The Issue Prior to convening the hearing, a short prehearing conference was held in which it wad developed that the Division of Retirement controverted Jones' eligibility for in-line-of-duty disability retirement on the basis that Jones' disability did not arise totally from his injury suffered while a member of FRS.
Findings Of Fact Dr. Baker was called by the Petitioner and testified that his associate, Dr. Willis, had initially treated Mr. Jones in 1969 for an injury to his back. Dr. Baker testified from Dr. Willis' medical records, Dr. Willis having died since the date of Jones' treatment. Dr. Willis had treated Jones for low back sprain. Jones recovered and returned to work after the 1969 injury. On August 11, 1970, Jones again sought treatment from Doctors Baker and Willis for pain in the lower back. At this time, the trouble was again diagnosed as low back sprain (lumbar sacral sprain). Jones was treated and returned to work. On August 25, 1970, Jones was seen as a result of an ankle injury suffered in a tractor accident which did not affect his back. In February 1973, Jones injured his back stepping out of a truck. This was diagnosed as a sprain of the lower back with possible disc disease. Jones was eventually hospitalized by Dr. Baker, and Jones recovered slowly from acute muscle spasm. He returned to work in May 1973 and was told to wear a brace. However, Jones continued to have problems with his back up until June 1973 when the spasm ceased. He then reported no more difficulty until May 1974, when he injured his back lifting a can of fuel. After being injured on May 3, 1974, Jones was treated by Dr. Baker for acute muscle spasm, acute lower back sprain which affected the sciatic nerve. Dr. Baker prescribed bed rest, a bed board, and muscle relaxants. On May 10, 1974, Dr. Baker hospitalized Jones and a myelogram was done which did not reveal any rupture of the disc. Various treatments were tried and after July 23, 1974, a discogram was done which revealed the degeneration of three disc in the lower back. The condition placed pressure on the nerve roots and spinal cord. Dr. Baker said that the periods of recuperation in 1969 and 1970 were within normal limits and expressed his opinion that Jones recovered from these injuries. Dr. Baker expressed his medical opinion that the accidents that Jones suffered in 1973 and 1974 had disabled Jones by placing pressure on the affected disc which had been weakened by disease and a curvature of Jones' spine. Because of Jones' recovery from the 1969 and 1970 injuries to his back, Dr. Baker was of the opinion that these incidents had not contributed to Jones' ultimate disability. The Division of Retirement has not controverted the disability status of the Petitioner, Jones, as evidenced by its approval of regular disability benefits. As stated above, the matter in controversy was whether Jones' disability arose totally from accidents suffered while Jones was a member of FRS. The uncontroverted testimony of the medical expert, Dr. Baker, was that Jones' disability arose solely from injuries to his back occurring in 1973 and 1974, after Jones had become an FRS member. To the extent Jones' back may have been diseased in 1969, 1970 or other times prior to his entry into FRS, the record is clear that he worked and contributed to the retirement system regularly from December 1, 1970, until February 1973. Therefore, he was not "disabled," having performed his job duties for over three years. It was only after being injured in 1973, after which he had an extended recuperative period, and again in May 1974, that Jones was unable to return to his duties because of his disabilities.
Recommendation Based upon the foregoing, Jones' disability was suffered in line of duty and after he was covered by FRS; therefore, Jones is entitled to and it is recommended that he receive in-line-of-duty disability benefits. DONE AND ENTERED this 13th day of November 1975. STEPHEN F. DEAN Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: James M. Matthews, Esquire Suite 210, 101 Wymore Road Altamonte Springs, Florida L. Keith Pafford, Esquire Division Attorney Division or Retirement 530 Carlton Building Tallahassee, Florida
The Issue PETITIONER'S ELIGIBILITY FOR DISABILITY RETIREMENT PURSUANT TO CHAPTER 121, FLORIDA STATUTES.
Findings Of Fact The Petitioner, a 61 year old widow, who resides at 325 West South Avenue, Tampa, Florida 33603, was employed by the Hillsborough County Hospital and Welfare Board as a nurse's assistant from October 1, 1961 to December 8, 1974, at which time her services were terminated by resignation (Respondent Exhibit 2). Prior to assuming her duties at the Tampa General Hospital, she had 22 years of experience in the photography business in which she took pictures at her place of business and elsewhere and did developing and retouching work in the dark room. Prior to becoming an operating room nursing assistant at the Tampa General Hospital she performed one year of on the job training as a clerk at the hospital with essentially the same duties as that of a nursing assistant. Petitioner's duties as a nursing assistant consisted of working in the operating room suite, washing and cleaning instruments, cleaning shelves, cupboards and dressing rooms, stocking sterile supplies, running errands to the x-ray room, blood bank, medical records area and the like, answering the telephone, checking operating schedules, picking up instruments and instrument trays and putting them away in the operating room, taking messages for doctors and nurses, sterilizing instruments, keeping the nurses lounge and instrument room cabinets clean, and assuming responsibility for the operating room area when the nurse was not present. These duties required almost continuous walking, standing and lifting of objects such as heavy instrument trays, supplies and other items. On October 28, 1974, Petitioner's duty hours at the hospital were from 2:45 P.M. to 11:18 P.M. It was customary for the Petitioner and other employees to go to the hospital parking lot during their supper break and move their private automobiles nearer to the hospital building if they had not been able to secure a parking space that was close to the hospital when reporting for duty. The purpose of this action was to move the car closer so it would be in a more lighted area, because there had been trouble in the past in the outlying darker areas of the parking lot. It was permissible for employees to move their cars in such a manner if they informed the supervisor ahead of time and, in fact, sometimes the male hospital attendants would move the automobiles for the female employees. On October 28, 1974, during her supper break, at approximately 6:30 P.M., Petitioner walked out of the hospital and down the sidewalk by the blood bank in order to proceed to the parking lot and move her automobile for the above-stated purposes. While walking, she tripped on a crack in the sidewalk outside the hospital building in a poorly lighted area and fell to her knees. She experienced pain in the back of her right leg and could not put her weight upon it. A passing doctor attempted to help her arise but was unable to do so, so he went into the hospital, procured a wheelchair and took, her to the emergency room. There she was treated by Doctor Howard D. Hardee, who diagnosed her injury as a sprained ligament and gave her Darvon and an Ace bandage. On November 1, 1974, she was examined by Doctor L.J. Cordrey, a Tampa orthopaedic surgeon, who diagnosed her injury as a degenerative change of the right knee with possible internal derangement. His treatment consisted of x-ray examination, injections of Lidocaine and Decadron, aspiration of fluid from the knee and prescriptions for Motron and Darvon for pain. She had fluid removed from the knee every two weeks for about a three month period (Petitioner Exhibits 2 and 3). Petitioner returned to work at the hospital during Thanksgiving week wearing an elastic brace on her knee. Although fellow employees attempted to lessen her workload, she found that she could not perform her duties and therefore did not continue working, and has not since that time. Although her condition has improved somewhat since the date of the accident with respect to pain, she cannot walk for extended periods without resting. When walking, she must turn her leg sideways and grasp for support. Prior to the injury, she was able to take care of her house and yard. Since that time, however, her sister Mrs. Tommy Humphries, goes to her house daily in order to do the housework. Mrs. Humphries also does the shopping, part of the cooking, and all the driving for her sister. Although Petitioner was a nervous individual prior to the injury, she has become much more nervous since that time. Petitioner filed an application for disability retirement benefits under the Florida Retirement System on January 6, 1975. Required forms accompanying her application were physicians' reports from Dr. Hardee, Dr. Cordrey, and an employer's Statement of Disability (Respondent's Exhibits 1-4). The employer's Statement of Disability reflects that, although the Petitioner was able to perform all of the duties of her position fully and completely prior to her alleged disability, she is unable to perform duties requiring lifting, walking, and standing as a result of the alleged disability. This document also states that there are no other jobs in the organization suitable to her abilities which she could perform despite the claimed disabling condition. The report of Dr. Cordrey, based on his examination and treatment of the Petitioner, which apparently was executed in January, 1975, includes his opinion that the patient at that time was unable to perform substantially all the duties of her occupation, specifically, standing and walking, and that such activity would bring on pain and increased swelling of the right knee. However, it was noted that the Petitioner's condition had not stabilized at that time. The report further reflected that Petitioner had been treated by Dr. Cordrey in July, 1968, for pain at the left heel, Plantaraspect, and that she had responded to treatment and was discharged in November of that year. Dr. Cordrey also stated in his report that Petitioner had had complaints relative to an arthritic condition since 1965. The report of Dr. Hardee made no reference to the injury which occurred on October 28, but showed a diagnosis of arterioschlerotic heart disease, coronary artery disease, peripheral vascular disease, hypertension, a chronic anxiety state, and an arthritic condition. These were described as slowly progressive disorders which were aggravated by standing on the feet for long periods of time. Dr. Hardee also stated in his report that the patient was unable to perform substantially all of the duties of her occupation. On June 5, 