The Issue Does Petitioner, Nicholas A. Mancini, PhD (Dr. Mancini), satisfy the requirements for licensure as a mental health counselor as established in section 491.005(4), Florida Statutes (2010)?1
Findings Of Fact Based on the evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: On December 30, 2010, the Board issued its Notice of Intent to Deny Dr. Mancini's application for licensure as a Mental Health Counselor. Dr. Mancini requested a hearing to challenge the decision. This proceeding followed. Dr. Mancini has been licensed to practice psychology in California and Pennsylvania. His Pennsylvania license expired November 30, 2003. His California license was canceled on May 31, 2006. Dr. Mancini earned a master's degree in psychology from Fairleigh Dickinson University. He completed 34 semester hours of coursework there. The Fairleigh Dickinson University master's in psychology program that Dr. Mancini completed was not a mental health counseling program accredited by the Council of Accreditation of Counseling and Related Educational Programs. The program is, however, related to the practice of mental health counseling. At the time Dr. Mancini attended Farleigh Dickinson, it was accredited by the Commission on Higher Education of the Middle States Association of Colleges and Schools. It was also accredited by the Council of Higher Education Accreditation. By completing Fairleigh Dickinson course 20PY624, Counseling and Interviewing, Dr. Mancini obtained three semester hours of graduate coursework in the content area of counseling theories and practice. By completing Fairleigh Dickinson course 30PY633, Abnormal Psychology, Dr. Mancini obtained three semester hours of graduate coursework in the content area of diagnosis and treatment of psychopathology. By completing Fairleigh Dickinson Course 30PY600, Tests and Measurements I, Dr. Mancini obtained three semester hours of graduate coursework in the content area of individual evaluation and assessment. By completing Fairleigh Dickinson courses 20PY603 and 20PY604, Statistics and Experimental Psychology, Dr. Mancini obtained three semester hours of graduate coursework in the content area of research and program evaluation. By completing Fairleigh Dickinson course 30PY710, Social Problems, Dr. Mancini obtained three semester hours of graduate coursework in the content area of substance abuse. Dr. Mancini attended, but did not receive a degree from, Hahneman University Medical College of Philadelphia (now Drexel University). He completed four semester hours of graduate coursework there. At the time, it was regionally accredited by the Council of Higher Education Accreditation. Dr. Mancini attended, but did not receive a degree from, Glassboro State College (now Rowan University). He completed six semester hours of graduate coursework there. At the time, it was regionally accredited by the Council of Higher Education Accreditation. Dr. Mancini earned a doctoral degree in counseling psychology from the Professional School of Psychological Studies. At the time, the school was not regionally accredited. Dr. Mancini has not obtained three semester hours of graduate-level coursework from a regionally accredited institution in each of the following content areas: human growth and development; human sexuality, group theories and practice; career and lifestyle assessment; social and cultural foundations; counseling in community settings; and legal, ethical, and professional standards issues in the practice of mental health counseling.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage, and Family Therapy and Mental Health Counseling issue a final order denying Dr. Mancini's licensure application. DONE AND ENTERED this 7th day of June, 2011, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 7th day of June, 2011.
Findings Of Fact The parties stipulated that in February, 1984, while respondent was a student in the ninth grade at Westview Junior High School he punched another student in the face. As a result, respondent was required to serve a five day suspension. As a result of respondent's discussions with his mother concerning the incident, respondent wrote a letter of apology to the other student. The parties further stipulated that in March, 1984, while respondent was a student in the same school, he was involved in a fight. As a result, he was required to serve a ten day suspension. Although petitioner's attorney argued at the formal hearing that the March incident involved some type of "aggravated assault" and/or inciting to riot," petitioner failed to introduce any evidence in support of that argument or even regarding the incident itself. On the other hand, the evidence is uncontroverted that no charges were filed against respondent and no involvement with the juvenile justice system followed the March, 1984. On April 13, 1984, petitioner administratively reassigned respondent to Miami Douglas MacArthur Senior High School - North. The parties stipulated at the time of the Final Hearing in this cause that respondent's overall grades and conduct have been satisfactory throughout respondent's attendance at Miami Douglas MacArthur Senior High School - North. For the last one and a half years respondent has been voluntarily participating in a private community youth guidance program. Although that program accepts some court referrals, respondent was not referred by the courts, is a continuous participant in the program, and can remain in the program for two more years until he reaches the age of 18. Respondent attends activities conducted by that program once a week after school. His counselor, Greg Rounds, believes respondent to be a quiet person who does not belong in an alternative program school and who is more likely to become and remain rehabilitated if returned to the regular school program.
Recommendation Based upon the foregoing findings of fact and the conclusions of law, it is, therefore, RECOMMENDED THAT a Final Order be entered returning respondent to the regular school program and reversing the determination that respondent be placed or retained in an educational alternative program. DONE and RECOMMENDED this 23rd day of August, 1984, in Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of August, 1984. COPIES FURNISHED: Mark A. Valentine, Esquire 3000 Executive Plaza, Suite 800 3050 Biscayne Boulevard Miami, Florida 33137 Mr. James Nealy 12315 North West 18th Place, Apt. #B Miami, Florida 33167
The Issue The issue presented is whether Respondent should be terminated from his employment with the Leon County School Board based upon the charges in the Notice of Final Disciplinary Action.
