Findings Of Fact At all times material hereto, Respondent Jorge Macedo, M. D., has been licensed as a medical doctor under the laws of the State of Florida. Respondent graduated from medical school in Brazil in 1954, and practiced in Brazil for one year thereafter. He then came to the United States, where he has practiced from 1956 until the present date. On February 13, 1976, Maury Braga came to Respondent's office in Hialeah, Florida. Respondent had never before met Braga and had never heard of him. Braga advised Respondent that he was a medical doctor from Brazil, that he had attended and graduated from the Faculdade de Ciencias Medicas de Santos, Brazil, that he had practiced the profession of medicine in Brazil during the years of 1967 through 1972, that he was in the process of obtaining his medical license in Florida, and that to complete his Florida medical application he needed statements from local doctors acknowledging that Braga was a Brazilian medical doctor. Braga showed to Respondent documentation concerning his education and practice, including his medical diploma. Based upon his interview of Braga and his examination of Braga's documents, Respondent signed a form utilized by Petitioner, which form is entitled "Affidavit" and which reads, in pertinent part, as follows: I, Jorge Macedo, M. D., of 1060 E. 4th Ave., Hialeah, Florida, do hereby swear and affirm by my personal knowledge, that Maury Braga attended and graduated from Falcudade de Ciencias Medicas de Santos and did lawfully practice the pro- fession of medicine, in Brazil during the years of 1967 through 1972, and that I also practiced the same profession in Brazil. When Respondent signed the "affidavit," it was not notarized. Respondent had no personal knowledge regarding whether Braga had ever attended or graduated from medical school or regarding whether Braga had ever practiced medicine in Brazil. Respondent relied totally on the information contained in the documents Braga showed to him and upon what Braga told him. After Braga left Respondent's office, he had the "affidavit" signed by Respondent notarized. He attached the "affidavit" to an Application for Examination and Course in Continuing Medical Education, which application he then submitted to the Florida Board of Medical Examiners. On February 26, 1976, the same day that Braga's application was received, the Executive Director of the Board of Medical Examiners wrote to Braga advising him that his application was received after the deadline of January 26, 1976, and was therefore rejected. The application was not returned to Braga, but rather was placed in a file opened under Braga's name to be retained in the event that Braga again applied within the next three years to take the course in continuing medical education and the examination for licensure. On January 17, 1977, Braga filed a second application to take the course in continuing medical education which would then qualify him to take the examination for licensure. The second application included "affidavits" from medical doctors other than Respondent. One of Braga's two applications was approved; Braga completed the course in continuing medical education; Braga took and passed the examination for licensure; and Braga was licensed as a medical doctor in the State of Florida on March 10, 1978. Maury Braga did not attend or graduate from the Faculdade de Ciencias Medicas de Santos, and did not lawfully practice the profession of medicine in Brazil during the years 1967 through 1972. Braga's license to practice medicine in the State of Florida has been revoked. At least prior to the revocation of his license, Braga's file with the Petitioner contained both the application he filed in 1976 and the application he filed in 1977. No evidence was introduced to show which application was reviewed when Braga's application to take the educational course and examination for licensure was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding Respondent guilty of the violation charged in Count Two of the Administrative Complaint, dismissing Counts One, Three and Four of the Administrative Complaint, and placing Respondent's license on probation for a period of one year, subject to terms and conditions set forth by the Board. DONE and RECOMMENDED this 17th day of February, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of February, 1983. COPIES FURNISHED: Joseph W. Lawrence, II, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee7 Florida 32301 Jack E. Thompson, Esquire Ingraham Building, Suite 516 25 SE Second Avenue Miami, Florida 33131 Frederick Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy J. Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= BOARD OF MEDICAL EXAMINERS DEPARTMENT OF PROFESSIONAL REGULATION, BOARD OF MEDICAL EXAMINERS, Petitioner, vs. CASE NO. 82-114 JORGE MACEDO, M.D. License Number: 10095 Respondent. /