1975, Respondent sent a letter to Petitioner indicating that she would be denied disability retirement benefits pursuant to Section 121.091(4)(b) and Section 121.021(13), Florida Statutes, because an informal examination and evaluation of the facts surrounding Petitioner's retirement application did not establish circumstances adequate to justify a disability retirement. Petitioner was examined again by Dr. Cordrey on February 7, 1975 and, in a report to the workmen's compensation carrier, stated that as a result of physical examination, Petitioner had a swelling of the right knee, patellar ballottement, and that palpitation of the right knee elicited diffuse discomfort. The report indicated Dr. Cordrey's impression then as degenerative arthritis, right knee, with possible internal derangement of the right knee. It also stated that, although she had not yet reached maximum medical benefit, eventual permanent disability should not exceed 10 percent of the right leg (Pet. Exhibit 1). The Petitioner also was examined by Dr. Frank K. Kriz, Jr., a Tampa orthopedic surgeon, on July 22, 1975 and, in a report to the workmen's compensation carrier, dated July 23, 1975, stated his impression of Petitioner's condition as early degenerative arthritis of the right knee with narrowing of the medial compartment which would be progressive in nature and which was related to the accident of October, 1974. He stated he did not feel that the patient was able to return to the type of work that she previously had performed, that she has reached maximum medical improvement, and placed her permanent, partial impairment at 10 percent of the right leg (Pet. Exhibit 2). Other medical reports show that Petitioner also suffers from severe hypertension (Pet. Exhibit 3) and poor vision caused by a cataract operation in 1974, and the need for the cataract to be removed from the other eye in the future (Pet. Exhibit 4) At the time of her employment by Hillsborough County, Petitioner enrolled in the State and County Officers and Employees Retirement System. She later transferred to the Florida Retirement System, effective June 1, 1971. It was stipulated by the parties that she has 13.3 years creditable service for retirement purposes.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to a discriminatory employment action based upon his having a disability and, embodied within that question, whether he has a physical impairment which meets the legal definition of disability.
Findings Of Fact The Petitioner was employed by the Respondent, Florida Parole Commission, from July 2003 until January 29, 2007, when the Petitioner resigned. He had worked for the Respondent as a clerk on a part-time basis preparing inmate files for imaging. In October of 2003 he was promoted to records technician in charge of the imaging section. He was again promoted in 2004 to the position of Operations and Management Consultant II. He provided supervision for other employees and coordinated the work-load of the part-time workers (OPS workers) employed in the imaging section. The Respondent is an Agency of the State of Florida that determines which convicted criminals receive parole, the setting of the policies and conditions of parole and other supervised inmate release programs. It also investigates violations of supervision, establishing the terms and conditions of an inmate's release and has a reporting function to the Florida Board of Executive Clemency. On March 1, 2005, the Petitioner experienced the first of a serious of incapacitating physical episodes at work. He had to be removed from the office by ambulance for medical attention. Soon thereafter he was diagnosed as having acute dysautotonomia. Dysautotonomia is an incurable dysfunction of the autonomic nervous system, believed to be caused by a virus. The ailment include symptoms of gastrointestinal dysfunction, significant loss of blood pressure, extreme fatigue, panic attacks, as well as clinical depression. The Petitioner received emotional counseling for his depression and, according to Dr. Kepper, his treating physician, his incapacity is "intermittent and unpredictable." The Petitioner adopted a practice of sitting in his chair and elevating his feet when he had a relatively minor episode. The episodes might last for up to an hour. During a minor episode he would become extremely fatigued and dizzy, was unable to eat or speak coherently and could only lie down to rest until the episode has passed. In the event of a major episode he might experience blackouts, was unable to care for himself and required emergency medical assistance in order to receive intravenous fluids. During major episodes he would summon an ambulance, his girlfriend, or his father to take him to an emergency room for medical attention. The Petitioner's supervisor, Linda Summers, knew that the Petitioner was having these episodes and was resting in his office, prior to July 1, 2006. She allowed him to rest in his office with the door closed when he experienced a minor episode. On June 5, 2006, the Petitioner begin feeling badly and felt that he was about to "pass out." His supervisor, Ms. Summer, asked him if she needed to call an ambulance, as had been done in the past, and he declined. She was concerned about him and suggested that he sit in his office with the door closed until he felt better. Sometime between 3:30 and 4:00 p.m., that day he begin feeling better and said he was going to attempt to drive to the emergency room. Ms. Summers was concerned about his safety and tried to dissuade him. He left, however, but shortly thereafter returned and an ambulance was called to take him to the emergency room. After this, during his episodes, he adopted a practice of closing his office door and putting up a "do not disturb" sign. The Respondent accommodated the Petitioner in this practice, although he had not made a formal request for accommodation, over a period of approximately one and one-half years. The Department of Management Services (DMS) has a rule which was in effect prior to the Petitioner's hiring, which requires that an employee be absent for five consecutive days in order to be eligible to receive donated sick leave. The Respondent has followed this rule since before the Petitioner was hired and applied its standard to all employees. The only occasions when the Respondent has waived this rule-based policy for an employee, was twice in favor of the Petitioner in July and in August of 2006. On those occasions he received 132 donated sick leave hours. Even though the Respondent consistently followed this DMS requirement, it did not actually update its procedure in its personnel handbook to reflect the rule. The Respondent takes the position that if there is a discrepancy between its personnel handbook and the adopted administrative rule, then the rule controls. In any event, on October 10, 2006, the Respondent issued a Revised Procedure Directive, Number 2.02.15, entitled: Attendance and Leave. This directive updated the Respondent's sick leave policy to correspond with its actual policy and with the current DMS rules. It updated the Respondent's Americans With Disabilities Act Policy to reflect established agency policy. Pursuant to this policy (or rule interpretation) the Petitioner received donated sick leave from 18 Respondent employees, including donations from the general counsel, and from the Petitioner's supervisor, in a total amount of 273 hours. The Respondent requires a note from a physician if an employee is absent due to illness for three days in a 30-day period. The Respondent does not deem it a good business practice to waive that requirement nor did it choose to waive it as a reasonable accommodation. On June 16, 2006, the Petitioner suffered a debilitating episode at his office at around 9:00 a.m. He went into his office and put up a "do not disturb" sign for about 30 minutes. A birthday party was occurring in the office at that time and several employees commented concerning their wish to go into their offices put up such a sign and take a nap. Ms. Summers discussed this with the Respondent's Chairman, the former Director of Operations, and the former Human Resources Administrator, Beatriz Caballero. Ms. Summers was thus advised that this could not continue. She therefore talked to the Petitioner and told him that she was sorry that he felt badly but that she could no longer allow him to put up a do not disturb sign as other employees were negatively affected by it and, inferentially, she felt that it affected employee morale. Ms. Summers also established that she and the Petitioner had discussed the Petitioner's doctor's note and what it stated concerning the intermittent nature of his episodes. She told him that the doctor needed to make suggestions about what he should do when he suffers one of the episodes. She also suggested to Mr. Duncan that he probably should go home when he has one of the sick episodes. His response was that as long as he could sit down for a while and be quiet he would start feeling better and that he would hate to drive all the way home and then have to come back. He then said that he would simply go out to his truck in the parking lot and recover from an episode if one occurred. Ms. Summers told him that was an acceptable option and that it was a matter for his own decision. She also told him to be sure to tell her where he was going so that if he did not come back within a reasonable time she could go look for him. She was concerned about his condition and safety. She also told him to leave her a note telling where he had gone and the appropriate time when he left. He indicated that he would do so. At the end of June 2006, Ms. Summers informed the Petitioner that his absences were affecting his productivity and negatively affecting his supervision of the imaging section. This was because the OPS staff, mostly college students, were observed sitting around talking, talking on cellular phones, coming in late and leaving early because of a lack of supervision. It was the Petitioner's responsibility to supervise them and the situation had been deteriorating, in relation to the Petitioner's absences. Director of Operations Gina Giacomo found that the imaging section was not operating at an optimal level because the OPS employees, were undisciplined, and good productivity was not being achieved because of a lack of oversight. She attributes this, in part, to the Petitioner's habit of arriving at work at 7:00 a.m. but leaving at 3:30 p.m. After 3:30 p.m. to the end of the day his employees were unsupervised. The OPS employees were taking very long lunch breaks, leaving early and coming in late and not accounting for their work hours properly. It was the Petitioner's duty to approve the employee's time cards. As a result of the Petitioner's lack of oversight, three of the four employees