Recommendation It is, therefore recommended that a Final Order be entered denying Petitioner's Motion to Strike, granting Respondent's Motion to Dismiss, and dismissing the Petition for a Formal Administrative Hearing filed in this cause. RECOMMENDED in Tallahassee, Leon County, Florida, this 28th day of July, 1992. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SC 278-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1992. COPIES FURNISHED: Imo J. Akpaeti Our Lady Health Care Services #233 561 Northeast 79th Street Miami, Florida 33138 Gordon B. Scott, Esquire Department of Health and Rehabilitative Services Building 6, Room 230 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John Slye, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issues in this case are whether Respondent committed an unlawful employment practice in violation of section 70-53, Pinellas County Code, by terminating Petitioner's employment allegedly because of her disability; and, if so, what is the appropriate remedy.
Findings Of Fact Admitted Facts Per Joint Pre-hearing Stipulation Sure-Tek is an employer as defined by section 70-51, Pinellas County Code. Ms. Turner was employed by Sure-Tek on January 18, 2010. Her employment was terminated by Sure-Tek on February 22, 2010. Prior to her employment, Ms. Turner was diagnosed with diabetes insipidus. Ms. Turner's diabetes did not prevent her from performing the essential functions of her job, with reasonable accommodations. Lewis "Mitch" Currie is the owner of Sure-Tek, and he was Ms. Turner's direct supervisor. Mr. Currie made the decision to terminate Ms. Turner's employment. Additional Findings of Fact Based on the credibility and demeanor of the witnesses and the greater weight of the competent substantial evidence presented at the final hearing, the following additional facts are found. Diabetes Insipidus Ms. Turner developed diabetes insipidus four years ago as a result of brain surgery to remove a tumor on her pituitary gland. She described the condition as a very rare form of diabetes that is a sodium/electrolyte disorder, instead of the more common forms of diabetes that are insulin/blood sugar disorders. She testified that her understanding of her condition is that it is essentially permanent--the underlying cause of her condition will never go away, and she will eventually need brain surgery again. Ms. Turner's condition requires constant monitoring, but instead of measuring blood sugar via blood tests, Ms. Turner's condition involves monitoring and maintaining a balance of hydration, electrolytes, and output (urination), while taking prescription medication to protect against extreme imbalance that could result in her urinating herself to death. The line where the balance should be drawn at any given point is variable and difficult to predict, so the monitoring and adjustment process is a matter of trial and error, to some degree. The balance that Ms. Turner's condition requires is thrown off by temperature extremes, so she cannot work or spend much recreational time outside when it is hot or cold. She can work in an indoor office setting, provided that she takes extra steps to regulate the temperature, such as using space heaters to warm up a cool space. Ms. Turner must also be permitted to have ready access to plenty of drinking water at all times, and she has gotten used to bringing bottled water with her to ensure an appropriate supply. Her condition can cause her to urinate frequently, and so she also must have ready access to a restroom. Ms. Turner also testified that her condition requires her to maintain a strict diet, because many foods and drinks will throw off the balance she must maintain. For example, Ms. Turner must avoid sodium, butter and certain other fats, meats, and other ingredients. Since some of the ingredients she must avoid, such as sodium, are difficult to control and monitor when eating out, she does not often go out to eat in restaurants and no longer goes out to dinner with friends. Ms. Turner has gotten very sick when she has unknowingly ingested too much sodium or when the ingredients she must avoid have secretly been in her food. Ms. Turner has learned the hard way about some of the things she cannot tolerate. For example, she learned that she cannot drink alcohol when, after the onset of her diabetes insipidus, she collapsed after drinking a small amount of alcohol at a party and had to be hospitalized. By sticking to a careful regimen of monitoring and adjustment, by adhering to all of the hydration and dietary restrictions she has learned are necessary from her experience, limiting her social activities (rarely eating out, limiting outdoor activities), controlling the temperature of her settings and ensuring constant access to water and bathrooms, Ms. Turner has been able to deal with her condition. In a lay person's sense, Ms. Turner does not really consider herself to be disabled, although she tends to think in comparative terms, noting that there are persons with severe debilitating conditions that are much worse off than she is. Ms. Turner testified that her diabetes disorder also has impaired her immunity system, making her more prone to sickness. No medical testimony was offered to verify this opinion. Somewhat inconsistently, Ms. Turner later testified that when she got sick with a cold, which evolved into bronchitis, that episode of sickness was unrelated to her diabetes condition. Indeed, Ms. Turner's opinion that her sickness was not related to her diabetes condition was confirmed by her testimony that she has gotten colds that turned into bronchitis every winter for many years, pre-dating the onset of her diabetes insipidus. Employment at Sure-Tek Sure-Tek is in the business of powder coating, which is an anti-corrosive industrial coating applied to metal and other objects. The building in which Sure-Tek carries out its business has two main areas: administrative office space and warehouse space. The powder coating is done in the warehouse part of the building, in a room with two ovens that operate at 400+ degrees. The room with the ovens is very hot, often 120 degrees or more. Ms. Turner was hired as a bookkeeper/receptionist/ office assistant, beginning on January 18, 2010. She was the only administrative/office worker at Sure-Tek. The other approximately 10 employees worked in the warehouse, carrying out the powder-coating business. Mr. Currie, the owner/president, spent about half of his time in his office and the other half in the warehouse. Ms. Turner had an office with a door that she often kept closed because of her sensitivity to hot and cold temperatures; it was easier to regulate the temperature of her office space if the door was closed. Ms. Turner found her office to be very cold, so she kept two space heaters going. She brought her own space heater to use at the office to accommodate her need to modify the temperature of her space. Brandon Bean, another employee at Sure-Tek, did not like having to go into Ms. Turner's office, finding