue, Hialeah, Florida, and to repave the parking lot at 4719 Palm Avenue, Hialeah, Florida, for the total price of $7,090.00. Chamizo paid Rivero Construction, Inc., the full contract price. Respondent constructed the parking lot at 4735 Palm Avenue, but did so in a substandard manner. Specifically, the parking lot flooded and was rendered unusable because Respondent had broken a sewer pipe during construction. After being notified of the problem, Respondent failed to correct it. Respondent failed to perform any of the contracted work at 4719 Palm Avenue. Dissatisfied with Respondent's performance, Chamizo sued Rivero Construction, Inc., for damages in the County Court in and for Miami-Dade County, Florida. On or about August 24, 1998, the lawsuit was concluded in Chamizo's favor with the entry of a final judgment against Rivero Construction, Inc. Respondent has failed to satisfy the final judgment. Respondent has failed to obtain a qualified business certificate of authority. Petitioner has incurred costs of $1,669.09 in the investigation and prosecution of Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent committed the offenses set forth in the Administrative Complaint dated June 13, 2000; ordering that Respondent pay an administrative fine in the amount of $1,250; pay restitution to Manuel Chamizo in the amount of the Final Judgement obtained by Manuel Chamizo; and pay costs incurred in the investigation and prosecution of this proceeding in the initial amount of $1,669.09, plus costs incurred through the date of final action, which revised affidavit of costs will be submitted to the Board at final action. DONE AND ENTERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS 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 12th day of December, 2001. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Manuel Rivero 61 East 16th Street Hialeah, Florida 33010 Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
The Issue Whether Florida Administrative Code Rule 61G16-9.001 is an invalid exercise of legislatively delegated authority in violation of Section 120.52(8), Florida Statutes, and whether certain statements of the Department of Business and Professional Regulation (DBPR or the Department) are "agency statements" defined as rules that should be adopted through the rulemaking process pursuant to Section 120.54, Florida Statutes.
Findings Of Fact Petitioner, Dr. Bacchus, is a hydroecologist with a multidisciplinary degree. While Dr. Bacchus lives in Georgia, she alleges that a substantial amount of her income comes from conducting environmental consulting services in Florida. According to her Amended Petition, Dr. Bacchus is not licensed by the Department. Respondent, Department of Business and Professional Regulation, is the state agency charged with the licensing and regulation of a variety of professions. The practice of geology is among the professions it regulates, pursuant to Chapters 455 and 492, Florida Statutes. Created within the Department is the Board of Geology. Petitioner is the subject of an Administrative Complaint issued on or about September 27, 2006, charging her with the unlicensed practice of geology in violation of Section 492.112(1)(a), Florida Statutes (2005). The Administrative Complaint, which is attached as an Exhibit to the Amended Petition, does not cite to any rules. As of the date of hearing, the Administrative Complaint had not been referred to the Division of Administrative Hearings Petitioner does not allege that she has any intention of seeking licensure from the Department. Florida Administrative Code Rule 61G16-9.001 Florida Administrative Code Rule 61G16-9.001 is a rule adopted by the Board of Geology, as opposed to the Department of Business and Professional Regulation. The rule, entitled "Disciplinary Guidelines," identifies the range of penalties normally imposed by the Board of Geology against licensees for violations of provisions in Chapters 455 and 492. All of the possible violations addressed by the Disciplinary Guidelines are statutory violations. The rule is lengthy and will not be repeated ver batim. The text of subsections (1) and (2) are tables of penalty ranges. Subsection (1) deals with violations of provisions in Chapter 492, whereas subsection (2) of the rule addresses violations of Chapter 455. Subsection (3) is entitled "The Usual Conditions" and outlines provisions that are included in all disciplinary orders; conditions imposed whenever fines and costs are imposed; conditions which may be imposed with probation; and conditions which may be imposed when a license is suspended. Subsection (4) identifies the purpose of the Disciplinary Guidelines, and states: (4) Purpose of guidelines -- The range of penalties set forth above is the range from which disciplinary penalties will be imposed upon licensees guilty of violations of the laws and rules. The purpose of these guidelines is to give notice of the range of penalties