The Issue The issue is whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Petition for Relief filed by Petitioner.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: In this case, Petitioner, Ausbon Brown, Jr. (Petitioner), an African-American male born on April 25, 1943, contends that Respondent, Agency for Health Care Administration (AHCA), unlawfully refused to hire him for any one of nine positions he applied for on account of his race, gender, and age. The Department denies the allegation and contends that Petitioner did not meet all of the qualifications for the positions, and that it hired the most qualified employee in each instance. After a preliminary investigation was conducted by the Florida Commission on Human Relations (Commission), which took almost two years to complete, the Commission issued a Determination: No Cause on August 18, 1999. Although not specifically established at hearing, it can be reasonably inferred from the evidence that Respondent employed at least fifteen employees for each working day in each of twenty or more calendar weeks in the current or preceding year and thus is an employer within the meaning of the law. Petitioner received a Bachelor of Science degree in biology in 1965 from Florida A&M University, a Master of Science degree in wildlife and fisheries science in 1978 from Texas A&M University, and a doctorate in wildlife and fisheries science in 1991 from Texas A&M University. According to Petitioner's job applications, from June 1965 until April 1994, he worked in various positions for the U. S. Department of Commerce, National Marine Fisheries Service, including as a "survey statistician," "operations research analyst," "chief turtle headstart," "fishery biologist," "fishery technician," and "equal opportunity employment counselor." Presumably, Petitioner then retired from federal service. Beginning on July 28, 1995, and continuing for several years, he was employed as a child support enforcement case analyst with the Florida Department of Revenue. Petitioner did not disclose his current employment. The exact number of positions for which Petitioner applied with AHCA are not known; however, within the twelve months preceding the date of the last alleged discriminatory act, Petitioner says he filed applications for at least nine positions. Of these, two (63632 and 63636) were transferred by the Legislature to the Department of Management Services (DMS) effective July 1, 1997, and AHCA was not involved with the recruitment and filling of those positions. Thus, they have not been considered by the undersigned. The remaining seven positions in dispute include a Medical Malpractice Investigator (80655); Senior Management Analyst II (64251 and 63640); Medical Health Care Program Analyst (00159 and 21778); Operations and Management Consultant II (64274); and a Biological Scientist III (80996). Petitioner was not selected for any of these jobs. As to position 80655, a Medical Malpractice Investigator, AHCA was seeking a person with experience conducting investigations for possible violations by health care professionals subject to AHCA's regulatory jurisdiction. Because AHCA regulates such professionals, including doctors, investigations are a key function of the agency. Forty-three persons filed applications for the position, while only six were interviewed. The successful applicant was a white male approximately nine years older than Petitioner with a degree in pharmacy. The successful applicant had extensive experience with the New York Department of Health investigating health care professionals, including doctors, an area in which Petitioner had no experience. The evidence supports a finding that AHCA hired the most qualified person for the job. Even though AHCA had at least three Senior Management Analyst II vacancies at approximately the same time, according to a DMS rule, it was necessary that an applicant file a separate application for each position. In Petitioner's case, he filed only two applications for the three positions. Although Petitioner contended that he faxed a separate application for all three positions, the fax number he used for position 63640 was incorrect. Accordingly, because Petitioner did not have an application filed for that position, his claim of discrimination for that job will not be considered. Position 21778, a Medical Health Care Program Analyst in AHCA's Tallahassee office, required that the applicant have "familiarity with other analytic tools such as statistical software programming languages [and] geographic info[rmation] systems," as well as a background in "managed health care, health insurance, public policy research, statistical research or finance." Although the exact number of applicants for this position is not of record, only seven were selected for an interview. Petitioner was not in this group. The successful applicant, an Asian female younger than Petitioner, had direct experience in geographic software and more closely met the needs of the position than did Petitioner and the other candidates. More than one hundred persons, including Petitioner, applied for position 00159, also a Medical Health Care Program Analyst in AHCA's Medicaid office. This position required that the applicant have knowledge of Medicaid and procurement procedures as well as related federal regulations since the individual would be working in the Medicaid third-party liability program. Petitioner had no such experience. The successful applicant, a female younger than Petitioner but whose race is unknown, had almost six years experience with Medicaid, including third-party liability. The more persuasive evidence supports a finding that the most qualified person was selected. Position 64274, an Operations and Management Consultant II in the Medicaid program, required that the successful applicant have, among other things, a "[l]ong-term care background, thorough knowledge of Medicaid, Medicare, and other health care programs, and an understanding of the implication of Florida's