were under-paid. Also, there were over expenditures as to OPS employees, resulting in a deficiency in the Agency's OPS budget, because the Petitioner allowed some OPS employees to work 35-40 hours per week when they were only supposed to work around 20 hours per week. This had an obvious adverse impact on the Agency's budgeting operations. Because of the employee attendance problems and time- keeping problems, the Respondent Agency initiated a time clock procedure for the imaging section around the end of September 2006. On August 1, 2006, the Petitioner sent the Respondent a written request entitled "Request for Reasonable Accommodation Under the Americans With Disabilities Act", requesting that: 1) he not be required to provide a physician's note when sick as it related to his pertinent disorder; 2) that he be permanently exempt from the five-day rule for sick leave donation as it related to his current disorder; and 3) that he be allowed to close his door while having a minor episode. The Respondent's Human Resources Administrator responded to this request by a memo dated August 8, 2006, declaring that the Petitioner's request to receive a permanent exemption from the five-day rule for sick leave donation eligibility was not a reasonable accommodation request and would not be granted. The Respondent also declared, through the Human Resources Administrator, that the sick leave donation policy is designed for all State of Florida employees to follow. The Respondent contends that the Petitioner's request for the Respondent to exempt him from a medical inquiry (i.e. the provision of a doctor's note or explanation for his illness and/or absence) is also unreasonable. The Respondent took the position that requiring the provision of a physician's note, as it relates to the Petitioner's current disorder, is job-related and consistent with business necessity concerning an employee's ability to perform essential job functions and whether he will be impaired by a medical condition. It is therefore important for an employee's physician to document the employee's need to be absent from work, as well as his ability to return to work and his ability to perform his job functions. The Respondent in essence took the position that while the ADA requires reasonable accommodation to enable qualified disabled persons to perform the essential functions of their jobs, that donated sick leave is not related to ADA requirements, but rather is a benefit provided under state personnel rules. The Respondent did however suggest to the Petitioner that he confer with his supervisor and work with her in trying to make up his missed hours so that he would not have to suffer so many leave-without-pay hours. The Respondent informed the Petitioner that the DMS rule involved clearly states that there is a five-day waiting period before donated sick leave can be used. It acknowledged that the Respondent's internal procedure directive did not specify the five-day rule because it was inadvertently omitted. Because of that oversight the Petitioner's last request dated July 28, 2006, was honored. Thereafter, the internal procedure directive was to be corrected by the Respondent in order to reflect enforcement of the five-day rule for sick leave donation. The Respondent informed the Petitioner that he must follow the requirement for sick leave donation requests in the future. Concerning the Petitioner's request for the accommodation of closing his door while he was having a minor episode, the Respondent told the Petitioner that the request would be reviewed further, but that the Respondent needed information from the Petitioner's physician specifying how the accommodation would assist the Petitioner in performing his essential job functions. The Respondent informed the Petitioner that the documentation needed from his physician should specify the duration the door should be closed, as well as providing any useful accommodation suggestion the doctor might have as it relates to the Petitioner's condition and his request. The general counsel for the Respondent made a determination that the Respondent should not allow the Petitioner to shut his door and remain on the premises due to liability concerns as well as concerns for the Petitioner's health. Instead of providing the requested documentation from the physician to support his accommodation request, on August 17, 2006, the Petitioner filed a Complaint of Discrimination with the Florida Respondent on Human Relations. Before filing that Complaint he never made any complaint to his supervisor concerning any perceived discrimination, or as to being treated differently due to his alleged disability. The Petitioner provided a note from Dr. Kepper, his physician, on August 21, 2006, in which the physician stated that the Petitioner was unable to perform his job from August 16, 2006 to August 30, 2006. There were multiple absences from work during that period of time, as well as abbreviated work days due to the Petitioner's medical condition and other reasons. A meeting was held on December 7, 2006, between Linda Summers the Petitioner's supervisor, the Petitioner, and the Director of Operations, Gina Giacomo. Ms. Giacomo discussed with the Petitioner the need for him to communicate better with his supervisor and for him to come to a better understanding about the importance of the "system" and people not being informed of it. She also addressed the fact that his unit was a very undisciplined unit and that the productivity was not what it should be due to lack of oversight. She attributed much of this problem to the fact that the Petitioner came into work at 7:00 a.m. and left at 3:30 p.m. She determined that there was no reason why he had to start his duties at 7:00 a.m. and changed his work hours so that thenceforth he would work from 7:30 a.m. to 4:30 p.m. with an hour for lunch. She did this in order that he might more closely supervise the part-time, OPS, college-student employees who needed more structure and oversight in the work place. Ms. Giacomo also discussed the fact that the Petitioner's supervisor, Ms. Summers, was frustrated concerning his attendance. It caused difficulty when he was absent for frequent days or partial days because it is such a small agency that it was difficult for other staff members to perform his duties with full-time duties of their own to perform as well. She therefore discussed his schedule changing, her concerns about his working more closely with his supervisor, and his need to inform all of his staff that their schedules were going to change. They were going to thereafter perform all their OPS hours between 7:30 a.m. and 4:30 p.m. and to function more as a team. She also informed the Petitioner that the time-sheets which had been used to account for his employee's work hours were not accomplishing their purpose and that all but one of the time-sheets that he had approved were incorrect. Consequently, she announced the inauguration of a punch-clock procedure for people arriving at and leaving work, so that an accurate accounting of work hours and employees' pay could be accomplished. During the discussion at the December 7th meeting, the Petitioner informed Ms. Giacomo concerning when he could address the time sheet problem, the OPS staff schedule change, and certain other issues. She wanted a time period from him as to when the matters could be cleared up and corrected. That meeting lasted approximately 45 minutes. She remained in the building except during the lunch time period that day but carried two cell phones with her at all times, her personal one and an agency-issued phone. When she got back to her office by mid-afternoon, however, the Petitioner had left with her executive assistant a medically-related form that he had to have already had in his possession before the meeting, which indicated that he would not be able to work from approximately December 4th, to January 9th. He had been present at the meeting and talked about the above-referenced issues without ever mentioning to his supervisor or to the director his need to be off from work for more than a month. He never addressed the issues he was instructed to handle with regard to the OPS employee schedule, etc., all of which finally had to be handled by Ms. Giacomo and Ms. Summers. Upon assuming her duties in September 2006, Ms. Giacomo became very concerned with the lack of professionalism and the management of the imaging section under the Petitioner's supervision. She had four different meetings to try to determine a division of the duties of the Petitioner's position which could be performed by other persons in the office who also had their own full-time duties, because of the Petitioner's absences. Over the course of four or five meetings she re-arranged and re-assigned the functions of the office, on an informal basis, so the functions the Petitioner normally would be responsible for were being taken care of by other staff members. The Petitioner never actually requested assignment to other duties in the Agency as an accommodation. Ms. Giacomo, however, as found above re-assigned functions of his position to other people. She had a meeting with all OPS workers and the permanent, full-time staff and announced that she wanted the Petitioner to be able to be at the meeting, but that it had already been delayed for two weeks because of his absence, and that she needed to proceed and restore the full functioning of the office. She announced that he would not be coming back to his supervisory position but would be greeted "with open arms." She also announced that the Petitioner would be given the same amount of pay, with the same job title, but would be re-assigned to as yet undetermined duties with the Agency. She then informed everyone what each person was going to be doing in terms of performing parts of the functions of the Petitioner's position, so that the office and Agency could function better. On January 16, 2007, the Petitioner provided a note from Dr. Kepper excusing him from work beginning January 10, 2007, stating in effect that he should be excused from work from that date forward until Dr. Kepper could determine whether he was fit enough to resume his normal duties. Due to his medical condition and treatment the doctor stated that the Petitioner was unable to perform his regular duties and would continue to be treated. The doctor stated that the Respondent would continue to be provided updates on the Petitioner's work status, but that the Petitioner, at that time, would have to be placed on out-of-work employment status. Thereafter, on January 29, 2007, the Petitioner submitted his resignation letter. The Petitioner was never terminated nor was he asked to resign by the Respondent. No disciplinary action had ever been taken against him. The Petitioner never asked the Respondent concerning the possibility of being moved to another job or position within the Agency. The evidence shows that between March 2005 and January 2007, the Petitioner worked 3,674.25 hours out of 4,064 regularly scheduled work hours.