Findings Of Fact After serving ten years with the United States Marine Corps, Respondent Lester L. Hall became a firearms instructor for a Maryland police department. He also began to work with at-risk children. After he returned to Leon County, Florida, in 1996, he began working with at-risk children at DISC Village and worked there until 2005. In 2003 Respondent began his college education at Tallahassee Community College. He is now in his last year at Flagler College, which has a satellite branch on the community college's campus. He is majoring in elementary education and exceptional student education. Sometime in 2006, Respondent began working as an instructional aide at Gretchen Everhart School. Everhart is a special day school with approximately 250 students. Those students are primarily moderately to severely mentally handicapped, and some are also physically handicapped. On July 26, 2006, Respondent was promoted to assistant director of the Students Motivated in Learning at Everhart (SMILE) after-school program. He was terminated from his position as of October 13, 2006, for reasons unrelated to the allegation which gives rise to this proceeding. In January 2007 Respondent began working at DeSoto Trail Elementary School as an instructional aide. Renee Gadson has worked for the Leon County School Board as a substitute teacher since 1992. During the 2006-07 school year and thereafter she worked at several different schools within Leon County, including Everhart. On September 13, 2008, Gadson saw Respondent at Everhart talking with some adults and then helping to load a student into a van. The next day she again saw Respondent at Everhart. After seeing Respondent at Everhart two days in a row, she then went to Pam Jameson, the site coordinator for the SMILE program, demanding to know why Respondent was at the school and why he was allowed to be near children. Jameson inquired as to why Gadson was so upset. Gadson related to Jameson that two years earlier, Gadson had gone to Everhart to pick up her nephew from the SMILE program and upon entering the classroom saw a young female with her head in Respondent's crotch area. Jameson told Gadson to report this to the Principal. Late that day Gadson spoke with Principal Jane Floyd- Bullen. Gadson told the Principal what she had told Jameson. According to Gadson, Respondent was standing just three feet inside the open classroom door and that in addition to the young female and Respondent, two other students were present in the classroom: Gadson's nephew and another boy who was in a wheelchair. She further explained that as she and Respondent made eye contact, Respondent pushed the girl away, turned away from Gadson, and adjusted his clothing. Respondent then turned to Gadson and began talking to her about how her nephew's day had gone. A few minutes later, the pregnant mother of the boy in the wheelchair arrived to pick up her son, and Gadson left the classroom. She said that she looked for program director Jameson, but Jameson was not there so Gadson left the school. Gadson explained that after a few more days she did not see Respondent at Everhart any more so she assumed the problem had been taken care of until she saw him there two years later. Floyd-Bullen asked Gadson if she had reported what she saw to anyone at the time, and Gadson said she thought she had but could not remember to whom she had spoken. Since it was late Friday afternoon when Gadson came to her, on Monday morning Floyd-Bullen contacted James Parry, the School Board's Chief of Labor and Employee Relations to report this conversation. Two investigations ensued: one by the School Board's Department of Safety and Security and one by the Leon County Sheriff's Office. On September 17, 2008, Respondent was given a letter telling him he was being placed on administrative leave with pay pending resolution of an investigation. Respondent was not told the subject of the investigation until he was summoned to the Sheriff's Office for questioning and was told then. Investigating Gadson's allegation was difficult because it was two years later, and the date of the incident she reported could only be narrowed down to late-September or early- October 2006. Further, although it was easy to identify the boy in the wheelchair, identifying the young girl was difficult. Gadson made the identification based upon looking at pictures in the most-recent Everhart yearbook. She identified a girl who had an unusual gait. The girl identified by Gadson has an I.Q. of 24 or 25 and is non-communicative, as are Gadson's nephew and the boy in the wheelchair. The girl she identified was not in the SMILE program during the time period of the alleged incident but "could" have been there if no one was at her home when the school bus delivered her there and if the bus driver had returned her to Everhart and taken her to the SMILE classroom. During the investigation Gadson remembered that she had reported the incident in 2006 to Joanne Kilpatrick, an employee at Everhart. When questioned, Kilpatrick did not remember any such conversation. During the investigation Gadson described what the girl was wearing, what Respondent was wearing, and what she was wearing two years earlier. She explained that she was wearing tennis shoes so her footsteps walking to the classroom made no noise and that the electric-powered doors to the hallway where the classroom was located were partially opened and so she opened them manually, thus preventing the motor to make its usual noise. She admitted that she had not seen Respondent's penis and the little girl was not moving during the incident which she described. During the investigation Gadson was asked by the detective investigating the case to take a computerized voice stress analyzer test. Among the questions she was asked during the test were two very specific questions which included Respondent's name, her nephew's name, and the classroom as the location. Her answers were considered to be "non-deceptive" by the person who administered the test and the person who read the computer print-out. When Respondent was informed of the allegation against him, he became extremely upset and frightened. His demeanor varied during the interview among being calm, being frightened, being angry, and crying. He denied the allegation but was unable to tell the detective why Gadson would make such an allegation if it didn't happen. He asked if he could be given a lie detector test and was offered the computerized voice stress analyzer test. Among the questions he was asked, the only two relevant questions were general in nature, unlike the very specific questions asked Gadson. Respondent, who was then a 43-year-old, unmarried, full-time college student, was asked: "Have you ever exposed your penis to a student?" and "Have you ever had a student perform oral sex on you?" His answers were determined to be "deceptive" by the person who administered the test and the person who read the computer print-out. At the final hearing Respondent explained the physical location of the SMILE classroom, the second classroom on the left, in a hallway with other classrooms and with an outside entrance to the building at the rear and another in the front of the building. At the time of the alleged incident, there were 17 students enrolled in the SMILE program, which ended at 6:00 p.m. Between the hours of 5:00 p.m. and 6:00, the time of the alleged incident, the classroom is busy with parents, staff, and students coming in and going out. The mother of the boy in the wheelchair regularly brought her young daughter with her when she picked up her son. Respondent had a teasing relationship with the girl and even had a nickname for her. Since her mother was 8 1/2 months pregnant at the time and moved slowly, the girl would usually arrive at the classroom before her mother. Respondent thinks it is possible that the girl ran into the classroom and hugged Respondent just as Gadson appeared in the doorway and saw a girl with her head in Respondent's crotch area. That girl was the age of the girl described by Gadson, but the girl identified by Gadson was several years older than the age of the girl Gadson described. At the conclusion of the Sheriff's Office investigation, the State Attorney's Office declined to prosecute. Although Gadson, as she repeats her story, is credible, it is determined that her allegation has become true to her over time, but was not true at the time of the alleged incident. Her behavior at the time is inexplicable if she saw what she now says she saw. She came into the classroom through its open door. She said and did nothing to confront Respondent about what would constitute not just child abuse but a serious crime. She did nothing to comfort the girl or remove the girl from Respondent's presence. She simply chatted with Respondent for a few minutes and left, assumedly leaving the girl with Respondent. When she was unable to find Jameson, she simply left the school without contacting anyone at the School Board, calling the abuse hotline, or contacting the police. In short, she did not report what she now says she saw to anyone in a position of authority to do something, including the principal at Everhart who testified that Gadson regularly came to her to voice concerns about other matters. Her testimony that she assumed Respondent had been dealt with since she didn't see him at Everhart after a few more days is also strange for two reasons. First, the conversation she says she had with Kilpatrick which Kilpatrick doesn't remember was simply saying that Respondent had done something inappropriate. Thereafter, since no one ever asked her what she had seen, it would have been clear to a reasonable person that there was no one looking into her vague report. Second, her testimony means that she was not bothered by the fact that Respondent was still at Everhart after the alleged incident, even for a few days. Gadson's behavior on the day of the alleged incident and thereafter can only be justified if she didn't think at the time that she had seen an abusive and criminal act taking place even though she has apparently convinced herself she had two years later. Gadson has been an educator for many years, and it is beyond belief that she would react as she did if she believed that she had witnessed what she later described and yet simply left the child to be alone in the classroom with Respondent when the mother removed her son in the wheelchair. After Respondent quit his job at DISC Village, he filed a complaint with the Florida Commission on Human Relations alleging discrimination. An evidentiary hearing was conducted by this forum and resulted in a Recommended Order recommending that Respondent's complaint be dismissed. That recommendation was adopted by the Commission. (DOAH Case No. 06-1052, Final Order entered October 12, 2006). The findings of fact in the DOAH Recommended Order entered July 20, 2006, reflect that an investigation of Respondent was about to commence when Respondent left his employment. There is no evidence that an investigation was already underway. When Respondent was terminated from his position as the assistant director of the SMILE after-school program, he filed a complaint with the Florida Commission on Human Relations. An employee there conducted an investigation and determined that there was no reasonable basis for believing that an unlawful employment practice had occurred. Respondent did not pursue his claim any further. Respondent's March 8, 2007, application for employment by the School Board of Leon County in Section III asks for employment history. Respondent left blank the reason(s) for leaving his prior positions. In question numbered 2 Respondent answered in the affirmative that he had been terminated in October 2006. Questions numbered 3 and 4 asked if he had left a job by mutual agreement or under unfavorable circumstances. While it can be argued that Respondent's answers to these questions in the negative were technically correct but conceptually incorrect, his answers do not reflect on his credibility in this proceeding. Despite his only-arguably- incorrect answers, Respondent's testimony is more credible than Gadson's.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the charges against Respondent and reimbursing him for lost wages and benefits from the date of termination until the effective date of his non-reappointment. DONE AND ENTERED this 27th day of July, 2009, in Tallahassee, Leon County, Florida. S LINDA M. RIGOT 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 27th day of July, 2009. COPIES FURNISHED: Lester L. Hall 810 Wadsworth Street, Apartment 113-B Tallahassee, Florida 32304 J. David Holder, Esquire J. David Holder, P.A. 1400 Village Square Boulevard, Suite 3-196 Tallahassee, Florida 32312 Jackie Pons, Superintendent Leon County School Board 2757 West Pensacola Street Tallahassee, Florida 32304 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400
The Issue Whether Respondent's intended award of a contract to Ramsay Youth Services, Inc., pursuant to RFP No. K8027, is contrary to Respondent's governing statutes, applicable rules, or polices or the specifications of the request for proposals.