it unpleasantly warm--he described it as quite "toasty." When Ms. Turner was hired, Mr. Bean had been working at Sure-Tek for about five months. Mr. Bean had been in jail before he was hired by Sure-Tek, having served a sentence for a felony conviction related to firearms. During the time that Ms. Turner was an employee at Sure-Tek, Mr. Bean's position was referred to as floor supervisor or warehouse foreman. Mr. Bean testified that he was promoted to general manager one year ago, which would have been a few months after Ms. Turner was fired, while the Pinellas OHR was conducting its investigation of Ms. Turner's discrimination complaint. Ms. Turner was expected to work 40 hours per week, and she testified that she did so, not missing a day of work. No evidence was presented that Ms. Turner did not work the hours she was expected to work each day and week of her employment (with the exception of leaving sick two hours early on the last Friday of her employment, discussed below). She rarely took lunch. She was expected to be available during business hours to answer the phones and was expected to take a portable phone with her when she stepped away from her desk, even when she went to the bathroom. When she went to the bathroom with a portable phone, she was expected to answer the phone, even then, if a call came in. At her interview, Ms. Turner told Mr. Currie that she had substantial bookkeeping experience and knew how to use QuickBooks software. No credible evidence was presented to prove that her representations were not true. When Ms. Turner began working for Sure-Tek, she received no training or orientation from someone who knew the office systems, protocols, or electronic files. Mr. Currie told Ms. Turner verbally what her duties were and how things were done, but he did not actually train her. For him, it was good enough that she said she knew QuickBooks. Besides, as he admitted at the hearing, he really did not know the computer systems himself; he "doesn't use the computer much." Ms. Turner discovered that there were two QuickBook systems, which were password-protected. Ms. Turner said that it took two days for her to track down the passwords. Then, she had quite the time sorting out the accounts set up in the two different systems--she described the state of the computer accounting as "a mess" when she started. She asked Mr. Currie if she could merge the two systems, and he told her to go ahead. At the hearing, Mr. Currie acknowledged that there were two QuickBook systems, an older version and a new 2010 version. He testified that his only office help after getting the updated QuickBooks software consisted of a series of three different temporary employees sent over by a "temp" agency. He said that these temporary employees were awful; nonetheless, he tasked them with setting up the new system with information brought over from the old system. It should come as no surprise, then, that Ms. Turner found many problems and errors, such as entries of very recent information in the old system that should have been in the new system. Ms. Turner testified that she discovered quite a few late and unpaid bills when she started. She would bring these items to Mr. Currie's attention, and he would tell her whether the bills could be paid or not. Mr. Currie's permission was required before Ms. Turner could pay any bills, and sometimes Mr. Currie would refuse to authorize payment for bills that were due or past due. Mr. Currie confirmed this at hearing; he testified that he "absolutely" had to refuse permission to pay bills at times, because there was not always enough money to pay all of the bills. At other times, he would tell Ms. Turner to just pay part of a bill that was due. Mr. Currie testified that for the first two weeks of Ms. Turner's employment at Sure-Tek, she seemed to be on track and was trying very hard. Ms. Turner noted that Mr. Currie praised her work during those first two weeks, and he did not deny this. However, according to Mr. Currie, after about two weeks, Ms. Turner's performance went "downhill." Mr. Currie did not present any credible evidence to prove this demarcation point. However, the evidence did establish that the two-week point was significant for a different reason. Mr. Currie had lunch with Ms. Turner after her first two weeks. In their lunchtime conversation, Mr. Currie told Ms. Turner that his wife suffered from a thyroid problem, which he said sometimes made her off-balance. Ms. Turner responded by telling Mr. Currie that she had diabetes insipidus. Mr. Currie had no apparent immediate reaction to this disclosure. However, at some point thereafter, Mr. Currie told Ms. Turner that he never would have hired her if he had known she had diabetes.1/ When Ms. Turner had a cold throughout the week of February 15, 2010, the two had an awkward encounter on Friday afternoon, February 19, 2010. As Ms. Turner described it, by mid-afternoon on Friday, after sticking it out at work all week while not feeling well, she asked Mr. Currie if she could go home two hours early, because she had finished her Friday task of getting the information in to the payroll service and thought it would be all right if she left for the day. Mr. Currie got very angry and said that her diabetes was always making her sick. She tried to tell him that she had a cold and was on antibiotics (to stop the apparent evolution of her cold to bronchitis), and it was unrelated to her diabetes. But Mr. Currie just waved his hands and yelled at her to "just go!" She thought he meant that she should go home as she had asked, although she knew he was not happy about it. So she left. Mr. Currie told a very different version of Friday, February 19, 2010. Mr. Currie denied making any statements about Ms. Turner's diabetes, then or ever. Mr. Currie also denied having any conversation with Ms. Turner that afternoon about whether Ms. Turner could go home two hours early because she had a cold. However, Mr. Currie testified that he noticed that Ms. Turner was sub-par that day. As Mr. Currie put it, that day Ms. Turner "seemed a little sicker than she appeared to be normally." Mr. Currie then testified that Mr. Bean was looking for Ms. Turner in the middle of the afternoon that Friday, February 19, 2010. He asked Mr. Currie where she was, and Mr. Currie said he did not know. Then, according to Mr. Currie, after they spent about 45 minutes looking for Ms. Turner, Mr. Currie decided that Ms. Turner must have quit, leaving without telling anyone, never to return. At that point, Mr. Currie instructed Mr. Bean to place an ad on Craigslist for a replacement for Ms. Turner. Mr. Currie's version of the events on Friday, February 19, 2010, is not credible, particularly when coupled with Mr. Currie's inconsistent version of the events on Monday, February 22, 2010; Ms. Turner's version is accepted as the more credible account of events. On Monday, February 22, 2010, Ms. Turner went to work that morning, only to find a number of telephone messages from applicants for