The Issue The issue to be determined is whether the specifications for Request for Proposals number FDC RFP-17-108, “Community Release Center (CRC) in Orange County, Florida,” are contrary to the governing statutes, rules or policies of the Florida Department of Corrections (the Department or DOC).
Findings Of Fact Based upon the oral and documentary evidence presented at hearing, the following facts are found: Petitioner is a vendor that currently holds contracts with the Department to provide work-release beds and transitional work-release beds throughout the state of Florida and holds a contract providing these services in Orange County, Florida. Its Orange County facility is referred to in this proceeding as Orlando Bridges and qualifies as a community release center. Bridges is a vendor who would, potentially, bid on the request for proposal at issue in this case. Petitioner has standing to challenge the specifications of RFP-17-108, and there is no dispute that Petitioner timely filed its notice of intent to protest the specifications; timely filed a formal written protest; and timely filed the required protest bond. On August 11, 2016, the Department issued FDC RFP-17- 108, “Community Release Center (CRC) in Orange County, Florida.” A community release center is defined by Florida Administrative Code Rule 33-601.602(1)(n) as “a correctional or contracted facility that houses community custody inmates participating in a community release program.” The RFP seeks proposals from vendors to provide: A facility located in Orange County, Florida, with qualified staff to deliver a Community Release Center (CRC) for male inmates. Services will include operation of each facility, security, supervision, housing, care, meals, employability skills, licensed substance abuse outpatient and after care services, cognitive-behavioral interventions, parenting, family reunification, anger management, mentoring, budgeting, victim awareness and related transition services to enhance the inmate’s successful reintegration back into society. The Department intends to award one contract in Orange County for up to seventy-five (75) male beds. The number of awarded beds will be determined by the Department based on the Vendor’s response to this RFP. The Department reserves the right to increase or decrease the bed allocation based on the Department’s need, and the appropriation of funds. The contract currently held by Bridges for its Orlando Bridges facility, Contract #C2489, was executed in 2008, and has been renewed and extended a number of times. It is scheduled to expire December 31, 2016. Under the current contract, Bridges provides up to 54 work release beds and up to 84 substance-abuse treatment transition beds (transition beds). The Department currently pays, on average, $21 per day, per inmate, for work- release beds. It pays an average of $52 per day for transition beds. Orlando Bridges also holds other contracts with the Department: according to Petitioner, it has slightly under 400 inmates currently, with 134 beds under Contract #C2489; 100 beds under a probation diversion program; and the remainder under other work-release programs. The difference in cost between transition beds and work- release beds reflects the difference in services currently provided. For transition beds, inmates are placed at a facility, such as the Orlando Bridges campus, which operates as a modified therapeutic community. Depending on the terms of the governing contract, the facility can either be provided by the vendor, as is the case with Orlando Bridges, or can be a Department-owned facility operated by a private vendor. The inmates assigned to transition beds receive intensive therapeutic services, including education, substance-abuse treatment, vocational training, employment and re-entry assistance, depending on the individual inmate’s needs. The inmate focuses on treatment during this portion of the program. Once the treatment portion of the program is completed, inmates are transferred to work-release beds, where the goal is obtaining and maintaining work-release employment. Inmates receive some additional treatment while in work-release beds, but the focus is on employment. Orlando Bridges is a 15-acre campus that could house up to 400 inmates. It is not a secure facility: it does not have a secured perimeter and does not have armed guards. Under Contract #C2489, Orlando Bridges is assigned a “parent institution,” which is located in the same geographic area and provides oversight and limited classification services to Orlando Bridges. The contract also provides for the transportation of inmates in the event that medical care is needed, because medical services are not included within the scope of the contract. Contract #C2489 also delineates the process to be used should an inmate be terminated from the program or released from custody. Specifically, Contract #C2489 provides: Termination from the Work Release/Program Center All behavior problems, escapes, disciplinary problems, unusual incidents, special medical issues and requests for inmates to be removed from the program shall be reported to the OIC of the parent institution. The Department is responsible for terminating inmates from the Substance Abuse Transitional/Work Release (Re-entry) Program Center. An inmate may be terminated and returned to the physical custody of the Department from the Substance Abuse Transitional/Work Release Program Center when it has been determined that to do so is in the best interests of the Department, the Substance Abuse Transitional/Work Release (Re-entry) Program Center, and/or the inmate or for any other compelling reason related to public safety. Pursuant to this Contract and Department Policy, the Warden of the parent institution or other Department staff is authorized to approve an inmate’s termination from the Transitional Work Release/Program Center. If it becomes necessary to terminate an inmate from the program, Department staff or other law enforcement staff shall assume physical custody of the inmate and transport the inmate to an appropriate facility. . . . Release of Inmates from the Custody of the Department of Corrections All inmates placed by the Department into the Contractor’s Substance Abuse Transitional/Work Release (Re-entry) Center shall remain in the Substance Abuse Transitional/Work Release (Re-entry) Program Center program until their sentence of incarceration is completed, or until returned to the Department’s custody by reason of termination from the Substance Abuse Transitional/Work Release (Re-entry) Program Center program. (emphasis added). The Department currently has contracts for five facilities providing transition beds like those provided under Contract #C2489. The Department also has contracts that provide only for work-release beds, and has contracts of this type with Petitioner. For example, Turning Point in Broward County is a contract for 99 work-release beds and is a Bridges-owned facility. RFP-17-108 seeks proposals for work-release beds only, although 21 more than are currently provided through Contract #C2489. The Department is not seeking transition beds, with their more intensive treatment component, as a part of this RFP. As a result, should Bridges choose to bid on this RFP, it would provide services for 63 fewer beds than it provides under the current contract, at an intensity level that is higher than the current work-release beds and lower than the current transition beds. While the RFP seeks proposals for work-release beds as opposed to transition beds, there are some similarities between the RFP and the current contract because both deal with services provided at a community release center. For example, the RFP specifies that there will be a correctional institution that will be designated as a parent institution to provide oversight and limited classification services, and has many of the same provisions with respect to licensure, facilities, staffing and oversight. The RFP requires the vendor to provide job development, placement, and retention services, as did previously issued contracts providing for work-release beds. However, the RFP also requires bidders to provide readiness programs and services to address individual criminogenic needs of the inmate, such as development of independent living skills and economic self- sufficiency; mentoring; budgeting; anger management; cognitive- behavioral interventions; educational and literacy skills development; parenting; family reunification; life skills; victim awareness; and outpatient and aftercare substance-abuse services. Similar to Contract #C2489, there are provisions within the RFP that refer to inmates being “returned to the physical custody of the Department.” See, for example, sections 2.8.1 (Facility Intake) and 2.11.1.14 (Inmate Termination from the CRC). RFP-17-108 is an initial step in a change of focus for the Department when it comes to providing substance-abuse treatment and work-release services to inmates. The overall vision is identified in Joint Exhibit 3, a document entitled “Timing of Effective Intervention.” Joint Exhibit 3 is a document prepared by Maggie Agerton at the request of her supervisor, Abraham Uccello, to address how best to use the Department’s existing resources to provide the greatest amount of treatment to the most inmates. It is an internal document that has not been formalized. Mr. Uccello, who requested that the document be prepared, described Joint Exhibit 3 as a work product document and did not know what the final version would look like. Department staff testified that the Department is looking at a new approach to providing work-release and substance- abuse services, because as a result of inmate classifications based upon the nature of the offenses committed, only nine percent of the inmate population qualifies for placement in the community.1/ The Department has a budget of approximately $27 million devoted to contracted substance-abuse treatment. Of that $27 million, approximately $15,489,548 (57%) of the budget is currently allocated for 688 transition beds statewide. Work- release slots with related treatment represent $789,927 of the budget. The remainder of the budget ($10,933,333) is used to serve the needs of the remaining 91% of the inmate population. The Department’s concern is that