demographics and health care reform initiatives." More than eighty persons applied for the position, including Petitioner. The successful applicant (race unknown) was a female three years younger than Petitioner. She had eight years experience in social and health care services, including Medicaid, and a Master's degree in Medical Sociology. The evidence supports a finding that the most qualified person was selected for the position. Position 80996, a Biological Scientist III, was located with the Board of Clinical Laboratory Personnel and required that the person filling the slot have knowledge of the licensure program and the federal and state laws pertaining to clinical laboratories. The successful applicant, a female whose age and race are unknown, had a long career as a medical technologist and five years of professional experience in the laboratory field. Again, the evidence supports a finding that the most qualified person was selected. The final position was 64251, a Senior Management Analyst II in the Medicaid program. Like the others in that program, this position required that the candidate have experience in the Medicaid area, including working with federal and state regulations pertaining to third-party liability. Out of more than one hundred and eighty applicants, only three were selected for an interview, and a white male younger than Petitioner was ultimately selected. That person had a degree in finance and prior experience in quality control review for issues related to Medicaid third-party liability. Petitioner had no such experience, and the better qualified person was selected. Even so, Petitioner contended that, pursuant to a DMS rule, AHCA should have notified him within forty-five days after he filed his applications for positions 63632 and 63636 that they were being transferred by the Legislature to another agency and that they would not be filled by AHCA. Even if such notification was required, however, this error in procedure does not equate to a discriminatory act within the meaning of the law. Petitioner also contended that four "open competitive" positions were actually filled by "internal promotion," in contravention of a DMS rule. The evidence shows, however, that AHCA gave no special consideration or preference to existing AHCA employees who filed applications for these jobs, and that each position was filled based on the merits of the candidates' respective applications. Obviously, applicants having direct experience in areas such as medical investigations, Medicaid third-party liability, and geographic software were more than likely better qualified for the positions than were the other candidates who had no such experience. Petitioner next suggests that when he sought position 80655, his investigative qualifications were misconstrued, and that his fifteen years' experience investigating "biological phenomena" for the federal government, one and one-half years' experience in "physiology investigations," and five years' experience as a medical laboratory technologist in the United States Army Reserve were not given proper weight. While Petitioner may have possessed the foregoing qualifications, AHCA desired someone with direct experience in medical malpractice investigation, and the successful applicant better met this requirement. At hearing, Petitioner further contended that the investigation conducted by the Florida Commission on Human Relations (Commission) was flawed, and that the reason stated in the investigative report for Petitioner's rejection was not accurate. Since Petitioner was given a de novo hearing to challenge the Commission's preliminary determination of no cause, the investigator's conclusions are irrelevant. Petitioner finally pointed out that the form rejection letters that he received gave no reason why he was not selected. Because AHCA could determine his age, race, and gender from information on his applications, Petitioner "deduced" that absent any other explanation, discrimination must have played a role in the agency's employment decisions. As to this contention, the more persuasive evidence shows that AHCA did not "chang[e] classifications and var[y] conditions of employment" in an effort to deny Petitioner employment, use the proffered reasons for rejection as a pretext for discrimination, or base its employment decisions on discriminatory animus. Indeed, the most qualified persons were selected in each instance.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing, with prejudice, the Petition for Relief. DONE AND ENTERED this 7th day of April, 2000, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (850) 488-9675, SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2000. COPIES FURNISHED: Ausbon Brown, Jr. Post Office Box 10946 Daytona Beach, Florida 32120-0946 Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway Suite 220 Tampa, Florida 33614-3979 Sharon Moultry, Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
