Recommendation By reasons of the foregoing Facts and Conclusions of Law, I recommend that the Respondent's license be revoked. DONE and ORDERED this 4th day of August, 1976, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675
The Issue Whether Petitioner was wrongfully terminated from her position as a custodial worker with Respondent because of her race, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Petitioner, an African-American female, was hired by Respondent in the fall of 1994, as a custodial worker and she continued in that position until October 17, 1995, when she was terminated. On or about October 12, 1995, Rollins College (Respondent) received two letters of complaint regarding Petitioner's conduct and work performance. One of these was from a group of students living in a dorm which Petitioner was assigned to clean. The other letter was from the parent of a student living in another dorm assigned to Petitioner. These letters were not the first complaints Respondent had received regarding Petitioner's work performance. After receiving the letters, Petitioner was placed on a three-day suspension by Tom Waters, Director of Respondent's Facilities Management Department. After investigating the complaints, Respondent, on October 17, 1995, terminated Petitioner's employment. Prior to the termination of her employment, Petitioner attended a training and safety meeting of custodial workers. During that meeting, Petitioner's immediate supervisor, Frank Pravdik placed his hand on Petitioner's uniform shirt and stated words to the effect that the shirt was "nasty." Pravdik was generally known to be a difficult person to work under. He was eventually terminated by Respondent because of his abrasive management style. Fredrick Wooden, called as Petitioner's witness, assisted with the management of the custodial workers prior to his retirement. He often disagreed with Pravdik's style of management. In the case of Petitioner, he did not believe that any disciplinary actions taken against her were unwarranted, and Respondent had legitimate grounds to terminate her employment. Wooden further believed that Pravdik treated all subordinate employees equally, if not with respect. On November 20, 1995, Petitioner filed a Charge of Discrimination with the Orlando Human Relations Department. The Charge of Discrimination indicated that Petitioner believed that Respondent discriminated against her because of her race. Petitioner testified that the Charge of Discrimination was incorrect. Petitioner did not actually believe that the termination of her employment was related to her race. However, she permitted a representative of the Orlando Human Relations Commission to complete for her the Charge of Discrimination. The Charge does not allege a claim of retaliation nor does it allege that Petitioner ever complained about Pravdik's behavior to Respondent. While Petitioner testified that she first visited the Orlando Human Relations Department prior to the date of her termination, the Charge is signed, dated and notarized on November 20, 1995, three days after the effective date of her termination. After the Commission issued a No Cause Determination in this matter, Petitioner filed a Petition for Relief. The Petition for Relief alleges that Respondent terminated her employment in retaliation for complaining about Pravdik. Petitioner again testified that the Petition for Relief was also incorrect stating her case was not about whether Respondent had a right to terminate her employment, but instead was about whether Pravdik violated her civil rights for impermissibly touching her person and calling her shirt "nasty."
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner's Petition for Relief with prejudice. DONE AND ENTERED this 26th day of December, 2000, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 26th day of December, 2000. COPIES FURNISHED: Gloria J. Holloway 397 Chaucer Lane, South Lake Mary, Florida 32746 Sharon Moultry, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303-4149 Mark Van Valkenburgh, Esquire Winderweedle, Haines, Ward & Woodham 250 Park Avenue South, 5th Floor Winter Park, Florida 32789 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Recommendation Based on the foregoing Finding of Fact and Conclusion of Law, it is recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief in this case. RECOMMENDED this 28th day of February, 1990, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 28th day of February, 1990.
The Issue Whether the Petitioner, Jose Iglesias (Petitioner or Iglesias) is entitled to attorney's fees and costs from the Complainant/Respondent, Robert Nieman (Respondent or Nieman), pursuant to Section 112.317(8), Florida Statutes (2004).
Findings Of Fact On August 14, 2003, the Respondent executed a Complaint that was filed with the Ethics Commission against the Petitioner. The Complaint alleged: Vice Mayor Iglesias is constantly interfering with Police Department’s day-to- day operations, and spreading false rumors about Police Department personnel. (Document #1) Vice Mayor Iglesias is causing a hostile work environment with constant complaints about officers. Vice Mayor Iglesias is constantly encouraging racism, pitting hispanics against white and black officers of the Department. Vice Mayor Iglesias filed false police reports (verbally) constantly for his own gain and benefits. Vice Mayor Iglesias’s 16-year-old son works part time in Town Hall. (Nepotism) Vice Mayor Iglesias improper use of his title by instructing the Town Manager to take actions on the police department, and even retaliation against the Police Chief and myself. Vice Mayor Iglesias ordered public records about himself not to be released, and then when they were released he insisted the secretary releasing the records be fired. (Document #1) Mr. Iglesias is falsely using the title of M.D. and in fact used this title to gain his seat on the council and then becoming Vice Mayor. When Mr. Iglesias has been questioned on this matter by residents in the past he has stated he was a brain surgeon, a foot doctor, and a chiropractor, and could not list a hospital where he did his residency to become M.D. (Document #2) At all times material to this case the Petitioner was Vice Mayor serving on the Town’s governing council. As such, the Petitioner was subject to the ethics provisions governed by the Ethics Commission. The Respondent is a town employee and serves as a police sergeant within the police department. Mr. Nieman has been so employed for over 20 years. After an investigation of three of the allegations set forth in the Complaint (only three were deemed legally sufficient to warrant investigation) and consideration of the Advocate’s recommendation, the Ethics Commission entered a Public Report on March 16, 2004. The Public Report dismissed the Complaint and closed the matter. On April 14, 2004, the Petitioner filed the instant Fee Petition pursuant to Section 112.317(8), Florida Statutes (2004). The Fee Petition alleged that the Complaint “is based on eight allegations, all of which are false and were known to be false by Complainant when he filed the Complaint.” Additionally, the Fee Petition stated the Complaint “was filed by the Complainant with the knowledge the Complaint contained one or more false allegations, or with reckless disregard as to whether the Complaint contained false allegations. ” At hearing, the Petitioner presented evidence as to the three allegations of the Complaint that were investigated and deemed legally sufficient to require an ethics investigation. Those allegations were: whether the Petitioner had filed false police reports for his personal benefit; whether the Petitioner had attempted to prevent the release of a public record or insisted on the firing of the person who had released the record; and whether the Petitioner had caused his son to be employed by the Town. The false police reports allegation stemmed from the Petitioner’s use of public roads for rollerblading. The Petitioner is an avid rollerblader and likes to rollerblade for exercise. The Petitioner opined that rollerblading puts less stress on his back and has less impact than jogging. The Petitioner frequently rollerblades on the public road within the Town. Automobile traffic on the road must go around the Petitioner in order to pass. It is the Petitioner’s position that since there is no sidewalk or shoulder suitable to rollerblade, he is entitled to use the road surface just