more resources should be used to treat moderate to high-risk inmates, because best practices studies show that these inmates are the one that most need the services to reduce recidivism. The Department’s data indicates that approximately 62% of the inmate population have an identified need for substance-abuse treatment, and under the current model, a significant percentage of the inmates with an identified need is being untreated. In light of these concerns, the Department intends to move some, but not all, of its substance-abuse treatment “behind the fence” (i.e., in secured institutions) in order to reach a greater number of inmates. It also seeks to expand the number of work-release slots, with a “substance-abuse treatment overlay” for those expanded slots. As described in Joint Exhibit 3, the proposed approach is to provide as much intervention as possible while the inmate is housed in a secure facility; to require inmates mandated for substance-abuse treatment to receive it prior to being placed in work release; to use work release as a “privilege and incentive for hard work in core programming and readying oneself for release”; and to consider work release as the final transitional step between readiness and community transition. The primary focus of work release would be to obtain and maintain paid employment. Participants, however, would be given the opportunity to complete any domain programming that was not completed at the secure facility. To that end, Joint Exhibit 3 identified requirements from prior requests for proposals and added some additional requirements for the work-release beds they would be seeking. The working document provides: In previous solicitations, proposers were required to provide, at a minimum: A facility/site which provides housing in a clean, safe environment; Sufficient qualified staff to operate the facility and programs; Three (3) nutritious, balanced meals per day prepared on site and/or including preparation of sack lunches for inmates employed away from the CRC during scheduled meal times (if the meal cannot be consumed on site for these inmates); Job development, job placement and job retention services; Access to transportation as required by Department rules and regulations; Personal financial management instructions; and Licensed outpatient substance abuse treatment, intervention, and aftercare. In the current solicitation, the proposer must also provide readiness programs and services to address individual criminogenic needs of the participants. These services are intended to facilitate successful reintegration in the community upon completion of incarceration through development of independent living skills and economic self-sufficiency gained through meaningful employment. These include: Cognitive-behavioral interventions; Parenting; Family reunification; Anger management; Mentoring, budgeting; Victim awareness; Compass 100; and Related transition services and referrals. Readiness programming is based on individual needs and will be provided in instances where the participant did not receive the required level of service prior to placement at the CRC. The terms of the RFP are consistent with the approach outlined in Joint Exhibit 3. RFP-17-108 has no per diem rate specified that proposers are required to meet. The Department has left the cost open so that it can determine whether this approach is financially feasible. If a vendor believes that there are extra costs to run a facility as bid, the vendor can include those costs in the price it submits. If all bids come back too high, the Department will have to determine whether they can afford this approach. The stated intention of the Department is, as current contracts for transition beds expire over the course of the next four years, the contracts will be allowed to expire or will perhaps not be renewed. No existing contract is being terminated. The goal is to replace the 688 transition beds with expanded work- release beds in the community. While substance abuse would then, for the most part, be provided behind the fence, even if the strategy is characterized as “moving” these 688 beds, the move would affect approximately .6 percent of the Department’s current prison population. Like all state agencies, the ability for the Department to implement programs depends upon the Legislature’s willingness to fund them. Petitioner contends that the Department is not free to pull back transition beds and move substance abuse treatment and more intense therapy behind the fence, because of a proviso in the Department’s budget. To support this contention, they point to a section of the Department’s budget from the General Appropriations Act (GAA) for 2016, House Bill 5001, submitted as Joint Exhibit 17. The specific line item from which the current funding for substance abuse treatment is authorized is line item 633. Section four of the GAA for 2016 contains the following proviso: From the funds in Specific Appropriations 598A through 755, the Department of Corrections shall, before closing, substantially reducing the use of, or changing the purpose of any state correctional institution as defined in section 942.02, Florida Statutes, submit its proposal to the Governor’s Office of Policy and Budget, the chair of the Senate Appropriations Committee, and the chair of the House Appropriations Committee for review. Based upon this limitation, Petitioner contends that the Department’s issuance of the RFP signals its intention to close, substantially reduce the use of, or change the purpose of a state correctional institution, by substantially reducing and changing the purpose of the facility at Orlando Bridge. Notably, the proviso contains no mention of substance abuse treatment or transition beds. Mr. Uccello testified that, at the request of Kim Banks, the Department’s CFO, and Steven Fielder, DOC’s Chief of Staff, he made a presentation regarding the overall developmental plan for in-prison programs and treatment in a general meeting between the Office of Policy and Budget (OPB and House and Senate Appropriations staff. He understood that it was an informational meeting, and did not believe that approval of the proposal was required. There was no testimony to indicate that the proposal was presented to the chairs of the House and Senate Appropriations Committees. Petitioner’s President and CEO, Lori Constantino-Brown, state that this RFP, compared to Orlando Bridges’ current contract, would require changes to all of Bridges’ policies and operational procedures, would result in layoffs of her employees, and would limit the number of inmates served in a community setting. She also testified that there are additional costs needed to run the facility as proposed, and providing the services with the limited number of beds proposed, would not be cost- effective for any vendor. Ms. Constantino-Brown acknowledged that Bridges does not have a right to provide transition beds as they exist under the current contract, and that an award to a different bidder would be lawful. She also acknowledged that if Orlando Bridges closed on January 1, 2017, because its contract expired, that would also result in staff layoffs. The same result would occur should another vendor successfully bid on the RFP. Petitioner has not demonstrated that the specifications of the RFP are arbitrary and capricious. The specifications are consistent with the Department’s intended restructuring of substance-abuse treatment and work release opportunities for inmates. Whether or not the plan is ultimately successful, the thought process behind the specifications included in the RFP is to address legitimate concerns for providing the most treatment to the greatest number of inmates. Petitioner stated at hearing that it was not challenging the policy articulated in Joint Exhibit 3, but spent a significant amount of time trying to establish that the changed strategy would not be less costly. However, the Department staff candidly testified that at this point, it is not possible to determine whether there would be any savings, because they do not know what vendors would identify as a price until they get responses to the RFP. Petitioner has not demonstrated that the RFP is contrary to competition. While there was some testimony that the requirements of the RFP may be cost-prohibitive for Bridges to respond, there was no real evidence to indicate that it created an advantage for any vendor over others. While Petitioner claims it is not challenging the policy change itself, it points to no term in the RFP that it finds offensive. The challenge, instead, is to what is not included: transition beds like the ones Bridges provides now. It contends that this omission amounts to the closure, substantial change in services, or substantial reduction in services provided by a state correctional institution, and therefore violates the proviso limitation in the General Appropriations Act. No term or specification in the RFP closes a state correctional institution. No term or specification in the RFP substantially reduces the use of a state correctional institution. While there is some reduction in the number of beds provided for in the RFP, there is also a proviso allowing for an increase in the number of beds, depending on need and funding. Moreover, the beds included in Contract #C2489 do not represent all of the beds at Orlando Bridges. No term or specification in the RFP changes the purpose of any state correctional institution. The purpose of Orlando Bridges, under its current contract, is to provide readiness programs to assist inmates to prepare for re-entry in society. RFP-17-108 seeks proposals for readiness programs, albeit using a restructured program model. While the vehicle may be different, the purpose remains the same: preparing inmates for release with a goal of lower recidivism.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections amend the RFP in a manner consistent with the stipulation of the parties in the Joint Pre-hearing Statement, i.e., by removing the second sentence of section 1.4 of the RFP, and by removing section 2.5.19 of the RFP. It is also recommended that the Department enter a final order dismissing the Petition. DONE AND ENTERED this 23rd day of November, 2016, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 23rd day of November, 2016.