the Craigslist ad and resumes submitted by individuals requesting an interview for the bookkeeper position. By mid-morning, Mr. Currie called Ms. Turner into his office. According to Ms. Turner, Mr. Currie said that it was not working out with her diabetes. When Ms. Turner tried again to tell him that her two-hour break Friday afternoon was because of a cold, and not diabetes, Mr. Currie then added that that was not the only reason he was letting her go--that she had bankrupted his company.2/ Then, according to Ms. Turner, Mr. Currie asked her to stay to train her replacement, which she refused to do. Mr. Currie does not deny that he told Ms. Turner she was terminated, but he denies any reference to her diabetes, claiming it was all because of her performance. Mr. Currie did not attempt to reconcile this version in which he admittedly intended to fire Ms. Turner, with his inconsistent description of the previous Friday, when he claimed that the only reason he placed the Craigslist ad was because he believed that Ms. Turner had voluntarily quit, and he had no choice but to start looking for a replacement. In an effort to show that he was thoughtful and accommodating of Ms. Turner's health condition and needs, Mr. Currie testified that a few days before Ms. Turner was fired, she had told him that she would be needing another surgery. His response was that he would hire a temporary employee to cover for her so she could have the time off for her surgery. But this testimony tends to underscore that as of just a few days before Ms. Turner was fired, Mr. Currie gave no signs to Ms. Turner that there were any performance-related issues that would put her job in jeopardy. Twisting back toward the different version of events that suggested there were mounting problems with Ms. Turner's performance, Mr. Currie claimed to have talked with Ms. Turner on several different occasions throughout her employment about her performance problems. As noted above, Ms. Turner testified, credibly, that for the first few weeks, Mr. Currie said she was doing a good job. After that, Ms. Turner acknowledged a single comment by Mr. Currie that she did not know how to run reports right. Ms. Turner also acknowledged that Mr. Bean called one meeting with Mr. Currie and Ms. Turner to complain that Ms. Turner was unfriendly to him and did not respond quickly enough to a request he made for information. Ms. Turner explained her run-in with Mr. Bean, stating that she was on the phone when he walked into her office and started talking to her as if she was not on the phone. She said that he got quite huffy when she asked him to wait a minute while she finished the call. Mr. Currie claimed that after the first few weeks, he started noticing that bills were going unpaid, and he talked to Ms. Turner about it. Ms. Turner's version, as noted above, was that there were overdue bills when she started, and she called them to Mr. Currie's attention; however, as Mr. Currie admitted, he sometimes refused permission to pay those bills and sometimes told her to just pay part of the bills, because he did not have enough money. No credible evidence was presented that Ms. Turner was to blame for bills going unpaid, or only partially paid, during her time of employment. Instead, the evidence showed that before, during, and after Ms. Turner's employment, bills sometimes went unpaid or only partially paid, admittedly, at Mr. Currie's direction. While Mr. Currie denied that it made a difference to him when Ms. Turner told him about her diabetes at that two-week lunch, the more credible evidence is that Mr. Currie's attitude towards Ms. Turner as an employee changed at that two-week mark. The more credible evidence established that Mr. Currie had a knee-jerk reaction upon learning that Ms. Turner had "diabetes" to jump to the conclusion that she had a disability that rendered her substantially and significantly impaired in the major life activity of working. He decided, without any real basis, that she was incapable of working in the one type of job where she thought she would be able to function with the accommodations she herself supplied. The credible evidence establishes that Mr. Currie fired Ms. Turner because of his perception of her disability. Mr. Currie's testimony included the occasional revealing slips that were much more telling than his steadfast (but not credible) denial of any discrimination. As noted, Mr. Currie testified that he found Ms. Turner to be a good employee who was trying very hard for the first two weeks, but that her work slipped and went downhill after the first two weeks. Yet he presented no evidence to prove what he observed that showed such a downhill slip in her performance after two weeks. Instead, the evidence and testimony, considering the credibility and demeanor of the witnesses, painted the picture that it was Ms. Turner's disclosure of having diabetes, and that alone, caused Ms. Turner's downhill plummet in Mr. Currie's eyes. That Mr. Currie perceived Petitioner to be disabled and perceived Petitioner's disability to substantially affect her ability to do her job, was evident from Mr. Currie's slip that on her last Friday of work, Petitioner seemed "sub-par," which he characterized as "a little sicker than she appeared to be normally." Thus, Mr. Currie perceived Petitioner as "normally" sick. That perception came despite the unrebutted testimony by Petitioner that she did not miss any work time based on illness or complication from her diabetes until she asked to leave two hours early on Friday, February 19, 2010. Ms. Turner's testimony regarding Mr. Currie's discriminatory comments was corroborated by the testimony of Tanya Rodriguez, who was hired in response to the Craigslist ad to replace Ms. Turner. Ms. Rodriguez did not know Ms. Turner until she met her, when Ms. Turner came in to Sure-Tek to pick up her last paycheck after she had been fired. Ms. Rodriguez provided information to the Pinellas OHR in its investigation of Ms. Turner's complaint when Ms. Rodriguez was still employed by SureTek. Ms. Rodriguez was then fired, allegedly for performance problems.3/ Ms. Rodriguez convincingly testified at the final hearing that when she was interviewed by Mr. Currie to replace Ms. Turner, Mr. Currie asked her, point-blank, whether she had diabetes. He told her that the last person he hired with diabetes was a good for nothing S.O.B; that he never would have hired her if he knew she had diabetes, because she was always sick; and that he would never hire another person with diabetes. Ms. Rodriguez told Mr. Currie that she did not have diabetes, even though she actually was diabetic.4/ After Mr. Currie asked his question about diabetes, he proceeded to ask Ms. Rodriguez whether she had thyroid problems (like his wife, whom he told Ms. Turner was sometimes off-balance as a result). Ms. Rodriguez also confirmed Ms. Turner's testimony that there were deep-seated problems remaining in the dual QuickBook systems. Although Respondent attempted to characterize