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the party, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 21st day of September, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 21st day of September, 2007. COPIES FURNISHED: Wilton B. Duncan, III 2728 Oakleigh Court Tallahassee, Florida 32399-2350 Bradley R. Bishoff, Esquire Florida Parole Commission 2601 Blair Stone Road, Building C Tallahassee, Florida 32399-2450 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue is whether denial of Petitioner's application for an exemption to disqualification from employment as a certified nursing assistant (CNA) in a long-term care facility is proper.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order denying Petitioner's, Julian Butler, request for exemption from employment, pursuant to Chapter 435, Florida Statutes. DONE AND ENTERED this 21st day of May 2001, in Tallahassee, Leon County, Florida, FRED L. BUCKINE 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 21st day of May, 2001. COPIES FURNISHED: Edward A. Tellechea, Esquire Office of Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Julian Butler 1305 Woodbine Street Clearwater, Florida 33762 Ruth R. Stiehl, Ph.D., R.N., Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207-2714 Theodore M. Henderson, Agency Clerk Department of Health 4052 Bald Cypress Way Bin A00 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way Bin A02 Tallahassee, Florida 32399-1701
The Issue May Petitioner terminate vocational rehabilitation services to Respondent, specifically, vocational rehabilitation benefits under Chapter 10, F.A.C., for a two year program to become a newspaper writer? HEARING AND PROCEDURE At hearing, Petitioner presented the oral testimony of Kay Nelson and had admitted two exhibits. Respondent testified on her own behalf and presented the oral testimony of Tom Hawkins. Respondent had no exhibits admitted in evidence. Petitioner filed transcript of the formal hearing but has filed no proposed findings of fact and conclusions of law. Respondent timely filed, within the extended time limits stipulated by the parties, a five page letter with various exhibits attached. Leave was not sought by motion for the submission of these after-filed exhibits and they have not been considered. A ruling in compliance with Section 120.59(2), Florida Statutes is contained within the CONCLUSIONS OF LAW portion of this recommended order.
Findings Of Fact Respondent, Marilyn McFadden, is an adult Caucasian female with a history of marital, familial, and emotional problems. Her past work history is unskilled and non-specific except for assisting a former husband who was a pentecostal preacher and evangelist and for working in her own creative jewelry business. In 1983, Respondent was referred by the federal Social Security Administration to Petitioner State of Florida, Department of Health and Rehabilitative Services vocational rehabilitation unit (DHRS), in Sarasota, Florida. On March 14, 1983, Respondent made application for vocational rehabilitation services and funds.1 An extensive "work-up" was prepared by Kay Nelson, a DHRS employee who was a vocational rehabilitation counselor at the time. In the course of this "work-up," medical advisors to Petitioner verified to the satisfaction of Ms. Nelson that Respondent had sufficient physical disability or physical vocational handicap in her neck, shoulders, and upper back2 to qualify for DHRS vocational rehabilitation client services on the basis of a physical handicap and that Respondent would require preparation or re-training for semi-sedentary work on the basis of her past limited work history and present physical disability/handicap. At that time, Respondent did not confide in Ms. Nelson or the psychological evaluator that she had undergone prior psychiatric treatment with regard to her first divorce. Therefore, Ms. Nelson's initial assessment of Respondent's eligibility for vocational rehabilitation services did not take into account that Respondent might qualify for benefits due to a mental or emotional disability. Likewise, it did not take into consideration that her psychological makeup might present a barrier to successful vocational rehabilitation or future employability. Indeed, Ms. Nelson's assessment concluded that Respondent was then psychologically fit to embark on a two year college course so as to enter the occupational grouping of "Newswriter 131.267-214." In order to achieve the goal of rendering Respondent employable, Respondent on her own behalf and Kay Nelson on behalf of DHRS entered into a written individualized written client services program set out in a three page document-dated July 12, 1983. (P-1) Before entering into the written program, Respondent and Nelson orally agreed that the services set forth in the written program had a reasonable expectation of getting Respondent back to work. In addition to counseling, guidance, assistance with placement, and other services to help Respondent achieve employability, the written program specifically provided for Respondent to pursue a Mass Communications "Journalism) AA [Associate of Arts] degree at Manatee Junior College by completing 60 semester hours at 517.00 per hour for a total of $1,020.00. In the "Counseling and Guidance Goals" portion of the written program it states as goals, "1. To encourage Marilyn's participation in New Option Program. To assist her to see her strong point-- positives. To assist her to view things as a whole and not dwell on detail." Elsewhere in the program the parties agreed, in pertinent part, to "Counselling & Guidance provided by V. R. Counselor, Double Your Opportunity Program at MJC,3 & Displaced Homemaker Programs. N/C to V.R."4 and "Placement Services provided by V.R. 9 Counselor, V.R. Placement Specialist, F.S.E.S.; and M.J.C. n/c to V.R." These services had the extensive objective of emotional support, teaching assertiveness, guiding course selection and vocational choices, and preparing Respondent for return to employment including resume preparation, job interview techniques, and proper vocational attitudes. In the "Statement of Client Agreement and Participation" portion of the written program it is spelled out that: "I, Marilyn J. McFadden; will cooperate in all phases of my Vocational Rehabilitation. I will attend all classes regularly and give my best effort in all classwork. I understand that in order for V.R. to continue at MJC, I must maintain a 2.0 GPA, keeping my counselor advised monthly of my progress at MJC in training and any expected changes in my V.R. plan. Prior to the end of each term, I will provide my counselor a written list of my expected course grades, initialed by the respective professors, as well as a listing of classes and books for the next term. I also understand that I am expected each term to contact the financial aid office and apply for any financial aid that it is determined I may be eligible to receive. Any scholarships or grant moneys I receive in addition to my PELL Grant are to be reimbursed to V.R. unless my counselor deems otherwise. I will be expected to assume financial responsibility for all my medical, therapy, and maintenance expenses. If personal or financial needs arise that would create undue hardship on my completing this training program I-am to advise my counselor prior to initiating any program changes. Any plans to continue on with a Baccalaureate degree in my ma]or field will not be considered until I have completed my two year degree and then will be dependent upon my successful completion of this training, my final G.P.A., and if my counselor and I agree that this prescribed course of action is in my best vocational interest. I understand that at the present time there is no financial obligation on the part of V.R. to fund me in a 4 year training program nor is my counselor or V.R. recommending such a program. Any major changes to my program such as change in vocational goal or additional training will require a supplemental plan. At the completion of my training program, I understand that I will be expected to work closely with those placement resources listed in my plan, keep scheduled job interviews, seek employment myself, and when appropriate employment is offered to me, return to work. "Emphasis supplied) Respondent signed and dated this program agreement. (P-1) From August 1983 until January 1984, DHRS provided Respondent with money for some tuition costs until she received a Pell education grant, provided her with funds for books, transportation, and child care for her daughter, and provided her with on-going guidance and counselling. During this period, Respondent fully complied with the signed, written program. Respondent took some remedial courses in math and English. It is not clear whether these courses were strictly remedial or are basic to an AA degree which may be used as the basis of a 4 year Baccalaureate degree, but these courses were apparently necessary to allow Respondent to remain in other courses required to qualify for an "AA" toward achieving "newswriter" employment. There is therefore insufficient evidence to support a finding that Respondent deliberately took unauthorized courses at Manatee Junior College during this period or during subsequent grading periods. On January 18, 1984, Ms. Nelson counselled with Respondent and concluded Respondent had severe emotional problems. Except for her formal job title, little information was provided concerning Ms. Nelson. No evidence of education, training or experience of Ms. Nelson was offered as a predicate for her reaching this conclusion, and indeed, Ms. Nelson personally testified that she was "not a doctor". However, upon Ms. Nelson's testimony concerning her direct, personal observations of Respondent on that date and shortly thereafter that Respondent was behaving erratically and talking incoherently and upon Respondent's reference to this period as "the breakdown," it is found that for an unspecified period of time in early 1984 Respondent was unable to comply with the written vocational rehabilitation program due to severe emotional problems. Ms. Nelson and a person named Jeanne Hinton transported Respondent to a psychiatric hospital and attempted to have her commit herself voluntarily. When Ms. McFadden refused to commit herself voluntarily, Ms. Nelson and others appeared in some type of legal proceeding in an attempt to involuntarily commit Respondent for psychiatric care. Inevitably, these incidents resulted in considerable animosity and distrust on Ms. McFadden's part toward Ms. Nelson and toward DHRS. There is no evidence that Ms. McFadden is