The Issue The issue is whether The Unlimited Path, Inc. (“The Unlimited Path”) committed an unlawful employment practice against Constance K. Gatewood by denying her a reasonable accommodation and/or by demoting her from her position as Program Director at Jackson Correctional Institution.
Findings Of Fact The Parties The Unlimited Path contracts with the Florida Department of Corrections (“DOC”) to provide residential substance abuse counseling and re-entry services to inmates on prison grounds. The Unlimited Path has been operating since 1994 when it had 30 to 50 employees. Today, The Unlimited Path has 280 employees and operates at 20 to 24 institutions within Florida. DOC is The Unlimited Path’s primary source of revenue. If The Unlimited Path is not satisfying its contractual obligations, then DOC can terminate the contract. Therefore, it is imperative that The Unlimited Path satisfy its contractual obligations. In order to ensure that The Unlimited Path is satisfying those obligations, DOC and the Department of Children and Families (“DCF”) conduct periodic reviews of The Unlimited Path’s substance abuse programs. The contract between DOC and The Unlimited Path is comprehensive. For example, one provision requires that The Unlimited Path comply with the Americans with Disabilities Act (“the ADA”). Another provision empowers DOC to prohibit The Unlimited Path from employing a particular person at a DOC facility. Bertrand Randolph is the President of The Unlimited Path and performs all of the functions typically associated with a chief executive officer of a corporation. Mr. Randolph’s wife, Sheila Randolph, is the Executive Director of The Unlimited Path, and her duties include overseeing the operations and policies of the entire corporation. Ms. Randolph also writes The Unlimited Path’s bids. Ms. Gatewood has worked in prison-based substance abuse treatment programs since 2005. She is a master’s level certified addiction professional or a “CAP”. As a CAP, Ms. Gatewood is qualified to operate a substance abuse program. The Unlimited Path hired Ms. Gatewood on September 20, 2011, to work as a clinical supervisor at the Walton Correctional Institution (“Walton CI”). One piece of documentation associated with Ms. Gatewood’s hiring asked her to disclose whether she suffers from various medical conditions such as epilepsy, diabetes, or heart disease. With regard to a category on that document entitled “other,” Ms. Gatewood noted that she experiences “[a]llergies to certain foods, chemicals, perfumes, other odors plus dyes.” However, she responded negatively to a question asking if she had ever “received a disability rating or had one assigned . . . by an insurance company or state/federal agency.” On an “Emergency Contact Information Sheet,” Ms. Gatewood disclosed that she is allergic to several foods and substances such as aspirin, sulfides, chemicals, perfumes, colognes, seafood, pork, strawberries, nuts, chocolate, red dye, and yellow dye. Ms. Gatewood also noted on the aforementioned form that she has asthma and is sensitive to extreme hot or cold conditions. However, the disclosures described above did not present a complete picture regarding the severity of Ms. Gatewood’s allergies. Specifically, those disclosures did not indicate that Ms. Gatewood’s allergies could be life- threatening. A letter dated October 7, 2003, from Dr. Mark H. Kalenian of Alabama Asthma & Allergy, P.C. presented a comprehensive description of Ms. Gatewood’s allergies and described how they could be life-threatening: The above referenced patient is a 52 year old black female initially seen on 9/13/2001 and last seen on 4/1/2003. Her diagnoses include allergic rhinitis, asthma, dermographic Urticaria, Urticaria/angioedema, and multiple drug allergies. She breaks out in hives and can get facial swelling when ingesting MSG, scupper dines, vanilla ice cream, red #40 and yellow #5 dyes, shellfish, and Advil-related anti-inflammatory drugs. Her main problems that may affect her work are smoke, chemicals and/or perfumes which trigger sinus allergy type symptoms, lip swelling, dizziness, shortness of breath, and anaphylaxis (a potentially life- threatening reaction). These potential exposures to smoke, cologne, perfume, scents or chemicals, extreme hot/cold air, polluted air at work whether in the air or on co-workers could potentially trigger a severe allergic, asthmatic or anaphylactic reaction, which could send her to the emergency room, close off her airway and drop her blood pressure and be potentially life threatening. She should work in a clean air environment, away from co-workers who smoke or wear scented lotions or perfumes, away from polluted air and away from extremes of hot or cold. Avoidance is the best treatment for her, although she needs to continue on all asthma and allergy medications. Please consider implementing a policy of no perfume/cologne or strong scents worn on trainees, and people should smoke outside. As discussed in more detail below, Ms. Gatewood did not share the above-referenced letter with The Unlimited Path until April of 2015.2/ Ms. Gatewood’s Tenure at The Unlimited Path Prior to July 2015 During her tenure with The Unlimited Path, Ms. Gatewood has worked as the Program Director of substance abuse rehabilitation programs at three different DOC facilities: Lowell CI, Jackson CI, and the Northwest Florida Regional Annex. At The Unlimited Path, a program director is responsible for all aspects of a treatment program at a DOC facility. Ms. Gatewood’s allergies became well-known to those who worked around her. Any sort of strong scent presented a problem. For example, Ms. Gatewood’s co-workers could not heat fish in a microwave because of the resulting aroma, and they could not use hand soap. There is no dispute that The Unlimited Path’s management (prior to November of 2014) properly addressed any complaints made by Ms. Gatewood. According to Ms. Randolph, “any time there was a concern, we would address it with the employee or the site by holding a staff [meeting], requesting that people refrain from heavily scented products. I mean, we – we even allowed for there to be some cleaning schedule changes at sites to accommodate her allergies. So we tried very hard to respect the fact that she was sensitive.” The Unlimited Path also allowed Ms. Gatewood to set the standard for soap in the bathrooms. Nevertheless, Ms. Gatewood’s allergies were an issue throughout her tenure at The Unlimited Path. As explained below, Ms. Gatewood cites three instances in which The Unlimited Path allegedly ignored requests from her for a reasonable accommodation within the meaning of the ADA. In other words, Ms. Gatewood alleges that The Unlimited Path began ignoring her requests for a reasonable accommodation in November of 2014. The Unlimited Path began operating a substance abuse rehabilitation program at Jackson CI in January of 2014, with Ms. Gatewood as the Program Director. In approximately November of 2014, counselors under Ms. Gatewood’s supervision were wearing scented products, and the aromas from those scented products were being transferred to documents that Ms. Gatewood had to review in her capacity as Program Director. As a result, Ms. Gatewood experienced allergic reactions and began leaving documents in filing cabinets overnight in order for the scent to dissipate. On November 5, 2014, Ms. Gatewood addressed the following e-mail to Sheila Randolph: This message is to seek advice regarding employees that continue to wear scented products in the workplace which is creating complications because the paperwork is extremely saturated with perfume/cologne/aftershave/lotion scents so strong that I am experiencing allergic reactions signing the paperwork. I have addressed this issue in staff meeting[s], however, it seems not to matter with certain staff. Ms. Russell’s entire caseload charts were so strongly scented today, I asked Ms. Dandridge to place them in the file cabinet because my system could not tolerate the smell nor could I continue signing off on the individual sessions. I became very ill and had to go outside to get fresh air in order to breathe. Also, I know you want me to provide leadership training to Mr. Bell, however, the scented aftershave and hand product he wears makes it extremely difficult for me to interact in close proximity with him, and sign his paperwork. Today, I mentioned to him that I was experiencing an allergic reaction and my eyes were stinging so badly I could not sign his chart. Later I overhead him say “if someone is that sensitive this is not the environment to work in.” At this point, I am unable to perform the duties of my job due to these strong scents that I am affected by smelling and touch. There is a DOC policy that addresses strong scents in the workplace. I don’t want the closed charts to arrive in Tallahassee smelling like a perfume factory, and lastly these scents are very attractive to the inmates. On April 9, 2015, Ms. Gatewood addressed the following e-mail to her immediate supervisor, Amie Bishop: At your earliest convenience I need to speak with you regarding two issues that involve Counselor Karlicia Rogers. Scented products in the workplace that has been address[ed] in the past. She is now wearing heavily scented hand products when completing documentation. Documentation deficiencies regarding three charts that were not countersigned when the client was enrolled into the program, and correcting my documentation in the chart. Later that day, Ms. Gatewood transmitted another e-mail to Ms. Bishop and