The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon 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 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 10th day of October, 2012.
The Issue This is a case in which the Petitioner seeks to take disciplinary action against the Respondent on the basis of Respondent's alleged violation of Section 458.331(1)(c), Florida Statutes, in that he has been convicted or found guilty of a crime which directly relates to the practice of medicine or to the ability to practice medicine. BACKGROUND AND INTRODUCTION By Administrative Complaint signed on October 3, 1985, the Respondent was charged with a violation of Section 458.331(1)(c), Florida Statutes. Specifically, the Administrative Complaint alleges that the Respondent has been convicted of conspiracy to possess with intent to distribute a large quantity of marijuana. Approximately 20 minutes before the commencement of the hearing, the Hearing Officer received a telephone call from a man who identified himself as Frances K. Buckley. Mr. Frances Buckley stated that he is an attorney in Ft. Lauderdale, Florida. and that he is the father of the Respondent in this case. Attorney Buckley advised the Hearing Officer that his son was still incarcerated at Danbury, that an appeal of his son's conviction was pending, that there had been no disposition of the appeal, and that he expected his son to be released from prison sometime within the next three months. Attorney Buckley advised the Hearing Officer that he was providing the foregoing information at the request of his son. Attorney Buckley did not purport to be acting as attorney for his son and did not make any motions. The substance of the foregoing conversation was made a part of the hearing record, whereupon the Department was asked what course of action it preferred. The Department having expressed a preference for going forward, and there being no motion for continuance, the formal hearing was conducted at the time and place set forth in the Second Notice of Hearing issued on December 19, 1986. At the hearing the Petitioner presented the testimony of one witness and offered several exhibits in evidence, all of which were received. A transcript of the proceedings at hearing was filed on April 14, 1987, and by memorandum issued April 15, 1987, all parties were reminded that they had until April 24, 1987, within which to file their post-hearing submissions to the Hearing Officer. on April 22, 1987, the Petitioner filed a timely proposed recommended order containing proposed findings of fact and conclusions of law. The substance of all of the findings of fact proposed by the Petitioner has been included in the findings of fact in this recommended order. By letter dated April 22, 1987, and received on April 27, 1987, the Respondent moved for an enlargement of time and for a new hearing. By order issued May 1, 1987, the motion for new hearing was denied and the motion for enlargement of time was granted to the extent of allowing the parties until May 15, 1987, within which to file proposed recommended orders and/or memorandums of law. On May 15, 1987, the Respondent filed a motion seeking reconsideration of the order of May 1, 1987, and seeking a continuance of further proceedings in this case until September 15, 1987. The merits of the last mentioned motion are addressed in the conclusions of law hereinafter. The Respondent has not filed any proposed findings of fact.
Findings Of Fact Based on the testimony of the witness and on the exhibits received in evidence, I make the following findings of fact. The Respondent, David K. Buckley, is a licensed physician in the state of Florida, having been issued license number ME 0021232, and was so licensed at all times material to this case. On June 7, 1985, in the U.S., District Court for the District of Maine, the Respondent pled guilty to and was convicted of the offense of conspiracy to possess with intent to distribute a large quantity of marijuana, in violation of Title 21 U.S. Code, Section 846. As a result of that conviction, the Respondent was sentenced to imprisonment for a period of five years. The crime described above directly relates to the practice of medicine and to the ability to practice medicine. The ability to prescribe, administer, and dispense controlled substance in a lawful manner is an important aspect of the practice of medicine. Conviction of the crime described above is indicative of an inability to prescribe, administer, and dispense controlled substances in a lawful manner. An inability to lawfully prescribe, administer, and dispense controlled substances directly relates to the practice of medicine and to the ability to practice medicine.