which will normally be imposed for specific violations. The guidelines are based upon a single count violation of the provision listed. Multiple counts of violations of the same provision, or unrelated provisions of the law or rules will be grounds for enhancement of penalties or imposition of additional penalties. [Emphasis supplied.] Subsection (5) of the rule addresses aggravating and mitigating circumstances to be considered when imposing penalty, and subsection (6) identifies those instances when the Department may issue a Notice of Noncompliance. The rule lists as its specific authority Sections 455.2273, 492.104(1), and 492.113(3), Florida Statutes. The laws implemented are Sections 455.227, 455.2273, 492.104(1), and 492.113(2), Florida Statutes. Section 455.227, Florida Statutes, identifies "across- the board" acts that constitute grounds for which disciplinary action may be taken by professional licensing boards or by the Department, where no professional licensing board exists. The penalties that can be imposed are the refusal to certify, or certify with restrictions, an application for a license; suspension or permanent revocation of a license; restriction of practice; imposition of an administrative fine; issuance of a reprimand; placement of a licensee on probation; or corrective action. Section 455.2273, Florida Statutes (2006), provides in pertinent part: 455.2273 Disciplinary Guidelines Each board, or the department where there is no board, shall adopt, by rule, and periodically review the disciplinary guidelines applicable to each ground for disciplinary action which may be imposed by the board, or the department where there is no board, pursuant to this chapter, the respective practice acts, and any rule of the board or department. Section 492.104(1), Florida Statutes (2006), provides: The Board of Professional Geologists has authority to adopt rules pursuant to ss. 120.536(1) and 120.54 to implement this chapter. Every licensee shall be governed and controlled by this chapter and the rules adopted by the board. The board is authorized to set, by rule, fees for application, examination, certificate of authorization, late renewal, initial licensure, and license renewal. These fees should not exceed the cost of implementing the application, examination, initial licensure, and license renewal or other administrative process and shall be established as follows: The application fee shall not exceed $150 and shall not be refundable. Section 492.113(2), Florida Statutes (2006), states that the Board of Geology shall specify what acts or omissions constitute a violation of section (1) of the section, which is entitled "Disciplinary Proceedings." Subsection (1) identifies several different grounds for which disciplinary action may be taken against a licensee. While Section 492.113(2) is listed as a law being implemented by Rule 61G16-9.001, the Rule does not specify any acts or omissions constituting a violation of Section 492.113(1), Florida Statutes. It simply paraphrases the statutory language of each statutory provision and gives a range of penalties for each violation. Agency Statements as Rules Petitioner also attempts to challenge agency statements and agency actions not adopted as rules. The Amended Petition states: 2. . . . Examples of the text and description of the statements and agency actions, pursuant to § 120.56(4)(a), F.S. and as defined in § 120.52, F.S., are provided in the Department's: Administrative Complaint against Petitioner, SYDNEY T. BACCHUS, Ph.D. (hereinafter "Dr. Bacchus") signed on September 27, 2006, attached and incorporated by reference hereto as Exhibit A; Undated Settlement Stipulation accompanying the above-referenced Administrative Complaint against Dr. Bacchus, attached and incorporated by reference hereto as Exhibit B. Cease and Desist Order against Dr. Bacchus signed on February 15, 2006, attached and incorporated by reference hereto as Exhibit C. Complaint No. 2005056737 against Dr. Bacchus signed on January 26, 2006 and threatening criminal charges, attached and incorporated by reference hereto as Exhibit D; and Complaint No. 2003063556 against Dr. Bacchus signed on May 22, 2003 and threatening criminal charges, attached and incorporated by reference hereto as Exhibit E. [Emphasis Supplied.] Failure to Adopt Rules Petitioner apparently also seeks to address the failure of the Department to adopt rules identifying what acts constitute the unlicensed practice of geology. The Amended Petition states in pertinent part: In 1987, the Board was authorized to govern and control every licensed professional geologist, pursuant to s. 4, ch. 87-403, Laws of Florida. The Board was not authorized to govern and control persons not licensed as a professional geologist. In 1987, the Department was mandated to "specify, by rule what acts or omissions constitute a violation" of the "[P]ractice of geology," pursuant to subsection (2) s. 12, ch. 87-403 Laws of