copied Sheila Randolph. Within the e-mail, Ms. Gatewood expressed an issue regarding Mr. Bell. However, she also referred to the ADA: Yesterday, after Staff Meeting, I considered Mr. Bell’s behavior inappropriate. In front of staff members, he made a comment regarding Ms. Chavers who was not present in the room at the time. He said, “If you are that sensitive you don’t need to be working here.” This was regarding an incident earlier during staff meeting when Ms. Rogers reported information she overheard from Ms. Chavers’ group and (Ms. Rogers) said she wanted clarification. Ms. Chavers thought Ms. Rogers was targeting her and told her so during the meeting. Ms. Rogers explained that she was not targeting her, and after numerous attempts to convince her she was not being targeted, Ms. Chavers excused herself and left the meeting. It was [about] time to go, I went to look for Ms. Chavers, and did not feel the need to keep Mr. Bell overtime to address his behavior. However, this morning, I advised Mr. Bell that I overheard the remark and wanted to address it with him. I mentioned that in the past I overheard him make the same remark about me when he thought I was out of the room (re: scented products in the workplace, and allergic effect it causes me). I further mentioned that I was surprise[d] he would commit the very same act after having been talked to by the Corporate Office. He remembered the incident stating Ms. Clark had advised him not to wear scented products in the workplace, however, she agreed with him regarding his opinion that if I was that sensitive, I did not need to be working here. He further stated that she did not know that I was still upset by the incident, and he began to apologize profusely. I emphasized to him that I was not still upset about that incident. However, my concern is the comment is totally inappropriate in the workplace because of the following reasons: (1) the forum in which he made the comment. The person he was talking about was not present, (2) the possibility of influencing staff members present to feel the same way he does which creates tension in the workplace, (3) in my situation, it is essential to recognize the Americans with Disabilities Act, (4) re: Ms. Chavers it was inappropriate for him to say where she can work, and (5) he continues to make this comment in total disregard of the effect. Hopefully, Mr. Bell will not continue this behavior, however, I do want to keep you in the loop. (emphasis added). Ms. Randolph responded to Ms. Gatewood via e-mail on April 9, 2015, by stating that, This is the first time I’ve heard you make mention of ADA for your condition. We have never gotten any medical documentation from you regarding special accommodations for your sensitivities and yet, we have continued to be supportive of your allergies and the needs you have regarding scents and strong odors. If you are stating that you have a condition covered under the ADA, we need documentation in support of that so that we can explore our responsibilities in that regard further. Via an e-mail dated April 16, 2015, Ms. Gatewood responded to Ms. Randolph’s request by attaching a note dated April 15, 2015, from Dr. Kalenian recommending that Ms. Gatewood have a fragrance free environment due to asthma and chemical sensitivity. Ms. Gatewood also attached Dr. Kalenian’s October 7, 2003, letter that was quoted above in paragraph number 14. In addition, Ms. Gatewood reiterated in her April 16, 2015, e-mail that “the current source of issues for me is when counselors use heavily scented hand products when handling inmates’ charts that I am required to countersign as the Qualified Supervisor.” To the extent that Ms. Gatewood’s November 5, 2014, e-mail amounts to a request for a reasonable accommodation within the meaning of the ADA, her subsequent e-mail on April 9, 2015, indicates that The Unlimited Path addressed her concerns regarding Mr. Bell’s use of scented aftershave. Moreover, The Unlimited Path conducted a staff meeting at some point between November 5, 2014, and December 25, 2014, at Jackson CI and trained the staff members on workplace grooming etiquette and being sensitive to co-workers’ allergies. To the extent that Ms. Gatewood’s April 9, 2015, e-mails amount to requests for a reasonable accommodation within the meaning of the ADA, The Unlimited Path mandated in May of 2015, that female staff members at Jackson CI no longer wear scented lotions. In addition, The Unlimited Path prohibited liquid soap in the bathroom at Jackson CI. To the extent that any of the e-mails discussed above amount to requests for a reasonable accommodation within the meaning of the ADA, the greater weight of the evidence demonstrates that The Unlimited Path took appropriate actions to satisfy those requests. Aside from the issues regarding her allergies, Ms. Gatewood’s tenure at The Unlimited Path has been marked by difficulties with DOC. For example, Ms. Gatewood did not have a good working relationship with the assistant warden of programs at Lowell CI when she was the Program Director there. As a result, Ms. Randolph encountered resistance when she sought permission from DOC to transfer Ms. Gatewood from Lowell CI to Jackson CI. Margaret Agerton, the Assistant Bureau Chief in DOC’s Bureau of Programs, felt as if The Unlimited Path was transferring a problem from one place to another. Nevertheless, Ms. Agerton approved the transfer with the caveat that this would be the last one. Events Leading to Ms. Gatewood’s Demotion On June 2, 2015, Ms. Gatewood requested leave from Thursday, July 16, 2015, through Friday, July 24, 2015, and her request was approved the next day. Because DCF is responsible for licensing and regulating substance abuse and mental health facilities throughout Florida, Michael Van Bebber of DCF arrived on July 23, 2015, at Jackson CI in order to conduct an audit. The Unlimited Path had received advance notice approximately two weeks beforehand. At the time of the audit, Jackson CI was treating 68 inmates. Even though Mr. Van Bebber considers The Unlimited Path to be one of the highest performing substance abuse providers that he reviews, he was disturbed by the state of the treatment program at Jackson CI. Three counselors employed by The Unlimited Path at Jackson CI had resigned within the previous week, and there were not enough counselors for the 68 people receiving treatment. In addition, Mr. Van Bebber considered the treatment facility to be too small for the number of people in the program. In his opinion, the facility was overcrowded, and the overcrowding caused the inmates to be extremely agitated. Mr. Van Bebber felt unsafe and locked himself in an on-site office. With regard to the overall functioning of the program at Jackson CI, Mr. Van Bebber concluded that The Unlimited Path was not performing at the level he would expect from an established provider of residential treatment programs. In fact, The Unlimited Path almost got a warning that could have resulted in the loss of its license at Jackson CI. Because Mr. Van Bebber considered DOC to be equally responsible for the problems at Jackson CI, the warning was not issued.3/ At the time of the audit, Michael Dozier worked for The Unlimited Path, and he substituted as the Program Director at Jackson CI during Ms. Gatewood’s vacation. Mr. Dozier has over 25 years of experience with prison residential treatment communities. He is recognized as an authority on residential treatment programs/communities. Upon arriving at Jackson CI, Mr. Dozier spoke to The Unlimited Path’s staff members and estimated that 50 percent of those to whom he spoke were looking for another job. As Mr. Dozier examined the physical area housing the substance abuse treatment program, he noticed that the facility was unclean and that many of the inmates were disheveled in appearance. This indicated to Mr. Dozier that there was a lack of structure and accountability. On July 23, 2015, Mr. Dozier wrote a memo to the “Executive Leadership” of The Unlimited Path recommending the “immediate removal” of Ms. Gatewood as the Program Director of Jackson CI: First, let me start by saying I have spent the past week evaluating the strengths and weaknesses of our Jackson CI RTC with hopes of identifying the direct cause of high staff turnover, staff resignations without notice, high staff dissatisfaction, and high levels of inmate frustration. During my review, I was very discouraged by what I found. The program space was very dirty with trash cans overflowing, negative graffiti on the walls, chairs disorganized in group space, and counseling offices discombobulated. I also noticed heavy layers of dust and spider webs in the windows [along with] hanging poster paper with inappropriate writing on them. As I focused my attention on the program, I quickly realized that there was no structure in the program. There appeared to be no accountability when it came to community expectations. [R]esidents were walking around with their shirts out, failing to wear their ID, using abusive language and consistently giv[ing] the staff negative feedback when being directed. After speaking to several structure members, I received the following feedback: the last structure meeting was held over three months ago, staff is not assigned to departments, there are no department meetings, no visual display of assigned structure positions and no systems for behavior management/behavior shaping. It was very disappointing to witness the disarray in Morning Meeting and Wrap-up. [T]hose meetings had no structure or desired