as a pedestrian might use the road surface. The Petitioner skates toward the middle of the lane and not on the edge of the road surface because the roadway is better there for the rollerblades. The record in this case does not clarify whether the Petitioner skates with or against the traffic. In connection with the rollerblading, the Respondent believes that the Petitioner is not entitled to use the road as he does and that if the Petitioner did not use his position as a councilman for influence, he would be cited for rollerblading down the road as he does. Further, the Respondent maintains that the Petitioner has made verbal complaints against motorists who passed too close to him. The Respondent maintains that the verbal complaints are false in that the Petitioner is not entitled to use the roadway as he does and therefore cannot complain against motorists as he does. The Petitioner does not deny the activity. The Respondent has observed the Petitioner rollerblading down the road. The Respondent has not issued a citation to the Petitioner because he is assigned an administrative position within the police department and he believes he is not allowed to issue such citations. The Respondent based the allegation regarding this claim upon statements he has heard from police officers within the Town’s police department. The Respondent did not subpoena the officers to the hearing because he did not want to involve other Town employees in the matter. The Respondent does not have any evidence to support the allegation other than what he believed he had been told in his experience as a police officer for the Town. The record does not demonstrate any written record of either the Petitioner being cited for improper rollerblading or making a report against a vehicle. As to the second allegation that was investigated, a memo purportedly from the chief of police was released to a member of the public by accident. It was included within a stack of documents that had been requested by a private citizen. The document stated in part: SUBJECT: Ethics violations and continual interference of day-to-day police operations by the Vice Mayor Iglesias This memorandum is to inform you [Mayor Michael Addicott] of constant harassment of police personnel and interference in daily operations by the new vice mayor. The Petitioner admitted that he was concerned that the document had been released in error and that the person who wrongly released a document should be disciplined. The Petitioner did not know about the document before it was released. He did not attempt to prevent the release of the document. Instead, the Petitioner sought to, after-the-fact find out why the document had been released, if the document was in fact a public record subject to release, and if the employee should be disciplined for the release. The document in question was a public record, was subject to public release, and the employee was not disciplined for its release. Nevertheless, the Petitioner did require a second (and arguably third opinion) regarding whether the document constituted a public record. In the meanwhile, the controversy within the Town over whether the document should have been released was widely discussed among Town employees. The Respondent filed his claim based upon several reports that the Petitioner wanted the secretary who released the report fired. One of the Respondent’s sources was the Chief of Police. The Respondent did not question the veracity of the police chief. At hearing, the Petitioner did not deny that discipline would have been appropriate if the release of the document were shown to be erroneous. The Petitioner acknowledged that the Town pursued a full review of the matter and that he was among those who called for the review. As to the third allegation (that the Petitioner caused his son to be hired by the Town), the Respondent believed that once the Petitioner was elected as a councilman that the son was not eligible to work for the Town. The Respondent thought that rules prohibiting nepotism applied to the Petitioner’s son and that as such the son could not continue to work for the Town. The Respondent based this interpretation on a general but un- researched idea about nepotism. He also discussed this matter with another Town employee who also thought the son was not eligible to work for the Town. In fact, the Petitioner’s son, Joseph, started working for the Town in a part-time position prior to the Petitioner being elected to office. After the Petitioner became Vice Mayor, the son continued with his duties but was moved from an independent contractor status to part-time employee status. The son then received a raise in his hourly rate of pay when the Town employees also received a raise. The Petitioner did not supervise the son’s employment and did not direct the son’s work. The record is unclear as to whether the Petitioner voted on the pay raise or not. At hearing the Respondent maintained that he had had numerous conversations with persons at the Ethics Commission who recommended that he add the information regarding the nepotism claim to his allegations. He admitted that he did not independently check any laws or rules that might pertain to nepotism before filing the claim. Much of the Respondent’s attitude and comments in connection with the Petitioner must be viewed in the context of the happenings within the Town. For unknown reasons, the Town, its employees, and the governing council were in a state of change and confrontation. The Respondent and the Petitioner apparently do not relate well to one another personally. The Respondent is suspicious of the Petitioner’s medical credentials and is uncertain as to why the Petitioner holds himself out as an “M.D.”, when he is not licensed nor is he eligible to be licensed as a medical doctor. The Petitioner believes the Respondent holds some animosity toward him for unknown reasons. Further, because the Respondent admitted he believes the Petitioner is arrogant, that belief somehow that demonstrates malice toward the Petitioner. The questions of whether the Petitioner is credentialed to be a medical doctor, whether the Petitioner attempted to interfere with the police department, or whether the Petitioner spread false rumors regarding the police department were not investigated and do not support, if true, an ethics violation. If attorney's fees and costs are entered in this cause the beneficiary of an award will be the Town. The Petitioner has incurred no expenses or costs associated with the defense of the Complaint. The Town agreed to pay and has paid all attorney's fees and costs associated with this case. The Petitioner presented several invoices from the Law Offices of Stuart R. Michelson that were alleged to pertain to the instant case. The Petitioner also presented testimony from an expert witness who was to be paid by the Town. That witness, an attorney, was to be paid $200.00 per hour for his efforts in this matter. Although the Petitioner’s expert testified that the hourly rates for fees applied in this cause were reasonable, there was no evidence that the time was actually expended in connection with the instant case. There is no way to know if the services were performed for the defense against the Respondent’s Complaint. The expert merely opined that the invoices he reviewed were reasonable. He maintained that the Petitioner should recover $27,455.53 in this matter.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing the Fee Petition in this case. S DONE AND ENTERED this 9th day of June, 2005, in Tallahassee, Leon County, Florida. J. D. PARRISH 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 9th day of June, 2005. COPIES FURNISHED: Kaye Starling, Agency Clerk Commission on Ethics 3600 Maclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phillip C. Claypool, General Counsel Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Bonnie J. Williams, Executive Director Commission on Ethics 3600 Mclay Boulevard, South, Suite 201 Post Office Drawer 15709 Tallahassee, Florida 32317-5709 James J. Birch, Esquire Law Office of Stuart R. Michelson 200 Southeast 13th Street Fort Lauderdale, Florida 33316 Robert Nieman 9731 Southwest 12th Street Pembroke Pines, Florida 33026
The Issue Whether Respondent violated section 70-54, Pinellas County Code, which prohibits retaliation against a person who has opposed a discriminatory employment practice, by terminating the Petitioner's employment, and, if so, the appropriate penalty.