this testimony as evidence of Ms. Turner's poor performance, Ms. Rodriguez made it very clear that the problems imbedded in the dual systems were from a much longer time span--up to one year--and could not have been the result of errors made in the one month preceding Ms. Rodriguez' employment at Sure-Tek. Instead, Ms. Rodriguez saw signs of efforts to merge the two systems, but noted that there would not have been enough time in one month to completely merge the systems and fix all of the imbedded problems. She testified that she also tried her best to make progress, but she was only at Sure-Tek for a few short weeks. Ms. Rodriguez' testimony was credible and is accepted.5/ Her testimony strongly corroborates Ms. Turner's testimony of Mr. Currie's direct discriminatory statements, including the first words out of his mouth when he fired her--that it was not going to work out, with her diabetes. At hearing, Respondent presented evidence offered in an attempt to demonstrate that Ms. Turner's job performance was not good and was the legitimate reason for her termination. Mr. Currie testified that a Progress Energy bill due on February 18, 2010, went unpaid. Mr. Currie blamed this on Ms. Turner forgetting to pay the bill, but that was not established. Ms. Turner and her successor, Ms. Rodriguez, both testified that as bookkeepers for Respondent, they did not have the authority to pay bills. Instead, they were required to review the bills with Mr. Currie, and each week he would tell them which bills could be paid, which bills should be partially paid, and which bills should be ignored. Mr. Currie corroborated this testimony, admitting that he "absolutely" had to refuse permission to pay bills sometimes. The short billing history Respondent put in evidence for Progress Energy showed, for example, that the month's charges due on June 18, 2009, went unpaid until the following month and that was well before Petitioner began her employment. Regardless of whether the Progress Energy bill due on February 18, 2010, was unpaid because of Ms. Turner's fault or Mr. Currie's instruction, the notification of this unpaid bill was first mailed out to Mr. Currie on Thursday, February 18, 2010. Thus, this could not have been an example of one of the bills allegedly going unpaid that Mr. Currie claimed to have begun noticing after Ms. Turner had been working at Sure-Tek for two weeks. Indeed, there is no evidence that Mr. Currie was even aware of this late notice, mailed on Thursday, by the next afternoon when he had an ad placed for Ms. Turner's replacement or by the following Monday morning, when he fired Ms. Turner. Mr. Currie also testified that Ms. Turner was to blame for an increase in his Progress Energy utility deposit from $800 to $2,500.00, but no evidence was presented to prove that there was an increase in SureTek's required utility deposit at all, or, if so, when any such increase occurred. To the contrary, the Progress Energy statement for February 2010, covering the billing period of January 27, 2010, through February 24, 2010 (very close to the time span of Ms. Turner's employment), shows that the deposit amount already being held for that account at that time was $2,680. Further, the Progress Energy billing history summary shows that the prior month's bill, due on January 21, 2010, had been paid. Thus, the evidence refutes Mr. Currie's suggestion that there was an increase in the deposit requirement because of Ms. Turner's failure to pay the bills. Instead, it appears that if the deposit requirement had been increased, the increase occurred before January 2010, based on billing history that predated Ms. Turner's employment. A similar story was told with respect to the City of Pinellas Park water bills. Mr. Currie blamed Ms. Turner for not paying a bill from January 15, 2010, even though that bill was transmitted online before Ms. Turner was hired. Both before and after Ms. Turner was employed, there was a billing history for the water bills that showed occasional missed payments and occasional partial payments of the total amount due, as well as the imposition of a penalty charge for late payment. The January 15, 2010, bill that was not paid when due on February 10, 2010, resulted in a $34.10 penalty charge, which may have been Ms. Turner's fault. However, given Mr. Currie's admission that he controlled payment of bills and sometimes refused permission to pay bills when due, the evidence is insufficient to show that Ms. Turner was to blame for the bill not being paid while she was employed at Sure-Tek or for the late charge. Mr. Currie also presented evidence regarding PESCO gas bills. A summary of PESCO charges and payments was presented with a January charge highlighted. Next to the January charge was a handwritten note, "DID NOT PAY PESCO BILL." The only problem with this evidence is that the summary is for charges and payments in 2009, not 2010. Thus, whoever did not pay the PESCO bill in January 2009, it could not have been Ms. Turner. Mr. Currie also presented a separate PESCO invoice dated March 4, 2010, which showed that the balance due as of the prior month's bill, February 4, 2010, was $4,609.13. This balance was reduced by a $1,791.73 payment made February 10, 2010, presumably by Ms. Turner during her time of employment. Mr. Currie admitted at the final hearing that PESCO accepted partial payments at that time, and he admitted that he probably instructed Ms. Turner to pay only part of the February bill. It was not shown that there were any billing or payment problems with this account or that Ms. Turner's performance can be faulted at all. Next came the TECO People's Gas bill. On a statement dated February 12, 2010, a "previous balance" of $1,589.88 was carried forward from the prior month's bill. Sometime between the prior statement issued in mid-January 2010, and the February 12, 2010, statement, a partial payment was made and credited in the amount of $497.68, leaving $1,092.20 still due from the January bill. Because the remaining balance was considered "past due" on February 7, 2010, a late payment fee of $16.38 was added to the February statement. Mr. Currie acknowledged that the January 2010 bill was partially paid while Ms. Turner was employed at Sure-Tek. Once again, Mr. Currie admitted that it was "entirely possible" that he was the one who instructed Ms. Turner to pay what Respondent could afford to pay--the partial payment of $497.68--because he did not have the money to pay the entire bill. Mr. Currie's own testimony and the bill itself refute his claim that Ms. Turner overlooked or forgot to pay the January bill. In addition, Mr. Currie's testimony corroborated the testimony of Ms. Turner and Ms. Rodriguez regarding the tight control Mr. Currie kept on which bills were paid or partially paid. This evidence does not establish that Ms. Turner's performance can be faulted for the partial payment of the January TECO People's Gas bill or the late fee charged on the remainder that was not paid when due. TECO People's Gas