The Issue The issues to be resolved in this proceeding concern whether the Petitioner was discriminated against because of her race (African-American) in not being selected for promotions and whether she was not selected because of her handicap (back injury).
Findings Of Fact The Petitioner is a black female. At times pertinent hereto, she was employed by the State of Florida, Department of Health and Rehabilitative Services (now known as Department of Children and Family Services), at Florida State Hospital in Chattahoochee, Florida. She has a disability or handicap involving a back injury. She was first employed by the Respondent in July 1976, as a Registered Nurse II and initially supervised two or three wards. The Petitioner also worked for Apalachee Community Mental Health Service in Quincy as a Team Leader during 1977-1978. She was a part-time relief nursing supervisor at Tallahassee Memorial Hospital between 1978 and 1979. She became a Registered Nurse III in March 1978 at Florida State Hospital (FSH) and became a full-time nurse there in 1979. She supervised an entire unit after that time and worked in several different units of the Forensic/Corrections Department as a Senior Registered Nurse beginning in November 1982 and lasting until March 1987. Between March and December 1987, she served as a Senior Registered Nurse Supervisor until her current assignment. She has been employed since December 1987 as a Registered Nurse Specialist Coordinator and remained in that position until her resignation due to disability retirement on January 25, 1994. She has a good employment record, earning consistent above satisfactory or "exceeds" performance standards ratings during her career. The Petitioner earned her Bachelor of Science Degree in Nursing (BSN) from Florida A & M University in 1976. She has since earned 21 hours toward a Masters Degree and took continuing nursing education courses at a time when the continuing education course work was not yet required. She is licensed by the State of Florida as a Registered Nurse. Petitioner's Disability On August 25, 1992, the Petitioner suffered a job- related injury to her back. The Petitioner was absent from work for some months, apparently receiving worker's compensation during this time. On January 27, 1993, she was cleared to return to light duty work at the hospital by her treating physician. The Respondent provided her with an appropriate light duty job assignment at which she remained through the balance of her employment with FSH. On June 18, 1993, the Petitioner was determined to have reached maximum medical improvement by her treating physician. She was thereupon discharged from further medical care by Capital Health Plan. On July 26, 1993, she filed an application for 100 percent "line of duty" retirement from the Florida State Retirement System. The State Office of Worker's Compensation thereafter approved her application for "permanent total disability" worker's compensation benefits, effective June 16, 1993, resulting from the injuries suffered on August 25, 1992. The Petitioner was absent from employment from June 4, 1993 through January 27, 1994, inclusive, claiming 34 weeks of worker's compensation benefits for this time. Ultimately, and as part of her effort to obtain disability retirement, the Petitioner resigned from her employment with the Respondent on January 25, 1994. At the time of the Petitioner's resignation, the Department had an action pending to involuntarily terminate her from employment allegedly because of her inability to discharge her assigned job duties and responsibilities. Vacant Positions During the fall of 1992, a vacancy occurred in the position of Registered Nurse Supervisor, Forensic/Corrections at Florida State Hospital. This was in the facility known as the Corrections Mental Health Institute (CMHI). A career service system position description existed for this job which was developed by the State of Florida, Department of Administration. That position description required, among other things, that the incumbent hold a license as a registered nurse (RN) with the appropriate experience, education, licensure and nursing abilities. The position called for a minimum of 75 percent of the time expended in the job being involved with direct patient contact with forensic patients. The FSH advertised this position as position number 46392 in the HRS Job Bulletin. The application deadline was January 21, 1993. The minimum requirements for the job were licensure as an RN with three years of nursing experience. A bachelor's degree from an accredited college or university could substitute for one of the three years experience required. A bachelor's degree in nursing was not required for the job, however. For this and the other positions a "knowledge, skills and ability" instrument (KSA) was prepared, as required by applicable law, to provide for numbered items consisting of the knowledge, skills or competencies a person hired for each position would be expected to have. Position number 46392 included a KSA requirement of budget experience as being essential, since the position required the development, allocation and administration of that unit's nursing service budget. The job advertisement involving this position complied with existing HRS and FSH rules, policies and procedures. There was no evidence offered to show that it discriminated against any person as to race, national origin, or handicap and no person or class or persons was encouraged or discouraged from applying for the position. Neither employment with the Department nor FSH were prerequisites to application or acceptance of the position. Twenty-six applications were received for this position. The procedure for hiring a person in the state system and the FSH involves various tasks. First, the hiring authority must request the personnel office to fill the position. The hiring authority, from a class specification developed by the Department of Management Services (DMS), creates this specific position description which includes the specific duties of the position and the minimum qualifications established at DMS. The class specification contains generic KSAs and from the class specification and position description the hiring authority develops a KSA examination module. This module is created in three steps: (1) job analysis, where the position description is compared to the KSAs for choosing which KSAs will be searched- for when hiring the position; (2) development of a rating scale where the applicant's KSAs are compared against those developed for the position, to determine the applicant's relative qualifications; and (3) the development of KSA interview questions. According to the pertinent rule, KSAs must not reflect "easily learned" material or skills which can be rapidly learned on the job. The KSAs must also be job related. The scoring on the KSA application rankings form and on the interview questions, was 50 for a "superior level," 33 for "satisfactory level," and 17 for "acceptable level." The interview questions are the only ones which can be asked of applicants during the interview. The KSA examination module is transmitted to the personnel office, prior to the job being advertised. After the job announcement is disclosed, the applications are screened against the minimum qualifications for the position by the personnel office and those that are qualified are submitted to the hiring authority for screening against the developed KSAs for the position. This step is a paper review of the applications which is documented on the application review form filled out on each applicant. The application rankings are normally used to reduce the applicant pool to a smaller number, usually about five, who are then interviewed. The interview questions developed previously are asked of each interviewee, and their answers are rated against the 50-33-17 scale for their scores from each interviewer. The interview scores are aggregated, and the applicant with the highest interview score is selected for the job. A selection form is completed then which lists the top applicant, in the order of their scores, after the interview process. Each application for position 46392 was screened using the KSA instrument prepared in advanced, as required by applicable law, to determine which of the applicants was qualified for the job. The KSA criteria and the interview questions utilized were reviewed by the personnel office at FSH in advance of their use, to ensure compliance with HRS rules, regulations and policies, and EEOC guidelines. Points were then awarded to each of the applicants by the KSA examining committee. Applicant Z. Thompson, a white female nurse, was awarded a total of 233 points. The Petitioner, Jean Spear, was awarded a total of 165 points. Other black and white applicants ranked lower in point award amounts and some ranked higher, including black applicant Bethea, with 199 points. Based upon those scores, three applicants were selected to be interviewed for this position: Z. Thompson; D. Breeden, a white female Registered Nurse; and C. Bethea, an African-American female Registered Nurse. Applicants Thompson and Breeden had associate science degrees in nursing while applicant Bethea had a bachelor of science degree. The bachelor of science degree is a higher degree than an associate science degree and can offset a year of the experience requirement for this and the other positions. However, the bachelor of science degree does not automatically mean that the holder thereof has a higher level of qualification for the position when all the applicants' qualification attributes are weighed against the position requirements and considered together. The Petitioner was not selected for an interview for this position because she finished ninth in the overall KSA rankings for the position. The interview committee for this position consisted of three FSH employees: Joel Devolentine, the administrator in charge of the program; Alva Martin, the chief nursing consultant at FSH; and Harry Moody, Jr., an administrator at the Department of Corrections, Corrections Mental Health Institution (CMHI). Interviewers Devolentine and Martin are white and Mr. Moody is black. The interview were conducted on February 11, 1993. During the interview process, Mr. Devolentine asked the candidates questions which were prepared in advance. Each interviewed person was asked the same questions, in the same sequence. Each member of the interviewing committee scored the responses on forms provided using the scoring system designated and implemented for that purpose. Each member of the committee scored the interviewees independently and did not discuss the points awarded to those persons with the other members of the committee. Each made his or her entries on the interview form separate and apart from the other members of the interview committee, contemporaneously with the responses given by the applicants. Upon conclusion of the interviews, the score sheets were given to Mr. Devolentine by each member of the committee for tabulation. There is no evidence that points awarded were changed or modified in any way once they were awarded. The total numerical scores for each of the candidates interviewed, showed that Z. Thompson had the highest score. Black candidate C. Bethea had the next highest score, and white candidate D. Breeden had the lowest score. The preponderant evidence shows that the KSA's experience in budget issues and the KSA's requiring certification in behavior analysis were both directly related to the job in question and both KSA competencies or certifications were possessed by Z. Thompson and not by the other candidates interviewed nor by the Petitioner, who had not received enough qualification points for the position to be interviewed. Because she received the highest total number of points and met all the minimum requirements set forth in the position description in the HRS job bulletin, because she possessed more experience in budget issues and was certified in behavior analysis, Z. Thompson was selected to be awarded the job. The preponderant evidence shows that the hiring process