outcome and residents expressed no trust of the environment. It was clear that staff had been receiving little to no direction from the program director when it came to managing the community and creating program expectations. During my interviews with staff, it was apparent that the director spent most of the time being punitive towards staff focusing on issues such as the way they wore their hair, what they [were] wearing, what lotion they were using and what deodorant they had on. It was also reported that the director would always make negative comments about the corporate office, negative comments about other employees, and a clear dissatisfaction with the contract manager. [S]taff also stated that if they complained about anything the director would defiantly retaliate against them using their request[s] for time off, [the] dress code, clinical files, or [by assigning that staff member to] the difficult clients that week. I was clearly concerned about the staff morale, lack of leadership and the poor client satisfaction I heard over the past four days. As you know, the program director has to be seen as the ultimate role model in the Therapeutic Community. Based on my findings, I am recommending the immediate removal of the Program Director. On July 27, 2015, The Unlimited Path removed Ms. Gatewood from her position as Program Director at Jackson CI and reassigned her to a counselor position at the Northwest Florida Regional Annex. A memorandum signed by May-Li Clark, Ms. Gatewood’s immediate supervisor at the time, explained why Ms. Gatewood was demoted: During the dates of 7/21/15 – 7/23/15, while Mr. Dozier, State Director, was onsite at Jackson CI’s RTC, several issues were noted that clearly reflect lack of leadership within the program. The following issues were noted: No structure within the program; last structure meeting was held over three (3) months ago, no staff assigned to the departments within the community; department meetings with the community were not being held, no visual display of assigned structure position; and no system for behavior management/behavior shaping within the program. Morning Meetings and Wrap-Up Meetings were unorganized with no desired outcome. There was no accountability in regards to community expectations as the inmate/clients were not in Class A uniform, did not have ID’s, were allowed to use profane language and did not follow staff directives. It was apparent that the inmate/clients were experiencing a high level of frustration. Additionally, the inmate/clients expressed no trust within the treatment environment. The memorandum also held Ms. Gatewood responsible for a high amount of turnover among counselors at Jackson CI: Between the dates of 7/17/15 – 7/22/15, two staff members quit without notice and one staff member was escorted off the compound by Jackson CI Administration. In addition to the immediate staff turnover concerns, it has been noted that the program at Jackson CI has experienced a high level of staff turnover since The Unlimited Path took over operations of the program. Issues that were noted which have been the main contributing factors to staff turnover include: 1) program space (staff work space) was unsanitary with trashcans overflowing, layers of dust and spider webs in the windows, disorganization of program and office space, negative graffiti on the walls and hanging poster paper with inappropriate writing on them; (2) staff receiving little to no direction from the program director regarding program structure, creating and managing program expectations and minimal training regarding clinical file documentation; and 3) fear of retaliation when speaking of concerns or seeking assistance. Ms. Gatewood signed the memorandum but noted that she did not agree with its contents and would challenge the decision.4/ Since the end of July 2015, Ms. Gatewood has been working as a Counselor at the Northwest Florida Regional Annex. As a Counselor, Ms. Gatewood does not have to handle the paperwork of other counselors. The greater weight of the evidence does not demonstrate that Ms. Gatewood’s demotion was retaliation for her repeated complaints about co-workers being insensitive about her allergies. In other words, The Unlimited Path had valid reasons for demoting Ms. Gatewood.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Constance K. Gatewood’s Petition for Relief from an unlawful employment practice. DONE AND ENTERED this 22nd day of June, 2017, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 22nd day of June, 2017.
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.
The Issue The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.
Findings Of Fact Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor. ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792 Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Suresh Paul Pushkarna, pro se 309 Hidden Hollow Court Sanford, FL 32773
The Issue The issue is whether the Florida Department of Education (“the Department”) committed one or more unlawful employment practices against Petitioner (“Ms. Spradlin”) by discriminating against her based on race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Spradlin worked from 2006 to 2010 as a psychological specialist at a facility known as Sunland in Marianna, Florida. Ms. Spradlin is Caucasian. During a portion of the time that Ms. Spradlin was at Sunland, Tawana Gilbert worked there as a human service administrator. Ms. Gilbert is African-American. Ms. Spradlin and Ms. Gilbert did not work closely together, but they served on the same interdisciplinary team and worked with the same residents. Ms. Gilbert’s only knowledge of Ms. Spradlin was through the documentation that Ms. Spradlin submitted to the interdisciplinary team. Ms. Gilbert left Sunland in approximately November of 2009, and began working for the Department as a unit supervisor for a vocational rehabilitation services unit in Marianna, Florida. Vocational rehabilitation assists people by providing them with services that enable them to obtain and maintain gainful employment. During the time period relevant to the instant case, the Marianna unit had 10 staff members and served five counties. Of those 10 staff members, five were counselors and one was the unit supervisor. At some point after Ms. Gilbert left Sunland, Ms. Spradlin saw an advertisement for an entry level vocational rehabilitation counselor position at the Marianna unit. Ms. Spradlin applied for the position and was hired in 2010. In March or April of 2011, Ms. Gilbert invited all of her coworkers to a special event at her church. Ms. Gilbert asked her coworkers with children if their child would like to participate in a program that was to be part of the festivities. Ms. Spradlin said that her daughter was willing to participate, and Ms. Gilbert typed out the words that Ms. Spradlin’s daughter was to recite during the program. When it was time for Ms. Spradlin’s daughter to recite her part, she became nervous, and her grandmother read the part. Following this event, Ms. Spradlin asserts that Ms. Gilbert’s attitude toward her changed and that the unlawful employment practices alleged in her Charge of Discrimination began. Findings Regarding Ms. Spradlin’s Interviews for Senior Counselor Positions There were two openings for senior vocational rehabilitation counselors at the Marianna unit in October of 2012.1/ When the Department is considering applicants for a particular position, it utilizes a three-person panel to conduct interviews and score the applicants. After the interviews, the three-person panel reaches a consensus as to each applicant’s scores, and the Department uses a standardized matrix to rank each applicant. The panel for the two senior vocational rehabilitation counselor openings consisted of Allison Gill, the Department’s area supervisor; Michael Nobles, the former supervisor of the Marianna unit; and Ms. Gilbert. Ms. Gill and Mr. Nobles are Caucasian. Of the five people who interviewed for the two openings, Ramonia Robinson earned the highest score, a 72. With regard to Ms. Robinson’s qualifications, Ms. Gilbert testified as follows: Ms. Robinson, she was a current employee there. She was an entry-level counselor, had been for many, many years. She was there prior to my hiring with VR, so I was familiar with her work history. And she was very thorough, very detailed, very flexible, and very unemotionally involved with her cases. So she, in conducting her cases and case management, was awesome. And she was very knowledgeable about the questions that were being asked. She had had a long history of experience with case management, providing services to individuals with disabilities, and just adequately managing her caseload. She did very well on her interview. Ms. Spradlin received the second highest score, a 56. Keith Sutton, an outside applicant, received a score of 55. When two applicants’ scores are within one point of each other, the Department bases the ultimate hiring decision on reference checks. Ms. Gilbert contacted Mr. Sutton’s references and received positive feedback about him. As for Mr. Sutton’s qualifications, Ms. Gilbert provided the following testimony: Q: What about Mr. Sutton’s experience, resume was notable to you in the interview process? A: Well, he had his degree. It’s directly related to the field of counseling. He had a wealth of experience in the counseling field. He came to us from the Agency for Persons with Disabilities, which is Sunland, where he had a year there, and he met at least the minimum