Findings Of Fact Ms. Menz was hired by Dr. Weisel as a receptionist for his dental office located in Tarpon Springs, Pinellas County, Florida, on October 6, 2007. Ms. Menz's job responsibilities included answering the phone, checking patients in and out of the office, collecting co-payments, and entering treatment plans in the record. According to Dr. Weisel, Ms. Menz was a good employee because she was eager to learn, and she was very people orientated. Respondent is a professional association located in Tarpon Springs, Pinellas County, Florida. Respondent employees less than 15 employees and is in the business of providing dentistry services. Respondent is subject to the Pinellas County Code concerning human relations. In June 2008, Dr. Weisel sold his Tarpon Springs dental practice to Dr. Kontos. Dr. Kontos had graduated from dental school in May 2007 and had worked for another dentist office. By January 2008, Dr. Kontos wanted to purchase a dental practice in his hometown, Tarpon Springs. When Dr. Kontos purchased the practice from Dr. Weisel, Dr. Kontos had no experience in owning a business or managing employees. According to Dr. Kontos, he decided to keep all of Dr. Weisel's employees for continuity. Dr. Kontos described Ms. Menz's job duties as opening the practice in the morning, "in-putting insurance," collecting co-payments, and "doing treatment plans." By July 2008, Dr. Kontos had promoted one of the dental assistants, Daniel Mauzerolle (Mr. Mauzerolle), to office manager. During the time that Mr. Mauzerolle worked for Dr. Kontos, they became friends and would socialize together. Ms. Menz testified that she had complained to Dr. Kontos in the past about Mr. Mauzerolle about issues from work. Ms. Sholtes, a former dental hygienist for Dr. Kontos, also testified on Ms. Menz's behalf. She testified that Ms. Menz was a good employee and courteous to patients. By November 2008, Dr. Kontos hired Ms. Marchese to collect aging insurance claims and account receivables, as well as review his office procedures. According to Dr. Kontos, the dental practice had a "phenomenal" amount of outstanding insurance claims, in excess of $20,000.00, which had been denied. Ms. Marchese had worked in the dental field since 1991 and was familiar with software systems used to run dental offices. Further, she was familiar with the submission of insurance forms for dental reimbursement. On May 11, 2009, Ms. Menz opened the office at 7:00 a.m. As she turned on her computer, Ms. Menz noticed the internet web history showed that someone had used her computer the night before. Ms. Menz found that one site had been visited 28 times. Upon visiting the site, Ms. Menz found that the website contained pornographic images. Further, because Mr. Mauzerolle was the only person that worked in the evening in the office, Ms. Menz assumed that Mr. Mauzerolle was the person who had accessed the pornographic site. Ms. Menz credibly testified that she informed Dr. Kontos and told him that Mr. Mauzerolle's actions were unacceptable to her. Ms. Menz credibly testified that she told Dr. Kontos that she could not work under the conditions that she considered to be a hostile workplace environment. Dr. Kontos informed Ms. Menz that he would "take care of it." Dr. Kontos credibly testified that Mr. Mauzerolle, in addition to being the office manager, was his friend and that he was not happy with Ms. Menz reporting the issues concerning the pornography in his office. Two days later, on May 13, 2009, Dr. Kontos terminated Ms. Menz's employment. Ms. Menz credibly testified that at the time of her termination, Dr. Kontos did not provide her a reason for her termination, only stating "nothing personal, but I'm going to have to let you go." Dr. Kontos testified that he had already decided to terminate Ms. Menz's employment before May 11, 2009, when Ms. Menz complained about the pornography. According to Dr. Kontos, Ms. Marchese had informed him since the end of 2008 about errors that Ms. Menz had been making at work that cost the dental practice money. Dr. Kontos indicated that Ms. Menz made errors such as failing to collect co-payments or collecting improper co-payments and failing to fill out the insurance forms correctly. The result was that insurance claims would be denied and the dental office would lose money. According to Dr. Kontos and Ms. Marchese, on or before April 8, 2009, Ms. Menz made an error that almost cost the dental practice $2,000.00. The alleged error involved putting the wrong information concerning an insurance plan for a patient. Based on this error, Dr. Kontos testified that he made a decision with Mr. Mauzerolle and Ms. Marchese to place an advertisement for a receptionist with Craigslist to replace Ms. Menz. Later that day, Mr. Mauzerolle placed the advertisement with Craigslist. On April 9, 2009, potential job applicants began calling Dr. Kontos' office about the receptionist position. Ms. Menz took the phone messages from the applicants, including Ms. Kristen Chase. Ms. Menz credibly testified that based on phone calls that she asked Dr. Kontos about the job advertisement and whether or not she was doing a good job. Ms. Menz credibly testified that Dr. Kontos stated that she was doing a good job and not to worry about the advertisement. Further, Ms. Menz credibly testified that she asked Ms. Marchese about the advertisement. Ms. Menz testified that Ms. Marchese stated that Dr. Kontos was seeking to replace Christina Benzel (Ms. Benzel), a co-worker who worked the front desk with Ms. Menz. Ms. Menz believed Ms. Marchese because Ms. Menz had observed that Ms. Benzel's job responsibilities had been reduced. According to Dr. Kontos, sometime at the beginning of May 