currently under any court or Division of Administrative Hearing Order of incompetency or involuntary commitment.5 Nonetheless, based on hearsay and her own observations, Ms. Nelson, as counsellor in charge of Ms. McFadden's vocational rehabilitation benefits, determined that Ms. McFadden was ineligible for vocational rehabilitation benefits under the existing program. In large part, Ms. Nelson's decision was based upon Ms. McFadden's expressed belief that God would heal her without counselling by DHRS or a psychologist and Ms. McFadden's refusal of counselling by Ms. Nelson or any other human being. Ms Nelson appears to have concluded that such reliance on God is evidence of emotional instability. Ms. Nelson closed Respondent McFadden's file and terminated her vocational rehabilitation benefits upon grounds Respondent was "ineligible." Ms. Nelson is emphatic that the determination of ineligibility is that of the vocational counsellor and as that counsellor, she does consider Respondent ineligible because of what Ms. Nelson perceives as Respondent's emotional problems interfering with Respondent's ability to complete the agreed program and interfering with Respondent's employability. Ms. Nelson elected not to close the file upon grounds-the Respondent was "uncooperative." Respondent denies any type of mental handicap requiring remediation as of the date of formal hearing. She maintains that although she first signed the contract program which DHRS has now terminated, she thereafter decided unilaterally that her acceptance of the benefits provided thereunder was dishonest within her personal moral code because she had no intention of becoming a newswriter; that she did not intend to ever accept employment in such a field but intended to "piggyback" a four year Baccalaureate degree in journalism and possibly a Master's degree on top of the "AA" degree if she successfully completed the "AA" degree. At hearing, Respondent initially refused to comply with the terms of the program and then offered to comply with the requirements of the program as far as achieving the "AA" degree but refused to progress toward employability as a newswriter and indicated she would still reject counselling. The mutual hostility, mutual mistrust, and lack of respect for each other's point of view of Ms. Nelson and Respondent McFadden was an observable situation clearly evident throughout the entire hearing.
Recommendation That the Department of Health and Rehabilitative Services enter a final order affirming the administrative termination of the vocational rehabilitation benefits entered into by the July 12, 1983 written client services program. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. ELLA JANE DAVIS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 19th day of August, 1986.
The Issue Whether or not the Petitioner, Bernice Parr, is entitled to be licensed by the Respondent, Department of Health and Rehabilitative Services, to provide foster care for adults.
Findings Of Fact The Petitioner is a resident of Duval County, Florida. The Respondent is a governmental agency of the State of Florida. This cause comes on for consideration based upon the Petitioner's request for a license to provide foster care for adults and denial of that request by the Respondent. At the time prescribed for the hearing, evidence, to include in-hearing testimony, was entertained by the undersigned. When the parties had concluded their presentations, they were advised of the procedures which would be followed subsequent to the hearing. When this explanation was made, the Petitioner indicated to the undersigned that she had changed her mind about her request for licensure, stating that she did not wish to be licensed as requested, nor to be involved with Respondent on the question of providing foster care for adults in the premises adjacent to her residence. This statement by the Petitioner made at the close of the hearing was treated as a motion by the Petitioner for voluntary dismissal and was unopposed by the Respondent's attorney. Therefore, it will be recommended that the action be dismissed pursuant to the voluntary motion. (This action taken by the undersigned was explained to the Petitioner before this outcome.)
Recommendation In consideration of the foregoing, it is RECOMMENDED: That the petition for licensure to provide foster care for adults be DENIED. DONE and ENTERED this 30th day of August, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Bernice Parr Robert M. Eisenberg, Esquire 9029 Galveston Avenue Legal Counsel, HRS District IV Jacksonville, Florida 32211 Post Office Box 2417-F Jacksonville, Florida 32231
Findings Of Fact Petitioner Walter C. Fitzgibbon is a permanent state career service employee who became a Planner and Evaluator II with the Division of Corrections, Department of Health and Rehabilitative Services, on February 14, 1975. He had been serving in that department in other capacities since 1969. In July of 1975, the Department of Offender Rehabilitation (DOR) was created that took over the functions of the Division of Corrections, and Petitioner retained his position which was placed in the Bureau of Planning, Research and Statistics headed by Robert Roesch. The Bureau is under the supervision of the Assistant Secretary for Programs, T. P. Jones. (Testimony of Ball, Waiwright, Jones, Fitzgibbon, Exhibits 15, 29) In July, 1977, there were four Planner and Evaluator II positions in the Department of Offender Rehabilitation. Three of these positions were under the Bureau of Planning, Research and Statistics and the incumbents performed basically similar duties that primarily consisted of long-range planning to meet departmental goals and objectives. The employees holding these positions were Petitioner, Sunil Nath, and Bill C. Schnitzer. The fourth Planner and Evaluator II position in the department was under the Assistant Secretary for Programs in the Adult Services Program office headed by Director Ronald B. Jones. The incumbent of this position serves as Mutual Participation Program Coordinator, (MPP Coordinator), a position that was established by the Mutual Participation Program Act of 1976 (Section 847.135, F.S.), and which involves the planning, developing, coordinating and implementing of a two-year pilot program of contracts between the DOR, the Florida Parole and Probation Commission (Commission) and incarcerated criminal offenders with a view to early release from correctional institutions under parole supervision. Although the DOR originally had requested the Department of Administration to establish this position in a separate class because of its special characteristics, the request was not approved and the coordinator position was placed in the classification of Planner and Evaluator II. A position description for the job was approved on July 21, 1976, and applications for the vacancy were solicited in a DOR advertisement letter of July 27, 1976. This advertisement showed the minimum training and experience requirements for a Planner and Evaluator II, but did not mention the specialized requirements set forth in the position description. Edward M. Teuton, an Inmate Classification Supervisor at Sumter Correctional Institution, was invited to apply for the job by Assistant Secretary Jones who had known Teuton when the latter was an Inmate Classification Specialist at the Florida Correctional Institution where Jones had been the superintendent some years prior to that time. Teuton thereafter was selected to fill the vacancy in September, 1976. (Testimony of Ball, T. Jones, Teuton, Exhibit 2, Composite Exhibit 9) The 1977 State Legislature took action called a "productivity adjustment" which, along with termination of certain federal grants, resulted in the deletion of 149 positions in the DOR. Although officials of the department had become aware of the probable employee cutbacks as early as May, 1977, the law effecting the cuts did not become effective until late June, and it was not until the latter part of July that the department determined the specific employee positions that would be abolished. By letter of July 26 to the Secretary of Administration, Mr. Louie L. Wainwright, Secretary of DOR, requested approval of a statewide competitive area for the deletion of certain positions, including the three Planner and Evaluator II positions in the Bureau of Planning, Research and Statistics. In this letter, he stated that "Any layoffs necessitated by position deletions will be accomplished through application of retention points as specified by the State Personnel Rules." On July 27, the Secretary of Administration approved the request. (Testimony of Ball, T. Jones, Exhibits 1, 3, 4) On July 28, 1977, DOR Personnel Officer James A. Ball, III, held a meeting at which he advised the four Planners and Evaluators of the situation and indicated that three of the positions were to be abolished. "Retention points" under the layoff rule, Rule 22A-7.11, F.A.C., had been computed by his office and Petitioner had 120 points which was the highest of the four employees. Nath had 85 points, Teuton had 83, and Schnitzer had 68. Accordingly, Ball told Petitioner that he would not be adversely affected by the cutbacks since he had the most retention points, and that, after the meeting, he should get acquainted with Teuton and the duties of his position. The other three employees were requested to remain in order to discuss the implications of their impending layoffs. Petitioner proceeded to confer with Teuton thereafter, and "phase-in" to the new position by orienting himself in his anticipated new duties and responsibilities. However, he continued to perform his normal duty assignment and no official change in position was made. (Testimony of Ball, T. Jones, Fitzgibbon, Teuton, Exhibits 10, 11, 26) In early August, Ball briefed Secretary Wainwright and his chief assistants on the situation and advised them that Fitzgibbon would succeed to the remaining Planner and Evaluator II position then held by Teuton because he had the most retention points. The Secretary was concerned because it was a pilot program scheduled for only a two year existence and had been in successful operation for one of those two years under Teuton. He felt that there was insufficient time to train someone to take over the program because of its short duration and the necessity of reporting to the legislature on its progress. He therefore sought the advice of the State Personnel Director and the latter recommended that he consider the possibility of utilizing the concept of "selective competition" to fill the position. This is a process permitted under the layoff rule when authorized by the State Personnel Director that permits a state agency to avoid the "bumping" procedures by which employees holding the most retention points within a competitive area