qualifications. He was very – his application was very detailed, and it identified precisely his experience based on his ability to – or his experience with providing counseling, providing services for those with disabilities. And he had a long history from where he had previously worked in the field of counseling. Q: Okay, so Mr. Sutton achieved a Master’s in Counseling in 2011, is that correct, according to his application? A: Yes. Q: And that’s directly related to the position; is that correct? A: Yes, that’s correct. Q: And he had experience as a master’s level therapist? A: Yes. Q: Is that accurate, according to the application? A: Yes. He worked for Florida Therapy as a master’s level therapist, where he was expected to provide counseling, psychotherapy to children, adults and their families, but doing so on an independent basis. That demonstrated he was very flexible, detailed oriented and [had] the ability to function independently. Because she was Ms. Spradlin’s supervisor at the time, Ms. Gilbert acted as her reference and did not recommend her for a senior counselor position. In explaining her reasoning, Ms. Gilbert testified that: Ms. Spradlin was difficult to work with and she was very negative. She had several participant complaints during the span of [] that year. In her first year coming in, she was very challenging, she did not want to accept constructive criticism from me as the unit supervisor. She did not want very – she wanted very little feedback from me based on her performance. Several participant complaints, calling me directly, contacting the ombudsman, faxing me complaints based on their interaction with Ms. Spradlin, how they felt that they were being treated unfairly, they did not agree with her tone from time to time. She was not at all culturally sensitive to some of our participants. She was insubordinate. She would – there were times she would just leave the unit because things – conditions were unfavorable to her. Ms. Gilbert submitted her recommendation to the Department’s area director, and Mr. Sutton was ultimately offered a senior counselor position. Mr. Sutton is currently the supervisor of the Marianna unit. There is no persuasive evidence that Ms. Spradlin was not promoted because of her race or any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding that Ms. Robinson and Mr. Sutton were more qualified for the openings. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of applicants for the two openings discussed above. In May of 2016, Ms. Spradlin applied for another senior counselor position in the Marianna unit. The interview panel for this opening consisted of Ms. Gilbert and two other Department employees, Evelyn Langmaid and Rebecca Stevens. Ms. Langmaid and Ms. Stevens are Caucasian. Ms. Gilbert did not supervise Ms. Langmaid or Ms. Stevens, and she did not attempt to influence their decision-making. Georgia Britt received the highest score from the interview panel and was offered the senior counselor position. Ms. Langmaid described Ms. Britt’s interview as follows: She just came in and every answer we’d or every question that we gave her she was just right on with the answers and [was] hitting the points on the – because we have sort of like a little sheet that we can look for certain points that we’re looking for answers, and she was just right on every point, and was very, very knowledgeable of what was going on. Ms. Spradlin had obtained a certified rehabilitation counseling certification in October of 2014, and Ms. Britt lacked that certification. However, Ms. Britt’s other credentials bolstered her application. For instance, she has a bachelor’s degree in elementary and special education and a master’s degree in counseling. Ms. Britt also had relevant work experience. When she applied for the senior counselor position, Ms. Britt was employed at Sunland as a behavior specialist working with adults with developmental disabilities. Ms. Britt wrote in her application that she had been able to “work with all different types of individuals at all intellectual levels” via her position at Sunland. Prior to working at Sunland, Ms. Britt had worked in a children’s psychiatric hospital in Dothan, Alabama. That position also gave her an opportunity to work with individuals from diverse backgrounds. Ms. Britt wrote on her application that her position at the hospital required her to engage in some counseling and that she had to use counseling skills in order to obtain psychiatric histories and other information. Ms. Britt’s interview bolstered her application. According to Ms. Langmaid, Ms. Britt “blew it out of the water. She was fantastic on the interview.” Ms. Gilbert was also very complimentary of Ms. Britt’s interview: Q: What about Ms. Britt stood out to you and the panel? A: Her ability to respond to the questions as they were being asked. At that time, we were transitioning to where we were asking more emotional [intelligence] questions where – to identify a counselor’s ability to emotionally manage cases and refrain from being emotionally involved with that case. So she answered the questions. It’s on ones that can give a thorough answer based on the circumstance that occurred, the actions that took place and the results of the question. Q: Okay. A: She was really, really thorough with her answers. There is no persuasive evidence that Ms. Spradlin did not receive the promotion because of her race or due to any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding Ms. Britt was more qualified for the opening. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of Ms. Britt. Findings Regarding Ms. Spradlin’s Hostile Work Environment Allegations Ms. Spradlin made several allegations during the final hearing that she was subjected to a hostile work environment during her time with the Marianna unit.2/ For example, in October of 2010, Ms. Spradlin exposed at least part of her posterior to a coworker in the Marianna unit in order to demonstrate the severity of a sunburn. Ms. Gilbert did not learn of that incident until another incident was reported to her on May 2, 2011. That day, Ms. Spradlin was seated in an office within the Marianna unit when a female coworker got very close to Ms. Spradlin and “twerked” in her face. Ms. Spradlin states that she placed her hands on the coworkers posterior and playfully pushed her away. However, the coworker reported to Ms. Gilbert that Ms. Spradlin had pinched her posterior. Upon learning of both incidents, Ms. Gilbert discussed them with Ms. Spradlin and conferred with the Department’s labor relations unit on formulating a proper course of action. With input from the labor relations unit, Ms. Gilbert issued a counseling memorandum to Ms. Spradlin on October 4, 2011.3/ The counseling memorandum4/ read in pertinent part as follows: You are being issued a Counseling Memorandum for your violation of Rule 60L- 36.005(2)(f)(1), Florida Administrative Code (F.A.C.), Conduct unbecoming a public employee. On October 12, 2010, you signed the Department’s Acknowledgement Form stating you received copies of the policies and rules of the Department. Please be aware that you are expected to abide by all Standards of Conduct as stated in 60L- 36.005, F.A.C. On May 2, 2011, you violated the following rule and policy: Rule 60L-36.005(2)(f)(1), F.A.C., requires that “Employees shall conduct themselves, on and off the job, in a manner that will not bring discredit or embarrassment to the state. Employees shall be courteous, considerate, respectful, and prompt in dealing with and serving the public and co-workers.” On May 2, 2011, it was reported by one employee that you pulled your pants down exposing your buttocks and “mooned” that employee. Another employee informed me that on that same day you pinched her on her buttocks. After I was told about these incidents that day, I counseled you and informed you that this was inappropriate behavior and it was explained that your actions were unacceptable. This type of conduct is not conducive to a satisfactory work environment. Your conduct has adversely impacted the morale and efficiency of your unit and the Department, is detrimental to the best interests of the state and Department, and adversely affects your effectiveness with the Department, as well as your ability to continue to perform your job. This behavior must cease immediately. Should you continue conduct unbecoming a public employee, disciplinary actions, up to and including dismissal may be taken. Ms. Spradlin signed the counseling memorandum on October 4, 2011, and added the following comments: These two incidents happened on [sic] different persons. The incident w/ “mooning” was with [a] coworker after I incurred a severe sunburn. It was done only to show my burns not to offend her. She sobbed – I was not wearing pants – skirt instead. On the second occasion w/co-worker E.R. she put her buttocks in my face, playing around, & I pinched it as if to express my willingness to play as well. It was provoked – not done in an offensive manner. I understand that this type of behavior is not accepted in my work environment. They were done in a playful uplifting manner, not intentional. However, I will refrain from this behavior as I have obviously offended my colleagues. Another allegation of disparate treatment concerned an incident with a Department client named B.H., who Ms. Spradlin assisted with enrolling in nursing school. B.H. arrived at the Marianna unit one day without an appointment and reported that he wanted to do something other than nursing. Ms. Spradlin