also sent a "final notice" on February 11, 2010, informing Sure-Tek that it had to pay the remaining past due balance of $1,092.20 right away, or else its service would be terminated on February 19, 2010. A copy of the final notice in evidence has handwriting on it, indicating "pay" in one handwriting style and "paid" in a different handwriting style. Mr. Currie did not testify that his TECO People's Gas service was terminated. Thus, the reasonable inference is that Mr. Currie authorized Ms. Turner to pay the rest of the January balance upon receipt of the final notice, and she did so before February 19, 2010. Mr. Currie's final piece of documentary evidence to support his claim of mounting performance problems was a notice from the Florida Department of State, Division of Corporations, dated February 17, 2010 (the Wednesday of Ms. Turner's last week of employment). This notice informed Sure-Tek that its corporate annual report was due and should be filed with the filing fee by May 1, 2010, to avoid a late fee. A second notice dated June 16, 2010, imposed the late fee and notified Sure-Tek that the annual report, filing fee, and late fee had to be submitted by September 17, 2010, to avoid administrative dissolution. Despite the fact that Ms. Turner was fired a few days after the first notice and a late fee could have been avoided if the report and filing fee were submitted at any time in the approximately 70 days remaining after Ms. Turner was fired, Mr. Currie blamed the failure to meet the May 1, 2010, deadline on Ms. Turner. That attempted blame is not warranted and, instead, tends to suggest that Mr. Currie was looking to find things to blame on Ms. Turner after she was fired. Mr. Currie testified that he believed Ms. Turner did not know how to use QuickBooks, and, as a result, did not follow his instructions to enter bills into QuickBooks as soon as they were received. However, Mr. Currie offered no credible, competent evidence of this. Mr. Currie admitted that he had no personal knowledge regarding what was or was not entered into QuickBooks by Ms. Turner or how Ms. Turner performed using QuickBooks, and no other evidence was offered to prove Mr. Currie's unsubstantiated claim. Mr. Bean participated in the Pinellas OHR investigation and testified at the final hearing in support of Mr. Currie's position that Ms. Turner was fired because of her performance problems. Mr. Bean testified that Ms. Turner was fired because of a "lack of ability to do the job," and he referred to her not paying bills. Mr. Bean's testimony lacked credibility and probative value. He admitted that he had no personal knowledge of unpaid bills, no personal knowledge of Ms. Turner's interaction with vendors, and no personal knowledge of her QuickBooks work. Mr. Bean provided no competent, credible evidence of any problems with Ms. Turner's performance. The only testimony he provided that was based on personal knowledge was that he found her to be "unfriendly" to him. While Ms. Turner was employed at SureTek, Mr. Bean was not her supervisor; at the time, he supervised only the warehouse employees. Mr. Bean testified that he was promoted to general manager in early July 2010 (one year before the final hearing), having "worked [his] way up." This was a few months after Ms. Turner was fired, after Ms. Rodriguez was fired, and after Mr. Bean had provided support to Mr. Currie's position in the Pinellas OHR investigation. The credible evidence fails to support Mr. Currie's suggestion that Ms. Turner was not performing acceptably in her brief tenure and was fired for that legitimate reason. Instead, it appears that Mr. Currie went on an after-the-fact hunt for things he could blame on Ms. Turner that could not reasonably be blamed on her, nor were they shown to be reasons why Mr. Currie made the decision on February 19, 2011, to terminate Ms. Turner and advertise for her replacement. Indeed, Mr. Currie's own testimony shows the inconsistencies in his attempt to develop a legitimate rationale for letting Ms. Turner go. When Mr. Currie was explaining his recollection of the events of February 19, 2011, he testified that after just 45 minutes of looking for Ms. Turner, who he described as looking sub-par and sicker than she normally looked that day, he decided that she must have quit, and he instructed Mr. Bean to place an ad on Craigslist because Ms. Turner had apparently decided to quit. That is quite a bit different than coming to the studied view over a multi-week period of time and following several counseling sessions that Ms. Turner's job performance was unacceptable and that she should be fired for poor performance. Instead, the suggestion was that Mr. Currie would have been happy to keep Ms. Turner--even willing to get a temporary employee to accommodate Ms. Turner's need for another surgery in the future--but she was the one who chose to leave. Mr. Currie never attempted to reconcile these two very clearly different explanations of how Ms. Turner's employment at Sure-Tek ended. These inconsistencies undermine the credibility of his attempt to legitimize her termination. Appropriate Remedy Petitioner testified that she is seeking back pay only, through the date of the final hearing, as damages. Petitioner quantified her back pay damages as 71.5 weeks of unemployment since her termination. She testified that her income at Sure-Tek was $540.00 per week ($13.50 per hour, times 40 hours per week). This evidence was not challenged by Respondent. Therefore, the total amount of back pay damages claimed before offsetting reductions is $38,610.00 Petitioner testified to her substantial efforts to obtain a job after she was fired by Respondent, and her testimony was corroborated by a tremendous amount of electronic mail inquiries and applications she submitted to follow up on job postings on Craigslist and other online job listings. Petitioner was hired shortly after she was let go by Mr. Currie at a company called Clear Tech, Inc. That job did not last long, however, because Ms. Turner was hired to work for the part of the company that was in the business of new pool construction and that part of the business was shut down soon after she started, due to the economic slow-down. Petitioner proved the amount of wages earned at Clear Tech: $1,632.00. In addition, Petitioner proved that she earned an additional $1,612.00 in unemployment compensation after she was fired from Sure-Tek. These two categories reduce the total amount of damages sought to $35,366.00. Petitioner testified that since she stopped working for Clear Tech, she has not earned wages. However, she testified that she has been helping out at Apple Homes, the company owned by her grandfather and father and has worked about ten hours per week. She is not on the payroll, because business is not good enough for her to be paid. However, both her grandfather and father help her out financially, helping to pay her rent and her bills. Although Ms. Turner testified that she plans to eventually pay back her father and