as to this position was conducted in accordance with existing HRS and FSH rules, regulations, policies, and procedures. There was no persuasive evidence that any of the hiring and selection process was designed or used to favor one class of persons or one person over another by reason of race, ethnicity or handicap. Although there was testimony concerning comments made by various supervisory personnel at FSH to the effect that Z. Thompson should apply for this position or that it was intended in advance that she get this position, there was no persuasive evidence of such pre-selection of Z. Thompson by the hiring decision-maker. It is somewhat noteworthy that white interview committee member Alva Martin gave black candidate Bethea 380 points and white candidate Breeden 347 points, while black interview committee member Moody gave black candidate Bethea 448 points, and white and winning candidate Thompson 465 points. Committee member Devolentine gave winning candidate Thompson 516 points; next highest candidate D. Breedan, a white female, 482 points; and black candidate Bethea 448 points, the same number of points that black committee member Moody had given candidate Bethea. There is no definitive, persuasive evidence that race was a determining factor in the award of the job to candidate Thompson. There was no persuasive evidence as to this position that handicap was a factor in determining that the Petitioner did not get selected for an interview for the position nor selected for the position. Position number 34563 involved a vacancy occurring during 1992. The application deadline for the position was October 22, 1992. The minimum requirements for the job were licensure as a Registered Nurse and four years of nursing experience with one year of that experience requirement offset if a candidate had a bachelor's degree from an accredited college or university. The position description indicates that approximately 75% of the time expended in the job required direct patient conduct with forensic clients. This is the position known as Executive Nursing Director, Forensic/Corrections at Florida State Hospital. The position was advertised in the HRS Job Bulletin. The advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures, and no person, or class of persons, was either encouraged to apply or discouraged from applying as to race, handicap or other status. Thirteen applications were received, and the screening and interview process described above was employed once again in accordance with HRS rules, regulations, and policies and EEOC guidelines. The screening used the KSA instrument prepared in advance for the position, as required by applicable law to determine which applicants were qualified for the job. That resulted in points being awarded and twelve out of the thirteen applicants being interviewed for the position. The interview committee consisted of four FSH employees: Robert Alcorn, the administrator in charge of the program; Alva Martin, chief nursing consultant at FSH; Richard Taylor, a unit director in the Forensic Services at FSH; and R. W. Myers, an administrator in the Forensic Services. Alcorn and Myers are white males. Ms. Martin is a white female and Mr. Taylor is an African-American male. The interviews were conducted on November 23, 1992, with interviewer Robert Alcorn asking all questions of all candidates. The questions were prepared in advance and the interview process included the private and independent deliberation and evaluation by each committee member, conducted as described above. There is no evidence that any points awarded were changed or modified in any way once they were assigned by each committee member. Upon conclusion of the interview process, Mr. Alcorn recommended the following persons for the position of Executive Nursing Director, Forensic/Corrections, as being most qualified for the job, by order of preference: (1) G. Cook with 82.1 points; (2) Z. Thompson with 80.6 points; (3) B. Weems with 74.6 points; (4) L. McMullian with 64.1 points; and (5) J. Spear, the Petitioner, with 61.0 points. Candidate Gwen Cook met all of the requirements of the position description in the HRS Job Bulletin and had more experience in forensic and emergency nursing than did the Petitioner. She received the highest total points and was offered and accepted the job. The KSA at issue as to this position required hospital emergency room experience, including certification in advanced cardiac life support. The position was executive nursing director in a medical-surgical psychiatric ward. Therefore, it was relevant to require, in a KSA for the position, that applicants have extensive knowledge of emergency medical procedures including management of airway obstructions, intubation defibrillator operation, etc., as well as the certification for advanced cardiac life support. It was a legitimate KSA requirement to specify hospital emergency room type experience, which Gwen Cook had in better degree than the Petitioner. The Petitioner did have psychiatric emergency care experience which was relevant, but the higher level of emergency and advanced cardiac life support experience possessed by Gwen Cook coupled with her additional forensic experience justified her selection for the position. The Petitioner was certainly qualified for the position, but Ms. Cook was more qualified, and there is no showing that the point rankings referenced above were improperly arrived at in violation of any rules, policies or statutes. There was no persuasive evidence that they were arrived at to the Petitioner's detriment for reasons of racial preference, ethnicity, or improper discriminatory consideration of the Petitioner's handicap. It was not persuasively demonstrated by the evidence that the advanced cardiac life support certification was a certificate that could be earned in a very short period of time, and thus it was not shown that it was an invalid KSA criterion. In 1992, a vacancy occurred in position number 04877. The FSH advertised this position in the HRS Job Bulletin. It was the position of Registered Nursing Consultant. The position application deadline was July 1, 1992. The position description for this position, which had been developed by the Department of Administration, required that the incumbent have appropriate knowledge, experience, education, and abilities in nursing principles, especially in the area of infection control. The description called for approximately 75 percent of the time expended by the holder of this position to be in direct patient contact with forensic clients. The minimum requirements for the job were licensure as a registered nurse with four years of nursing experience. A bachelors degree from an accredited college or university could substitute for one of the four years of experience required. Specific experience in infection control and epidemeology was essential. The job advertisement complied in all respects with existing HRS and FSH rules, policies, and procedures. Employment with the Department or with the Florida State Hospital was not a prerequisite to attainment of the position. Fourteen applications were received and each application was screened using the KSA instrument prepared in advance for that purpose, as required by law. This was used to determine which of the applicants were qualified for the job. Both the KSA criteria and the interview questions used were prepared and reviewed in advance of their use to ensure compliance with relevant law, in the manner delineated more particularly above. Points were awarded to the persons who applied for the job by the KSA examining committee in such a manner that the Petitioner received 232 points, with only applicant, Nora Howell, who received 300 points, being ranked higher. The Petitioner, was tied for second place in point awards with black applicant C. Bethea and applicant S. Harris. The remainder of the fourteen applicants all scored lower. Based upon those scores determined by the KSA examining committee, the six highest ranking applicants were selected to be interviewed for the position, including the Petitioner. The interview committee consisted of two FSH nursing professional employees: Kathy Wheeler, the administrator in charge of the program and Sue Calloway, a practicing registered nurse at FSH. The interviews were conducted on July 9, 1992. During the interview process, committee member Kathy Wheeler asked the candidates questions, which had been prepared in advance. Each person interviewed was asked the same questions by the designated interviewer, Ms. Wheeler. They were asked in the same sequence. Each member of the interviewing committee scored his or her responses to the questions on forms that had been provided using the scoring system designated and implemented for that purpose. There is no evidence that any member of the committee discussed the points he or she awarded to the interviewees with other members of the committee and no evidence that the entries on the interview forms were made other than separate and independently from each other member of the committee. There is no evidence that points awarded were changed or modified in any way once they were awarded. Upon conclusion of the interviews, all the scoring sheets were given to Ms. Wheeler for tabulation. The total numerical scoring for each of the applicants interviewed was: Nora Howell, 128.4 points; Jean Spear, 119.9 points; C. Bethea, 111.4 points; V. Ramsey, 122.9 points; J. Collins, 118.8 points; and S. Harris, 111.4 points. One of the KSAs applicable to this position called for the person to be hired to have significant expertise in the area of infection control and epidemiology for this nurse consultant position. While the Petitioner remonstrates that this is not a legitimate KSA requirement because it is not directed related to the job and is an area easily learned on the job, the preponderant evidence reveals that indeed, it is directly relevant to this position and it is of significant importance. It is not a field or area of expertise which can be rapidly learned after hiring. Thus, the preponderant evidence shows that this KSA item or criterion is a legitimate one. The preponderant evidence shows also that successful applicant Nora Howell possessed this expertise to a greater extent than did the Petitioner. Thus, although the Petitioner was well qualified for the job in most respects, the qualifications of Nora Howell in this area exceeded those of the Petitioners according to the preponderant, credible evidence. This justified her being awarded a higher level of points in the screening and interviewing process than the Petitioner. Since she met or exceeded all the other position criteria which had been duly and legally adopted, it was justifiable for her to be offered and to accept the position instead of the Petitioner on these qualification-related bases. The application, screening, and interview process and ranking and scoring of points followed the procedure delineated by statute and rules and described in more detail above. There is no credible evidence that the hiring decision as to this position was made for any reason motivated by racial discriminatory intent or discrimination because of any handicap of any applicant. There is no clear evidence that "pre- selection" occurred as the Petitioner contends, but even if Nora Howell had informally been pre-selected for this position, there is no credible evidence that it had anything to do with racial or handicap discrimination against the Petitioner. During the fall of 1992, Florida State Hospital advertised the position of Senior Registered Nurse Supervisor for the Forensic/Corrections Department, position number 09671, in the HRS Job Bulletin. The position application deadline was January 21, 1993. The minimum requirements for the job were licensure as a registered professional nurse and three years of nursing experience. Here again, a Bachelor's Degree from an accredited college or university could substitute for one of the three years experience required. Experience dealing with forensically-committed patients was essential. The evidence shows that the job