Findings Of Fact The Petitioner Mario Alberto Almeida applied to the Respondent Board of Medical Examiners to sit for the medical licensure examination and paid his application fee in September, 1985. At that time, the Petitioner Almeida was interning in New York and his wife, concerned that a prior application had been untimely filed, assisted the Petitioner in filling out the subject application. When filling out the application, Mrs. Almeida erroneously wrote on the application form that her husband had a "B.S. 1979, University of Miami," which error arose from the fact that she was unaware that the Petitioner had not completed his University of Miami undergraduate degree work despite completing 137 credit hours of courses and being eligible for graduation. Mrs. Almeida believed that her husband graduated from the University of Miami because he had not informed her that he had left prior to graduating and Mrs. Almeida had seen solicitations for funds addressed to her husband as a 1979 University of Miami graduate. Also omitted by the Almeida's was the Petitioner's race (which is caucasian), that he had successfully attended a junior college and that he was a United States citizen who had legally changed his name to reflect his father's name, Alberto. Other than these erroneous statements and omissions, the Petitioner Almeida supplied the Respondent with all information requested, including additional information requested by letter dated November 4, 1985. Thereafter, the Respondent Board issued to the Petitioner Almeida an authorization to sit for the December, 1985, examination which card was inadvertently issued to and returned by the Respondent. In support of his application, the Petitioner was issued a letter which requested that he personally appear in Tampa, Florida, at 4:15 p.m. on November 22, 1985, at a meeting before the Foreign Medical Graduate Committee of the Board of Medical Examiners. Although the Petitioner was put under oath and was questioned at that meeting, he was not represented by legal counsel. The Committee referred his application to the full Board with no recommendation regarding approval. On November 23, 1985, the Board voted to deny the Petitioner's application. The Petitioner did not receive notice of this second meeting and, therefore, did not attend. By order dated September 9, 1986, the Petitioner was notified of the Respondent's denial of his application based upon "material discrepancies between the information stated on the application and the testimony given with regard to the applicant's education," citing Section 458.331(1)(a) and (2), Florida Statutes. The Petitioner's application did misstate his undergraduate, pre- medical school data. He failed to disclose his successful completion of Miami- Dade Community College and his 137 credit hours when he left the University of Miami before attaining the "B.S. 1979, University of Miami." He did however, accurately testify concerning these discrepancies under oath at the November 22, 1985, committee meeting. These discrepancies were unintentional and resulted from the Petitioner's preoccupation with his medical duties and his wife's concern that another application deadline not be missed. No evidence was submitted which would support a finding that fraud or deceit was intended by either of the Almeida's or that any advantage would be gained as a result of any errors or omissions in completing the form. The Respondent's order of September 9, 1986, finds that the Petitioner either has been found guilty of attempting to obtain a license to practice medicine by fraudulent misrepresentation or adjudicates him guilty of attempting to obtain a license to practice medicine by fraudulent misrepresentation. The Petitioner is presently a duly licensed physician in the State of New York.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered by the Board of Medical Examiners approving the application of the Petitioner Mario Alberto Almeida Suarez, to sit for the next scheduled medical license examination. DONE and ENTERED this 26th day of May, 1987 in Tallahassee, Florida. SHARYN L. SMITH Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3996 Petitioner's Proposed Findings of Fact Accepted. Accepted. Accepted. Accepted, but not in issue. Accepted. Accepted, but not in issue. Accepted. Rejected, not relevant to this proceeding. Accepted in part, rejected in part. Accepted. Accepted. Accepted. Rejected, not relevant. Accepted. Accepted. Accepted. Accepted. Accepted. Rejected. Respondent's Proposed Findings of Fact Accepted. Accepted. Accepted, but relevant only insofar as educational background is concerned. Accepted. Accepted. Accepted. Accepted, but not relevant. Accepted. Accepted. Accepted, but not relevant. Accepted, but not relevant. Accepted insofar as the information is characterized as incomplete. Accepted. Accepted. Accepted. Accepted insofar as this concerns Mrs. Alemeida's knowledge subsequent to completing the application. Accepted insofar as this concerns Mrs. Alemeida's knowledge subsequent to completing the application. Accepted. COPIES FURNISHED: Stephen Marc Slepin, Esquire SLEPIN & SLEPIN 1114 East Park Avenue Tallahassee, Florida 32301 Allen Grossman, Esquire Assistant Attorney General Department of Legal Affairs 1601 - The Capitol Tallahassee, Florida 32399-1050 Joseph A. Sole, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van B. Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Dorothy Faircloth, Executive Director Board of Medical Examiners Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 =================================================================
The Issue The issue to be resolved in this proceeding concerns whether disciplinary action should be imposed against the licensure of Douglas R. Shanklin, M.D., the Respondent, for allegedly falsely testifying that he had not been issued a "Letter of Guidance", in violation of Section 458.331(1)(k), Florida Statutes.