Florida. * * * 46. The Department has failed to specify, by rule, "what acts or omissions constitute a violation" of the "[P]ractice of geology," to allow an unlicensed person to "know" what constitutes the practice of geology. In the absence of such specificities, a person cannot "knowingly" engage in the unlicensed "[P]ractice of geology" or "knowingly employ unlicensed persons to practice geology, pursuant to subsection (1) s. 12, ch. 87-403 Laws of Florida. [Emphasis in original.] Petitioner's Unilateral Pre-Hearing Statement does not mention Rule 61G16-9.001. Petitioner's statements identifying what she views as the scope of the proceeding state the following: Brief General Statement of Petitioner's Position The Department is regulating unlicensed members of the public under Chapters 492 and 455 Florida Statutes, using unpromulgated rules and rules that are an invalid exercise of delegated legislative authority. Such unlawful regulation violates the constitutional freedom of speech of unlicensed persons. The Department is impermissibly encroaching on the powers of the judiciary. * * * Issue of Fact that Remain to be Litigated 1. Whether the Department is regulating unlicensed members of the public under Chapters 492 and 455 Florida Statutes, using unpromulgated rules and rules that are an invalid exercise of delegated legislative authority. Issue of Law that Remain to be Litigated Whether the Department exceeded its lawful delegation of authority to regulate the "practice of professional geology" in the manner in which it is being regulated in Florida. Whether the Department has failed to give adequate notice to the public regarding what constitutes the unlicensed "practice of professional geology" in Florida. Whether the Department's rules are over- broad, vague, and are in invalid exercise of delegated legislative authority. . . . Whether the Department was required to promulgate rules to regulate the unlicensed "practice of professional geology" in Florida, but failed to promulgate those rules. Whether the Department has been engaged in a pattern of action that constitutes an unpromulgated rule. Whether the Department's recent regulation of the "practice of professional geology" in Florida constitutes selective enforcement. Petitioner was questioned at length during the consideration of the Motion to Dismiss regarding the basis of her challenge. She indicated not that she was concerned with the application of Rule 61G16-9.001 against her, but that she wished to challenge the entire regulatory scheme: THE COURT: . . . Doctor, all the disciplinary guideline rule does is name a statutory or rule violation. It paraphrases the statute itself. It doesn't provide any additional language to my knowledge and provides what penalty would be imposed should a licensee violate one of those statutory provisions. It doesn't -- and as I look at this, it doesn't even have any rule violations. Its statutory. DR. BACCHUS: Yes, Your Honor, I understand that, and I understand that it is confusing, but in fact I had received two charges from the department over a period of -- beginning -- I received the first notice in 2003 for a complaint filed I believe the previous year, and then second complaint that I received early in 2006 for a complaint filed against me in 2005 basically alleging that I was producing documents that in fact were required to have the seal and signature of a licensed geologist. So in fact the agency is regulating unlicensed persons using the language from 61G16 despite the fact that they are not referencing the rule citation. You know, I'm an unlicensed individual, complaints are being filed against me because I am producing documents that have only my name. No reference to the title of professional geology, no insinuation that I am a geologist, a professional geologist, a licensed professional geologist, no reference to that whatsoever, yet complaints are being filed against me with the department and they are taking action against me. THE COURT: But again, getting back to this rule. Even assuming -- and the merits of your administrative complaint are not before me and we're not going to talk about them. DR. BACCHUS: Yes, Your Honor, I understand. THE COURT: But even assuming that, even assuming that the department were going to take action against you based on whatever is charged in that administrative complaint, how is this rule -- you're not going to be -- this rule specifically says licensees. DR. BACCHUS: Yes, Your Honor, I understand that, but that's not how its being applied by the Department. I understand that this hearing is not a hearing to be addressing my complaints, but as I understand, my complaints are relevant with regard to my standing for this issue before the court today. And in fact because of the actions of the department against me, you know, multiple complaints can be filed against me for any written document that I have produced in the past or any written document