advertisement complied in all respects with existing HRS and FSH rules, polices, and procedures. The advertisement did not discriminate against any person or group or class of persons on the basis of race, handicaps, or other reasons. No person, or class of persons, was either encouraged or discouraged from applying by the advertisement. Neither was employment with the Department nor the hospital a prerequisite. Twenty-four applications were received. Each application was screened using the KSA instrument prepared in advance for that purpose by the procedure delineated above. In the KSA screening or examining process, applicant Patricia Powell scored 266 points; William Dixon scored 250 points; and Jean Spear, the Petitioner, scored 249 points. Applicant Zilla Thompson scored 323 points, S. Peoples scored 232 points, and Betty Thames scored 233 points. These six top point winners in the KSA examining process were selected to be interviewed by the interview committee. The interview committee consisted of five employees: Steve Lacy, an administrator in charge of the program; Gwen Cook, a practicing Registered Nurse in the forensic services at FSH; Judy Wester, a direct care supervisor in forensic; Alva Martin, the chief nursing consultant at FSH; and Willie McLeroy, a forensic direct care supervisor at FSH. The interviews were conducted on February 1, 1993. During the interview process, interview committee member Alva Martin was designated to ask the candidates questions which were written, prepared, and approved in advance under the process already delineated above. Each person interviewed was asked the same questions by the same interviewer in the same sequence. Scoring was done independently by each member of the interview committee and the scores submitted to Steve Lacy of the committee for tabulation. There was no evidence that points awarded were changed or modified in any way once they were awarded by each member of the committee. Applicant Dixon was awarded 3127 points and Petitioner Spear was awarded 2276 points. That made the Petitioner rank fifth from the top point earner, Mr. Dixon. Mr. Dixon met all the minimum requirements set forth in the position description in the HRS Job Bulletin for the position. Mr. Dixon had more forensic nursing experience overall than did the Petitioner, having ten years versus the Petitioner's five years. The Petitioner offered no preponderant, persuasive evidence that the hiring decision for this job or for the other three jobs was racially motivated. The Respondent's position in response to the Petitioner's attempted prima facia showing of racial discrimination, to the effect that she is black and that the successful job applicants were all white, is that, in fact, the Respondent hired the persons it believed were most qualified for the job. In fact, the proof shows that as to three of the positions, already treated herein, the winning applicants were indeed the most qualified for the job. The proof shows that the Petitioner was most qualified for the job currently being discussed in the paragraphs next above, that is, position number 09671. Her denial of hiring for that position, however, was not shown to be due to any racially discriminatory intent given the proof culminating in the above findings concerning how the selection process operated in accordance with the rules and policies of the agency. The preponderant, persuasive evidence shows that the Petitioner was actually better qualified than Mr. Dixon, the nurse who was awarded the position. The expert testimony of Dr. Frank, corroborated by the testimony of witness Betty Thames, in particular, shows that the Petitioner was better qualified for this supervisory position number 09671 because of her more extensive educational and work-experience qualifications. She had more varied experience in the nursing profession in areas that were related to this job than Mr. Dixon had, in spite of his longer experience in the forensic department. The Petitioner was shown to have a superior ability in the area of implementing medications and psychiatric nursing treatment procedures because the Petitioner had demonstrated this ability in a broad variety of settings, with different kinds of patients, coupled with her three and three-quarter years of forensic supervisory experience. She is also superior in her skills and expertise regarding working as a contributing member of a multi-disciplinary team, functioning as a team leader and with consulting with families. She also has more experience as a liaison nursing person with jails and community health-related facilities or resources. Additionally, for position number 09671, KSA number one for that position indicated a desire for experience in a tardive dyskinesia clinic. Only Mr. Dixon had this experience of all the applicants for this position, so the Petitioner was not given credit for it in the screening and interview process. In fact, she had many of the same general skills and abilities. The specific emphasis on tardive dyskinesia experience was shown, however, through the testimony of Dr. Frank, as being unnecessary to this type of supervisory position. More importantly, in the interview for this Senior Registered Nurse Supervisor position (09671), there was a written interview question asked the Petitioner concerning her disability. That question was as follows: "6. Do you have any disabilities that would prevent you from lifting or working a 40-hour week or that would prevent you from performing this job? How many days have you missed in the past year due to illness? How many unscheduled absences did you have in the past year? Do you have any responsibilities commitments or activities that would prevent you from doubling on or changing your work days or weekends?" Witness Betty Thames for the Petitioner also stated that during the course of a telephone interview in which the interview committee chairman, Steve Lacy, questioned her, as the Petitioner's supervisor, concerning her attendance that he made a "nonprofessional remark" (in a negative vein) regarding the Petitioner's physical limitations to the effect that "It doesn't matter why she was out to me". This was related to a discussion between the two in the telephone interview concerning the Petitioner's work attendance history and her back injury. Lacy's statement was admitted into evidence as a "party admission exception" to the hearsay rule. He was clearly an agent of the Respondent and a key person in this hiring process. The Respondent was aware of the Petitioner's disability. She had injured her back on the job in August of 1992. She had been off work receiving worker's compensation benefits for the injury and, based upon her doctor's finding that she had reached maximum medical improvement, had been returned to work, apparently in early 1993, and given light duty involving work not requiring lifting more than 15 pounds, prolonged walking, stooping or bending. She reported this disability on her employment application for these positions. Her back injury clearly limited her in a "major life activity," such as lifting, walking, prolonged standing, or her level of mobility and strength in general. All of the positions for which she had applied were less strenuous than the position she had last held before going on retirement. This was testified to by the Petitioner as well as C. J. Brock, the Respondent's personnel director and Betty Thames, the Petitioner's immediate supervisor. Mr. Brock testified that her injuries would not normally be considered a negative factor for supervisory or consulting positions in nursing, which is the position at issue. In fact, after the Petitioner answered on all of her application forms "yes" to the question concerning whether she had a disabling or handicapping condition and had additionally written that her limitations involved lifting, bending, prolonged standing or walking, the personnel office still qualified her for the position at issue in this proceeding. In spite of that, the Respondent's agent in the hiring process still, at least as to position number 09671, formally asked her about her disability and handicap in the context of the above-quoted questions. The Petitioner maintains she was asked about this in each of her interviews for all four positions. Her testimony does not clearly show exactly what the nature of the questions were, if they were asked, and that self- serving testimony cannot serve as evidence of disability discrimination as to the other three positions, as it is not sufficiently preponderant credible and persuasive. The formal written questioning as to position number 09671, however, does show that the employer had a no doubt genuine, but for the reasons delineated below, illegal pre- occupation about the Petitioner's disability or handicap. There is no evidence of malicious intent in the above-quoted inquiry about the Petitioner's physical limitations or even in the statement attributed to Steve Lacy referenced above. The inquiring statement rather reflects a genuine but ill-advised concern by the Respondent about getting an employee in the subject position who might be absent from work excessively or be the source of other personnel problems due to her disability. The Petitioner has raised an issue concerning "pre- selection" by citing statements witnesses related at hearing, made by certain supervisory individuals involved to one degree or another in the hiring process for the four positions at issue. These statements purport that a certain person who ultimately got the job in question was the person the declarant involved wished to have apply for the job or a statement to the effect that the Petitioner need not apply because another person, such as, for instance, Nora Howell, was going to get the job. These statements were purportedly made before the hiring process started or was completed, and therefore were offered as evidence of illegal pre-selection, that is, illegal pre-selection in the context of the agency's rules. These statements were admitted as party admission exceptions to the hearsay rule. In terms of their credibility and persuasiveness, however, it is pointed out that they were not subject to cross- examination. Moreover, whether they are credible or not, they did not stand as probative of racial discrimination or disability discrimination because the statements could just as easily have been reflections of preferences based on friendship, which might be distasteful, ill-advised, or even illegal in another context but does not itself show racial animus or intent to discriminate based upon the Petitioner's disability. The statements might equally reflect an innocent statement or statements by these individuals which reflect their genuinely-held belief that the persons they purportedly favored were actually the best qualified for those jobs. It is thus found that these statements, as evidence of pre-selection, are largely immaterial to resolution to the issues in this case because they do not have any significant probative value in fact-finding as to the issues of racial or disability discrimination. The Petitioner was paid $1,544.68 bi-weekly through January 25, 1994, the date she retired. She was making $1,499.69 on a bi-weekly basis prior to September 30, 1993, back through the relevant period at issue. Her salary would have been increased a minimum of 10 percent if she had been hired at any of the four positions involved in this case. Because of the above findings of fact, she should have been hired in position number 09761. Thus, she should have had her pay increased by 10 percent from the hiring date for that position forward to the time when she retired. That hiring date would be shortly after the interview date for that position, of February 1, 1993, so her salary should have been increased 10 percent forward from that time with a cost of living increase of 3 percent beginning October 1, 1993, with such back pay and attendant upward adjustment in retirement benefits being awarded through her retirement date of January 25, 1994. There is no proof of compensatory pay, front pay or attorney's fees and costs in this proceeding.