Findings Of Fact On August 13, 1999, Respondent, Department of Juvenile Justice (Department), advertised and released a request for proposals (RFP) for the operation of a 62-bed Male Moderate Risk Residential Education Program in Dade County, Florida, RFP K8027. Petitioner, Youthtrack, Inc. (Youthtrack), and Intervernor, Ramsay Youth Services, Inc. (Ramsay), submitted the only two proposals in response to the RFP. On September 20, 1999, the Department posted an intended contract award to Ramsay. Based on the evaluations conducted by the Department, Ramsay received 401.66 points, and Youthtrack received 376 points. The RFP requested proposals to design, develop, implement, and operate a Moderate Risk Residential Education Conservation Corps on land owned by the South Florida Water Management District located outside of Florida City. The RFP called for a daily capacity of 62 male youths who are committed to the Department after having been classified as a moderate risk to society. Youthtrack is the incumbent provider. The RFP specified the proposal award criteria. The proposals were to be evaluated on the statement of work/program services, organizational capability, management approach, and past performance. The evaluation areas were assigned a maximum number of percentage points. Each area contained subcategories, which were assigned percentage points to equal the maximum number of percentage points that could be awarded in that particular category as follows: Award Criteria STATEMENT OF WORK/PROGRAM SERVICES 50 Soundness of Approach 25 Compliance with Requirements 25 ORGANIZATIONAL CAPABILITY 20 Soundness of Approach 10 Compliance with Requirements 10 MANAGEMENT APPROACH 20 Soundness of Approach 10 Compliance with Requirements 10 PAST PERFORMANCE 10 Historical implementation 2 Educational achievements 2 Recidivism rates 2 QA evaluation 2 Community involvement 1 CMBE subcontracting 1 In addition to the above criteria, ten bonus points were available for offerors who were certified minority business enterprises (CMBEs) or who utilized CMBEs as subcontractors. The evaluators were to rate each category using the following rating system. A rating of excellent would receive a score of five. Criteria deemed to be very good would be rated as a four. An adequate response for a category would be scored as a three. A rating of poor would garner a score of two. An unsatisfactory rating would be scored as one. If the criteria was not addressed in the proposal, a zero would be assigned. Three Department employees served on the technical evaluation committee: Robert Rojas, Anne McVey, and Joan Berni. Mr. Rojas is the facilities superintendent for the Department's Miami Halfway House, which is a 28-bed moderate risk facility similar to the 62-bed facility addressed in the RFP at issue. Ms. Beri is a program administrator over probation units in the north area. Maria Elena Cadavid served as the contract administrator for the RFP. She was responsible for overseeing the development of the RFP, the evaluation process, and the integrity of the procurement process. On September 15, 1999, Ms. Cadavid held a meeting with two of the evaluators to distribute the RFP, the Ramsay and Youthtrack proposals, and a memorandum of instructions. In addition to the instructions within the memorandum, the evaluators were provided with copies of a sample scoring sheet and an "Evaluation Factor Guide" as attachments to the memorandum. Ms. Berni did not attend the September 15 meeting. At the beginning of the evaluation process, the RFP, the proposal, and the instruction memorandum with attachments were delivered to her office. Once the technical evaluation was complete, the cost proposals were to be evaluated by Martha Bermudez. The members of the technical evaluation committee were not provided with the cost proposal. During the evaluation process, Mr. Rojas could not determine whether Youthtrack intended to provide psychiatric services to residents who were not eligible for Medicaid. In a letter attached to Youthtrack's proposal as an Appendix, (CPC), states that individual therapy and case management services are provided to eligible clients. In Mr. Rojas' past experience with (CPC), services had been provided only to Medicaid eligible clients. Mr. Rojas called Ms. Cadavid and asked whether Youthtrack's separate cost proposal included a budget item for mental health services that are not billable to Medicaid. Mr. Rojas was trying to determine the level of mental health services to be provided by Youthtrack's proposed subcontractor, (CPC). Ms. Cadavid told Mr. Rojas that there was no such budget item and that he did not need to take it into consideration. She did not provide Mr. Rojas with a "bottom-line" price or any other budget information from the Youthtrack proposal. Mr. Rojas concluded that Youthtrack would not provide mental health care unless the individual was eligible for Medicaid. The Department maintains a Contract Manager's Manual (Manual), which "establishes policy, assigns responsibilities, and prescribes implementing procedures for soliciting and evaluating Offeror's proposals." Section 9.3.2.a of the Department's Manual provides: Technical as well as cost (price) proposals will be submitted to the Contract Manager who will provide technical proposals to the technical evaluators. The technical evaluation will be conducted independent of the cost (price) evaluation. Technical evaluators (unless the district appoints only one team) will not have access to cost data at any time prior to the decision. In the case of one team, the team shall complete the technical evaluation of all technical proposals before beginning the evaluation of the cost proposals. In this context, cost data does not include information required for types and quantities analysis such as labor hours, personnel qualifications, equipment and material list, and other non- rate information. Technical personnel may examine such data even if it is extracted from the cost proposal. However, they may not be given access to the complete cost proposal. The September 15 memorandum stated: Each Section of the rating sheet has a section for comments. It is requested that you explain your rationale for the scoring of the proposal under each section. The manual provides that the individual evaluators will prepare narratives, which is to be the principal means available to do a comparative analysis of the offers. The narratives are to include as a minimum the following: What is offered; Whether it meets or fails to meet the evaluation standard; Any strengths or weaknesses; and An assessment of the Offeror's proposal approach and ability to perform. Mr. Rojas included comments on his scoring sheets for Youthtrack and Ramsay. The other evaluators, Ms. McVey and Ms. Berni, did not provide any comments on their scoring sheets for either proposal. The Manual provides that the individual narratives are to be consolidated into an evaluation report that is prepared by the evaluation team. The Manual contemplates that "the strengths and weaknesses determined by the individual team members are to be distilled into an integrated, team consensus, preferably by group discussion." Based on the Manual, the evaluation report is done after both the technical and cost proposals have been evaluated. The evaluation report may be done in any format, but it must include the following information: Narrative assessment of the technical evaluation; An analysis of the Offeror's cost (price) (realism, completeness, and reasonableness); and Results of evaluating contractual considerations and any other general considerations that were evaluated by the SSET [Source Selection Evaluation Team]. In Section 9.3.7, the Manual further provides: The objective of the proposal evaluation report is to present a summary of the evaluation of each proposal against solicitation requirements based on established evaluation criteria. The proposal evaluation report encompasses information derived from the results of the evaluation of the proposals. It is an official record of the evaluation of proposals and supporting rationale and, therefore, shall be maintained as a portion of the official contract file. On September 20, 1999, the evaluation committee reconvened to hand in their scores and to allow the contract manager to ensure that there were no math errors. During the meeting, the evaluators were instructed that the points entered under "Criteria" headings on the score sheets should equal the sum of the points of the underlying subfactors. This instruction comports with the directions on the scoring sheets. As a result of this clarification, Mr. Rojas made changes to his criteria scores so that they equaled the sum of his subfactor scores. Mr. Rojas lowered his criteria scores for Youthtrack by 58 points and increased his criteria score for Youthtrack by ten points. For Ramsay's proposal, Mr. Rojas lowered the criteria scores by 13 points. After the scores were tabulated and averaged, a summary of the scoring was prepared and signed by each of the evaluators. The summary stated that Ramsay's average score was 401.66 and that Youthtrack's was 376.00. Ms. Cadavid reported these scores to Ronald E. Williams, the Department's Senior Juvenile Justice Manager, who posted the results and recommended award of the contract to Ramsay by memorandum dated September 20. 