that is pending, peer-reviewed publications that are pending to be released, because I don't have a license, they are using that language without referencing that rule to take action against me, your Honor. THE COURT: But again, you're saying they're not referencing that rule. DR. BACCHUS: That's correct, Your Honor. They're not referencing that, but because there is no comparable rule that has been promulgated and adopted and is being implemented for unlicensed activities, there is only the statute they are referencing, only 492 and 455, and because there isn't a comparable rule to 61G16 for unlicensed people, then by nature you have to look at what the licensed activity is to determine what the unlicensed activity is. Similarly, with respect to the actions taken by the Department against her personally, Dr. Bacchus asserted that these actions, which she characterizes as agency statements, give her standing to file this rule challenge. However, she does not allege that the Department's actions necessarily give her standing to challenge the specific rule alleged in the Amended Petition: THE COURT: So what is your position in terms of standing? These agency statements give you standing to challenge what? DR. BACCHUS: To challenge the regulation of unlicensed practice of professional geology in Florida. Because the broad sweeping net they are casting, Your Honor, encompasses every form of speech, every form of written document that I produce, whether it is a peer-reviewed publication, whether it is a comment letter to a public agency proposed action, I would have to challenge every single act. I literally cannot act until I am able to know what constitutes the practice of professional geology and the statute does not tell me that. Finally, with respect to what Dr. Bacchus describes as "illegal unpromulgated rules," Dr Bacchus described the unpromulgated rule as "this sweeping action, the fact that the statute does not define geological services, the statute does not define geological documents, yet the agency is taking action not only against me but against a myriad [of] other people for theoretically actions that constitute geological services."
The Issue The issue in this case is whether Respondent, Phillip J. Aleong, D.V.M., violated Section 474.214(1)(f), Florida Statutes (2005), by failing to pay an administrative fine and investigative costs within 30 days from the date of the filing of Final Order BPR-2005-04911 with Petitioner's Clerk as alleged in an Administrative Complaint filed by Petitioner, the Department of Business and Professional Regulation, on June 26, 2006, in BPR Case Number 2005-066424; and, if so, what disciplinary action should be taken against his license to practice veterinary medicine in the State of Florida.
Findings Of Fact The following facts were stipulated to by the parties: Respondent is licensed in the State of Florida as a veterinarian, having been issued license number VM-6466. On September 1, 2005, Respondent appeared before the Florida Board of Veterinary Medicine to approve a Settlement Stipulation as to DOAH Case No. 05-1971PL. At the hearing, the terms of the Settlement Stipulation (herein after the "Stipulation") were placed on the record and the members of the Board voted to approve the settlement. On September 9, 2005, the Florida Board of Veterinary Medicine rendered the Final order Approving Settlement Stipulation Number BPR-2005-04911 (herein after the "Final Order") against Respondent's veterinary license, by filing the original Final Order with the Department's Agency Clerk. A copy of the Final Order was mailed to Respondent's Counsel. However, a copy was not sent or mailed directly to the Respondent. The Settlement Stipulation, as adopted by the Final Order, amongst other terms, required Respondent to pay an administrative fine in the amount of $5000.00 and investigative costs in the amount of $479.76 within thirty (30) days from the date of filing the Final Order with the Department's Agency Clerk. As the Final Order was filed with the Agency Clerk on Setpember [sic] 9, 2005, Respondent's compliance with the payment terms of the Final Order was required on or before October 9, 2005. Pursuant to the Final Order and the Stipulation Agreement incorporated therein by reference, Petitioner and Respondent agreed that Respondent's veterinarian license would be suspended for 90 days in the event that Respondent failed to comply with the terms of the Settlement Stipulation or the Final Order. Respondent was aware of this penalty provision at the time of signing the agreement, was present as the time of its adoption by the Florida Board of Veterinary Medicine, and was aware that the sums would be due 30 days after the Board signed the Final Order itself which was to occur sometime after the September 1, 2005 meeting. Respondent failed to remit payment of the administrative fine and cost required under the Final Order by October 9, 2005. On December 27, 