when layoffs are to be effected may obtain any remaining vacant positions. In selective competition, unwritten Department of Administration policy is that only those employees who meet the specific qualifications deemed necessary for the position which are clearly reflected in the position description may compete for the job. If several employees meet these special qualifications, then the one with the highest retention points is appointed. (Testimony of Ball, Wainwright, Dean) By letter dated August 31, 1977, Secretary Wainwright requested the State Personnel Director to approve selective competition for the coordinator position "among persons who may be affected by layoff in the Department of Offender Rehabilitation." The position was therein described as unique, and requiring specific qualifications to perform the duties reflected in the position description. These qualifications were that the incumbent must have a thorough knowledge of the statute governing the program, possess extensive inmate classification experience to train institutional classification personnel in negotiating contract paroles and monitoring and evaluating the program. Additionally, institutional experience in dealing with inmates was said to be necessary in order to be successful in the position, plus a thorough knowledge of structured treatment programs at each DOR rehabilitation facility. The Deputy State Personnel Director reviewed the request in the light of the position description and determined that selective competition was appropriate. Based on his recommendation, the State Personnel Director approved the request by letter of September 8, 1977. (Testimony of Ball, Dean, Wainwright, Exhibits 5, 6) Based on recommendations from Assistant Secretary Jones, personnel officer Ball, and Ronald Jones, the program director, Secretary Wainwright determined that Teuton was the only Planner and Evaluator II who possessed the special qualifications for the position. He therefore informed Teuton by a letter, dated September 14, 1977, that since he was "best qualified" for the position, he would remain in that capacity and that the notice of layoff sent to him on August 5 could be disregarded. The process of selective competition had not been publicized or otherwise made known to Fitzgibbon. In arriving at his decision, Secretary Wainwright had reviewed the qualifications of all four employees. (Testimony of Ball, Wainwright, T. Jones, Exhibit 13) On September 13, Fitzgibbon met with Ball and Assistant Secretary Jones at which time the latter informed him that he would not receive the coordinator position. At this time, he was provided with a copy of a letter signed by Wainwright, dated September 14, 1977, advising him of his impending layoff and his rights in that regard. At the meeting, Jones explained to Fitzgibbon that he could take a voluntary demotion if he so desired and that he would be provided with assistance in finding another job. Fitzgibbon received the official notice of layoff letter on September 19th. The letter informed him that he had the right in lieu of layoff to request demotion or reassignment within the competitive area to a position for which he might be eligible. In this letter, he was also advised that he was subject to layoff because of the deletion of his position and because of "your lack of either permanent status or sufficient retention points in your class of position and competitive area." He was further advised of his right to appeal the layoff to the Career Service Commission within twenty days. On September 30, 1977, Fitzgibbon appealed the layoff to the State Personnel Director claiming that the DOR had made "unfair and unjust use" of Rule 22A-7.11 by "questionable procedures" in the obtainment of selective competition for the remaining Planner and Evaluator II position. Also, by letter of September 23 to the Bureau of Personnel of the DOR, Fitzgibbon recited the events leading to his receipt of the layoff letter and requested demotion or reassignment in lieu of layoff "solely to comply with the personnel rules related to layoff and to retain my employment with the state and this department." He further stated that he retained his right to appeal to the Career Service Commission. Secretary Wainwright responded by letter of November 22, in which he informed Fitzgibbon that his "voluntary demotion" to Planner and Evaluator I would become effective on December 18. Fitzgibbon was, in fact, demoted to that grade on the stated date. (Testimony of Ball, Fitzgibbon, Exhibits 7-8, 14) The Mutual Participation Program which commenced in October, 1976, is operational in eight major correctional institutions in Florida. It involves the negotiation of contracts which specify certain undertakings by inmates during institutional confinement, a guaranteed parole date, the terms of parole supervision, and release from parole. The contractual parties are the DOR, the Parole and Probation Commission and the inmate concerned. Also termed "contract parole," it is an innovative system designed to provide an inmate with an opportunity to become involved in the decision-making process concerning his future and to set clearly defined requirements for obtaining a guaranteed parole release date. Such requirements may consist of academic and vocational programs, special counseling, restitution, pre-parole work release, and behavioral objectives. Each successfully negotiated contract is individualized in the above respects to fit the needs of the particular inmate. The procedure employed in negotiating a contract is for the inmate to prepare an initial proposal for consideration by a negotiating team composed of representatives of the DOR and the Commission. These representatives consist of an Inmate Classification Specialist of the DOR and a Contract Parole Specialist of the Commission, located at the correctional institution. If all three parties agree to the terms of the contract, it is sent to the Superintendent of the institution who may approve or deny the proposal. If he approves, it is then submitted to the Commission for final approval. It is the inmate's responsibility to fulfill the terms of the contract in a satisfactory manner. The institution must provide the services agreed to in the contract and the Commission must honor the established parole date if the inmate meets the contractual provisions. The MPP Coordinator, aside from initial duties in planning and establishing procedures for the pilot program and training individuals involved in the negotiating process, acts as a coordinator between the three parties to the contract to inform all concerned of the offender's performance of conditions and activities necessary to achieve release on parole. He must be well-versed in the current operations of the correctional system and be an efficient and diplomatic administrator, with less emphasis on planning, research and evaluation. The position is considered "crucial" and "sensitive" by the DOR. Although conflicting evidence was presented at the hearing, the weight of the evidence shows that the following special qualifications must be possessed by the incumbent of the position in order to perform the job in a satisfactory manner. He must have had prior experience in correctional institutions and be familiar with institutional programs. It is of critical importance that the coordinator have expertise in dealing with inmates to ensure that they are placed in appropriate programs tailored to their particular needs based on their background, educational psychological tests and the like. This aspect also requires an intimate knowledge of the functions of Inmate Classification Specialists and Supervisors because these are the institutional personnel who are concerned with the negotiating process. Further, since the contract parole system is premised upon successful accomplishment of goals while in the institution, there is less importance ascribed to the activities of the inmate while on parole. While the coordinator must monitor and evaluate inmate progress in fulfilling the terms of his contract and must provide input for periodic evaluations of the entire program, necessary research and reports based on statistics and other information gleaned from past experience is provided by the DOR's Bureau of Planning, Research and Statistics. The duties and responsibilities requiring the above qualifications are reflected in the position description for the MPP Coordinator. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Mills, Fouty, Terrisi, Teuton, Nath, Exhibits 5, 9, 12, 16- 20) Although Fitzgibbon possesses extensive background and experience in planning and administering institutional programs for mentally and physically handicapped individuals, he has had no experience in correctional institutions dealing with classification of inmates and institutional programs. On the other hand, Teuton had served several years as an Inmate Classification Specialist and Supervisor at various Florida correctional institutions. It was determined therefore by Secretary Wainwright, as well as by Ball and the Messrs. Jones, that Fitzgibbon lacked the basic qualifications for the position. It was further felt by those officials that the position required an individual to possess an ability to "get along" with others in view of the importance of the coordinating and liaison aspects, and that Teuton had demonstrated he possessed such a trait during during the period in which he had administered the program in a highly satisfactory manner. However, regardless of that fact, Secretary Wainwright testified that had Fitzgibbon possessed the necessary experience at correctional institutions, he would have been appointed to the position since he had more retention points than Teuton. (Testimony of Ball, Wainwright, T. Jones, R. Jones, Exhibits 15, 21, 28) On July 13, 1977, Fitzgibbon's immediate supervisor Sam T. Siler, Jr., Planner and Evaluator III, signed a "Employee Service Rating," dated June 10, 1977, regarding Fitzgibbon for the annual rating period from July 1, 1976 to July 1, 1977. This report reflected an overall rating of "Above Satisfactory" and contained complimentary statements concerning Fitzgibbon's performance of duty. Siler considered that this was a first draft only and that it was necessary for him to "defend" it before his next supervisor, the Bureau Chief Roesch. It was his practice -- a common one in the DOR -- for such a rating to be reviewed by a higher-level supervisor prior to putting it in final form. Siler "negotiated" the rating with Roesch who in turn took it to Assistant Secretary Jones, his supervisor; Jones told Roesch that he should review with Siler all of Fitzgibbon's activities and that the rating should be defensible. He also indicated, however, that Siler's rating appeared to be a "little high." Roesch informed Siler