Recommendation On the basis of all of the foregoing, it is recommended that the Board of Medicine enter a final order in this case to the following effect: Concluding that on the basis of the facts found above the Respondent is guilty of violating Section 45.331(1) (c), Florida Statutes, and Imposing a penalty of a suspension of Respondent's license for a period of three years, with reinstatement of the license only upon a showing by Respondent of ability to practice medicine with reasonable skill and safety, and upon reinstatement place Respondent's license on probation for a period of five years. DONE AND ENTERED this 21st day of May, 1987, at Tallahassee, Florida. MICHAEL M. PARRISH, 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 21st day of May, 1987. COPIES FURNISHED: Ray Shope, Esquire Department of Professional Regulation 3130 North Monroe Street Tallahassee, Florida 32399-075O David K. Buckley, M.D. 102311-036 Danbury Federal Correctional Institution Pembroke Station Danbury, Connecticut 06811 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 ================================================================ =
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that all charges against respondent be DISMISSED. DONE and ENTERED this 16th day of January, 1984, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Department of Administration 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 16th day of January, 1984. COPIES FURNISHED William W. Tharpe, Jr., Esquire Department of Insurance Larson Building Tallahassee, Florida 32301 Dock Blanchard, Esquire Post Office Box 24 Ocala, Florida 32678 The Honorable Bill Gunter Insurance Commissioner and Treasurer The Capitol Tallahassee, Florida 32301 =================================================================
The Issue The issue presented for decision herein is whether or not Respondent engaged in acts and/or conduct on July 27, 1983, which reduced his effectiveness as a law enforcement officer by committing a battery upon a police officer and failed to maintain good moral character as required pursuant to Section 943.1395(5), Florida Statutes, and Section 943.13(7), Florida Statutes.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received including post-hearing documents submitted by Respondent, I hereby make the following relevant factual findings. By its Administrative Complaint filed December 19, 1984, as amended, Petitioner seeks to revoke the certification of Respondent, Lamont Taylor, who was certified by the Criminal Justice Standards and Training Commission on January 5, 1978. Respondent has been issued Certificate No. C-4405. On July 27, 1983, Respondent was stopped by Louis Churukian, a general patrolman employed by the Metro-Dade Police Force in excess of two years. Officer Churukian was employed on the 12-8 shift on July 27, 1983, and arrested Respondent for speeding, to wit, 50 miles per hour in a 35 miles per hour zone on Northwest 163 Street in the area of 14th Avenue, Miami Beach, Florida. In making the arrest, Respondent had to be apprehended with Officer Churukian using his emergency equipment (siren and emergency lights) for more than two blocks. When Officer Churukian was able to get Respondent to pull over, Respondent was told that he was observed speeding (50 miles per hour in a 35 miles per hour zone) whereupon Respondent was asked to tender his driver's license. Respondent was unable to produce his driver's license and he remained belligerent and hostile to Officer Churukian throughout the time that he was being arrested. Due to Respondent's hostile attitude, Officer Churukian requested the assistance of a backup officer who assisted in taking Respondent to a Metro-Dade police station for booking. Prior to placing Respondent under arrest, Officer Churukian asked Respondent if he had any weapons on his person whereupon Respondent advised that he had a gun in his waistband. Officer Churukian removed the weapon from Respondent's waistband which was a Smith and Wesson 357 revolver loaded with 6 rounds of "upper jacketed" ammunition. Respondent was transported to Station G where he was fingerprinted and booked for failure to produce a driver's license and later for battery upon a police officer. After Respondent was booked and his handcuffs were removed, he approached Officer Churukian without warning and struck him in the soft tissue area of his throat. Officer Churukian was administered emergency treatment for soreness and inflammation in the soft tissue area of his throat. Throughout the arrest and booking procedure, Officer Churukian did not engage in any act which might