1999. At the final hearing, it was noted by Ms. Cadavid that an error had occurred in calculating the average scores. Ms. McVey's score for Ramsay was listed as 500 points, rather the 510 points that was listed on Ms. McVey's score sheet. When the correct 510-point score from Ms. McVey is used, Ramsay's average score is 405, which is 29 points higher than Youthtrack's average score. If an offeror was a CMBE, the RFP required the following: The Offeror, if applicable, shall include a copy of certification or proof of registration (letter) as an eligible certified minority business enterprise to do business in the State of Florida, as set forth in Section 287.0945, Florida Statutes. To be an eligible minority vendor/offeror you shall possess current certification issued by the State of Florida Minority Business Advocacy and Assistance Office. If an offeror planned to use CMBEs as subcontractors, the RFP required the following: The Offeror shall include a subcontracting plan in every proposal in excess of $75,000. Each subcontracting plan must include the percentage of the total proposed contract dollars the offeror anticipates expending under subcontract to CMBE's as well as the type of services/commodities that will be included as subcontracts. The subcontracting plan shall be incorporated into the contract. Minority Business Enterprise subcontracting shall be an evaluation factor and shall be used as a measure of provider past performance. The clause is not applicable to registered CMBE's. The Ramsay proposal contained a list of the CMBE vendors with whom Ramsay intended to subcontract, the dollar amounts of the intended contracts, and the types of goods or services to be performed by the CMBE subcontractors. Ramsay also included CMBE certificates for three of the subcontractors. Ramsay intended to subcontract raw food products with a minority vendor in the amount of $90,520, but no vendor was listed and no certificate was provided. Youthtrack's proposal contained the following as Youthtrack's CMBE subcontracting plan: As an equal opportunity employer and national member of the National Association of Blacks in Criminal Justice (See Appendix), Youthtrack will continue to diligently pursue the development of subcontracts with available minority business enterprise contractors. This will be accomplished by consulting Department of Labor and Employment Security, Minority Business Advocacy & Assistance Office, and by utilizing its Business Commodity Directory for Dade County. Furthermore, Youthtrack has established a goal of spending a minimum of 10% of the programs' goods and services budget on goods and services procured from local minority business enterprises. Services to be provided may include mental health services, vocational and educational services and facility maintenance services such as refuse removal, pest control, clothing, etc. Currently Youthtrack's Hurricane program is in the process of finalizing an agreement with Rockdale Auto Services which is a minority owned business, for the provision of auto repair services, and with Dr. Peterson, whose medical practice is a certified minority business, for the provision of health services. Ms. McVey had awarded Youthtrack ten bonus points for minority subcontracting. At the September 20 meeting, the evaluators were told that the CMBE bonus points could not be awarded unless the offeror submitted CMBE certificates from the Department of Labor with the proposal. As a result of this directive, the ten bonus points awarded to Youthtrack by Ms. McVey were deducted. Neither Mr. Rojas nor Ms. Berni awarded Youthtrack bonus points for CMBE subcontracting. In his evaluation comments, Mr. Rojas questioned the caseload assignments for Youthtrack's case management personnel. Youthtrack included a staffing plan in Appendix I of its proposal, indicating that case management would be provided by four team leaders and two counselors. Mr. Rojas was under the impression that the two counselors would be providing the case management for the 62 children. His notes on Ramsay indicated that Ramsay had three case managers. Mr. Rojas scored Ramsay a three for Section 1.2.2.1 and scored Youthtrack a 2 for the same section dealing with the soundness of approach for organizational capability. Mr. Rojas concluded that Youthtrack had not provided for communicating gang information to the police based on the Department's Policy No. 8.09 regarding street gangs. The policy establishes elaborate procedures for identifying members of street gangs, controlling their behavior, housing them in Department facilities and interfacing with other law enforcement and community groups. The RFP included requirements that the offerors comply with several Department policies which were specifically identified; however, Policy No. 8.09 was not part of the RFP and was not referenced in the RFP. Mr. Rojas downgraded Youthtrack's proposal for not complying with Policy No. 8.09. Mr. Rojas made the same comment concerning street gang information when he evaluated Ramsay's proposal and downgraded Ramsay's proposal for not complying with Policy No. 8.09. Mr. Rojas testified that Youthtrack's proposal failed to provide for submission of progress reports every 30 days. Mr. Rojas notes state that Ramsay also failed to provide 30-day progress reports. Youthtrack and Ramsay both provided for 30-day progress reports in their proposals. In his notes on his evaluation of Youthtrack's proposal, Mr. Rojas stated, "The offeror does not clearly demonstrate a designated health authority." On page 44 of its proposal under the section describing the health services which will be provided, Youthtrack states: Health Services are provided by the Physicians Office of Florida City who is our designated health authority and provides medical services in accordance with the 1998 Department of Juvenile Justice Health Services Manual. In the event that the youth require hospital services, Homestead Hospital is located fifteen miles from the program and has indicated in writing its intent to enter into a cooperative agreement with Youthtrack for such services. In an appendix to its proposal, Youthtrack included a letter from Physician's Office of Florida City, indicating that it was providing the medical services. In another appendix to its proposal, Youthtrack included a proposal for Claudia Hall Peterson, D.O., of Homestead, Florida, to serve as the designated health authority. Thus, when Youthtrack's proposal is read in its entirety, there is an internal conflict as to who will serve as the designated health authority. In light of this discrepancy on the face of Youthtrack's proposal, Mr. Rojas' comment was not arbitrary, capricious, or clearly erroneous. The RFP requires that the offeror provide mental health services which include psychopharmacological therapy. Youthtrack stated in its proposal that CPC would provide mental health services, and that youths placed on psychotropic medications would be under the direct medical care of the prescribing physician and that a psychiatrist from CPC would provide medication for the treatment of mental health disorders. Mr. Rojas commented that Youthtrack's proposal did not include a consulting psychiatrist for psychopharmacology. At hearing, Mr. Rojas explained his view, that it was not sufficient for Youthtrack to state that psychiatric services were to be provided by its subcontractor, CPC. Mr. Rojas was looking for the name of a specific psychiatrist that would be used by the subcontractor. Mr. Rojas also based his comment on the Department's protocol requiring one person to oversee all medication; however, this protocol was not included in the RFP. Mr. Rojas had scored Youthtrack a "2" for soundness of approach for the management approach category and had scored Ramsay a "3" for the same subfactor. Mr. Rojas made comments on his scoring sheets concerning lack of integration with Youthtrack's staff and CPC and particularly questioned the interaction with the individual therapist. Youthtrack lists two individual therapists in its programming staffing. In the narrative of its proposal, Youthtrack states that when one-on-one counseling is needed, the youth will be referred to Youthtrack's overlay counselors and other local specialized service providers. The narrative also mentions overlay