Recommendation Accordingly, in consideration of the preponderant evidence of record and for the reasons delineated in the above findings of fact and conclusions of law, the Petitioner was the victim of discrimination because of her handicap as to position number 9671. Because the Petitioner is unable, due to her total and permanent disability to return to work, her remedy is back pay. She should therefore be awarded back pay represented by the salary she would have earned in position number 9671 from the hiring date of that position which occurred shortly after February 1993, the interview date. She should have her attendant retirement benefits adjusted upward by virtue of being denied that job, with an attendant cost of living increase of 3 percent which she would have earned beginning October 1, 1993, with such increased salary and benefits to be awarded terminating as of January 25, 1994, her retirement date. Jurisdiction is reserved on the issue of attorneys' fees and costs. DONE AND ENTERED this 4th day of August, 1997, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 4th day of August, 1997. COPIES FURNISHED: Lawrence F. Kranert, Esquires Florida State Hospital, Building 249 Post Office Box 1000 Chattahoochee, Florida 32324 Jack McLean, Esquire 100 Peachtree Street, Northwest, Suite 600 Atlanta, Georgia 30303-1909 Larry K. White, Esquire John W. Hedrick, Esquire 1311-B Paul Russell Road, Suite 203 Tallahassee, Florida 32301 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact Respondent, Ann Claycomb (Claycomb), was at all times material hereto a licensed practical nurse in the State of Florida, having been issued license number 39853-1. On December 24, 1987, Claycomb was employed as an agency nurse by Alpha Health Care, Inc., and was on assignment to Health South Rehabilitation, a skilled nursing and rehabilitation facility in Miami, Florida. While at the facility on that date, Claycomb worked the morning shift 7:00 a.m. to 3:30 p.m., and was assigned to the skilled nursing floor. The skilled nursing floor contained 20-25 elderly, though mostly alert patients. At the commencement of Claycomb's shift, it was her responsibility to administer medications to these patients which conformed with that prescribed by their medication administration record (MAR). Shortly after Claycomb began her rounds, Elaine Wood, the Unit Manager at Health South Rehabilitation, began to receive complaints from patients for what they perceived to be errors in the medicinal drugs administered or attempted to be administered to them by Claycomb. Upon investigation, the following medication errors were discovered. Claycomb administered what she believed to be two Tylenol tablets to patient H.B. Following administration, the patient became lethargic and her vital signs deteriorated but later returned to normal. Lethargy is not a side effect of Tylenol. Although the MAR prescribed two Slow K tablets at 9:00 a.m., and Lilbrax as needed, Claycomb recorded having administered one Slow K tablet and Atarax to patient H.R. Claycomb dispensed Atarax to patient A.J. at 9:00 a.m. when the MAR prescribed dose to be given at 1:00 p.m. Patient refused medication because given at the wrong time. In committing the foregoing medication errors Claycomb's practice fell below the minimal standards of acceptable and prevailing nursing practice in the administration of medicinal drugs. Verification of other complaints received by Ms. Wood could not be verified because, contrary to accepted and prevailing nursing practice, Claycomb did not annotate some patients' MAR upon dispensing medications.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered suspending the license of respondent, Ann Claycomb, until such time as she submits proof satisfactory to the Board of Nursing that she can practice nursing safely. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of December, 1988. WILLIAM J. KENDRICK 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 27th day of December, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-3603 Petitioner's proposed findings of fact are addressed as follows: 1. Addressed in paragraph 1. 2-4. Addressed in paragraphs 2 and 3. 5 & 6. Addressed in paragraphs 46. Addressed in paragraph 4c. Subordinate or not necessary to result reached. Not necessary to result reached. Not necessary to result reached. To the extent supported by competent proof addressed in paragraph 4. Proposed findings 11a and 11d are based on hearsay which does not supplement or explain any competent proof. 12-15. Not pertinent nor necessary to result reached. COPIES FURNISHED: Michael A. Mone', Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Ms. Ann Claycomb 4175 South West 98th Avenue Miami, Florida 33165 Lawrence M. Shoot, Esquire 6011 West 16th Avenue Hialeah, Florida 33012 Judie Ritter, Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Bruce D. Lamb, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether Respondent's license to practice nursing should be revoked, suspended, or otherwise disciplined under the facts and circumstances of this case.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, Respondent Rita Flint (Flint) was a licensed practical nurse in the State of Florida, holding license number PN0655201. Flint's last known address is 6494 South West 8th Place, North Lauderdale, Florida 33068. At all times material to this proceeding Flint was employed by North Broward Medical Center (NBMC) located in Pompano Beach, Florida, as a practical nurse. On August 3, 1990, Flint was assigned to care for patients J. C. and J. K. including administering their medications and charting same on their Medication Administration Record (MAR). On August 3, 1990, J. C.'s physician prescribed one (1) nitroglycerine patch each day. Flint failed to administer the patch on this date. On August 3, 1990, J. C.'s physician prescribed 100 mg. of Norpace every six (6) hours. Flint failed to administer the 2:00 p.m. dosage of Norpace to J. C. On August 3, 1990, J. C.'s physician prescribed 120 mg. of Inderal each day. Flint failed to administer the 9:00 a.m. dosage of Inderal until 1:30 p.m. without noting any explanation on J. C.'s MAR. On August 3, 1990, Flint failed to document the administration of J. K's own medications on the MAR. On August 3, 1990, Flint failed to sign the MARs for J. C. and J. K. as required by hospital policy. On August 15, 1990, Flint left an intravenous bag with an exposed needle hanging at the bedside of a patient. On August 29, 1990, Flint was assigned to care for patient R. R. including administering his medications. Flint failed to administer the following medications leaving all of them at R. R.'s bedside: (a) Timolo (9:00 a.m. and 2:00 p.m. doses); (b) Mixide (9:00 a.m. dose); (c) Zantac (9:00 a.m. and 4:00 p.m. doses); (d) Lasix (9:00 a.m. dose); and, (e) Entozyme (8:00 a.m. and 12:00 noon doses). On August 30, 1990, NBMC terminated Flint's employment as a result of the aforementioned conduct. There is no evidence that any patient suffered any actual harm as a result of Flint's errors. In September of 1990, NBMC referred Flint to the Intervention Project for Nurses. At all times relevant to this proceeding, Flint's job performance was adversely affected by long work schedules necessitated by severe financial problems. During the week of August 3, 1990, Flint worked a ninety-two-hour week. The acute financial stress was due to domestic problems including the breakup of her twenty-two-year-old marriage. Flint had no problems involving substance abuse. Flint attended individual therapy sessions with a clinical psychologist, Priscilla Marotta, Ph.D., and participated in group therapy designed primarily for persons with substance abuse problems. Flint attended weekly therapy sessions for approximately one month after which she could no longer afford treatment. Even though Flint was financially unable to continue treatment with Dr. Marotta or any other counseling program recommended by the Intervention Program for Nurses, she diligently undertook a self-help program to educate herself on stress management techniques, to develop self-reliance, and to improve self-esteem. Flint's effort to participate in therapy, to the extent financially possible, and to rehabilitate herself shows a strong commitment to her profession. Flint has been licensed to practice nursing since May 31, 1982. There is no evidence of any disciplinary action against her license prior to or after the incidents herein described. Flint is currently employed as a nurse in a hospice. Her recent performance appraisal reports indicate that, on an average, she fully meets all job requirements.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that the Board of Nursing enter a Final Order finding Respondent guilty of violating Section 464.018(h), Florida Statutes (1989), as defined in Rule 210-10.005(1)(e)1 and Rule 210-10.005(1)(e)2, Florida Administrative Code, and not guilty of violating Section 464.018(1)(j), Florida Statutes. It is further recommended that the Board's final order: (1) place the Respondent on probation for one year subject to such requirements as the Board may require; and (2) require the Respondent to pay an administrative fine in the amount of two hundred fifty dollars ($250). DONE AND ENTERED in Tallahassee, Leon County, Florida, this 21st day of November 1994. SUZANNE F. HOOD, Hearing Officer 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 21st day of November 1994. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 93-2715 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Incorporated into Findings of Fact 1. Incorporated into Findings of Fact 2 and 11. Incorporated into Findings of Fact 4. Incorporated into Findings of Fact 5. Incorporated into Findings of Fact 6. Incorporated into Findings of Fact 7. Incorporated into Findings of Fact 8. Incorporated into Findings of Fact 9. Incorporated into Findings of Fact 10. The first sentence is incorporated into Findings of Fact 13. The remaining portion of this proposed fact is not supported by competent substantial evidence. Furthermore, Respondent's Exhibit 3, as it relates to a diagnosis of a mental condition, is hearsay which does not supplement or explain any other psychological or medical evidence. Thus, any reference in Exhibit R3 to a generalized anxiety disorder is insufficient to support Petitioner's proposed finding. Unsupported by competent substantial evidence. Unsupported by competent substantial evidence. See number 10 above. FOR THE RESPONDENT: 1. Respondent did file proposed findings of fact or conclusions of law. COPIES FURNISHED: Laura Gaffney, Esquire Natalie Duguid, Esquire Agency for Health Care Administration 1940 North Monroe Street Tallahassee, Florida 32399-0792 Rita Flint 3313 South East Second Street Pompano, Florida 33063 Judie Ritter Executive Director Board of Nursing AHCA 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32202 Harold D. Lewis General Counsel The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law the Hearing Officer recommends that the Respondent, Nancy Drennen, receive a letter of reprimand. In making this recommendation, the Hearing Officer specifically considers the outstanding comments made about the Respondent by her Dr. Roberts and her coworkers, the fact that she has been employed as an OH nurse since January of 1979, performing her duties without complaint or incident, and the fact that the complaint was filed against her so long after the incident that it truly diminished the Respondent's ability to defend herself. DONE and ORDERED this 29th day of May, 1980, In Tallahassee, Leon County, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
Findings Of Fact Based on the admissions of the parties, on the exhibits received in evidence and on the testimony of the witnesses at the hearing, I make the following findings of fact. Respondent, Kimberly Bauzon, L.P.N., is a licensed practical nurse in the state of Florida, having been issued license number PN 0803361. Respondent has been so licensed at all times material to the allegations in the complaint. Between the dates of October 25, 1985, and December 2, 1985, the Respondent was employed as an LPN by the Care Unit of Jacksonville Beach. On various occasions during her employment as an LPN at the Care Unit of Jacksonville Beach, Respondent charted vital signs for patients that she had not, in fact, taken. On or about November 21, 1985, while employed as an LPN on duty at the Care Unit of Jacksonville Beach, without authority or authorization, Respondent left her unit within the Care Unit for at least thirty (30) minutes. During that period of at least thirty (30) minutes on November 21, 1985, during which Respondent was out of her unit, there was no nurse present in the unit to take care of patient needs. Also on or about November 21, 1985, while on duty at the Care Unit of Jacksonville Beach, Respondent was asleep for a period of at least two (2) hours. On one occasion during Respondent's employment at the Care Unit of Jacksonville Beach, Respondent pulled a male adolescent by the waistband at the front of his trousers in the course of directing the patient to provide a urine specimen. The manner in which Respondent pulled on the patient's clothing was inappropriate and unprofessional. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to be asleep while on duty. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to chart vital signs which she has not, in fact, taken. It is unprofessional conduct and a departure from minimal standards of acceptable and prevailing nursing practice for an LPN to leave her unit for a period of thirty (30) minutes in the absence of a replacement nurse.
Recommendation In view of all of the foregoing, it is recommended that the Board of Nursing enter a final order in this case finding the Respondent guilty of one incident of violation of Section 464.018(1)(d), Florida Statutes, and four incidents of violation of Section 464.018(1)(f), Florida Statutes. And in view of the provisions of Rule 210-10.05(4)(d), Florida Administrative Code, it is recommended that the Board of Nursing impose a penalty consisting of a letter of reprimand and further consisting of a requirement that Respondent attend required specific continuing education courses, with an emphasis on the legal responsibilities of a nurse to the patients under her care. DONE AND ORDERED this 19th day of March, 1987, at Tallahassee, Florida. M. M. PARRISH 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 19th day of March, 1987. COPIES FURNISHED: Lisa Bassett, Esquire Staff Attorney Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Kimberly Bauzon, LPN 2968 Songbird Trail Atlantic Beach, Florida 32233 Kimberly Bauzon, LPN 216B Seagate Avenue, #B Neptune Beach, Florida 32233 Joe Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director Board of Nursing Department of Professional Regulation Room 504, 111 East Coastline Drive Jacksonville, Florida 32201 =================================================================
Findings Of Fact At all times pertinent to the matter in issue herein, the Respondent, University of South Florida, (University), was an entity of the State of Florida located in Tampa, and operated, among other services, a Student Health Services at which physicians and nurses were employed to provide health services to members of the student body. The Petitioner, Olympia Malone, was hired by the University as a registered nurse at the Student Health Service in January, 1986. At the time of her hiring, Ms. Malone had 3 years of college. She had received an Associate Degree from Hillsborough Community College, was licensed by the State of Florida as a registered nurse, and had been employed as such at St. Jospeh Hospital for 12 years. Over the years of her employment with the University, Ms. Malone received several performance evaluations which covered the period from July 25, 1986 through January 23, 1990. Prior to receipt of the last report on January 26, 1990, she received a commendation letter in May, 1989 from Ms. Sharon A. Berry, her immediate supervisor, and had been asked to transfer over to the physician area. Petitioner claims to have been told there was some problem in getting nurses to work in that area and she was asked to go there to get it organized. She was told she had the skills needed at the new section. She agreed to do this because she enjoyed it and saw it as a chance to keep her nursing skills up since the work related to direct patient care. While there she learned new skills and made suggestions for some of which she was commended. However, when she asked for a raise she was told by Ms. Allen, the Director of Nursing Services, that she had been transferred there because of personality conflicts. When a nursing supervisor position came open in the Student Health Service in 1989, Ms. Malone applied for it but the promotion was given to Ms. Hansen, another nurse, whom Petitioner feels was less qualified then she. Malone filed a grievance about this failure to select her for promotion but subsequently withdrew it because she felt she could not win and to carry it forward would polarize the work section. Ms. Allen selected Ms. Hansen for the position of supervisor because she felt, from the records, Hansen was best qualified. Though Ms. Malone indicates she has had supervisory experience as preceptor for licensed practical nurses, nursing assistants and students at St. Joseph Hospital, her application makes no reference to any supervisory experience as did Ms. Hansen's. Ms. Allen's selection was based on who had the most supervisory experience. She went strictly by what was on the applications. At no time prior to the rendering of the appraisal on January 26, 1990 was Ms. Malone given any indication there was any concern about her performance, nor was she counselled. Unknown to her, however, there were several memoranda concerning her performance, dating back to 1988 and 1989, which were being kept in a private file maintained by Ms. Allen. These memoranda, which were not being kept in Ms. Malone's official personnel record with the University, made repeated reference to personality conflicts involving her and other employees which were, apparently, causing some concern to the staff. An Addendum to Annual Performance Review relating to Ms. Malone, dated January 28, 1991 and covering the period from January 24, 1990 to January 23, 1991, refers to a counselling session with her conducted on January 24, 1991, one day after the expiration of the reporting period. At this session, Ms. Malone's non-written evaluation was discussed but she disagreed with it and left the meeting before the discussion could be completed. The use of a non-written evaluation was, at that time, a new, informal, fluid procedure whereby the rater, using the old rating form, discussed with the ratee that individual's strengths and weaknesses. The supervisor had the option of using the old formal form or the new discussion/memorandum format. Once the discussion was completed, the employee had the right to request a memorandum of the evaluation. In this case, the process did not get that far since Ms. Malone got upset and departed the room