2009, he and Mr. Mauzerolle interviewed Ms. Chase for the receptionist job. According to Dr. Kontos, he offered Ms. Chase the job after the interview, and he had decided to replace Ms. Menz. Dr. Kontos's testimony on the point that he offered Ms. Chase the job in early May and had decided to replace Ms. Menz is not credible. Ms. Chase credibly testified that she did not receive the job offer from Dr. Kontos at the interview in early May. Further, Ms. Chase credibly testified that, because she did not hear anything from Dr. Kontos, she had assumed that she had not gotten the job. Further, Ms. Chase credibly testified that she was offered the job on May 14, 2009. Dr. Kontos testified that he had decided to terminate Ms. Menz on April 8, 2009, but that he did not tell her before May 13, 2009, because he "had to build up the nerve to do it." He testified that he felt bad having to terminate her and that he let her go because she made too many mistakes. For support concerning the number of errors made by Ms. Menz, Respondent offered the testimony of Ms. Marchese and numerous exhibits. Ms. Marchese testified that because of the number of errors occurring in the office that she moved her work space to be next to Ms. Menz. According to Ms. Marchese, she was monitoring Ms. Menz and providing "one-on-one training." Further, Ms. Marchese offered testimony that each day she would conduct an "audit trail" of the office and bring errors to Dr. Kontos's attention daily. Ms. Marchese testified that Ms. Menz failed to collect co-payments; entered insurance information incorrectly, resulting in insurance reimbursements being denied; failed to provide adequate information to support insurance billings; and gave patients incorrect estimates on the amount that the patient would owe for different treatments based on the patient's insurance plan. Ms. Marchese testified that she estimated that Ms. Menz had cost the dental office approximately $100,000.00 in lost revenue and made 90 percent of the office errors. Ms. Marchese identified a number of exhibits that supported Respondent's claim that Ms. Menz was terminated for numerous errors. Ms. Marchese further testified that in March 2009 that she told Dr. Kontos and Mr. Mauzerolle that Ms. Menz was "untrainable" and that she should be terminated. According to Ms. Marchese, in April 2009, she discussed with Dr. Kontos and Mr. Mauzerolle the error that nearly cost the practice $2,000.00 and the decision to advertise for the new receptionist. After the advertisement was taken out in Craigslist for the new receptionist, Ms. Marchese remembered being asked by Ms. Menz about the advertisement and about whether or not Dr. Kontos was seeking to replace her. Ms. Marchese testified that she told Ms. Menz that she did not know if Dr. Kontos was seeking to replace her. Ms. Marchese denied telling Ms. Menz that Dr. Kontos was seeking to replace Ms. Benzel. Ms. Marchese, however, admitted that Dr. Kontos had been unhappy with Ms. Benzel based on her internet usage at the office. Ms. Marchese testified that she informed Dr. Kontos about each of these errors daily and testified about a group of exhibits. A review of the exhibits identified by Ms. Marchese, Exhibits 25, 27, 29, 30, 31, 34, 35, 36, 41, and 44 shows that the documents are dated December 18 and 21, 2009. When questioned about the dates on the exhibits, Ms. Marchese testified that these exhibits were documentation from the "daily sheets" and that she had "minimized the amount of discovery." Also, she explained that the documents were "printed to condense the information into one page instead of, for instance, on exhibit 25, it would have been over 30 pages." Further, she testified that she had added the notes explaining Ms. Menz's errors to the sheets on or after December 18, 2009. The "daily sheets" were not admitted into evidence. At best, the offered exhibits may be considered summaries. Even considering the documents, the record shows that the offered exhibits show that the documents were compiled to support Ms. Menz's termination after May 13, 2009, and in response to the investigation by Pinellas County. Thus, the exhibits carry little weight in the consideration. Similarly, Exhibits 10, 11, 18, 23, and 24 are all dated after Ms. Menz's termination date of May 13, 2009. A review of Exhibit 10 shows a "Single Patient Ledger" printed up on September 8, 2009. Based on Ms. Marchese's testimony, the document shows that on April 8, 2009, the patient received two dental procedures that cost $1,050.00. According to Ms. Marchese, the patient was told to pay $215.00 for two treatments. Presumably, the balance of the dental bill would be paid by insurance. However, Ms. Marchese testified that the patient did not have dental coverage for the two procedures. Consequently, the dental office lost money on the two procedures because the patient refused to pay, and there was no insurance to bill. Although the testimony shows this event occurred before the termination, the "Single Payer Ledger" is dated after the termination. Further, a hand-written notation from the patient's chart, which is part of Exhibit 10, stating that "Valerie dropped the ball on the correct fee twice" is dated May 14, 2009, the day after her termination. Similarly, a review of Exhibits 23 and 24 shows that they are insurance claims that were denied before May 13, 2009. Ms. Marchese testified that Dr. Kontos was aware of these errors. However, Exhibits 23 and 24 only show that insurance claims were re- submitted after the date of Ms. Menz's termination. The exhibits do not support the finding that the claims were denied because of Ms. Menz or that these errors were considered before terminating her