grandfather for their financial help, she did not produce any evidence to substantiate that claim, such as an accounting maintained by her to tally the amounts of their assistance so she would know how much to repay them. Thus, it is reasonable to assume that her ten hours per week of work to "help" the company is being compensated by this indirect "help" to assist with her rent and bills. The undersigned finds that Petitioner has mitigated her damages to the extent of having similar work for which she is compensated for ten hours per week. Petitioner testified that she began working at Clear Tech in March 2010 and that she worked there for approximately 30 days. Therefore, the undersigned will assume that Petitioner worked at Clear Tech for the month of March 2010, and, thereafter, she worked at Apple Homes for ten hours a week. That equates to approximately 66 weeks, or 660 hours. In the absence of any other evidence showing how much Petitioner received as indirect compensation, it is reasonable to assume that her compensation would have approximated the hourly rate she earned from Respondent. Therefore, the undersigned will deduct $8,910 from the total back pay damages, representing estimated compensation of the value of her services of ten hours per week at Apple Homes for 66 weeks. The undersigned finds that Petitioner has incurred actual damages due to lost wages from her date of termination by Respondent through the date of the final hearing, reduced/offset by the items described above, of $26,456.00. Petitioner established her reasonable efforts to mitigate her damages, and she, in fact, mitigated her actual damages which have been reduced/offset as described above by a total of $12,154.00. Petitioner has hired an attorney who has represented her at the final hearing, in pre-hearing preparation, and in post-hearing proceedings. Petitioner has also incurred costs in connection with this litigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent, Sure-Tek Powker Coating, Inc., violated section 70-53, Pinellas County Code; Ordering Respondent to pay Petitioner, Rebecca Turner, the sum of $26,456.00 and interest at the prevailing statutory rate; and Ordering Respondent to pay Ms. Turner reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR 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 September, 2011.
Findings Of Fact Gene Flinn (Flinn), filed Complaint Number 95-156 dated October 31, 1995, with the Commission on Ethics against John G. Tomlinson, Jr., (Tomlinson) alleging that Tomlinson committed the following unlawful acts: Advising or instructing his attorney to suborn perjury by denying to the Executive Director and Chairman of the Ethics Commission the existence of Rose Upton. Advising or instructing his attorney to certify false and misleading information to the Ethics Commission concerning himself and Rose Upton with the intent to influence the Supreme Court in Flinn's disbarment proceedings. Conspiring to or participating in the act of tampering with jurors in the 1991 trial of Flinn v. Shields. Forwarding misstatements concerning the Shield litigation to clerks of the Florida Supreme Court to effect Flinn's disbarment and to foreclose appeals. Advising or instructing his attorney to falsely inform the Ethics Commission concerning the status of law enforcement investigations being conducted of Flinn. Committing acts in violation of federal and state racketeering laws by providing false information to other Judges of Compensation Claims, resulting in loss of fees and costs to Flinn. Filing a fraudulent application with the Governor for reappointment. On January 8, 1996, Bonnie Williams, Executive Director of the Commission on Ethics, filed a Recommendation of Legal Insufficiency with the Commission, recommending that the Commission dismiss Complaint Number 95-156 without investigation as legally insufficient. On January 25, 1996, the Commission entered a Public Report and Order Dismissing Complaint, dismissing Complaint Number 95-156 for failure to constitute a legally sufficient complaint. The order stated, "No factual investigation preceded the review, and therefore the Commission's conclusions do not reflect on the accuracy of the allegations of the Complaint." The unrebutted testimony of Tomlinson is that the allegations in the Complaint are false. Based on the testimony of Tomlinson and the case, The Florida Bar v. Flinn, 575 So.2d 634 (Fla. 1991), I find that Flinn filed Complaint Number 95-156 with a reckless disregard for whether the allegations in the Complaint were false. The only evidence presented relating to the amount of the attorney's fee requested is Exhibit Number 9 which is a letter from Stephen Slepin (Slepin) to Tomlinson, stating that the fee for representing Tomlinson regarding Complaint Number 95-156 was $10,000 plus expenses. On December 1, 1995, Slepin did file a five-page response to the Commission on behalf of Tomlinson. No evidence was presented as to the amount of time that Slepin spent in representing Tomlinson relative to Complaint Number 95-156. No evidence was presented as to the nature of the actual work performed by Slepin other than the written response submitted by Slepin to the Commission. Exhibit 9 did indicate that Slepin would review the Complaint, the previous Compliant, Flinn's disbarment proceedings and Flinn's federal actions and research the applicable law. However, no evidence was presented to show what work was actually done. No evidence was presented to show what the customary charge in the community is for such services. No evidence was presented concerning the experience, ability, and reputation of the lawyer performing the services.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying John Tomlinson, Jr.'s petition for attorney's fees. DONE AND ENTERED this 1st day of July, 1996, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 1st day of July, 1996. COPIES FURNISHED: Stephen Marc Slepin, Esquire Stephen Marc Slepin, P.A. 1114 East Park Avenue Tallahassee, Florida 32301 Gene Flinn 5100 Southwest 87th Avenue Miami, Florida 33165 Carrie Stillman Complaint Coordinator Commission on Ethics Post Office Box 15709 Tallahassee, Florida 32317-5709 Bonnie Williams, Executive Director Florida Commission On Ethics Post Office Drawer 15709 Tallahassee, Florida 32317-5709 Phil Claypool, General Counsel Ethics Commission 2822 Remington Green Circle, Suite 101 Post Office Drawer 15709 Tallahassee, Florida 32317-5709