before it was completed. It is this evaluation which she now considers to be racial discrimination and retaliation for her prior grievance which forms the basis for this hearing. Ms. Malone objected to the use of this new procedure because she felt it did not require the supervisor to identify specifics. In December, 1990, she had requested of Dr. Anderson, the Director of the Student Health Service, that (1) she get an evaluation by an impartial rater, and (2) her evaluation be in writing. In response, Dr. Anderson advised Ms. Malone that her immediate supervisor, Ms. Hansen, had to render the evaluation and that she would be given "something in writing." About a year before this latter evaluation, Ms. Malone, in January, 1990, received a written evaluation by Ms. Hansen which, though it reflected she achieved standards in every category, also reflected she had experienced some difficulty in working with others and with carrying out assigned additional responsibilities. On February 2, 1990, Ms. Malone filed a grievance because of that evaluation and in August, 1990, her supervisors and Mr. Carrington, the University's Assistant Personnel Director, met with her to discuss the areas of insubordination alleged by Ms. Hansen. Ms. Malone was told this meeting was not a counselling session. When she asked for permission to gather information on her own time to refute the allegations, it was granted and the information was thereafter sent to Mr. Carrington and Dr. Anderson, but she got no response. Ms. Malone's attorney filed a complaint about this with the EEO office in the summer of 1990. This grievance got lost and was not responded to. Also that summer, Ms. Malone filed a grievance with the campus employment office based on what she felt was a negative performance appraisal. This matter was referred to an arbitration committee made up of two Black and one White member which determined that no evidence of discrimination or retaliation was indicated. In January, 1991, she then got the counselling session on which she walked out. Several days later, the written addendum, which she considered to be much worse than the original evaluation, was prepared. In March, 1991, Ms. Malone, who is African American, filed the current EEO complaint but did not get a response for "quite a while." She claims that during all this time she was treated differently from the White nurses and harassed with acts of reprisal. For example, Dr. Kali Derasari called her to her office and told her to pull an appointment for a patient to refer to a nurse practitioner. When she advised the doctor of the requirements for record keeping, the doctor disagreed so she did what was asked of her. As a result, the nurse practitioner complained to Ms. Hansen who counselled Petitioner for not following proper procedure. When the doctor, at Ms. Malone's request, backed her up, she was still reprimanded. On another occasion, according to Petitioner, she applied for leave two weeks in advance to attend a work shop she wanted and agreed to use annual leave, if necessary. She got approval from Ms. Hansen for administrative leave on March 27, 1991, 4 days later. She went to the workshop as approved, but 3 weeks later, was called in by Ms. Hansen, told she should not have had administrative leave for a workshop, and directed to change her time sheet which had already been approved. When Ms. Malone called someone at the Personnel office about it, she was told that office had not suggested the change - that her supervisor could approve administrative leave. When she told Ms. Hansen that, it was then agreed she could leave it as it was. There were numerous unspecified other instances of harassment claimed by Petitioner. She recalls one occasion where Ms. Hansen physically provoked her by leaning over her and coming up close to her face, criticizing her about her work. This was ultimately made a part of her record. In addition, Ms. Malone is the only Black nurse in the section. The other nurse there is a White licensed practical nurse, yet Ms. Malone claims she has been instructed not to refer to herself as a registered nurse. She feels this deprecates her position in an attempt to curry favor with the White nurse who is of a lower professional status. She also cites several occasions where she felt information she needed to do her job was kept from her though others were advised. When she reported all this to Ms. Allen, Ms. Hansen's supervisor, she got no response. However, she claims, whenever anyone complained about her, she was called in and counselled. She admits that management could have called and counselled those about whom she complained without her knowing about it. Ms. Malone also appears to disregard the fact that Ms. Allen, the overall supervisor, is Black. In 1987 and 1988, Ms. Malone's supervisor was Sharon Berry. According to Ms. Allen, there was some mutual complaining between the two of them At first Ms. Allen was very protective of Petitioner because she had hired her and wanted her to succeed. However, when Petitioner did not improve as expected, Ms. Allen's attitude changed and when she had an altercation with Ms. Malone about where Malone's car was parked, she began to believe that maybe Malone had some problem with personal relationships. Contrary to what Ms. Malone related, the transfer into the physician's section in 1989 was the result of problems Ms. Malone was having with her supervisors and after the move, she appeared to be doing better. Ms. Malone was given the opportunity, along with other nurses, to work in other areas to get more experience, but she declined the opportunity unless she got more money. Ms. Berry was Petitioner's immediate supervisor just after she was hired and initially they got along well. When problems first began to arise, she went to Ms. Allen who advised her to show Petitioner more understanding. This is consistent with Allen's testimony regarding her initial efforts to protect Petitioner. Nonetheless, Petitioner's performance, monitored on a continuing basis, was "fine." She was a good nurse. Gradually, however, Petitioner's relationships with Ms. Berry and the other nurses began to deteriorate and her lateness began to be a problem. Ms. Berry supervised Petitioner until she transferred to the physician's area. Toward the end of their relationship, Berry claims, Petitioner became remote and withdrawn from other staff, indicating they were "5 faced" and "barracudas." Things got so bad between Berry and Petitioner that Petitioner would not speak to her unless spoken to and then would not make eye contact. Ms. Hansen has been Petitioner's supervisor in the physician's area since 1989. Two of the 3 individuals she supervises are Black. She evaluates Petitioner's performance formally once a year and informally on a continuing, routine basis. She has found that Petitioner works without supervision most of the time. This is all right. However, at times Petitioner does not come to her as a resource person but goes to someone outside the section for answers to job questions and this is not all right. She has observed that Petitioner often has some difficulty in her relationships with others. When it became clear Petitioner was having difficulty with another person in the section, Hansen investigated and initiated a new procedure. A part of the problem was Petitioner's attitude and often, even when she was technically correct, her abusive and abrasive approach to others diminished her effectiveness. She has had to reprimand Petitioner in the past. When Ms. Hansen called Petitioner in for the January, 1991 evaluation, she showed Petitioner what she intended to say and Petitioner got angry and left. The matters which would have been discussed with Petitioner had she not walked out, were subsequently formalized. When Ms. Malone complained to Ms. Allen she was told she was too loud, and that she acted like Whites expected her to act. Allen also reportedly alleged that Malone was hostile to her. Ms. Malone admits to being loud and believes her loud voice can cause people to think she is hostile. Nonetheless, Ms. Malone claims that because of all the above listed perceived discrimination and retaliation, she has developed unspecified physical and mental aliments and is taking medication for both even though in the last few months the pressure has let up somewhat. When she notified management of this, she was referred to the Employee Assistance Program.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore recommended that a Final Order be entered dismissing Olympia Malone's Petition for Relief from the unlawful employment practices of both racial discrimination and retaliation filed against the University of South Florida. RECOMMENDED this 1st day of February, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 February, 1993. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 92-3914 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: None submitted. FOR THE RESPONDENT: 1. & 2. Accepted and incorporated herein. 3. & 4. Accepted and incorporated herein. Accepted and incorporated herein. & 7. Accepted and incorporated herein. COPIES FURNISHED: George Clark, III, Esquire 610 Horatio Street Tampa, Florida 33606 Wendy J. Thompson, Esquire University of South Florida 4202 Fowler Avenue, Adm. 250 Tampa, Florida 33620-6250 Margaret Jones, Clerk Human Relations Commission 325 John Knox Road Building F. Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-4149
The Issue Whether the Respondent committed the offenses set forth in the Administrative Complaint and , if so, what disciplinary action should be taken.