employment. These exhibits were prepared after the termination as a justification for the action as opposed to contemporaneous proof of Ms. Menz's performance. In contrast to the above listed exhibits, Exhibits 6, 7, 8, and 9 are examples of errors and notes that were documented before Ms. Menz's termination. A review of these exhibits shows that the complained of errors occurred on January 22, 2009; February 3, 2009; March 2, 2009; and April 27, 2009. Respondent also offered the testimony of other employees from the dental office. Ms. Little, a dental hygienist, testified that she was aware that Ms. Menz made errors in entering codes for different treatment plans. She had spoken to Ms. Menz about the error, and Ms. Menz indicated that she would try to correct the problem. According to Ms. Little, the errors continued, but were not as bad. Finally, Ms. Little testified that Ms. Marchese was responsible for insurance claims with the office. Similarly, Ms. O'Leary, a dental hygienist, testified that she knew that Ms. Menz had some issues with insurance, but that she had a good working relationship with Ms. Menz. Ms. Menz candidly admitted that she made mistakes at her work and credibly testified that she was never told of the many errors that Respondent was claiming she had made or that she had cost Respondent money. Dr. Kontos admitted that that he did not individually counsel Ms. Menz about her errors. Rather than counsel individual employees, Dr. Kontos testified that it was his practice to speak to his employees as a group about errors because he wanted to avoid similar errors. Ms. Menz testified that she earned $10.75 an hour and that she had been out of work for 87 weeks. Ms. Menz agreed with her counsel's question that her calculated damages were $37,410.00. The record also shows that Ms. Menz filed for unemployment compensation, but was unclear about whether or not she received any compensation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent violated section 70-54, Pinellas County Code. Ordering Respondent to pay Ms. Menz the sum of $37,410.00 and interest at the prevailing statutory rate; and Ordering Respondent to pay Ms. Menz reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 12th day of May, 2011, in Tallahassee, Leon County, Florida. S THOMAS P. CRAPPS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of May, 2011. COPIES FURNISHED: William C. Faulkner, Esquire Pinellas County Attorney's Office 315 Court Street Clearwater, Florida 33756 Jeremy W. Rodgers, Esquire Spector Gadon and Rosen, LLP 390 Central Avenue, Suite 1550 St. Petersburg, Florida 33701 Matthew K. Fenton, Esquire Wenzel, Fenton, and Cabassa, P.A. 1110 North Florida Avenue, Suite 300 Tampa, Florida 33602 Leon W. Russell, Director/EEO Officer Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756 Peter J. Genova, Jr., EEO Coordinator Pinellas County Office of Human Rights 400 South Fort Harrison Avenue, 5th Floor Clearwater, Florida 33756
The Issue Whether Piper Aircraft, Inc. (Respondent), terminated Timothy Brooks (Petitioner) from his employment in retaliation for his complaints about the company’s treatment of Peggy Sue Pitts, a female employee who claimed sexual harassment. And, if so, whether Petitioner’s behavior was protected by law.
Findings Of Fact Petitioner is a male former employee of Respondent. His tenure with the company spanned several years. The quality of Petitioner’s work (that is, his production quality and volume) was deemed acceptable and was not the basis for discipline. Respondent laid Petitioner off in 2010 due to economic hardships of the company but rehired him in May of 2011. Thereafter, Petitioner worked continuously for Respondent until his termination in January of 2015. Respondent is a manufacturing company that employs 15 or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year applicable to this case. Consequently, Respondent is an “employer” as defined by section 760.02, Florida Statutes (2015), during the time frame applicable to this case. Petitioner and another of Respondent’s employees, Peggy Sue Pitts, were close friends. As such, Petitioner became increasingly concerned regarding the treatment Ms. Pitts received in the work place. Petitioner believed Ms. Pitts was the victim of inappropriate conduct and that Respondent failed to take appropriate measures to protect Ms. Pitts from harassment and inequitable treatment. Additionally, over the course of his employment with Respondent, Petitioner became concerned that employees were not treated equally in terms of compensation for the work being performed. His informal assessment led to the opinion that Ms. Pitts and others were paid less for doing the same work that others were paid more for completing. On more than one occasion Petitioner voiced his thoughts regarding the workplace inequities to management. Eventually, Petitioner’s conduct in attempting to intercede on behalf of Ms. Pitts and others led to a verbal warning documented by a Performance/Behavior Improvement Notice that notified Petitioner he was inappropriately involving himself in the personal issues of his co-workers to the detriment of the workplace. Essentially, Respondent wanted Petitioner to mind his own business. The warning noted above was issued on March 10, 2014. At the time of the warning noted above, Petitioner was directed to contact Respondent’s Human Resources Office if he felt that the company needed to be made aware of a concern. Respondent did not want Petitioner raising issues with co-workers to stir up matters that should be addressed elsewhere. Petitioner refused to sign the warning notice. Petitioner continued to discuss the perceived inequities with co-workers. On July 10, 2014, Respondent