Findings Of Fact At all times material hereto, the Respondent was a physician licensed in the State of Florida. He holds license number ME0009372. The Petitioner is an agency of the State of Florida charged with regulating the licensure status and related practice standards of physicians in Florida, including making investigations and bringing Administrative Complaints against those physicians, in their licensure status, believed to be departing from those practice standards. On January 8, 1993, the Respondent testified as a defense witness, by deposition, in a medical malpractice case. The case style was Faircloth v. Coastal Empire Pathology Services, P.C., et al. The trial occurred in Savannah, Georgia. During his deposition, the Respondent was asked three times, by opposing counsel, if he had ever been issued a Letter of Guidance by any state licensing agency. The Respondent stated three times that, indeed, he had not. In fact, on May 15, 1984, a Probable Cause Panel of the Board of Medical Examiners in Florida considered a complaint against the Respondent. The Probable Cause Panel made a determination that while probable cause existed to believe that the Respondent had violated the provisions of the Medical Practice Act, the complaint should be dismissed with a Letter of Guidance. The Board stated in its Order that: Probable cause exists to believe that subject has violated the provisions of the Medical Practice Act. In light of the circumstances presented, however, this case should be and the same is hereby dismissed with a letter of guidance to subject. Thereafter, an undated letter was sent to and received by the Respondent. See Petitioner's Exhibit 2 in evidence. The Closing Order was never mailed to, nor received, by the Respondent. The Respondent was unaware of the Closing Order until March of 1993, when the investigation in this case was commenced and at which time he was first supplied a copy of that Closing Order of the Board's Probable Cause Panel. The Petitioner's Exhibit 2 in evidence, the undated letter, is not entitled or otherwise delineated as a "Letter of Guidance" and at no place in the letter is the word "guide" or "guidance" used. Consequently, at the time the Respondent received the letter, which is Exhibit 2, he did not understand or perceive it to be a Letter of Guidance but, rather, understood it to be a letter of closing indicating that he had prevailed in the complaint case. On January 8, 1993, when the Respondent testified at the deposition referenced above, he did not have in mind, nor did he remember, the undated letter. On January 8, 1993, when he testified at that deposition that he had not been issued the Letter of Guidance, he believed he was answering those questions truthfully. He did not know or understand that he had been issued a Letter of Guidance. On January 8, 1993, when he testified at the deposition, he did not testify falsely, because he had not been given the Closing Order at the time that the undated letter (Exhibit 2) was received. He thus did not understand that undated letter to be a Letter of Guidance from the then Department of Professional Regulation. He was never served a copy of the actual Closing Order which might have explained the situation to him. Consequently, he had a genuine, good-faith belief that he had not been issued a Letter of Guidance. Because his belief was genuine and he had no specific intent to tell a false story in those particulars, he made no false or fraudulent representation and committed no deception in conjunction with his answers to those questions at his deposition.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence or record, the candor and credibility of the witnesses, it is RECOMMENDED that a Final Order be entered finding the Respondent not guilty of violating Section 458.331(1)(k), Florida Statutes, and that the Complaint be dismissed in its entirely. DONE AND ENTERED this 3rd day of May, 1995, in Tallahassee, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of May, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-5903 Petitioner's Proposed Findings of Fact 1-3. Accepted. 4-6. Rejected, as not entirely in accord with the greater weight of the evidence and as subordinate to the Hearing Officer's findings of fact on this subject matter. Respondent's Proposed Findings of Fact 1-11. Accepted. COPIES FURNISHED: Steven Rothenburg, Senior Attorney Agency for Health Care Administration 9125 Bay Plaza Boulevard Suite 210 Tampa, FL 33619 Larry G. Turner, Esquire Post Office Box 508 Gainesville, FL 32602 Dr. Marm Harris Executive Director Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Tom Wallace, Assistant Director Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, FL 32303