case managers from CPC. The narrative further talks about individual counseling being provided by "our staff." In another section on individual counseling, the proposal indicates that some individual counseling will be done by employees of Youthtrack and some will be done by the subcontractor. The proposal is unclear if the individual therapists are employees of Youthtrack or of the subcontractor's overlay counselors. It does not indicate that the individual therapists in the staffing plan are the ones referred to in the narrative. Additionally, it is not clear from Youthtrack's program staffing chart which other staff members are employees of Youthtrack and which staff members are employees of the subcontractor. Mr. Rojas' comments were not arbitrary, capricious, or clearly erroneous. Mr. Rojas' score sheet included a note stating, "no ranking uniform issued to offenders." Mr. Rojas was concerned at the time he evaluated the proposals that the children were not being classified at the time of admission. Youthtrack's classification takes place at the orientation level which follows the admission process. Mr. Rojas was concerned about security during the admission time Mr. Rojas made a similar comment concerning Ramsay's proposal. Mr. Rojas' comment was not arbitrary, capricious, or clearly erroneous. Mr. Rojas gave Youthtrack two points out of a possible five points for community involvement under the category of past performance. As explained in his score sheet comments and at hearing, Mr. Rojas based his score at least in part on Youthtrack's failure to have executed a contract with Everglades National Park for the operation of a recycling plant, despite the fact that Youthtrack is the incumbent provider. Youthtrack claims that Mr. Rojas required more of Youthtrack because it was the incumbent provider. Youthtrack overlooks that the category, is historical implementation; thus, the evaluators looking at what Youthtrack had done in the past and how it has conducted itself on the current contract is relevant. Mr. Rojas did not penalize Youthtrack because it was the incumbent provider. Youthtrack's representative conceded at the final hearing, that there was no evidence that Mr. Rojas, or any of the other evaluators, was prejudiced against Youthtrack or in favor of Ramsay.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED That a final order be entered dismissing Youthtrack's petition. DONE AND ENTERED this 14th day of January, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 14th day of January, 2000. COPIES FURNISHED: William G. "Bill" Bankhead, Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Mary M. Piccard, Esquire Vezina, Lawrence & Piscitelli, P.A. 318 North Calhoun Street Tallahassee, Florida 32301 Joseph M. Helton, Jr., Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Gary V. Perko, Esquire Hopping, Green, Sams & Smith, P.A. 123 South Calhoun Street Tallahassee, Florida 32301
The Issue The issue in this case is whether the Department of Health and Rehabilitative Services (Respondent) wrongfully awarded a contract to provide juvenile alternative services in Polk, Hardee and Highlands Counties to Bay Area Youth Services, Inc. (Intervenor) rather than the existing Provider, Juvenile Services Program, Inc. (Petitioner). At the hearing the parties stipulated to the introduction of seven joint exhibits. Petitioner called six witnesses, aid Respondent called one witness. A transcript of the hearing was filed on September 28, 1987, and the parties were allowed ten days thereafter to file Proposed findings of fact, conclusions of law and memoranda. The Appendix to this Recommended Order contains a ruling on each timely filed Proposed finding of fact.
Findings Of Fact On or about April 24, 1987, Respondent issued a Request For Proposal (RFP) for the Juvenile Alternative Services Project (JASP) in Polk, Highlands and Hardee Counties. JASP is designed to serve delinquent children and status offenders, and is intended to reduce the incidents of their repeated contacts with the juvenile justice system through a program of meaningful sanctions and services. The program is available as a dispositional alternative by referral from Respondent's intake units, the State Attorney's Office and the Juvenile Division of the Circuit Court. Specific services to be Provided under this RFP include victim negotiation, community work programs, restitution, family counseling service and volunteer counseling services. The RFP calls for Providing services to 585 clients from July 1, 1987 through June 30, 1988. Petitioner and Intervenor each timely submitted proposals in response to the RFP. Petitioner is a social service agency with administrative offices in St. Petersburg, and Intervenor is a private service agency with offices in Tampa. Petitioner is the existing JASP provider in Polk, Hardee and Highlands Counties. The RFP designates $131,654.86 as the anticipated funding level for this program, and Petitioner's proposal identified $131,655 for the provision of the requested services to a minimum of 585 clients while Intervenor's proposal identified $126,631 to provide these services to a minimum of 636 clients. The proposals submitted by Petitioner and Intervenor were responsive to the RFP. Pursuant to the RFP, a seven-member selection team was designated to review and evaluate the responsive proposals. Representative of Respondent on the selection team included JoAnne Harvey, Kevin Roberts and Tom McFadyen; the courts were represented by Jim Vanderwalker, the State Attorney's Office by Steve Houchins, the Public Defender's Office by Jay B. Haviser, and the community by Fran Martin Shiver from the Polk County Sheriff's Office. RFP responses were opened at 4:30 p.m. on June 1, 1987, and the selection team met at 9:00 a.m. on June 3, 1987. Five of the selection team members attended the meeting and participated in the evaluation of these two proposals; Haviser and Shiver did not attend. The RFP specifies that the evaluation was to be completed on June 4, 1987, and that the selection team, upon completion of its review, would submit its "recommendation" to Respondent's contract signer for award "based upon the recommendation made by the selection team and taking into consideration which bidder's offer is most advantageous to the Department." Selection team members Houchins, Roberts and Harvey recommended that Intervenor be awarded the contract, and members Vanderwalker and McFadyen recommended Petitioner. Vanderwalker rated Petitioner one Point higher than Intervenor and McFadyen rated Petitioner three Points higher than Intervenor. Members recommending Intervenor all did so by a greater point spread than members selecting Petitioner. Intervenor received a total of 1325 Points to 1284 for Petitioner, of a total Possible Points of 1625. The selection team, through its chairperson JoAnne Harvey, submitted its report and recommendation on June 4, 1987 that the JASP contract be awarded to Intervenor, and on or about June 11, 1987 Petitioner received formal notification of Respondent's intent to award this contract to Intervenor. On the same day Petitioner filed its notice of intent to Protest, and thereafter Petitioner timely filed its request for hearing on or about June 19, 1987 alleging that the award Procedure was "deficient" and that the deficiency resulted in their not receiving the award. Specifically, it is alleged that the selection team based its recommendation upon erroneous facts and information Provided to it by Chairperson Harvey and Diane Morton, JASP contract manager with Respondent who selected the team members, coordinated, scheduled and attended the team meeting. Chairperson Harvey took notes of the selection team meeting and her report was based upon those notes. Neither a transcript or tape recording of the team meeting was required by the RFP, nor were they made. No opportunity for oral presentations by providers was allowed in the RFP, nor was any provided before the selection team. Although Chairperson Harvey had received and reviewed the proposals prior to the meeting, some of the selection team had not, and therefore time was allowed at the beginning of the meeting for each member to review the two proposals and to ask Diane Morton technical, non-substantive questions about each proposal. Based upon the testimony of McFadyen, Morton and Harvey, Morton functioned only as a facilitator or coordinator during the meeting, assisting members in finding certain items or subject matter in each proposal, and determining if the automatic disqualification items of Part A on the proposal rating sheet applied to either proposal. However, Morton made no qualitative judgments about either proposal, and responded only to members' questions. Her participation assisted, rather than impaired, the fairness and integrity of the