Findings Of Fact Respondent, Dalia V. Gonzalez, was at all times material hereto, licensed as a registered nurse in the State of Florida, having been issued license number RN 88664-2. On August 16, 1988, Respondent was employed as a charge nurse for the skilled unit portion of a floor at Coral Gables Convalescent Center. The remaining portion of the floor was a long term intermediate care unit with a licensed practical nurse, Ms. Jane Reilly Perkins, serving as charge nurse for said unit. During the change of shifts and between 6:30 a.m. and 7:00 a.m. on August 16, 1988, a threatening argument, over the number of personnel assigned to each portion of the floor, arose between Respondent and Ms. Reilly who was accompanied by another licensed practical nurse. Ms. Reilly is a female of physically imposing stature; therefore, Respondent, reasonably fearing her safety, locked herself in her office and called her supervisor to ask for assistance. Respondent remained locked in her office for approximately two hours awaiting the arrival of her supervisor. During this time, Respondent was in constant contact with the other medical personnel on her floor. Although she was the only registered nurse present, her personal service as a registered nurse was not required at the time nor was she prohibited from giving it had the necessity arisen. When Respondent's supervisor, a registered nurse, arrived, they discussed the situation with Ms. Reilly. During this discussion, Respondent gave her first notice of intent to leave her position. After being informed that if she left, she would lose her position at Coral Gables Convalescent Center, Respondent handed her keys to her supervisor and left the facility not completing her assigned shift. While Respondent was available to her patients, although locked in her office during her shift, she did leave her nursing assignment without notifying her supervisor of her intent to leave within sufficient time to allow substitute arrangements to be made. Respondent's notice was improper Consequently, Respondent acted with unprofessional conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the a final order be entered reprimanding Petitioner. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 19 day of June 1989. JANE C. HAYMAN 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 Administrative Hearings this 19 day of June 1989. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-325 Petitioner's proposed findings of fact are addressed as follows: Addressed in paragraph 1. Addressed in paragraph 1. Addressed in paragraph 2. Addressed in paragraph 2. Addressed in paragraph 3. Not necessary to result reached. Addressed in paragraph 2. Addressed in paragraph 3. Addressed in paragraph 3. To the extent supported by competent proof, addressed in paragraph 3. Addressed in paragraph 4. Subordinate to the result reached. Subordinate to the result reached. Addressed in paragraph 6. Not supported by competent and substantial evidence. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. Addressed in paragraph 6. Addressed in paragraph 5. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Not supported by competent and substantial evidence. Addressed in paragraph 6. COPIES FURNISHED: Lisa M. Basset, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 Santiago Pellegrini, Esquire 1570 Northwest Fourteenth Street Miami, Florida 33125 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, Florida 32201 Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0729 =================================================================
Findings Of Fact Respondent, Barbara Jiminez, is a licensed practical nurse (LPN) in the State of Florida, having been issued license number PN 0812181. At the time of the incident involved in this case, Respondent was a LPN. In 1987, Respondent was employed as a licensed practical nurse by Holly Point Manor, a nursing home located in Orange Park, Florida. Respondent was also employed as a LPN by another nursing home in the area. She was scheduled to work the 3:00 p.m. to 11:00 p.m. shift at Holly Point Manor. Holly Point Manor was a new facility and had opened in November, 1987. Only one wing of the facility was open and in December, 1987, Holly Point Manor serviced approximately 50 patients. On December 21, 1987, Respondent presented a letter of resignation to Tom Burrell, Director of Nursing at Holly Point Manor. The resignation was effective December 20, 1987. The resignation was precipitated by a verbal altercation with Liz McClain, a certified nursing assistant (CNA) at Holly Point Manor. The verbal exchange occurred on December 20, 1987. However, difficulties between Respondent and Ms. McClain had been brewing for a period of time prior to the verbal exchange of the 20th. After discussing the letter with Burrell, Respondent agreed to work on an as-needed basis at the facility. Burrell indicated that he needed Respondent to work until the beginning of the year, and therefore scheduled the Respondent for the remainder of December. Respondent was scheduled to work her usual shift on December 23, 24, and 25, 1987. She was scheduled to work with Virginia Anderson. Ms. Anderson is also a LPN. On December 23, 1987, Respondent clocked in for work at approximately 2:40 p.m. EST and clocked out the same day at 3:40 p.m. EST. On December 23, 1987, the Respondent and Virginia Anderson began work before the 3:00 p.m. change-of-shift. At shift change, both nurses went into the medication room to "take report" from Nurse Jan Sturgeon, the LPN who had worked the previous shift. A "report" at the change of shift consists of the previous shift's nurse going down the list of each resident/patient and reporting each patient's respective condition to the on-coming nurse. Part of the report includes counting the medications on the medication cart to ensure a correct count in the narcotic drawer of each cart. In this case, there were two medication carts, one for each of the on-coming nurses. These carts are locked and the nurse responsible for the cart maintains possession of the keys to that cart. Ms. Sturgeon "reported off" first to Ms. Anderson, and then to Respondent. Ms. Anderson began her rounds after receiving a report and keys to her cart from Ms. Sturgeon. Subsequently, Respondent received a report and keys to her cart from Ms. Sturgeon. At some time during Respondent's clocking in and taking report, a problem arose over the staffing assignments of the C.N.A.'s. Respondent was the nurse responsible for making the CNA assignments. However, Nurse Anderson had already created patient-care assignments for the CNAs after one C.N.A. had failed to report for work.1/ The Respondent was not satisfied with the assignments created by Anderson and either requested that they be changed or changed them herself. The request or change immediately caused a bad atmosphere between the employees on the wing. Around 3:30 p.m., Respondent telephoned Tom Burrell. Respondent told Burre11 that she couldn't take it anymore and that she was leaving. Burrell told Respondent that she was scheduled to work and if she left she would be reported for what was, in his opinion, a violation of the Nurse Practice Act. Burrell did not give Respondent permission to leave. Either before or after the call to Burrell, Nurse Eppert, the Assistant Director of Nursing, told the Respondent that in her opinion there was nothing wrong with the C.N.A. assignments. Respondent stated, "Here's my keys - - I'm leaving." Eppert informed Respondent that she had no replacement nurse and did not want her to leave. Respondent pointed out that Ms. Sturgeon was still present. Eppert reminded Respondent that Sturgeon was off duty. Eppert then told Respondent to give a report to Nurse Anderson. She refused and told Ms. Anderson to get the report from Ms. Sturgeon who had just given the report to Respondent. Since Respondent had not begun her rounds, Ms. Sturgeon's report was still valid and the narcotic count had not changed. Respondent left Holly Point Manor. The Respondent did not positively know at the time she left whether Nurse Sturgeon would remain to assist. The Respondent did not stay to determine whether Sturgeon would, in fact, cover the shift. However, the evidence did show that Ms. Sturgeon tacitly agreed to stay before Respondent left the facility. Nurse Sturgeon was not the type of person to decline to help when the need arose. After the Respondent left, Jan Sturgeon formally agreed to stay to assist with the 5 p.m. medication pass. She agreed because Ms. Eppert could not find anyone to work due to the closeness of the holidays. After the medication pass, Ms. Sturgeon left for the evening and Ms. Anderson handled the shift by herself. One nurse working the night shift alone was not an unusual event at Holly Point and occurred frequently. In fact, Ms. Anderson had worked the previous evening's shift by herself. One nurse to 50 patients meets HRS staffing requirements for nursing home facilities. However, the hardest part of the evening shift for a solo nurse was the 5:00 p.m. medication pass. Later, the facility was able to retain a replacement nurse for the 24th and 25th. It is not an acceptable nursing practice for a nurse to leave his or her employment until that nurse is sure that somebody else is going to take care of the patients the nurse is responsible for. In this case, Respondent failed to positively ensure someone would replace her. Reliance on tacit agreement by either of the other two nurses is not enough. Likewise, past practice of the facility is not enough. Reliance on tacit agreement or past practice is too amorphous to insure protection and the safety of the patients the nurse is responsible for. However, tacit agreement and past practice do go towards mitigation of any disciplinary penalty in this case. Respondent's actions by not ensuring her replacement or at least the need for such a replacement constitutes unprofessional conduct in the practice of nursing Likewise, it is not an acceptable nursing practice for an LPN to leave without giving another nurse a report on patients that that nurse would be assuming and before counting the medications on the medication cart. However, in this case, the evidence demonstrated that a replacement was there whose earlier report was still accurate and valid. Therefore, formal patient reporting and narcotics counting was not necessary or required. 2/ Respondent is not subject to discipline under this standard.
Recommendation Based upon the foregoing Proposed Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner enter a Final Order reprimanding the Respondent's license, and requiring her to take courses in the Legal Aspects of Nursing and in Stress Management within a 6 month time period. DONE and ENTERED this 19 day of October, 1989, at Tallahassee, Florida. DIANE CLEAVINGER 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 19 day of October, 1989.
Findings Of Fact The Respondent is a licensed practical nurse holding license number 0688681. At all times pertinent to this proceeding the Respondent was employed as a licensed practical nurse at Leesburg Center Health Care and Nursing Home. The Petitioner is an agency of the state of Florida charged with enforcing the professional practice standards for nurses embodied in Chapter 464, Florida Statutes (1981) and with initiating and prosecuting disciplinary actions against nurses for violations of those standards. On February 7, 1983, the Respondent while working as a nurse or medical technician at the Sumter Correctional Institute was involved in a disturbance with some inmates in the course of which the chemical "mace" was used to quell the disturbance. Later that evening at approximately eleven p.m. he reported for his night shift duty at Leesburg Center Health Care and Nursing Home complaining of a migraine headache. His supervisor, Nurse Cavatello informed him that he could lie down and get some sleep during his "break." During breaktimes, nurses are considered to be "off-duty". Such was the policy at that time at Leesburg Center Health Care and Nursing Home. During his breaktime, while on duty early on the morning of February 8, 1983, at approximately 2:00 a.m., Respondent was asleep on a stretcher some ten to twelve feet from his duty station while on his break. At that time he was observed by Nursing Director, Shirley Gooden, to be asleep and she awakened him. She inquired as to why he was sleeping on duty and he informed her that he was on his break. Nurse Gooden informed the Respondent that he was not considered to be "on break" because he had not "punched out" on a time clock or card before going on his break as required by the employer's nurses handbook, therefore she immediately terminated him from employment. It was accepted policy and practice at that facility for nurses to be able to sleep while on break, especially on late-night shifts such as the Respondent was employed on, on the night in question. It was also the accepted policy and practice that nurses did not have to "clock in or out" when they were merely taking their authorized breaktime as the Respondent was doing. The Respondent's immediate supervisor, Nurse Cavatello, authorized him to sleep during his breaktime and did not require him to "punch out" or make a formal record of his breaktime on the evening in question. Thus, the Respondent, who was admittedly asleep at the time in question, was not on duty, but rather was on his breaktime, during which he was permitted by his supervisor to sleep. On January 1, 1983, the Respondent submitted his employment application for the position of Licensed Practical Nurse at Leesburg Center Health Care and Nursing Home. On that employment application he indicated that he left his last employment as a deputy sheriff for Polk County for the reason that he wished to return to school to further his education. In reality, the Respondent was terminated from his position as deputy sheriff by the Polk County Sheriff's Department for falsifying an official department record, and for "conduct unbecoming an employee" of the Sheriff's Department. This is the first occasion in which the Respondent has been subjected to disciplinary action with regard to his licensure status by the Petitioner. His record as a licensed practical nurse is otherwise unblemished and he displays a high level of skill and compassion in his nursing duties and in his relations with patients while performing those duties.