2005, the DBPR mailed Respondent an investigatory complaint placing Respondent on notice that the fine had not been paid. The computer printout attached to the investigatory complaint, as well as the handwritten complaint generated by the Petitioner, both of which were included therein allege that Respondent had not paid the fine. Neither document asserts that the Respondent failed to remit the costs, however, a copy of the Stipulation and Order were included with the investigatory complaint. On January 12, 2006, after receipt of the investigatory [sic] complaint, Respondent paid the fine. Respondent paid the costs on May 8, 2006. On June 26 2006, after both the fine and costs were paid in full, Petitioner filed this proceeding alleging that the fine and costs had not been paid. Petitioner has stated that it has not located any cases in its records where a fine was imposed, then paid late, in which an administrative complaint was not filed. However, Petitioner is unable to offer testimony, with absolute certainty, that prior to the administrative complaint filed in this matter, that all other veterinarians have paid fines assessed in a final order by their due date. Petitioner has not found any evidence indicating that it has ever filed an administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. Petitioner has found no evidence contrary to or may otherwise reasonably dispute that the administrative complaint against a party for failure to timely pay an imposed fine, after said fine was paid by the party. The facts in Final Order BPR-95-05774 (Exhibit "B") and Final Order BPR-2003-02869 (Exhibit "C") are distinguishable from the facts of this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Board of Veterinary Medicine finding that Phillip J. Aleong, D.V.M., has violated Section 474.214(1)(f), Florida Statutes, as described in this Recommended Order, and requiring that he pay an administrative fine of $2,000.00. DONE AND ENTERED this 5th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN 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 5th day of January, 2007. COPIES FURNISHED: Drew Winters, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Bradford J. Beilly, Esquire Law Offices of Bradford J. Beilly, P.A. 1144 Southeast Third Avenue Fort Lauderdale, Florida 33316 Juanita Chastain, Executive Director Board of Veterinary Medicine Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Josefina Tamayo, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
Findings Of Fact 1. The Findings of Fact set forth in the Recommended Order are approved, adopted, and incorporated by reference as modified by Rulings on Respondent’s Exceptions noted above. 2. There is competent, substantial evidence to support the Findings of Fact.
Conclusions Based upon the foregoing findings of fact and conclusions of law, it is Ordered that Petitioner’s challenge to the licensure examination taken December 6, 2000, is Denied and his petition is Dismissed. This order takes effect upon filing with the Clerk of the Department of Health. Done and Ordered this ( , day of , 2002. BOARD OF PODIATRIC MEDICINE
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review pursuant to Section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing one copy of a Notice of Appeal with the agency clerk of the Department of Health and a second copy, accompanied by filing fees prescribed by law, with the District Court of Appeal. That Notice of Appeal must be filed within thirty days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by Certified Mail to Charles Pellegrini, Katz, Kutter, Alderman, Bryant & Yon, P.A., 106 E. College Ave., Suite 1200, Tallahassee, FL 32301, and Perry Verleni, 7624 S.W. 56th Avenue, Gainesville, FL 32608, and by interoffice mail to Cherry Shaw, Department of Health, 4052 Bald Cypress Way, Tallahassee, FL 32399-1783, Ella Jane P. Davis, Division of Administrative Hearings, 1230 Apalachee Parkway, Tallahassee, FL 32399-3060, and to Ann Cocheu, Office of the Attorney General, PL 01 The Capitol, Tallahassee, FL 32399-1050, this IS. day of "\ , 2002. LE qlee F.\Usens\ ADMIN\WILMA\ Ann \pod\000208d.wpd
The Issue Count I: Whether or not Respondent violated a provision of Chapter 458 and a lawful order of the Department of Professional Regulation by refusing to comply with a March 23, 1988 order of the Secretary of the Department of Professional Regulation to produce and release medical reports pertaining to Respondent's mental or physical condition, and in so refusing violated Sections 458.331(1)(x) and 458.339(2) F.S. Count II: Whether or not Respondent violated a lawful order of the Board of Medicine previously entered in a disciplinary hearing, that is, whether or not Respondent specifically violated probation conditions imposed by a final order entered April 18, 1988, by failing to notify the Board of a change of residence address, and in so doing violated Sections 458.331(1)(x) and 458.339(2) F.S.