issued a written warning, Performance/Behavior Improvement Notice, which cited similar matters as before. Petitioner was warned that it was his “last chance” to stop meddling in the business matters of others. Further, Petitioner was transferred to another department within the company. In response to the second reprimand, Petitioner met with James Funk, Respondent’s chief operating officer, and expressed his concern that he had been unfairly treated. Mr. Funk advised Petitioner to take his issue to the company’s Peer Review Committee. The Peer Review Committee had the authority to review employee disciplinary actions up to and including termination. Moreover, if the committee determined that Petitioner had been unfairly treated, its finding and recommendation to the Respondent would be accepted. In this case, however, the Peer Review Committee did not find the reprimand to be inappropriate. The “last chance” warning became the final disciplinary ruling on the matter. Over the course of the next four or five months Ms. Pitts, who was by now Petitioner’s girlfriend or fiancé, continued to be frustrated by her perception of the treatment she received in the workplace. On the morning of January 8, 2015, Ms. Pitts decided to resign from her employment with Respondent. Ms. Pitts asked Petitioner to turn in her employee badge and stamp for her. On the afternoon of January 8, 2015, Petitioner went to the executive offices to talk to Mr. Funk regarding Ms. Pitts’ resignation. Kathy Flynn, Mr. Funk’s executive assistant, assisted Petitioner and gave him Mr. Funk’s email address. During the course of his exchange with Ms. Flynn, Petitioner expressed his displeasure with Jimmy Barnett and Tim Smith, whom he blamed for the perceived treatment Ms. Pitts had endured. In discussing the matter, Petitioner expressed his anger and desire to “beat the shit out of someone.” Petitioner called Mr. Barnett and Mr. Smith “pieces of shit.” Ms. Flynn memorialized the comments later that afternoon. Next, Petitioner went to Mr. Barnett’s office and turned in Ms. Pitts’ badge and stamp and told Mr. Barnett that Ms. Pitts was quitting. Petitioner told Mr. Barnett that he was so angry he could throw him (Mr. Barnett) out the window. In response, Mr. Barnett called Mr. Smith and asked for a meeting with Petitioner. Mr. Barnett and Petitioner joined Mr. Smith in Smith’s office. When offered a seat, Petitioner declined and stated he was too upset. Mr. Barnett asked Petitioner to confirm his previous comments and he did. Petitioner confirmed that he was upset to the point of throwing Mr. Barnett out the window. Given Petitioner’s agitated state and verbal threats, Mr. Barnett and Mr. Smith wrote notes to Mr. Funk recommending that Respondent issue a suspension and written warning to Petitioner. Instead, Mr. Funk determined that Petitioner’s conduct violated his “last chance” warning. Taken in totality, Petitioner’s comments to Ms. Flynn and his comments to Mr. Barnett and to Mr. Smith evidenced to Mr. Funk that Petitioner should be removed from the workplace. To that end, Mr. Funk authorized a Notice of Employment Termination on January 12, 2015, and Respondent officially ended Petitioner’s employment with the company on that date. Petitioner refused to sign the notice. Petitioner timely filed a charge of discrimination with the FCHR regarding his termination and asserted he had been terminated in retaliation for his complaints regarding the company’s sex discrimination against another employee (Ms. Pitts). On May 20, 2016, FCHR issued its determination of no reasonable cause. After Petitioner timely filed a petition challenging that decision, the matter was forwarded to the Division of Administrative Hearings for a disputed-fact hearing.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner’s claim of discrimination. DONE AND ENTERED this 6th day of January, 2017, in Tallahassee, Leon County, Florida. S J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of January, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Adrienne E. Trent, Esquire Adrienne E. Trent, P.A. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 (eServed) Ashley M. Schachter, Esquire Baker & Hostetler, LLP Suite 2300 200 South Orange Avenue Orlando, Florida 32801 (eServed) Patrick M. Muldowney, Esquire Baker & Hostetler LLP Post Office Box 112 Orlando, Florida 32802 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed)
Findings Of Fact Respondent Starla K. Rose, was at all times material hereto a licensed real estate broker in the State of Florida, having been issued license number 0046404. On February 25, 1985, an Information was filed in the Circuit Court of the Seventh Judicial Circuit, Broward County, Florida, charging Respondent with one count of grand theft, Sections 512.014(1)a and b and 512.014(2)b, Florida Statutes, two counts of insurance fraud by false or fraudulent claims Section 517.234(1)(a)1, Florida Statutes; and, one count of false report of the commission of a crime, Section 817.49, Florida Statutes. Respondent pled not guilty to the Information. On June 6, 1985, a verdict was rendered which found Respondent guilty of one count of grand theft, one count of insurance fraud by false or fraudulent claims and one count of false report of the commission of a crime. The court adjudged Respondent guilty of issuing a false report of the commission of a crime, withheld adjudication of guilt on the remaining counts, placed Respondent on probation for 3 years, and ordered her to pay costs. Respondent filed a timely motion for new trial following rendition of the verdict. At the time of final hearing in this case, no disposition had been made of Respondent's motion for new trial.