process. Following the time allotted for review and asking technical questions, each member completed the rating sheet individually, and thereafter the scores were announced. A discussion period was then provided during which members explained the basis for their evaluation of each Proposal. Following this discussion, members could change their rating based upon new information and the comments of other members, but in this instance no member changed his rating. The final ratings and recommendations were then announced. There is no evidence that the selection team acted arbitrarily or capriciously, or in a manner which was inconsistent with the RFP or rules of Respondent. The sole basis for team member ratings of each Proposal was their own evaluation of each Proposal; there is no evidence of "erroneous" facts or information being supplied to the team by Harvey or Morton. No member of the team asked for additional time to review or rate the Proposals during the meeting on June 3, although the evaluation did not have to be completed until the next day, June 4. At hearing, Petitioner sought to establish that Intervenor did not include a required Civil Rights Statement. The RFP lists a series of appendices which "must" be attached to each Proposal. Appendix 9(g) references a "Civil Rights Statement (Attachment IV of the RFP)." However, Attachment IV to the RFP is a "Civil Rights Certificate" not a "Civil Rights Statement." Attachment X of the RFP is a Civil Rights Compliance Checklist, and Intervenor included Attachment X, rather than the required Attachment IV with its RFP. However, question 6 of the Checklist asks whether "an Assurance of Compliance (is already) on file with HRS?" Intervenor answered this question on the Checklist in the affirmative. The required Attachment IV, Civil Rights Certificate, is the Assurance of Compliance referred to in question 6. Therefore, the unrebutted record in this case establishes that Intervenor already had on file with Respondent the required Attachment IV, and Respondent reasonably accepted this previous filing, along with the additional civil rights information provided on the Checklist as compliance with the RFP Appendix 9(g) requirement. It is also apparent from Section VI, A, 3. of the RFP that the failure to include Appendix IV will "not be fatal to the consideration of the proposal and that only five points are to be given for this Attachment. The three committee members who recommended Intervenor each gave Intervenor the five points on this item; however, even if this five points is deducted from Intervenor's score, Houchins, Roberts and Harvey still would have rated Intervenor higher than Petitioner, and Intervenor's overall point total would still have exceeded Petitioner's. Petitioner produced the testimony of Peter Schatzel, Certified Public Accountant, to establish that Intervenor is not financially able to sustain and carry out the JASP proposal. However, Schatzel had not reviewed any audited or unaudited financial statements for Intervenor covering the period after June 30, 1986, and thus had no knowledge of Intervenor's current financial condition. Chairperson Harvey testified that a successful bidder can receive an advance of amounts due under a contract to support start-up costs. It was therefore not established, by competent substantial evidence, that Intervenor would not be financially able to carry out its obligations under this contract.
Recommendation Based upon the foregoing, it is recommended that Respondent enter a Final Order dismissing the bid protest filed by Petitioner. DONE AND ENTERED this 14th day of October, 1987, at Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of October, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-2800BID Petitioner filed Closing Argument on October 7, 1987 which has been considered in the preparation of this Recommended Order. However, no specific ruling thereon can be made since this is not a proposed finding of fact as provided in Rule 22I- 6.031, F.A.C. COPIES FURNISHED: Dominic Amadio, Esquire 100 34th Street North Suite 305 St. Petersburg, Florida 33713 Frederick P. Wilk, Esquire 4000 West Buffalo Avenue Room 520 Tampa, Florida 33614 William F. Bowman 2410 East Busch Boulevard Suite 303 Tampa, Florida 33612 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether Respondent committed an unlawful employment action by discriminating against Petitioner based on his race, contrary to Section 760.10, Florida Statutes (2005).
Findings Of Fact Respondent is an employer as defined in Section 760.027, Florida Statutes (2005). Prior to July 1, 2005, Respondent operated the following rehabilitation programs: (a) Tallahassee-Leon County Human Services (TLC) serving outpatient adults in downtown Tallahassee, Florida; (b) a residential program for women and their children known as Sisters in Sobriety (SIS), which is located on Respondent's campus in Woodville, Florida; (c) a foster care program for teenage girls that Respondent houses in the St. Mark's Cottage, which is located on Respondent's campus in Woodville, Florida; (d) a foster care program for teenage boys that Respondent houses in the St. Mark's Lodge, which is located on Respondent's campus in Woodville, Florida; and (e) residential rehabilitation programs, which were located on Respondent's campus in Greenville, Florida. Sometime in July 2005, Respondent sold its Greenville Campus to another corporation. Petitioner is an African-American male. At all times relevant here, Petitioner worked full-time as the Director of Operations at Respondent's Woodville Campus. On August 19, 2002, Petitioner acknowledged receipt of Respondent's Equal Employment Opportunity/Anti-harassment Policy Statement, which states as follows in relevant part: Any employee who believes that she/her has been harassed or discriminated against in violation of this policy should report the problem immediately to the Director of Human Resources. Respondent's Human Resources Policies and Procedures manual states as follows in relevant part: Statement of Affirmative Action It is the policy of DISC Village, Inc., to provide equal opportunity for employment, training, promotion, compensation and all conditions of employment for individuals without regard to race, color, religion, sex, national origin, age except as provided by law, prior history of emotional, mental, drug or alcohol disability or physical disability. DISC Village will maintain a specific program to maintain and promote non-discrimination in accordance with the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 1973, and the Americans with Disabilities Act of 1990. Any perceived act of discrimination should be reported to the site director and the Human Resources Director . . . immediately. Anti-Harassment Policy DISC Village, Inc. is committed to maintaining a work environment that is free of unlawful harassment and will not tolerate any form of harassment or unlawful discrimination against our employees by anyone. Employees must report any form of harassment, especially sexual, to their direct supervisor and the Human Resources Director . . . as soon as possible. Upon hire, all new employees will receive a copy of the agency Anti-Harassment Policy & Procedure with signoff. At all times relevant here, Qua' Keita Anderson, an African-American female, was a counselor at Respondent's Woodville Campus. Ms. Qua' Keita Anderson worked in the SIS program. Ms. Qua' Keita Anderson's direct supervisor was Joni Morris-Anderson, Respondent's Director of Women's Residential Services on the Woodville Campus. At all times relevant here, Lisa Bergeron worked for Respondent as Program Supervisor of DISC Adolescent Treatment Center on the Woodville Campus. Prior to July 1, 2005, Harry Rohr, a white male, was the Director of Residential Services at Respondent's Greenville Campus and Woodville Campus. Mr. Rohr was Petitioner's direct supervisor, even though Mr. Rohr spent most of his time at the Greenville Campus prior to July 2005. Petitioner was in charge of the Woodville Campus when Mr. Rohr was not available. After July 1, 2005, Mr. Rohr spent most of his time at Respondent's Woodville Campus. Mr. Rohr made this change because Respondent no longer operated programs on the Greenville Campus. The sale of the Greenville Campus did not cause a change in title or job responsibilities for Petitioner or Mr. Rohr. At all times relevant here, Tom Olk, a white male, was Respondent's Chief Executive Officer. Mr. Olk's office is located in Respondent's administrative facility in Tallahassee, Florida. However, Mr. Olk frequently makes on-site visits to Respondent's Woodville Campus. At all times material here, Lou Logan was Respondent's Deputy Director and head of Respondent's Human Resource Department. Mr. Logan is a white male. Mr. Logan's office is located in Respondent's