Findings Of Fact On June 5, 1985, the Department filed an administrative complaint against the Petitioner. That complaint alleged Petitioner had violated seven subsections of Section 458.331, Florida Statutes. The matter was not referred to the Division of Administrative Hearings for formal proceedings until July 10, 1987. The record does not explain the time delay which elapsed between the time of filing the administrative complaint and the time the matter was referred for hearing. On September 7, 1988, a formal hearing was conducted in connection with the matter. On November 16, 1988, a recommended order was entered which recommended the dismissal of all counts of the complaint. The basis for the recommendation was the Department's failure to prove by clear and convincing evidence the facts constituting the alleged violations. A ruling on a preliminary motion had determined that the Department was not entitled to compel the licensee to testify or provide evidence against himself. On February 18, 1989, the Board of Medicine (Board) entered a Final Order, DOAH Case No. 87-2896, which approved and adopted the recommended order, both as to the findings of fact and conclusions of law. The Board rejected all exceptions which had been filed by the Department. Petitioner is a "prevailing small business party" and is entitled to seek attorneys fees pursuant to Section 57.111, Florida Statutes. Petitioner has not sought fees on another basis. Petitioner filed his petition for fees within 60 days of becoming a prevailing party and has, therefore, timely asserted his claim for fees. The attorney fees and costs which Petitioner seeks are reasonable for the fees and costs incurred for all preparations in these proceedings (prehearing stipulation). The amount claimed to be due Petitioner exceeds $15,000. There are no special circumstances which would make the award of attorney's fees and costs unjust (prehearing stipulation). The administrative complaint which is the subject of this case was filed following a probable cause panel meeting which occurred on May 23, 1985. Present at that meeting were panel members Bass and Feinstein. Information presented to the members included an investigative report. Both members acknowledged that they had thoroughly reviewed the materials related to the allegations against Petitioner. After reviewing the materials, the probable cause panel recommended the filing of the administrative complaint. Included with the investigative report were the following documents: a uniform complaint form, dated October 8, 1984, based upon a letter, dated October 2, 1984, received from the Food and Drug Administration; a copy of a letter dated October 23, 1984, addressed to Petitioner from the investigator informing Petitioner of the pending investigation; a copy of a letter from an attorney on behalf of Petitioner (which letter referenced the Fountain of Life Medical Centers and suggested Petitioner had valid patient/doctor relationships with persons being treated); another letter from the attorney for Petitioner referring to procaine and identifying Petitioner as the staff physician for the clinic under investigation; and an affidavit from an investigator who had attempted to make an appointment to see a doctor at the clinic. The information noted in the investigative report contained alleged admissions made by Petitioner to the investigator. The purported admissions connected Petitioner to the Fountain of Life Medical Centers and the dispensing of the substance, procaine. The investigative file did not contain information as to whether procaine is a legend drug, the identity of any person who had allegedly received the substance from the Petitioner, copies of any medical records related to the dispensing of the substance, or any confirmation that the dispensing of the substance in the manner alleged, if true, would fall below the prevailing standard of practice observed by the medical community. The investigation conducted in this case was inadequate to fully clarify the factual issues prior to the probable cause hearing. The materials submitted to the probable cause panel did, however, create a reasonable basis for the panel's determination for reasons hereinafter discussed in the Conclusion of Law. Counsel for the Department was not present at the probable cause meeting during the discussion of the Petitioner's case. Legal opinions regarding the sufficiency of the factual materials or admissibility of the evidence related to the claims were not sought by the panel nor rendered unsolicited by the counsel for the Board (who was present).
The Issue Whether Respondents committed the offenses described in the Amended Administrative Complaints? If so, what disciplinary action should be taken against them?
Findings Of Fact Based upon the evidence adduced at hearing, and the record as a whole, the following Findings of Fact are made: The Department is a state government licensing and regulatory agency. Haro is now, and has been since April of 1980, a licensed pharmacist in the State of Florida. He holds license number PS 0017949. Rome is now, and has been since February of 1978, the holder of permit number PH 0007008, which authorizes it to operate La Generosa Pharmacy (hereinafter referred to as "La Generosa" or the "Pharmacy") as a community pharmacy in Dade County, Florida. At no time in the past has Rome, as the holder of permit number PH 0007008, been disciplined by the Board of Pharmacy. For the past eighteen years, Roger Diaz has been Rome's sole corporate shareholder and the owner of the Pharmacy. Haro was employed as the prescription department manager of La Generosa and its only pharmacist from approximately October 16, 1990, until some time after the dates of the alleged violations in these consolidated cases. He worked full-time (40 hours a week). Harold Gluck is an investigator with the Department. On December 4, 1990, at approximately 2:00 p.m., Gluck attempted to conduct a routine annual inspection of the Pharmacy, which had last been inspected 13 months previous. Upon entering the Pharmacy, Gluck found that there was no pharmacist on duty. Diaz was there, however. The lights in the prescription department were off and a "closed" sign was posted. A door to the prescription department, although closed, was unlocked. Gluck opened the door, walked in and turned on the lights. He saw Haro's license hanging on the wall. On the counter, he observed prescription vials containing pharmaceuticals. It appeared to Gluck that someone had been in the process of filling these vials and had been interrupted before completing the task. Gluck inquired of Diaz as to the whereabouts of the pharmacist. Diaz, in response to Gluck's inquiry, indicated that Haro had taken the day off to tend to some personal business. Gluck then asked Diaz who was filling the prescription vials "if the pharmacist isn't here." Diaz responded, "I don't know." Gluck continued his inspection. On the shelves in the prescription department he discovered a large number of expired drugs, some of which had expiration dates that predated the last inspection of the Pharmacy that had been conducted 13 months previous. None of the drugs that had been outdated for more than 13 months had been on the shelves during the last inspection. Gluck's inspection on December 4, 1990, also revealed prescription drugs in the Pharmacy outside of the prescription department. After cursorily examining the premises, Gluck left the Pharmacy. He told Diaz that he would be paying a return visit the following day to speak with Haro and to