that the rating should be lower because it was too high when compared with ratings received by others in the bureau. Siler acknowledged that he might have overrated Fitzgibbon because he knew that personnel cuts were in the offing, and agreed with Roesch to a lower rating. Siler then went on vacation and when he returned, a new rating had been prepared with signatures of superiors already affixed. The report gave Fitzgibbon an overall rating of satisfactory and lower ratings in specific areas including less flattering comments. Although the rating was signed by his supervisors on July 20, 1977, Fitzgibbon did not receive a copy of the report until October 18th. He declined to sign the rating form and prepared a memorandum, dated October 20, 1977, which indicated his non-concurrence with the rating as reflecting less than an adequate evaluation of his work and contributions to the department. The existing personnel directive in the DOR provides that it is the responsibility of the employee's immediate supervisor to rate each employee under his supervision and then review the form with the employee, at which time the employee signs or declines to sign the form. At that point, the employee's department head is to review the form, placing his comments or recommendations thereon, signing and then transmitting to the personnel officer and the superintendent (in this case Secretary Wainwright) prior to transmittal of the form to the central personnel office. Siler told Fitzgibbon at the time he handed him a copy of the rating on October 18 that he did not want to sign the changed rating already signed by Jones and Roesch, but that Roesch had told him it would be in his best interests to sign it. (Testimony of Ball, T. Jones, Siler, Fitzgibbon, Exhibits 22, 23, 25, 27)
Recommendation That the Career Service Commission deny the appeal. DONE and ENTERED this 9th day of May, 1978, in Tallahassee, Florida. THOMAS C. OLDHAM Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Jerry Traynham, Esquire 1215 Thomasville Road Tallahassee, Florida 32303 Earl Archer, Esquire 1311 Winewood Boulevard Tallahassee, Florida 32301 Edward M. Teuton 1311 Winewood Boulevard Tallahassee, Florida 32301 Mr. Conley Kennison Attn: Mrs. Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
The Issue Whether or not the Respondent, Department of Health and Rehabilitative Services' cessation of further vocational rehabilitation services to petitioner and its (Respondent's) failure to release certain medical and psychological reports directly to Petitioner, was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence received herein, and the entire record compiled in this proceeding, the following relevant facts are found. Petitioner, William W. Englert, Jr., during times material herein, was a recipient of certain vocational and rehabilitative services and other benefits from Respondent, Department of Health and Rehabilitative Services, Office of Vocational Rehabilitation. 1/ By letter dated October 1, 1981, Petitioner was advised by Betty J. Mynatt, District Counselor for Vocational Rehabilitation in Brevard County, that the Office of Vocational Rehabilitation was closing his file as of October 1, 1981, based on his failure to follow the recommendation of the staff in the district office, including the medical and psychological consultants, work evaluators and the V.R. and supervising counselors who recommended that Petitioner pursue intensive psychotherapy. Based on Petitioner's failure to follow that recommendation, he was deemed ineligible to receive further Vocational Rehabilitation services. Two weeks prior, i.e., approximately September 15, 1981, Petitioner was advised by Charles E. May, Vocational Rehabilitation Program Supervisor for District VII, by letter dated September 15, 1981, that the Offices of Vocational Rehabilitation would not release, directly to him, medical and psychological reports contained in his Vocational Rehabilitation file based on his (Petitioner's) refusal to accept the recommendation or follow the advice of those recommendations contained in those reports. Rather, Respondent concluded that such reports should be released, in Petitioner's behalf, to a third party who would offer assistance to him in utilizing such information to his personal benefit. Certain persons were suggested to Petitioner who would be able to lend beneficial assistance to him. (Petitioner's Composite Exhibit No. 1.) Petitioner was observed by Harold F. Bernstein, Ph.D., a clinical psychologist licensed to practice in Brevard County, Florida, on three (3) occasions during early May and June of 1981. Dr. Bernstein, who is in private practice, is on the approved list of psychologists for vendor services to the Offices of Vocational Rehabilitation. He has served as a consultant, using Vocational Rehabilitation purchase of client services funds, since approximately 1973. (Respondent's Exhibit No. 5.) During the first and second sessions, which were held on May 7 and 14, 1981, Petitioner was evaluated and tested by Dr. Bernstein for the purpose of performing a psychological evaluation. During these two (2) sessions, Petitioner was "guarded" and resisted Dr. Bernstein's efforts to test and evaluate him. During the third meeting in June of 1981, Petitioner challenged and disputed Dr. Bernstein's evaluations, findings and ultimate recommendations. To perform the psychological testing of Petitioner, Dr. Bernstein used the Wischler Intelligence Scale for Children, 1952 Revision for Adults (WISC-R) , which in his opinion measured a valid profile of Petitioner. Dr. Bernstein noted six (6) impressions and/or problems as relates to Petitioner. These impressions were that Petitioner suffered from organic brain syndrome, neurological defects, anxiety disorders, paranoia, a social relations disorder and an average intellectual range. Shirlee Wise, a Vocational Evaluator, is Director of the Vocational Rehabilitation Achievement Center (Center) in Brevard County. The Center is a work oriented facility, private, nonprofit. Vocational Rehabilitation has a contract with the Center to provide both work evaluation services and personal adjustment services to selected, eligible clients of the Vocational Rehabilitation Program. Petitioner was referred to the Center and was enrolled in a work evaluation program which permitted Ms. Wise to prepare a final work evaluation report for petitioner. During the course of that program, Petitioner was resistant to the various work sample techniques utilized by the Center and consistently refused to be timed when assigned tasks to complete. Petitioner occasionally left the Center when its staff conducted work sampling tests and during the fifteen (15) work day period involved in the program, Petitioner was present only seven (7) of the fifteen (15) work days. At the conclusion of the program, staffers from the Center prepared a final work evaluation report on Petitioner on August 14, 1981. The report dealt with academics, interests testings, vocational work samplings, behavioral observations, a personal interview and a summary. When the report was prepared, Petitioner, who was present, was given a copy, and an oral explanation of the findings and summaries contained therein. The report concluded that Petitioner, based on observations, work samplings and the recommendations of staffers, should receive intensive psychotherapy. To date, Petitioner has refused to follow this recommendation. During the period in which Petitioner received vocational rehabilitative services, he was given a complete battery of psychological tests and other evaluative materials, including a neurological and orthopedic evaluation; a complete series of neuropsychological evaluations including a CAT scan and a work evaluation assignment at the Center. During the period in which Petitioner was receiving services, he openly criticized the recommendations and findings of the staff of Vocational Rehabilitation and its contract service providers. When petitioner failed to follow the recommendations of the Vocational Rehabilitation staff, he was declared ineligible for further services from the program. The terminal date of his eligibility for benefits and services was September 30, 1981. The staff of Vocational Rehabilitation closed petitioner's eligibility file based on a Code 56, which signifies a "failure to cooperate from applicant status." As stated, Petitioner was advised of this decision to close his file by letter dated October 1, 1981. (Testimony of Betty Mynatt.) Lyle Peddicord, Supervisor and Vocational Rehabilitation Counselor for District VII since 1968 is familiar with Petitioner's Vocational Rehabilitation file. Supervisor Peddicord requested that Dr. Bernstein provide Petitioner with an explanation of his psychological report inasmuch as he felt that a personal explanation might be helpful to him. Supervisor Peddicord followed Petitioner's case history from the outset through the termination of Vocational Rehabilitation benefits. Charles E. May, Program Supervisor for Vocational Rehabilitation in District VII, was familiar with Petitioner and recalled a meeting with him on September 10, 1981. During the meeting with Supervisor May, Petitioner also openly expressed his dissatisfaction with the recommendations and findings of the medical and psychological reports and evaluations and his inability to directly gain access to the medical and psychological information contained in his file. Supervisor May also explained to Petitioner the importance of his need to follow the recommendations of the V.R. staff and the consequences which would result should he elect not to follow the staff recommendations. Supervisor May also explained to petitioner the restrictions that the V.R. program operates under with respect to the direct release of information to a client. Petitioner admits that he was absent from the work evaluation program sponsored by the Center, however, he related that he was not in the best mental state during this period due to his father's illness and the resulting stress as a result of that illness. Petitioner also considered that the two (2) visits which he made to Dr. Bernstein's office were not sufficient, in his opinion, for Dr. Bernstein to recommend intensive psychotherapy sessions. Petitioner also was of the opinion that the refusal of Vocational Rehabilitation to directly permit him access to his file was improper and urges that V.R. be ordered to grant him direct access to his medical and psychological file.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That the Respondent deny Petitioner direct access to his medical and psychological material contained in its files and terminate further Vocational Rehabilitation services to him. RECOMMENDED this 17th day of February, 1982, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1982.