asserts that B.H. got aggressive when his requested changes could not be accomplished immediately. Ms. Spradlin further asserts that she became afraid, threatened to call 9-1-1, and managed to get past B.H. and into the hallway outside her office. Ms. Gilbert heard the commotion and called the police. By the time the police arrived at the Marianna unit, B.H. was very calm, and Ms. Gilbert concluded there had been no need to call law enforcement. While Ms. Spradlin asserts that she became an object of ridicule in the Marianna office for overreacting, Ms. Gilbert asserts that she was ridiculed for failing to give the address of the Marianna office when she called 9-1-1. As another example of disparate treatment, Ms. Spradlin cites an incident on November 14, 2013, involving a cigarette butt. Ms. Spradlin was in Ms. Gilbert’s office and dropped a cigarette butt into a trashcan. According to Ms. Spradlin, Ms. Gilbert demanded that she remove the cigarette butt and forced Ms. Spradlin to search through used tissues for the cigarette butt. Ms. Gilbert acknowledged that she asked Ms. Spradlin to remove the cigarette butt from the trashcan, but she credibly denied berating Ms. Spradlin or yelling at her. According to Ms. Gilbert, Ms. Spradlin was able to quickly remove the butt from the trashcan and was not upset about having to do so. Ms. Spradlin made several other allegations about how Ms. Gilbert gave African-American employees in the Marianna unit preferential treatment. For example, Ms. Spradlin alleges that she was required to handle more cases and incur more travel than her African-American coworkers. With regard to her travel reimbursements, Ms. Spradlin alleged that Ms. Gilbert refused to account for all the miles she traveled. Ms. Spradlin further asserts that Ms. Gilbert subjected her to disparate treatment by requiring her to maintain more documentation of her daily activities, inundating her with e-mails inquiring about the status of her work, and being less lenient regarding Ms. Spradlin’s use of flex and leave time. Ms. Gilbert testified that she has never denied a request for annual leave and that she approved the majority of Ms. Spradlin’s requests for flex time, even though Ms. Spradlin did not follow the proper procedure for making such requests. As for the other allegations mentioned above, Ms. Gilbert credibly testified that she did not subject Ms. Spradlin to any disparate treatment. Finally, Ms. Spradlin alleges that Ms. Gilbert unfairly administered a system by which counselors within the Marianna unit shared their successful cases with African- American counselors who had fewer successful cases. This system was implemented because counselors within the Marianna unit were expected to have a certain number of successful cases. Ms. Gilbert credibly denied that the system was administered unfairly: Q: Ms. Gilbert, do you ever ask counselors to donate their successful cases or case numbers to other counselor? A: I never asked counselors specifically to do that. I did discuss it with the unit, with our team as an option. Q: Okay, and why would that be an option they may want to do? A: Well, the way Vocational Rehabilitation operates is a person has to be on their job a minimum – a minimum of three months, okay, 90 days, to consider that person as successfully rehabilitated. And that was a measurement. That was an expectation on each counselor’s performance evaluation, that they had to get so many successful rehabs within one year. So someone that’s being hired and coming to Vocational Rehabilitation in the middle of the year, they don’t have that opportunity to monitor that person for 90 days, if they don’t already have someone that’s in that employment status ready to begin monitoring. So it’s difficult. But I did not want that to be a negative reflection of a counselor that’s really trying and that’s working their caseload and trying to get their successful rehabs. So I would ask counselors once they’ve received all of their rehabs and they close enough people successfully that allows them to get the most maximum score that they can get on their evaluation, I would ask them if they wanted to, share those rehabs with someone that’s probably a new counselor or that’s just having a difficult time with obtaining their successful rehabs. Q: Okay. And so Mr. Sutton’s first year, might he have received some successful numbers donated to him from other counselors? A: That is a possibility. Q: Okay. Did Ms. Spradlin ever receive any successful numbers donated to her when she had a lower number? A: Yes. * * * Q: Okay. And so that number of successes or successful rehabilitations is important to counselors? A: Absolutely. Q: Because they are – are they evaluated on that each year in their yearly performance evaluation? A: Yes. Each level of counselor, if you’re an entry-level counselor, your first year you may be expected to get five. Those numbers are prorated. So the cutoff period is last business day of June, so if you have a new counselor that starts in February or March, they’re at a disadvantage, they don’t have the time. Time works against them. But if they are involved with their cases and they are trying to work their cases, I felt that it was only reasonable to assist them. * * * Q: Okay, so you said that Ms. Spradlin would have received a donation of successful cases maybe early on in her career? A: Yes. Q: Did she donate cases once she became a more proficient counselor? A: I’m pretty sure she did. Q: And did you specifically ask her to donate cases to any particular employee? A: No. Ms. Spradlin resigned from the Department on August 10, 2016. There is no sufficiently persuasive evidence to support Ms. Spradlin’s disparate treatment claims. The greater weight of the evidence demonstrates that Ms. Spradlin was not subjected to any disparate treatment during her tenure in the Marianna unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of July 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 24th day of July 2018.
The Issue The issue is whether Petitioner has just cause to terminate Respondent's employment on grounds alleged in the Civil Service Notice of Disciplinary Action of May 10, 2000.
Findings Of Fact At all times material to this proceeding, Petitioner employed Respondent in Petitioner's maintenance department as a Carpenter I. Respondent was a non-probationary educational support employee as defined in Section 1012.40, Florida Statutes (2003), which is substantially similar to Section 231.3605, Florida Statutes (2001), and its predecessors. In October 1995, Respondent's fishing boat collided with a commercial barge. As a result of the accident, Respondent's father and uncle were killed and Respondent's son suffered serious bodily injury. Respondent had a history of poor attendance at work. Sometime prior to October 1998, Respondent's supervisor counseled him and recommended discipline due to unexcused and excessive absences from work. Respondent was arrested in October 1998 as the result of the boating accident. Respondent initially was charged with one count each of vessel homicide, culpable negligence, and boating under the influence (BUI) severe bodily injury, and two counts of manslaughter. On April 28, 2000, a jury found Respondent guilty as charged. It is undisputed that Respondent was absent from work without authorization or approved leave from April 17, 2000 through May 17, 2000. Petitioner terminated his employment effective May 17, 2000. Respondent was sentenced on August 22, 2000, for the following offenses: causing serious bodily injury to another, culpable negligence in the death of another, vessel homicide, and two counts of BUI manslaughter. On appeal, some of Respondent's felony convictions were discharged. However, the Court affirmed Respondent's BUI manslaughter convictions. See Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002). The court in Ronald R. Cardenas, Jr. v. State of Florida, 816 So. 2d 724 (Fla. 1st DCA 2002), certified a question of great public importance involving a jury instruction to the Florida Supreme Court. See Ronald R. Cardenas, Jr. v. State of Florida, Case No. SC02-1264, Rev.gr. 832 So. 2d 103 (Table) (Fla. November 19, 2002). At the time of the hearing, the Florida Supreme Court continued to have jurisdiction over Respondent's criminal case. Therefore, Respondent's convictions for BUI manslaughter remain in effect. Petitioner's Rule 2.24 provides that personnel absent from work without approved leave shall forfeit compensation and be subject to discipline, including termination. Unavailability for work due to incarceration does not constitute a basis for approved leave and is an unauthorized absence.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Petitioner enter a final order terminating Respondent's employment. DONE AND ENTERED this 2nd day of March, 2004, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 2nd day of March, 2004. COPIES FURNISHED: Ron Cardenas Department of Corrections No. 202263 Reception and Medical Center Post Office Box 628 Lake Butler, Florida 32054 Joseph L. Hammons, Esquire Hammons, Longoria & Whittaker, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 Jim Paul, Superintendent Escambia County School Board 215 West Garden Street Pensacola, Florida 32502 Honorable Jim Horne Commissioner of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 323299-0400 Daniel J. Woodring, General Counsel Department of Education 325 West Gaines Street, Room 1244 Tallahassee, Florida 32399-0400
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.