Findings Of Fact Respondent was first licensed as a medical physician under the laws of the state of Florida in 1971. Thereafter, he regularly renewed license number ME 0017326 until it expired December 31, 1989. The instant case's DPR number is 8902496. Due to the defenses and motions, it is important to note that the instant case constitutes the third formal administrative complaint against Respondent. Prior to August 10, 1987, Respondent was charged in the first formal administrative complaint (DPR Case No. 63959) by the Department of Professional Regulation, Board of Medicine, with certain professional violations, none of which involved allegations Respondent was physically or mentally impaired to practice. On August 10, 1987 the Board of Medicine entered a Final Order approving, adopting, and incorporating a May 14, 1987 stipulation signed by Respondent. In pertinent part, the disposition of that case under the August 10, 1987 Final Order provided as follows: Respondent's license shall be placed on probation for a period of one (1) year subject to the following terms of probation: Respondent shall not violate the provisions of Chapters 455, 458, or 893 Florida Statutes. In the event the Respondent should leave Florida to reside or practice outside of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. Respondent's term of probation under the August 10, 1987 Final Order commenced on August 10, 1987 and would have concluded on August 9, 1988 but for subsequent intervening events. On or about July 10, 1987, the second formal administrative complaint had been filed against Respondent. That administrative complaint was referenced by DPR Case No. 75536. The second case also did not involve any allegations of Respondent's unfitness to practice due to any type of impairment, but did allege inappropriate or excessive prescribing of drugs and failure to treat a patient with that level of care, skill and treatment recognized by a reasonably prudent similar physician, failing to keep written medical records, gross or repeated malpractice, and prescribing outside of professional practice. In October 1987, Respondent considered himself "burned out" and under stress and at the request of his partners submitted himself to evaluations for alcohol and drug abuse. The results of these evaluations are not in evidence. 2/ For a period of time, the precise dates of which are not clear on the record, Respondent also submitted himself to counselling with a psychiatrist, Dr. Virzi. While counselling with Dr. Virzi, Respondent was under the impression that Dr. Virzi was in confidential communication with, and following instructions given by, Dr. Roger Goetz on behalf of the Board of Medicine. Respondent "thought" Dr. Goetz was the "Florida Director of the Impaired Physicians Program for the entire State," but was a little vague on how he came by that knowledge and equally vague on whether he or Dr. Virzi ever actually provided any medical records to Dr. Goetz. Respondent testified that Dr. Goetz appeared with him at a Board of Medicine probationary hearing, but the exhibits which purport to be the Respondent's record before the Board and the Department of Professional Regulation (DPR) are silent on any official involvement of Dr. Goetz with Respondent either on behalf of the Board of Medicine or the DPR or before the Board for any reason. Neither Dr. Virzi nor Dr. Goetz testified; no records of Respondent's psychiatric treatment or of his entry into any impaired physician program were offered in evidence. Respondent presently has no agreement with anybody, including Dr. Virzi or Dr. Goetz, to complete any type of treatment program and he is not now and never has been in the Physicians Recovery Network. Respondent testified that although he acknowledged to himself and possibly to his partners in February 1988 that he was impaired, the nature of that impairment, other than "stress," was undisclosed and unacknowledged by Respondent at formal hearing. Indeed, Respondent further testified that at some point, he stopped seeing Dr. Virzi because Dr. Virzi recommended that Respondent enter an alcoholic treatment program and Respondent personally understood his evaluations to be that he was not an alcoholic. As of the date of formal hearing, Respondent was seeing a different psychiatrist. Respondent's testimony leaves the overall impression that Dr. Goetz' contact with him was secondhand at best and that no medical releases were executed by Respondent specifically for Dr. Goetz. However, there was sufficient evidence from which one may infer that a Board consultant was informally notified that there was reason to believe Respondent was impaired as a result of the misuse or abuse of alcohol and drugs, or both, or due to mental condition, and that throughout this period of the consultant's involvement, Respondent was simultaneously under investigation and prosecution by the DPR under the second formal administrative complaint which did not allege impairment. On February 23, 1988, Respondent signed a stipulation to settle the second disciplinary case