Findings Of Fact Jules Montouri is a retarded adult. Rahya Montouri is his mother. Prior to March, 1980, Jules Montouri resided at a facility maintained by the Department of Health and Rehabilitative Services in Gainesville, Florida. Jules Montouri's mental capacity is retarded to an extent that he will never be able to completely care for himself and meet his own needs. He can, however, with proper training become capable of living a somewhat normal life with minimal supervision. Since March, 1980, Jules Montouri has resided at "Hillcrest House." Hillcrest House is an adult group residential facility maintained by the Provider, Sheltered Community Residence, Inc. The Provider is under contract with the Department of Health and Rehabilitative Services to provide a residential educational setting for retarded adult males. The concept of the program offered by the Provider is to move clients out of heavily restricted institutional environments into less restrictive ones. The program is designed to train clients to meet as many of their own needs as they can, and to gradually move them into less and less restrictive living situations. The Provider has sought to teach Jules Montouri to live in harmony in a minimally supervised environment, and to do his own cleaning and cooking. The Provider's goal with respect to Jules Montouri would be to move him into an apartment-type living facility with several other retarded adult males with a minimal degree of supervision. The Provider's program is an appropriate one for Jules Montouri. Except for problems that have developed between the Provider and Rahya Montouri, the program offered by the Provider would have a reasonable prospect of successfully training Jules Montouri to live in a substantially independent manner. Rahya Montouri disagrees with the goal of the Provider's program to steer Jules Montouri toward a level of substantial independence. She has objected to programs designed to train Jules Montouri for marginal employment, and to programs designed to teach him how to cook for himself. While Rahya Montouri maintains that she wants her son to remain as a resident in the Hillcrest House facility, she has found very little but fault with the program. Since Jules Montouri has been a client of the Provider, Rahya Montouri has complained on a constant basis about virtually every aspect of the Provider's program. She visits her son often at the facility, and has complained verbally to staff members on virtually every visit. She has made many complaints through telephone conversations with members of the staff. She has written numerous letters to complain about the facility, the program, other clients, and the staff. For example, she has expressed suspicion that her son has engaged in homosexual conduct and has implied that members of the staff may have been involved. These suspicions and accusations appear to have been based upon no evidence whatever. Mrs. Montouri's antagonistic attitude toward the Provider's program has become disruptive to the program. The Provider's staff at the Hillcrest facility has spent from five to ten hours per week since Jules Montouri has been a client dealing with complaints from Mrs. Montouri. On at least two occasions, Mrs. Montouri has violated the rights of other clients at the facility by going through their belongings looking for items that she asserted had been taken from her son. Mrs. Montouri's antagonism toward the program has affected the ability of Jules Montouri to participate in it. Jules is caught in the unfortunate cross fire between the program and his mother. As can be expected, it has confused him considerably. Recently, he has told several of the Provider's staff members and social workers from the Department of Health and Rehabilitative Services that he wishes to leave the program. Mrs. Montouri has complained to the Human Rights Advocacy Committee for Retardation. This committee is a group of volunteers who serve to investigate potential emotional, psychological, or sexual abuse of clients. Mrs. Montouri's complaints have resulted in investigations by the Human Rights Advocacy Committee of the Provider's program. The investigations have not revealed any instances of actual abuse. The investigations have, however, had a demoralizing effect upon the staff of the Provider's program, and could seriously damage the program's reputation. Mrs. Montouri's antagonistic attitude toward the Provider's program has become abusive. The time that the Provider's staff has had to devote to her complaints is unjustified. Her antagonistic attitude has rendered it difficult for her son to progress in the program. Her complaints have demoralized the program's staff and could eventually injure the program's reputation. While the program offered by the Provider is an appropriate one for Jules Montouri and could serve to prepare him to live the most normal life possible for him, it is not practical that he continue in the program.
The Issue The ultimate issue is whether Coyle is eligible for vocational rehabilitation benefits. The eligibility requirements for vocational rehabilitation benefits are set forth in both federal and state law. An individual is eligible when it is certified that: A physical or mental disability is present; A substantial handicap to employment exists; and Vocational rehabilitation services may reasonably be expected to render an individual fit to engage in gainful employment. Based upon the evidence presented at the hearing, there is no viable dispute that Coyle would not benefit from the receipt of vocational rehabilitation services, or that a documented physical disability does not exist. The real factual issue presented is whether Coyle has a substantial handicap to his employment. Both parties submitted post hearing proposed findings of fact in the form of proposed recommended orders filed March 4 and March 15, 1983. To the extent the proposed findings of fact have not been included in the factual findings in this order, they are specifically rejected as being irrelevant, not being based upon the most credible evidence, or not being a finding of fact.
Findings Of Fact The Petitioner, Michael L. Coyle, applied for vocational rehabilitation services on May 28, 1982. Coyle is a 46-year-old white male who is divorced with custody of his seven-year-old daughter. Coyle worked for 14 years as a printer/compositor for the Sarasota Herald-Tribune. This job required that Coyle stand during his entire work day. Prior to working for the Sarasota Herald-Tribune, Coyle worked as an airline ticket clerk and supervised the loading of freight for an airline. These positions required that Coyle stand during much of his work day. When Coyle applied for vocational rehabilitation services, he was on medical leave from the Sarasota Herald-Tribune on advice of his personal physician. This medical leave was for the purpose of alleviating pain in Coyle's left knee. This pain had become incapacitating. When Coyle applied for vocational rehabilitation services, his medical leave was almost over, and the condition in his left knee had not improved. Coyle's employer, the Sarasota Herald-Tribune, had no positions available in which Coyle could work seated, and Coyle could not perform his duties as a printer/compositor while seated. Coyle was required to perform his duties while standing, and no opportunity existed for Coyle to be seated periodically during his work day. Coyle's application for vocational rehabilitation services was approved, and Coyle was certified as eligible on July 1, 1982. A rehabilitative plan was not prepared for Coyle by Coyle's counselor. Before a rehabilitative plan could becompleted, Coyle applied for additional benefits, to include transportation and maintenance costs. By this time, Coyle's medical studies were completed and their results available. The physicians reported that Coyle had a degenerative and chronic joint disease in his left knee; however, Coyle was able to work if he took aspirin and alleviated the strain on his knee by not standing. Based upon these reports, Coyle's request for maintenance and transportation costs were denied. Based upon the reevaluation of the medical opinions, the agency determined that Coyle was not eligible to receive any vocational rehabilitation benefits. Coyle was notified of the agency's decision to terminate his vocational rehabilitation benefits, and Coyle timely initiated administrative review of that determination. Coyle's records do not reflect that Coyle had applied for SSI and food stamps. Coyle receives some money as an insurance payment for his disability from private insurance maintained through his former employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, Michael L. Coyle's basic vocational rehabilitation benefits should be reinstated retroactive to the date of original termination. DONE and RECOMMENDED this 11th day of April, 1983, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 11th day of April, 1983.