conduct a more thorough inspection. He warned Diaz not to enter the prescription department and asked him to lock the doors leading into that area of the Pharmacy. Diaz indicated that he would comply. Later that day at around 5:00 p.m., following Glucks's departure, Haro went to the Pharmacy "to observe how [it] was functioning." As he had promised, Gluck returned to the Pharmacy on December 5, 1990. He was accompanied by another of the Department's investigators, as well as three HRS drug inspectors. The prescription department was closed and Haro was nowhere to be seen. Diaz was present and Gluck asked him whether Haro had reported to work that day. Diaz told Gluck that Haro had again taken the day off to take care of a personal matter. Gluck tried to open the door he had used the day before to enter the prescription department, but it was locked and Diaz claimed not to know where to find a key to unlock the door. With Diaz's permission, Gluck and one of the HRS drug inspectors, Cesar Arias, walked into a back storage room that was adjacent the prescription department (hereinafter referred to as the "storage room") to ascertain if there was another entrance to the prescription department. There they spotted an unlocked door that led to the prescription department. After obtaining Diaz's authorization, they pushed the door open. In so doing, they moved an appliance, that had been behind the door, out of the way. They then walked into the prescription department. While in the prescription department, Gluck and Arias noticed a doorway that was covered, but not completely, by a piece of paneling. They removed the piece of paneling and then walked into the room (hereinafter referred to as the "hidden room"). The December 5, 1990, inspection of the Pharmacy revealed the following: Of the approximately 2,000 containers on the shelves in the prescription department, approximately 200 contained expired pharmaceuticals. Expired pharmaceuticals that Haro had removed from the shelves were in boxes in the storage room. There were containers of pharmaceuticals on the shelves in the prescription department that had labels which understated the quantity of pharmaceuticals in the container. There were containers of pharmaceuticals on the shelves in the prescription department that had labels which inaccurately described the strength of the pharmaceuticals in the container. On the shelves in the prescription department were containers of pharmaceuticals to which samples, that had been removed from their original packaging, had been added. According to records in the prescription department, prescriptions had been filled on December 4, 1990. Prescriptions for controlled substances that had been filled by Haro within the past month were lacking the date the prescription had been filled, the patient's name and address, the dispensing pharmacist's initials and/or the prescribing physician's DEA registration number. A bottle of Uropol, which Haro had for his own personal use, was in the prescription department. Uropol is a foreign drug that has not been approved for use in the United States. Vials containing prescription drugs that had been dispensed by Jorge's Pharmacy, another local pharmacy, were in the hidden room, as well as in bags, ready for customer pick-up, in the storage area. These vials had labels prepared by Jorge's Pharmacy. References to Jorge's Pharmacy's appear- ing on the labels, however, had been "whited out" so as to make it appear that Jorge's Pharmacy's was not the dispensing pharmacy. Furthermore, some of these vials contained lesser quantities of drugs than indicated on their labels. As Diaz candidly admitted to the inspection team during the inspection, Jorge's Pharmacy had filled these prescriptions pursuant to an arrangement that it had with Diaz. These were Medicaid prescriptions. Jorge's Pharmacy was a participant in the Medicaid program. La Generosa had been suspended from the program and therefore, unlike Jorge's Pharmacy, was not able to fill Medicaid prescriptions. Wanting to keep his Medicaid customers, Diaz had devised and implemented a scheme that allowed him to continue to do business with these customers. He had his Medicaid customers present their prescriptions to him or Blanca Uzman, one of his subordinates, at a counter outside of the store's prescription department (hereinafter referred to as the "outside counter"). The prescriptions were thereafter taken to Jorge's Pharmacy, where they were filled. The labeled vials containing the dispensed drugs were then delivered to La Generosa, where they were ultimately picked up, at the outside counter, but not before an effort had been made to obliterate, by using white-out, all references to Jorge's Pharmacy appearing on the vials' labels. Although Haro knew of this scheme, he was in no way involved in it. A prescription balance and prescription weights were in the hidden room. Neither a copy of the laws and rules governing the practice of pharmacy, a negative formulary, nor a biennial inventory record of controlled substances were located by the inspection team, although these items were on the premises. Following the December 5, 1990, inspection of La Generosa, administrative charges were brought against both Haro and Rome. Subsequent inspections of the Pharmacy established that "everything was in proper order."
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby recommended that the Board, with respect to Case No. 91-6297, enter a final order finding Haro guilty of the violations alleged in Counts I, III, VIII, VIV, and XV of the Amended Complaint/Haro and disciplining him for having committed these violations by suspending his license for a period of 60 days, placing him on probation for a period of one year following the end of his suspension subject to such terms as the Board may specify, and requiring him to pay an administrative fine in the amount of $1,500.00, and, with respect to Case No. 92-0227, enter a final order finding Rome guilty of the violations alleged in Counts I, V, VII, IX, and XI of the Amended Complaint/Rome and disciplining it for having committed these violations by suspending its permit to operate La Generosa as a community pharmacy for a period of two years, placing it on probation for a period of one year following the end of its suspension subject to such terms as the Board may specify, and requiring it to pay an administrative fine in the amount of $2,500.00. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 27th day of September, 1993. STUART M. LERNER 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 27th day of September, 1993.
The Issue The issue for determination is whether just cause exists for termination of Respondent Mabel Johnson’s employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered terminating the employment of Respondent, Mabel Johnson. DONE AND ENTERED this 2nd day of February, 2005, in Tallahassee, Leon County, Florida. S DON W. DAVIS 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 February, 2005.