upon presentation of the stipulation to the Board. The stipulation, however, bore DPR Case No. 75537. On or about March 23, 1988, an Order to Produce and Release Medical Records signed by the Secretary of the Department of Professional Regulation was entered in DPR Case No. 0090191. In pertinent part, that order found, determined, and ordered that: . . . The Department of Professional Regulation has reason to believe Glenn L. Pohlman, M.D. has violated Section 458.331(1)(s), Florida Statutes, by being mentally impaired and unable to practice medicine with reasonable skill and safety to patients. . . . Furthermore, the Department has need for additional information relative to the mental and physical condition of Glenn L. Pohlman, M.D. . . . pursuant to Section 458.339 Florida Statutes Glenn L. Pohlman M.D. is hereby ORDERED to forthwith release to the Department of Professional Regulation the names of all physicians treating him for the period of time from on or about January 1, 1986 through and including the date of the filing of this Order for any mental or physical condition, and it is further ordered that Glenn L. Pohlman, M.D. release to the Department of Professional Regulation all medical records and reports pertaining to his own mental and physical condition within that same period of time. In order to comply with this order, Glenn L. Pohlman M.D. shall execute five (5) Patient Consent for Release of Medical Information forms. . . . The foregoing Departmental Order is facially sufficient. Its case number corresponds to a computer cross-reference sheet listing a confidential complaint dated November 10, 1987. (P-5, last page) Respondent admitted receiving a copy of the Department's Order in March 1988. Respondent did not appeal the Department's Order or directly take issue with its "lawfulness." He merely refused to comply with it until the Board gave him more information. On April 18, 1988, the Board of Medicine entered a Final Order in DPR Case No. 75537 approving, adopting, and incorporating, as modified therein, the February 23, 1988 stipulation signed by Respondent in DPR Case No. 75537. The witnesses' testimony and the chronology of the official records admitted in evidence are persuasive that, despite the discrepancy of case numbers, the Final Order/Stipulation in DPR Case No. 75537 disposed of the charges contained in the formal administrative complaint in DPR Case No. 75536. That is, the second disciplinary case initiated July 10, 1987 by the second formal administrative complaint described in Finding of Fact 5, supra. That Final Order provides, in pertinent part: 5. Respondent's license shall be placed on probation for a period of up to two (2) years subject to the following terms of probation: * * * b. In the event the Respondent should leave Florida to reside or practice outside the State of Florida for periods longer than thirty (30) consecutive days, the Respondent shall notify the Board in writing of the dates of departure and return. Periods of residency or practice outside of Florida will not apply to the reduction of the Respondent's probationary period. The Respondent shall advise the Board of any change in his residence and/or office address. * * * 8. Respondent agrees to abide by all terms and conditions of this Stipulation. It is expressly understood that a violation of this stipulation shall be considered a violation of Chapter 458, Florida Statutes, for which a disciplinary action may be initiated. There is no acknowledgment within the February 23, 1988 stipulation and no finding within the April 18, 1988 Final Order that the Respondent was impaired. The order requires his prescribing to be monitored but does not limit the scope of Respondent's practice or require his withdrawal from practice. Respondent's term of probation under the April 18, 1988 Final Order would have concluded on April 17, 1990 but for subsequent intervening events. Regardless of testimony by the Administrative Assistant to the Florida Board of Medicine that on the basis of an August 1988 letter from Dr. Scales described in Finding of Fact 25, infra, the Board had tolled the Respondent's probationary periods under each of the two prior Final Orders of probation, beginning in February 1988, it is found that any tolling of the Respondent's probationary periods by the Board must legally be based upon the terms of the respective Final Orders. In a March 28, 1989 interview initiated by a DPR investigator, Respondent gave the investigator a North Carolina address and telephone number, saying it was his temporary residence, and again refused to comply with the Department's March 23, 1988 Order to release his medical records. On May 15, 1989, a letter pursuant to Section 455.225 F.S. from DPR Investigator Dowd to Respondent at Respondent's last known Jacksonville professional address (see Finding of Fact 23) informed Respondent that he was being investigated in connection with a complaint that Respondent had "failed to honor a lawful order by the Department of Professional Regulation to sign and execute a Release of Medical