administrative facility in Tallahassee, Florida. In March 2004, Respondent was in the process of opening the foster care program on the Woodville Campus. Several staff members, including Petitioner, participated in refurbishing an old home as a residence for the foster children. Respondent's staff was hanging curtains when Mr. Logan paid an impromptu visit to the old home. The curtains were printed with African animals, including monkeys. When Mr. Logan stated how nice the curtains looked, a staff member made some comment about the monkeys in the curtains. Another staff member commented about Petitioner having a big role in the decorating project. Mr. Logan then stated, "Oh, Lester is always monkeying around." Mr. Logan made the statement in the spirit of the moment to show how happy he was that the staff was doing such a good job. Petitioner complained to Mr. Olk that Mr. Logan had called him a monkey. Mr. Olk discussed the incident with Mr. Logan and Petitioner, concluding that Mr. Logan had not called Petitioner a monkey. Mr. Olk properly determined that Mr. Logan never intended to make a racially derogatory comment about Petitioner and that Petitioner had taken Mr. Logan's statement out of context. In early June 2005, Petitioner called Ms. Qua' Keita Anderson at home on her day off to discuss some performance issues she was having at work. The conversation took an inappropriate turn when Petitioner asked Ms. Qua' Keita Anderson if she had a "sexual stress reliever." On August 3, 2005, Petitioner picked up a female teenage resident of St. Mark's Cottage from Respondent's offices in Tallahassee, Florida. Petitioner transported the female youth, alone and unsupervised, in his personal vehicle to look for a job. In so doing, Petitioner violated Respondent's policy relative to the transportation of residents and/or patients of the opposite gender. On August 3, 2005, Harry Rohr and Lisa Bergeron observed the same young female client leaning over Petitioner's shoulder at his computer desk in very close proximity to Petitioner's body. Petitioner did not maintain appropriate physical boundaries with the young girl. On August 3, 2005, Mr. Rohr spoke to Petitioner about his violation of the transportation rules and his failure to maintain appropriate physical boundaries with the female client. Mr. Rohr then wrote a memorandum to memorialize the conversation. In the memorandum, Mr. Rohr advised Petitioner to refrain from being alone with any of the teenagers and to concentrate his efforts on the boys of St. Mark's Lodge. Shortly thereafter, Respondent approved Ms. Qua' Keita Anderson's request for a transfer from the Woodville Campus to the TLC Campus. Ms. Qua' Keita Anderson wanted to work in downtown Tallahassee, Florida, because she was beginning graduate school and needed a smaller, less stressful caseload. On one occasion, Petitioner and Ms. Qua' Keita Anderson had lunch together at a picnic table on the Woodville Campus. On another occasion, Petitioner ordered take-out meals for Ms. Qua' Keita Anderson and himself. Ms. Qua' Keita Anderson paid Petitioner for her meal when she picked it up in Petitioner's office. There is no persuasive evidence that Petitioner ever paid for Ms. Qua' Keita Anderson's lunch, on or off the Woodville Campus. Upon realizing that Ms. Qua' Keita Anderson's last day at the Woodville Campus was approaching, Petitioner telephoned her at home. During the conversation, Petitioner told Ms. Qua' Keita Anderson that she "owed him something" before she transferred. Ms. Qua' Keita Anderson replied that she did not owe Petitioner anything. Petitioner then asked Ms. Qua' Keita Anderson to have lunch with him before her last day at work on the Woodville Campus. Ms. Qua' Keita Anderson did not agree to have lunch with Petitioner. Petitioner telephoned Ms. Qua' Keita Anderson one additional time at work. During the call, Petitioner again asked when Ms. Qua' Keita Anderson was going to have lunch with him. Ms. Qua' Keita Anderson advised Petitioner that she was uncomfortable having a personal lunch outside of the office. Once again she refused Petitioner's invitation. On August 8, 2005, Ms. Qua' Keita Anderson complained to her supervisor, Ms. Joni Morris-Anderson. Ms. Qua' Keita Anderson and Ms. Joni Morris-Anderson are unrelated. Ms. Qua' Keita Anderson complained about Petitioner's inappropriate sexual remark, his telephone calls to her home, his insinuation that she "owed him something" before she transferred, and his insistence that she have lunch with him. Ms. Qua' Keita Anderson repeated her complaint in the presence of Ms. Bergeron, who advised Ms Morris-Anderson to report the incidents to Mr. Rohr. Ms. Qua' Keita Anderson prepared a written statement and submitted it to Mr. Rohr. The statement reflected her "concern" about Petitioner's behavior, which made her feel uncomfortable and harassed. On August 8, 2005, Mr. Olk visited the Woodville Campus. During that visit, Mr. Olk and Mr. Rohr met with Petitioner to discuss Ms. Qua' Keita Anderson's sexual harassment complaint. The meeting also included a discussion involving Petitioner's unsupervised transportation of a female resident and his failure to maintain appropriate physical boundaries with the same female resident. Mr. Olk explained to Petitioner that Ms. Qua' Keita Anderson's complaint raised serious issues, which required an investigation. Mr. Olk advised Petitioner that if he did not participate in the investigation, he could resign or be terminated. In regard to Ms. Qua' Keita Anderson's allegations, Petitioner stated that "it didn't happen that way." He did not make any other statement except to say that “he needed time to think." Mr. Olk had another scheduled meeting on the Woodville Campus. Mr. Olk asked Petitioner to read Ms. Qua' Keita Anderson's complaint and to discuss it with Mr. Olk upon his return from the other meeting. Petitioner then asked Mr. Rohr if he could have the rest of the day off. Mr. Rohr denied this request because Mr. Olk wanted to continue his discussion with Petitioner and because Mr. Rohr wanted Petitioner to begin the cross-training of Jonetta Chukes. Ms. Chukes is a white female. Prior to July 1, 2005, Ms. Chukes worked in Respondent's office in Tallahassee, Florida, as a Medicaid specialist. Until the Greenville Campus was sold, Ms. Chukes also provided some paperwork services for the programs on the Greenville Campus. Sometime in July 2005, Respondent decided to let Ms. Chukes work part-time in the administrative office in Tallahassee, Florida, and part-time too as a secretary on the Woodville Campus. Additionally, Respondent wanted Ms. Chukes to cross-train in the following areas: (a) the client intake process, formerly exclusively performed by Petitioner; (b) the billing process, formerly exclusively performed by another secretary on the Woodville Campus; and (c) the workforce application process. Cross-training is important to Respondent to ensure that its programs function smoothly when any particular person is not at work. Ms. Chukes did not immediately begin working part-time on the Woodville Campus after Respondent made the decision about her new responsibilities. Ms. Chukes happened to begin that transition on August 8, 2005. When Mr. Olk and Mr. Rohr returned from the other meeting, they intended to finish their conversation with Petitioner. However, they could not locate Petitioner. They soon learned that Petitioner had turned in his keys and employer-provided cell phone, submitted a written letter of resignation, and left the campus. Petitioner never informed anyone that he believed Mr. Rohr was discriminating against him. Mr. Olk was very disappointed that Petitioner did not stay on the premises to complete their discussion. Mr. Olk believed Petitioner was a valuable employee with potential for career advancement. Mr. Olk encouraged Petitioner to pursue his undergraduate degree, which is a requirement for upper management. Respondent reimbursed Petitioner for his tuition at Tallahassee Community College. Respondent does not normally pay for its employees to attend college. In this respect, Petitioner was treated more favorably than his Caucasian counterparts.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this July day of 20th, 2006, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD 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 20th day of July, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Lester Levon Hall 3871 Gaffney Loop Tallahassee, Florida 32305 Amy Reisinger Harrison, Esquire Lindsay A. Connor, Esquire Ford and Harrison LLP 225 Water Street, Suite 710 Jacksonville, Florida 32202
The Issue The issue is whether Nicholas Penn should be administratively assigned to the J. R. E. Lee Opportunity School Program in lieu of expulsion for misconduct at the W. R. Thomas Jr. High School.