The Issue The issue in this proceeding is how much of Petitioner’s settlement proceeds should be paid to Respondent, Agency for Health Care Administration (“AHCA”), to satisfy AHCA's Medicaid lien under section 409.910, Florida Statutes.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: Breana Collins was born on January 31, 1985, with a severe chromosomal growth deficiency known as 3P2 Trisomy. She was unable to speak or care for herself and could walk only with assistance. Breana lived at home with her parents, Clifford and Gwen Collins, until she was 17 years old, at which time she was placed in Howell Branch Court, a group home located in Winter Park near the family’s home. On July 11, 2017, Breana underwent an esophagogastroduodenoscopy, or “EGD” procedure. On July 11, 2017, while undergoing the EGD procedure, Breana Collins was noted to be unarousable and unresponsive. Breana was transported by emergency medical services to Florida Hospital Altamonte. She was experiencing severe distress and was unresponsive. She was diagnosed with acute respiratory failure. On August 24, 2017, Breana died. Her cause of death was noted as acute cardiorespiratory arrest. Petitioner, Clifford Collins, brought the following claims: a medical malpractice tort claim; a claim for abuse, neglect, and exploitation under section 415.1111, Florida Statutes, commonly called the “Vulnerable Adult” statute; and a claim under section 393.13, Florida Statutes, the “Bill of Rights of Persons with Developmental Disabilities.” The claims were brought against several healthcare providers, seeking wrongful death damages for Breana Collins’s parents for non-economic mental pain and suffering for the loss of their daughter, and survival damages for Breana’s loss, injury, and damage, including, but not limited to, acute hypoxic respiratory failure, right lower lobe pneumonia, aspiration pneumonia, urinary tract infection, sepsis with shock, and leukocytosis. In 2020, Petitioner, Clifford Collins, settled the tort action for a limited confidential amount due to significant liability and causation challenges with the claims. AHCA was properly notified of the Collins’s lawsuit against the defendants and provided notice that it had paid benefits related to the injuries from the incident in the amount of $44,836.83. AHCA paid benefits in the amount of $44,836.83 for the care of Breana related to the injuries allegedly caused by third parties. The parties stipulated that the application of the formula provided by section 409.910(11)(f), to the confidential settlement amount, would require payment to AHCA in the amount of $44,836.83 from the settlement proceeds. J. Scott Murphy is an attorney, who is Florida Board Certified in Civil Trial Law. Mr. Murphy is also certified by the American Board of Professional Liability Attorneys and the National Board of Trial Advocates, and is a member of the American Board of Trial Advocates. Mr. Murphy specializes in wrongful death and catastrophic injury cases, primarily in medical malpractice. He has over 35 years’ experience in this area of practice. As part of his ongoing practice, Mr. Murphy routinely evaluates the damages suffered by injured persons, including wrongful death medical malpractice cases involving adult children as defined by section 768.18(2), Florida Statutes, i.e., persons over the age of 25. In formulating his opinions, Mr. Murphy reviewed the deposition of Mr. Collins, as well as the amended complaint and the motions to dismiss filed by the defendants in the underlying case. Mr. Murphy also reviewed the pre-suit expert affidavits and jury verdict reports related to damage awards and settlements involving the death of an adult child. Mr. Murphy testified that in medical malpractice cases brought under section 768.21, emotional loss, pain, and suffering for the parents’ loss of an adult child is specifically disallowed. Mr. Murphy testified as to the substantial legal obstacles to pursuing the underlying personal injury/medical malpractice claim brought by Clifford and Gwen Collins for the death of Breana. Mr. Murphy stated that it would be extremely difficult to prove the causation element because no autopsy was performed to establish definitively Breana’s cause of death. Mr. Murphy opined that Breana’s survival claim for her pain and suffering over the month and a half between the EGD procedure and her death would be de minimus because of her congenital disability. Mr. Murphy further testified as to the extreme difficulties in pursuing the two statutory claims under sections 415.1111 and 393.13. He testified that similar claims under section 415.1111 have been specifically rejected by the First and Third District Courts of Appeal, both of which concluded that the medical malpractice statutes provide an exclusive remedy that cannot be circumvented by resorting to the Vulnerable Adult statute. Mr. Murphy testified that, while the appellate courts have yet to address the question of whether a claim under section 393.13 could be used to avoid the limitations of the medical malpractice statute, he would expect the result to be the same as that reached by the courts on section 415.1111. Mr. Murphy testified that his review of the motions to dismiss filed by the defendants in the underlying action led him to conclude that the odds of success were very low on the claims under section 415.1111 and 393.13. Mr. Murphy testified that Breana’s EGD procedure was performed by a gastroenterologist and monitored by a certified registered nurse anesthetist, both of whom met the statutory definition of “health care providers.” Because the claims would likely have been construed as “medical malpractice claims,” Clifford and Gwen Collins would have been limited to the recovery of medical expenses incurred as a result of the negligence of the defendants, plus Breana’s funeral expenses. The significant damages associated with the parents’ pain and suffering and emotional loss would have likely been barred by the limitations imposed under section 768.21. Mr. Murphy’s unrefuted testimony was that the total value of the parents’ claims would be at least $1 million by a very conservative estimate. The Collins family was very close knit and the parents remained intimately involved in Breana’s life for as long as she lived. Based on the Collins’s depositions and family photographs that were admitted into evidence, Mr. Murphy found it “glaringly apparent” that the loss of their daughter was devastating to Clifford and Gwen Collins. Mr. Collins’s testimony at the hearing confirmed Mr. Murphy’s opinion. Mr. Collins testified that his health has suffered, and he has lost substantial weight since Breana’s death. Mr. Collins appeared reticent to discuss his feelings, but he did state, “It’s the worst thing that can happen to a parent. I mean, we knew her limitations, but she was – you know, she was a joy in our lives and it’s emotional.” In her deposition testimony, Gwen Collins stated, “I know I can’t ask you questions, but if you were a parent and you truly are involved and love your child, you’re impacted daily by that loss and you never get over it.” Ms. Collins testified that she now has high blood pressure that she did not have before Breana’s death. She is now pre-diabetic, which she also attributes to the stress of losing a child. Mr. Murphy testified that the amount of the settlement in this case was $190,000, or 19 percent of the conservative valuation of $1,000,000.00. Using a pro rata methodology, Mr. Murphy concluded that the appropriate share of Breana’s past medical expenses to be applied to satisfy AHCA’s medical lien should be 19 percent of the $44,836.83 total, or $8,518.99. Mr. Murphy’s testimony was uncontradicted and persuasive on this point. Petitioner’s counsel, Alan J. Landerman, testified as an expert in the evaluation of damages for medical malpractice and wrongful death cases, without objection from AHCA. Mr. Landerman is an AV-rated civil trial attorney with over 35 years of experience, primarily as counsel in catastrophic injury cases, medical malpractice, and product liability cases. Mr. Landerman has tried multiple medical malpractice cases and product liability cases, and has achieved multiple verdicts in excess of $1 million in those cases. A routine part of Mr. Landerman’s practice is to make assessments concerning the value of damages, including damages in wrongful death cases under section 768.21. Mr. Landerman concurred with Mr. Murphy’s testimony regarding the strict monetary limitations associated with pursuing medical malpractice wrongful death cases on behalf of parents for the death of an adult child. Mr. Landerman testified that he keeps abreast of settlement and damage awards through the Florida Jury Verdict Reporters, and as a member of many plaintiff attorneys’ organizations, including the American Justice Association and Central Florida Trial Lawyers. Mr. Landerman was the primary trial attorney for Clifford and Gwen Collins in the underlying civil lawsuit. Mr. Landerman testified that after the defendants filed motions to dismiss, he initiated settlement discussions with defense counsel. Mr. Landerman testified that he accepted a compromise settlement on behalf of his clients, in light of the substantial factual and legal impediments previously described by Mr. Murphy. Mr. Landerman testified that in evaluating the underlying wrongful death action, he elected to plead “novel theories” under sections 415.1111 and 393.13 in order to evade the limitations imposed by the wrongful death statute on medical malpractice cases. Mr. Landerman testified that, unfortunately, the recent case styled Specialty Hospital-Gainesville, Inc. v. Barth, 277 So. 3d 201 (Fla. 1st DCA 2019), held that the wrongful death statute is the exclusive remedy for medical malpractice, and that chapter 415 cannot serve as a vehicle for a medical malpractice claim. As to the claim under section 393.13, Mr. Landerman testified that this was a case of first impression. While he concurred with Mr. Murphy that the result would likely be the same as that in Specialty Hospital, Mr. Landerman also believed that uncertainty about the outcome in a jury trial was a driving factor in the defendants’ willingness to settle the case. Mr. Landerman agreed with Mr. Murphy that a very conservative total value for the case was $1 million. Mr. Landerman testified that he conducted jury verdict research that revealed the case of the death of a 30-year-old, in a non-medical malpractice setting, in which the parents were awarded in excess of $10 million in non-economic damages. Mr. Landerman further agreed with Mr. Murphy that if one accepts the $1 million figure as the full value of the claim, then the settlement amount equaled 19 percent of the value of the parents’ damages. Applying a pro rata analysis, Mr. Landerman testified that 19 percent of $44,836.83 yields $8,518.99, which is the amount that should be allocated to the past medical expenses claim of AHCA. AHCA did not offer any witnesses or documentary evidence to question the credentials or opinions of either Mr. Murphy or Mr. Landerman. AHCA did not offer testimony or documentary evidence to rebut the testimony of Mr. Murphy and Mr. Landerman as to valuation or the pro rata reduction ratio. AHCA did not offer alternative opinions on the damage valuation or allocation method suggested by either Mr. Murphy or Mr. Landerman, both of whom testified knowledgably and credibly as experienced practitioners. The testimony of Petitioner's two experts regarding the total value of damages was credible, unimpeached, and unrebutted. Petitioner proved that the settlement of $190,000 does not begin to fully compensate Clifford and Gwen Collins for the full value of their damages. Petitioner’s recovery represents only 19 percent of a conservative valuation of the Collins’s claims. AHCA argues with some force that this case is distinguishable from other Medicaid reimbursement cases in that here the question of the value of the Collins’s damages versus the settlement amount is not merely a matter of the uncertainty of pressing forward with the underlying litigation. The parents in this case faced a statutory barrier to recovering non-economic damages for the wrongful death of their adult daughter, which leads AHCA to argue that the $1 million valuation of their damages is unrealistically high and that this case is not suitable for application of the pro rata reduction methodology. ACHA’s argument is undercut by the settlement itself, which was more than a nominal amount even if only a fraction of the total damages estimated by Petitioner’s experts. The fact that the defendants were willing to pay over $190,000 to settle the lawsuit indicates a degree of uncertainty as to the outcome of the claim brought under section 393.13 that is sufficient to bring this case comfortably within the ambit of the pro rata reduction analysis. The undersigned finds that Petitioner has proven by a preponderance of the evidence that 19 percent (the ratio that $190,000 bears to $1 million) is the appropriate pro rata share of Breana Collins’s medical expenses to be applied to determine the amount recoverable by AHCA in satisfaction of its Medicaid lien. ACHA’s lien for past medical expenses is $44,836.83. Applying the 19 percent pro rata ratio to this total yields $8,518.99, which is the portion of the settlement representing reimbursement for past medical expenses and the amount recoverable by AHCA for its lien.
The Issue Whether Respondent’s felony convictions directly relate to the practice of public accounting and, if so, what penalty should be imposed.
Findings Of Fact At all times pertinent to this proceeding, Respondent was a licensed certified public accountant, having been issued license number AC-0001638 by the Florida Board of Accountancy. Respondent was convicted on felony charges of conspiracy to commit health care fraud, mail fraud, and making false statements in United States v. Tunick in the Southern District of New York on December 26, 2000. Respondent was thereafter sentenced to a year and a day in prison to be followed by three years of supervised probation. He is currently free on bail pending an appeal. Respondent’s convictions violate the level of professional conduct expected of a person licensed to practice public accounting in Florida and are within the scope of crimes that directly relate to the ability to practice public accounting.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner enter a final order in this case finding Respondent guilty of the violations charged in the Administrative Complaint; permanently revoking the Respondent’s license to practice public accounting in Florida; and assessing Respondent an administrative fine in the amount of $5,000. DONE AND ENTERED this 15th day of January, 2002, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of January, 2002. COPIES FURNISHED: Walter B. Lebowitz, Esquire 12555 Biscayne Boulevard, No. 924 Miami, Florida 33308 Charles F. Tunnicliff, Esquire Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202 Martha Willis, Director Division of Certified Public Accounting Department of Business and Professional Regulation 240 Northwest 76 Drive, Suite A Gainesville, Florida 32607 Hardy L. Roberts, III, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