be regarded as provocative to prompt Respondent to strike him. In what has been described as a "sucker punch" by Officer Charlie Lee Daye, a correctional officer employed in a shakedown area of the Metro-Dade County Jail since approximately May 29, 1976, Respondent knocked Officer Churukian to the floor of the police station. Angel Nieves, a special response technician for Metro-Dade Police Force for a period in excess of thirteen years, was called upon to assist Officer Churukian to take Respondent to the jail. Special response technicians are always called upon when there are charges made against fellow police or correctional officers in Dade County. While Officer Churukian took Respondent to the jail, he was not abusive and Officer Nieves saw nothing that would prompt Respondent to strike Officer Churukian. Respondent failed to offer any mitigating testimony or other evidence to refute the allegations set forth in the Petitioner's charges filed herein. On April 5, 1994, respondent was accepted as a candidate for the State's Attorney's Deferred Prosecution Program and therefore he Respondent was not adjudicated guilty of the charges filed against him.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent's Certificate Number C-4405 be revoked. RECOMMENDED this 8th of July 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 8th day of July 1985. COPIES FURNISHED: Robert Rand, Esquire Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Lamont Taylor 14404 NW 15 Drive Miami, Florida 33167 Darylp McLaughlin Director Criminal Justice Standards and Training Commission Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the following relevant facts are found. Jimmy Franklin Pinion, L.P.N., holds License No. 42845-1, as a Licensed Practical Nurse. Respondent was employed as a private duty nurse caring for Elsie B. Allen, a ninety-three-year-old woman, during the period April, 1978, through September 11, 1978, when he was dismissed for alleged physical abuse of Mrs. Allen and for alleged possession of controlled substances, to-wit: Valium and marijuana, on or about August 15, 1978. The Complaint alleges that on or about September 9, 1978, Respondent slapped Mrs. Allen twice on her forehead, resulting in bruises to the forehead. Concluding the Complaint alleges that the Respondent is guilty of unprofessional conduct in violation of Florida Statutes Subsections 464.21(1)(b) and (d). Anna Marie Snyder, an L.P.N. in Florida since approximately 1971, testified and expressed her familiarity with the Respondent since his employment with Mrs. Allen. Snyder testified that Mrs. Allen employed three round the clock nurses, one of whom was the Respondent, Jimmy Franklin Pinion. Ms. Snyder testified that she occasionally stayed at Mrs. Allen's home and that while so doing, she used a back bedroom which the Respondent also used occasionally. She testified that a problem arose with respect to a suspicion that some brownies had been placed in the refrigerator which were laced with marijuana. According to Ms. Snyder, the Respondent made the brownies and brought them to Mrs. Allen's home. Ms. Snyder also testified that she discovered marijuana in the back bedroom and that she brought the matter of the marijuana-laced brownies to the attention of Mrs. Allen's two nephews. According to Ms. Snyder, Respondent stressed the fact that Mrs. Allen had to be taken care of "firmly." On cross- examination, Ms. Snyder testified that the Respondent admitted that the brownies which were in a bag in the back bedroom belonged to him and that Respondent admitted that he had struck Mrs. Allen with a cane. Ms. Snyder's testimony is that bags of marijuana were found in a closed used by the Respondent, wherein crocheting and other personal items belonging to Respondent were located. She testified that vials of other drugs were confiscated by Mrs. Allen's attorney on or about September 11, 1978. Lorraine Clark Ruskin, an L.P.N. licensed for more than twenty-eight years, was also employed by Mrs. Allen as a private duty nurse. Ms. Ruskin testified that on August 15, 1978, she, along with Ms. Snyder, visited Respondent's rear bedroom where Respondent showed her marijuana in the rear bedroom. Approximately April 28, 1978, Ms. Ruskin had some photos taken which were introduced into evidence over the objections of Respondent's counsel. (Petitioner's Exhibits 1 through 5.) According to Ms. Ruskin, Respondent and a friend of his allegedly hit Mrs. Allen on her forehead, causing bruises, on or about September 9, 1978. Attorneys Carl Hiassen and G. Ware Cornell, Jr., visited the Allen's home on the morning of September 