Findings Of Fact During the 1987-88 school year Nicholas Penn was an eighth grade student at W. R. Thomas Jr. High School in Dade County, Florida. At the beginning of each year students receive a locally prepared handbook which informs the students of the code of student conduct for the Dade County Public Schools. During social studies classes early in the year the code of student conduct is reviewed. Nicholas Penn cut class on September 8, 1987. He was picked up by the police. When he was picked up he had a knife with him. Charges resulting from possession of that knife were dropped. As a result of truancy, he was seen by the Assistant Principal, Donal Helip, who referred Nicholas to the guidance counselor, Betty Thomas. When Betty Thomas saw Nicholas, he told Thomas that he did not enjoy school, did not have many friends, and felt frustrated at home. After a discussion with his mother, Ms. Alcantara, it was agreed that Nicholas would be put on work assignment around the school. Nicholas was also processed for a psychological referral on or about September 20, 1987, because he did not seem to be performing at his academic potential. On October 22, 1987, Nicholas was involved in a fight at school as a result of which he received a bloody nose and a head injury. As a result of the fight, Nicholas was put on a 2-day suspension. He did not attend school on Friday, October 23, or Monday, October 26. Mr. Helip spoke with him on Tuesday, October 27, when he returned to school. Nicholas told Mr. Helip the incident was closed and there would be no more problems about the fight. The other boy involved told Mr. Helip the same thing. On October 28, a student commented to Mr. Helip that Nicholas had a knife. Mr. Helip had the school security monitor bring Nicholas to his office, where Mr. Helip asked Nicholas to unload his backpack. At the bottom of the backpack was a wooden handled knife with a seven inch blade encased in a homemade, black sheath. Ms. Alcantara was called to the school where she identified the knife as one of the type which she had at home, which were part of a knife set purchased at J. C. Penny's. Nicholas was suspended for 10 days with a recommendation of expulsion. A request for waiver of expulsion and reduction of the penalty to suspension was made because the knife had not been used to threaten anyone else. At the time that Nicholas was withdrawn from W. R. Thomas Jr. High School he had a D in math, an F in shop and in physical education and incomplete grades for his other classes. The explanation offered by Nicholas for having the knife in his bag was that he had not brought it to school. During computer class his backpack was on a table and the students involved in the October 22, fight came up to him and said, "Nick, you got a weapon on you?," and when the class ended he picked up his bag and was going to the next class when the school security monitor asked him to go with him to Mr. Helip's office, who wanted to search his things. They went through his locker and in the backpack found the knife. Nicholas originally said that it was not his, but his mother told Mr. Helip that it was a knife like others she had at home. Of course, her knives did not have a black, homemade sheath like the one found on the knife in the backpack. When she returned home she determined that her knife set was complete. Mrs. Alcantara then informed school officials that she had been mistaken when she identified the knife as one of hers. There was nothing about Nicholas' expression at the time his backpack was searched which gave any indication that he was surprised about the knife found in his bag; in Mr. Helip's view, if the knife had been planted, it should have been closer to the top of the bag. Nicholas maintains that when he arrived home he found a rip in the corner of the backpack which would have allowed someone to plant the knife in the bag. The backpack was never produced at the hearing. The Hearing Officer finds it more probable than not, given all the circumstances, that the knife was not planted and Nicholas brought the knife to school.
Recommendation It is recommended that the assignment of Nicholas Penn at the J. R. E. Lee Opportunity School be maintained. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 28th day of June, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 1988. COPIES FURNISHED: Ms. Rosa Alcantara Frank R. Harder, Esquire 13173 Southwest 11th Lane Circle Suite 2A-3 Miami, Florida 33184 175 Fontaineblau Boulevard Miami, Florida 33172 Madelyn P. Schere, Esquire Dr. Joseph A. Fernandez Assistant Board Attorney Superintendent of Schools 1450 Northeast 2nd Avenue Dade County Public Schools Suite 301 School Board Administration Miami, Florida 33132 Building 1450 Northeast Second Avenue Miami, Florida 33132 The Honorable Betty Castor Sydney H. McKenzie, Esquire Commission of Education General Counsel The Capitol Department of Education Tallahassee, Florida 32399 Knott Building Tallahassee, Florida 32399
The Issue In June 1989, Leon F. Stewart Treatment Center, Inc. ("Stewart"), advertised to the community that it had a job available as a counselor, for which Anthony R. Starnes ("Starnes") applied. Stewart declined to hire Starnes, who is wheelchair bound. Starnes filed a complaint alleging unlawful employment discrimination with the Florida Commission on Human Relations ("Commission"). On July 25, 1991, the Commission determined that there was no reasonable cause to believe than an unlawful employment practice occurred. Starnes has appealed the determination by the Commission of "no cause" to the Division of Administrative Hearings. The Respondent filed a proposed finding which was read, considered and adopted except for paragraphs 7 and 8. The Petition did not file proposed findings.
Findings Of Fact In June 1989, Stewart advertised an opening for an adolescent chemical dependency counselor ("counselor"). The counselor job description required the individual to work with adolescents, who were chemically dependent, with activities involving extensive physical interaction with the adolescents such as camping trips, weight lifting, playing various sports, and other outdoor activities. The counselor position was an entrance level position paying approximately $14,000.00 annually to individuals with either an associates degree or bachelors degree in mental health or human services. Anthony R. Starnes applied for the position as a counselor with Respondent. Starnes has an advance degree in Pastoral Counseling and experience as a counselor. He is wheelchair bound and disabled physically. John Mullins ("Mullins"), a supervisor with Stewart, was the individual in charge of hiring the counselor. As a matter of practice, Mullins utilized form letters to advise job applicants that they were not being hired; a certain form letter going to individuals who were not interviewed and a different form letter going to individuals who were interviewed, but not hired. Because of the nature of the work, Mullins required female counselors to work with female adolescents and male counselors to work with male adolescents. The counselors worked in shifts and remained with the patients overnight. Although the advertisement did not so state, the counselor to be hired was to work with female adolescents. Mullins never met and never saw Starnes prior to rejecting Starnes' application. Mullins never knew and was not advised Starnes was orthopedically handicapped or wheelchair bound prior to declining Starnes. Mullins testified that he did not hire Starnes because he felt he was over qualified and did not have inpatient counseling experience. This testimony lacks credibility; however, the policy restricting counselors to the same gender as the adolescents being counseled is reasonable. This was the actual basis upon which Mullins made his decision. Starnes' physical handicap was not a factor in Mullins' decision not to hire Starnes.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations issue a final order denying Starnes' application seeking a determination of unlawful employment practice. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 23rd day of January 1992. COPIES FURNISHED: Anthony R. Starnes 7610 Hellman Corona, California 91720 Charles D. Hood, Jr., Esquire Monaco, Smith, Hood, Perkins, Loucks & Stout Suite 900 444 Seabreeze Boulevard Daytona Beach, Florida 32118 STEPHEN F. DEAN 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 23rd day of January 1992. Margaret Jones Agency Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570 Dana Baird, Esquire General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