Recommendation Based on the evidence presented, the Hearing Officer recommends an award of attorney's fees and costs in the sum of $77,679.80 for the hearing level, and $20,915.20 for attorney's fees and costs incurred on appeal. Respectfully submitted and entered this 30th day of January, 1986. WILLIAM J. KENDRICK, Hearing Officer Division of Administrative Hearings Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 904/488-9675 FILED with the Clerk of the Division of Administrative Hearings this 30th day of January, 1986.
The Issue The issue is whether the Petitioner, Thelma H. Dampier, is entitled to consideration of her second application for disability retirement benefits based on the submission of new medical information.
Findings Of Fact Thelma H. Dampier was a member of the Florida Retirement System (FRS), Chapter 121, Florida Statutes, and had more than ten years of creditable service. She terminated her employment in August, 1988. In October, 1988, Ms. Dampier applied for in-line-of-duty disability retirement under FRS. By its final action letter received by Ms. Dampier on July 27, 1989, the Division denied her application for disability benefits. Under the applicable procedural rules, Ms. Dampier had 21 days to file a petition for an administrative hearing before the State Retirement Commission. She failed to request a hearing on the denial of benefits and her right to a hearing ceased. On September 8, 1990, Ms. Dampier filed a second application for in- line-of-duty disability retirement benefits. The application included medical records from Doctors Evans, Andrews, Barrow, and Chance. The medical records of Doctors Evans and Andrews had been submitted with and considered in connection to the first application. The medical records of Doctors Chance and Barrow were submitted for the first time with the second application. The report of Dr. Barrow opines that Ms. Dampier is permanently and totally disabled, but it does not reflect her condition at the time she terminated employment or any connection between her condition and her employment. The report of Dr. Chance, a chiropractic physician, relates to neck, shoulder and lower back pain. The report does not state that Ms. Dampier is totally and permanently disabled. Instead, it states that Ms. Dampier suffers only mild degenerative changes. It also does not relate that opinion to the date on which her employment terminated. The Division has a policy set forth in a Memorandum for Record dated July 17, 1990, regarding handling of reapplications for disability benefits. The policy specifies that reapplications will be considered "only when the member presents information of the existence of a medical condition that existed prior to termination of employment--unknown at the time of the initial application." This policy is reasonable and consistent with the Chapter 121.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that The Division of Retirement enter a Final Order denying consideration of Thelma H. Dampier's second application for in-line-of-duty disability benefits. DONE and ENTERED this 11th day of June, 1991, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division ofAdministrative Hearings this 11th day of June, 1991. APPENDIX TO RECOMMENDED ORDER The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Division of Retirement Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3(3); and 4(4). Proposed findings of fact 5 and 6 are subordinate to the facts actually found in this Recommended Order. Proposed finding of fact 7 is repetitive and unnecessary. COPIES FURNISHED: Thelma H. Dampier Post Office Box 342 Melrose, FL 32666 Stanley M. Danek Division Attorney Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 A. J. McMullian III, Director Division of Retirement Cedars Executive Center 2639 North Monroe Street Building C Tallahassee, FL 32399 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550
The Issue The issue for determination is whether Mr. Johnson is eligible for vocational rehabilitation services or whether, as proposed by the agency, his file should be closed.
Findings Of Fact Jefferson Johnson applied for services from the Division of Vocational Rehabilitation (agency) and on November 13, 1997, executed an "Agreement of Understanding" describing eligibility criteria and various client rights and responsibilities. More specifically, the agreement provides, in pertinent part: ELIGIBILITY The Division of Vocational Rehabilitation (DVR) provides employment-related services to those persons who are eligible. To be eligible: You must have a physical, mental or emotional impairment that interferes with employment. It must be determined that Vocational Rehabilitation (VR) services will benefit you in becoming employed or in keeping your job. You must require VR services to become or remain employed. YOUR RIGHTS You have the right to: an evaluation to determine if you are eligible for services; written notice if you are determined to be ineligible for services; appeal any decision concerning denial, provision, delivery, or change of service; participate fully in all decisions. YOUR RESPONSIBILITIES It is very important that you participate in decisions about your employment. Your responsibilities are to: Keep appointments or request in advance that they be changed; participate actively in the planning of your individualized Written Rehabilitation Program (IWRP); cooperate with your counselor in all parts of your rehabilitation; provide all available medical information related to your rehabilitation program. (Petitioner's Exhibit A) There is no dispute that Petitioner has an impairment that interferes with employment. Melissa Kirkland has a Master's degree in counseling and is experienced in working with individuals with mental and emotional impairments. She was assigned Mr. Johnson's case and reviewed his medical records. She also began working with him on developing an assessment of his work-readiness. Mr. Johnson, who has some paralegal training from Rollins College, desires placement in a legal office that does advocacy for disabled persons. He feels that a lawyer should be able to evaluate his work-readiness. Based on Mr. Johnson's interactions with her and on her review of his medical records, Ms. Kirkland recognizes in her client certain problems common to persons with mental health impairments: hostile or confrontational interactions with others, difficulty concentrating, punctuality problems, and lack of appropriate hygiene. Work-readiness requires that those problems be remediated. The remediation cannot be accomplished in a regular job placement but requires the intervention and involvement of skilled counselors and staff. Those counselors are available though the Seminole County Mental Health Center's "job store," a sheltered workshop setting that would provide evaluation and skills training that Mr. Johnson needs before he can benefit from the agency's placement services. The skills that he needs are not related to substantive knowledge in his chosen field or career, but rather are the more basic skills that would enable him to get to work on time, properly groomed, and able to get along with the supervisors and co-workers. The "job store" is the only resource available in Mr. Johnson's geographical area that can provide the assessment and training he needs to become work ready and able to benefit from further vocational rehabilitation services. Mr. Johnson, however, refuses to sign the individualized written rehabilitation plan prepared by Ms. Kirkland and he refuses to participate in the job store even for the few months that Ms. Kirkland recommends. It is this refusal to obtain essential services, and not his profanity over the telephone and in the agency office, that caused Ms. Kirkland to appropriately terminate the agency's services to Mr. Johnson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final order terminating services to Petitioner without prejudice to his right to reapply. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK 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 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998. COPIES FURNISHED: Michael A. Greif, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Tallahassee, Florida 32399-2189 Jefferson W. Johnson 4416 South Lake Orlando Parkway Orlando, Florida 32808 Douglas I. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