Information." That letter referenced Case No. ME0017326 3/ 8902496 4/. Approximately July 5, 1989, Respondent confirmed that the North Carolina address and telephone number were temporary. At formal hearing, Investigator Danson acknowledged that at all times material, investigators could always, eventually, locate Respondent through the North Carolina telephone number and address or through the Jacksonville professional address. On August 11, 1989, DPR Investigator Danson sent Respondent another copy of the March 23, 1988 Order and requested immediate compliance. On August 21, 1989, Respondent's then-attorney wrote Investigator Danson, asking to be informed of any lawful complaints pending at that time which might relate to Respondent. The evidence does not reflect any reply from any DPR employee to the attorney's letter, and Respondent continued to refuse to provide medical records or sign releases therefor. Respondent never produced any medical records and never signed any releases. He has consistently refused to provide his medical records or sign releases therefor up to and including the date of formal hearing herein which was the result of the third formal administrative complaint dated October 24, 1990. At least until February 20, 1988, Respondent maintained a professional practice at 3599 University Boulevard South, Jacksonville, Florida 32216. Even when not actively practicing at that address, Respondent has continued to receive mail there up to and including the date of formal hearing herein. He has also continued to be a stockholder in the medical practice of his partners still practicing there and a stockholder in the building at that address. He likewise draws disability insurance payments from the insurer for the partnership. Respondent has never taken the initiative to provide DPR or the Board with any other address in writing despite the two prior Final Orders requiring him to do so. At formal hearing, Respondent represented that, in collaboration with his partners, he voluntarily ceased to practice medicine in the state of Florida on February 20, 1988, a date prior to his signing the second stipulation, prior to entry of the Order of the Secretary, and prior to entry of the second Final Order of probation. The record is clear, however, that in May 1988, pursuant to the terms of the April 18, 1988 Final Order, Respondent qualified Dr. Scales as his monitoring physician to oversee his professional practice. In August 1988, Dr. Scales, Respondent's monitoring physician, notified the Department of Professional Regulation that he had nothing to monitor or report on since Respondent had ceased active practice in February 1988, three months before Dr. Scales was even qualified as monitoring physician. At no time did Respondent surrender his license to the Board or request being placed on inactive status. He is currently on inactive licensure status only because he did not timely renew his license prior to its natural expiration on December 31, 1989. Between February 1988 and the date of formal hearing, Respondent lived in several locations. Although he asserted that he has never "established residency" outside the state of Florida, Respondent admitted that since entry of the April 18, 1988 Final Order, he has "lived" outside Florida for more than 30 consecutive days, that he spent five weeks in Europe, and many months, at least intermittently, in Arizona and North Carolina. Since February 1989, much of Respondent's time has been devoted to repairing and refurbishing for sale a house in Charlotte, North Carolina. The house was damaged by a hurricane after he had purchased it in January 1989. Respondent simultaneously maintained a residence in Jacksonville with his daughter, but he has never taken affirmative action to notify DPR or the Board in writing of this address or of an address where he lived in Melbourne, Florida, for more than thirty days in 1988, either. Although vague and inconclusive as to the exact time frames of his absences from the state of Florida, it is clear that on several occasions, Respondent has failed to notify DPR or the Board of Medicine in writing of his dates of departure and return to Florida and has frequently resided outside the state of Florida for more than 30 consecutive days. Nor has he notified anyone in writing of his in-state changes of residence.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a Final Order providing as follows: Finding Respondent guilty of Counts I and II as alleged in the third administrative complaint (two violations of Section 458.331(1)(x) F.S.), and suspending his license to practice medicine in the state of Florida until the March 23, 1988 Order of the Department is complied with, subject to the statutory cap for suspension of a license, and thereafter ordering probation under the terms and conditions of the two prior final orders. DONE and ENTERED this 1st day of October, 1991, at Tallahassee, Florida. ELLA JANE P. 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 1st day of October, 1991.
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.