Recommendation Having considered the foregoing Findings of Fact and Conclusions of Law, the evidence of record, and the candor and demeanor of the witnesses, it is, therefore RECOMMENDED: That a Final Order be entered by the Board of Nursing issuing a formal reprimand to the Respondent, Richard Womack, imposing a period of probation on his licensure status until such time as he completes a continuing education course in the legal aspects of nursing. DONE and ENTERED this 14th day of March, 1984, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of March, 1984. COPIES FURNISHED: Julia P. Forrester, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Richard J. Womack 1607 Stafford Road Leesburg, Florida 32758 Helen P. Keefe, Executive Director Board of Nursing Dept. of Professional Regulation 111 East Coastline Drive, Room 504 Jacksonville, Florida 32202 Fred M. Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
The Issue Should discipline be imposed by Petitioner against Respondent's certificate to practice as a Certified Nursing Assistant?
Findings Of Fact Facts Admitted: Petitioner is the state department charged with regulating the practice of nursing pursuant to Chapter 20.43, Florida Statutes, Chapter 456, Florida Statutes; and Chapter 464, Florida Statutes. Respondent is Andrea Tyson. Respondent is a Certified Nursing Assistant (C.N.A.) in the State of Florida having been issued certificate number 0898- 262792261. Respondent's current address of record (address listed for C.N.A. certificate with Department of Health) is P.O. Box 999, Cross City, Florida 32628. On or about August 23, 2001, Respondent was employed at Tri-County Nursing Home (Tri-County) in Trenton, Florida. During the time Respondent worked at Tri-County, W.H. (resident referred to in Petitioner's Administrative Complaint) was a resident at Tri-County. Respondent knew W.H. prior to working at Tri-County. Respondent regularly cared for W.H. at Tri-County. On or about August 23, 2001, Respondent assisted W.H. in taking a shower. On or about August 23, 2001, while in the shower with W.H., Respondent jerked W.H.'s hand from the shower grab bar. On or about August 23, 2001, while in the shower with W.H., Respondent sprayed W.H.'s face with cold water. On or about August 23, 2001, after Respondent finished showering W.H., Respondent partially dried W.H. and put on only his pants. On or about August 23, 2001, after Respondent finished showering W.H., Respondent refused to assist W.H. with putting on his shirt. On or about August 23, 2001, W.H. had to seek the assistance of another person at Tri-County, in putting on his shirt following his shower with Respondent. Additional Facts: W.H. had suffered a stroke in 1992. W.H. came to be a resident at Tri-County on March 8, 1999. On August 23, 2001, Respondent told W.H. to go to the bathroom to get ready for his shower. W.H. required assistance to shower. Respondent had given showers to W.H. before the date in question. On August 23, 2001, it was necessary for W.H. to support himself by holding on to the shower grab bar. W.H. explained that he uses the shower bar because he feels better that way, more secure. When Respondent jerked W.H.'s hand away from the shower grab bar, she did so without warning. This made W.H. feel bad. It also made him feel mad at Respondent. On the date in question while in the shower, W.H. told the Respondent that the water was too hot. Her response was to reach over with her hand and turned the lever to the cold setting and rinsed W.H. off with cold water. The water was really cold. W.H. did not complain about the cold water. He just wanted to get out of the shower. W.H. was left with the impression that if Respondent was going to be mean to him, he did not want to be around her. The incident made him feel abused. W.H. felt intimidated by the Respondent given her actions. As part of the process of showering that took place on August 23, 2001, in addition to spraying cold water in W.H.'s face, the cold water got into his ears. He did not like water in his ears. After the shower, Respondent dried W.H. off and put on his underclothes and pants and shoes but not his shirt. W.H. was left with only his T-shirt above the waist. W.H. took his outer shirt and went into the hall and got another C.N.A. to assist him in putting it on. To W.H.'s knowledge he had never done anything or said anything to provoke Respondent before the incident in the shower. W.H. reported the incident to a nurse at Tri-County about a day after the event. The expectation at Tri-County was that Respondent as a C.N.A. would perform her duties in the facility consistent with the Florida standards of care incumbent upon C.N.A. certificate holders. Tri-County is a skilled nursing facility. C.N.A.s who are employed at that facility, such as Respondent, undergo orientation in addition to the training received when earning a certificate to practice in Florida. The orientation includes issues such as fire safety, resident rights,1/ infection control, and body lifting of residents. What is described as the "paper part" of the orientation takes a day. In addition, the new employee is paired with an experienced C.N.A. on the same shift where the new employee will work, and the new employee and the experienced employee work together for a couple of weeks at the nursing home as training. While working with the experienced C.N.A., that employee uses a check-list to verify that the new employee can master the skills required to assist the residents. Within Tri-County the expectation for resident rights are in association with the right to dignity, among other rights. C.N.A.s at Tri-County are responsible for feeding, hydration, bathing, toileting, and skin care in relation to residents they are responsible for. Margo Chancey, R.N.C. was the Director of Nurses at Tri-County on August 23, 2001. She continues to hold that position. Ms. Chancey is a licensed nurse in Florida. By virtue of her formal training and work experience, Ms. Chancey is sufficiently familiar with the expected standard of care to be provided by C.N.A.s to offer expert opinion testimony concerning Respondent's treatment of W.H. on August 23, 2001. Nurse Chancey explained W.H.'s condition in August 2001 as being a circumstance in which W.H. had had a couple of strokes over a period of years. Nonetheless, W.H. remained alert and oriented and continued to be alert and oriented in more recent times including the present. W.H. gets around in a wheelchair. He is on an oxygen concentrator P.R.N. W.H. suffers with chronic pulmonary disease. W.H. was more ambulatory in August 2001 than he is today. Ms. Chancey is sufficiently familiar with the events on August 23, 2001, concerning Respondent's provision of care to W.H. while providing him a shower, to offer an opinion on whether that performance was within the minimal standards expected of a C.N.A. Ms. Chancey established that the manner of care provided from Respondent to W.H. was inhumane and abusive and below minimal standards. More particularly, Ms. Chancey commented that Respondent gave W.H. no choices. She demanded things of the resident. She sprayed cold water in his face, which is unacceptable. She was rough and rude with W.H. when removing his arm from the grab bar, which is unacceptable. W.H.'s patient's rights were violated pertaining to matters of human dignity and he was not treated safely. As Ms. Chancey correctly explained, for Respondent to perform her duties in giving the bath to W.H. she would have had bathing equipment ready when he came into the room and she should have been in the room when W.H. started to get undressed and would not have removed his arm from the grab bar. W.H. had the right to complain that the water was too hot. Respondent should have tested the water before she sprayed what was revealed to be cold water on W.H. Respondent should have totally dressed W.H. before she left the room given his condition, chronic obstructive pulmonary disease. The risk was that his condition could worsen when left partially dressed. This might lead to his contracting pneumonia.
Recommendation Upon consideration of the facts found and Conclusions of Law reached, it is RECOMMENDED: That a Final Order be entered finding the Respondent in violation of Sections 464.204(1)(b), 464.018(1)(h), Florida Statutes (2001), and Florida Administrative Code Rule 64B9- 8.005(13)(2001), placing Respondent on probation for a period on one year subject to terms established by the Board of Nursing, imposing a $150.00 fine and requiring that Respondent attend a continuing education class on the care of the elderly. DONE AND ENTERED this 22nd day of December, 2003, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 22nd day of December, 2003.