11, 1978, and dismissed the Respondent from Mrs. Allen's employ for alleged patient abuse and possession of drugs. Ms. Ruskin testified that she took Mrs. Allen to a psychiatrist who diagnosed Mrs. Allen as being incompetent to handle her own affairs due to an organic brain syndrome caused by generalized arterioscleriotic cardiovascular disease. (Respondent's Exhibit 2.) She testified that Mrs. Allen had a history of falling and that the subject incident, which gave rise to the bruises, occurred approximately September 10, 1978. She testified that the Respondent was terminated on September 11, 1978, when bruises were found on Mrs. Allen's forehead. G. Ware Cornell, Jr., an associate of Attorney Carl Hiassen, visited Mrs. Allen's home on September 11, 1978, for the purpose of terminating the Respondent. The reasons given for the termination were "unsatisfactory performance and suggestion of drug possession." Attorney Cornell testified that he visited the back bedroom where the Respondent stayed while at Mrs. Allen's home and discovered what appeared to be Valium, marijuana and other drugs. Attorney Cornell testified that when the Respondent was terminated, he was told to return all keys to the Allen's home that were in his possession. Carl A. Hiassen, Esquire, has been representing Mrs. Allen since World War II and visited the Allen's residence on September 11, 1978, for the express purpose of preparing a termination notice for the Respondent. He testified that he discovered drugs in a bedroom which he was told was being occupied by the Respondent. He testified that he made a list of the substances which he considered to be drugs and gave it to Mrs. Markowitz, Petitioner's representative in the Fort Lauderdale area. Attorney Hiassen testified that he retained custody of the drugs until approximately January of 1979, at which time there were given to Mrs. Markowitz. Mrs. Markowitz later turned the substances over to the Broward County Sheriff's office for chemical analysis. According to Mrs. Markowitz, the substances were analyzed by John T. Pennie, a forensic chemist for the Broward County Sheriff's office Crime Laboratory. Neither the substances nor the person performing the analysis appeared at the hearing to testify with respect to the identify of the substances. Respondent appeared at the hearing and testified that he had a prescription for Valium and, to the best of his recollection, he only had one or two tablets remaining from a prescription which he had filled sometime ago. Respondent denied having in his possession marijuana or any other controlled substance prescribed by Chapter 893, Florida Statutes. Respondent testified that Mrs. Allen had a problem signing blank checks for a Mrs. Carr who had taken approximately $40,000 from Mrs. Allen. Additionally, Respondent testified that Mrs. Allen never called him by his name. He testified that he contacted Mr. Hiassen's office to report the fact that Mrs. Allen was signing blank checks and the funds were diverted for the purposes for which they were intended by Mrs. Allen. Mrs. Allen did not testify at the hearing allegedly due to her physical condition.
Conclusions Due to the hearsay nature of the identity of the substances analyzed by the Crime Laboratory, the undersigned is unable to conclude that the Respondent had possession of drugs or other prescribed substances in violation of Chapter 893, Florida Statutes, as alleged. Among other things, there were problems with the chain of custody from the Allen's residence to the Crime Laboratory and the fact that at least one other nurse shared the same room in which it is alleged that the Respondent allegedly stored Valium and marijuana. Finally, the Respondent emphatically denied that he struck Mrs. Allen and the only testimony to refute this denial was heresay and thus falls within the proscriptions of Section 120.58, Florida Statutes. In view thereof, I shall recommend that the Administrative Complaint filed herein be dismissed in its entirety.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is hereby, RECOMMENDED: That the Administrative Complaint filed herein be DISMISSED. RECOMMENDED this 9th day of October, 1979, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Geraldine B. Johnson, R.N. Department of Professional Regulation Board of Nursing Suite 504, Richard P. Daniel State Office Building 111 East Coast Line Drive Jacksonville, Florida 32202 Julius Finegold, Esq. 1107 Blackstone Building 233 East Bay Street Jacksonville, Florida 32202 Roger D. Haagenson, Esq. Suite 601, Cumberland Building 800 East Broward Boulevard Fort Lauderdale, Florida 33301
