Recommendation The recommendations contained in the joint stipulation of the parties are hereby adopted verbatim as follows: Respondent agrees to the terms and conditions for probationary limitations of his licenses under the provisions of Chapter 483, Florida Statutes, in lieu of the revocation of that license. Respondent shall retain his Clinical Laboratory Technologists License in serology, clinical chemistry and hematology. (There was no agreement as to paragraph 3) Respondent shall actively participate in a drug rehabilitation program approved by the Department for a period to be determined by the program selected. Respondent shall ensure that the program submits quarterly reports from the drug program to the Department for the period Respondent is enrolled in the rehabilitation program. The Petitioner shall provide that the reports will be reviewed by the Department and clinical laboratory advisory council. Respondent shall report to the Department representative, in person, for an annual interview for the first two years of the probationary period. The Petitioner may require and request unannounced urine specimens of Respondent during the probationary period for the purpose of drug screening. Respondent or Petitioner shall notify Respondent's current employer, if a clinical laboratory, of the nature of his problem and offense and shall require an annual report of his performance in the laboratory for the duration of the five years probation. Respondent shall advise the Department of any change in employment or address or any additional laboratory employment within 30 days during the five year probationary period. Respondent agrees that non-compliance with the terms of probation will be cause for immediate revocation of his Clinical Laboratory Personnel License. Respondent further agrees that any renewal or reissuance of license will. be taken subject to the terms herein until such terms have been fully satisfied. That the Secretary of the Department of Health and Rehabilitative Services shall enter a final order requiring the probationary limitation of Respondent's Clinical Laboratory Personnel License, incorporating this Joint Stipulation and the Recommended Order entered in this cause." In addition to the recommendations contained in the. Joint Stipulation it is further recommended that Respondent be required to work under direct supervision only in the area of immunohematology (blood banking) until such time as he presents evidence, satisfactory to the Administrator of Laboratory Personnel Licensure, Office of Licensure and Certification, DHRS, that he has successfully completed his present treatment at the Broward Methodone Maintenance Rehabilitation and Research Facility and the Christian Mental Health Clinic or in the al alternative, during the period that he is enrolled in the drug treatment program selected by DHRS, whichever occurs first. DONE and ORDERED this 26th day of February, 1986, in Tallahassee, Florida. W. MATTHEW STEVENSON, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of February, 1986. COPIES FURNISHED: Steven Rowitt 5966 N.W. 28th Street Sunrise, Florida 33313 Harold L. Braynon, Esquire District X Legal Counsel Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Steve Huss, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 APPENDIX The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. Rulings on Proposed Findings of Fact Submitted by the Petitioner Adopted in Finding of Fact 4. Adopted in Finding of Fact 10. Adopted in Finding of Fact 9. Rulings on Proposed Findings of Fact Submitted by the Respondent Adopted in Findings of Fact 6 and 7.I Partially adopted in Findings of Fact 12 and 21. Matters not contained therein are rejected as unnecessary. Rejected as subordinate and not supported by competent substantial evidence. Partially adopted in Findings of Fact 6 and 7. The third sentence is rejected as not supported by competent substantial evidence. Adopted in Findings of Fact 14. The first sentence is rejected as not supported by competent substantial evidence. The last two sentences are rejected as subordinate. Partially accepted in Finding of Fact 10. Matters not contained therein are rejected as subordinate. Rejected as argumentative. Adopted in Finding of Fact 16. Rejected as legal argument. Partially adopted in Finding of Fact 22. Matters not contained therein are rejected as not supported by competent substantial evidence.
The Issue Did Respondent engage in unlawful employment practices against Petitioner in violation of Section 760.10(1) and (7), Florida Statutes, in effect at the time of the alleged acts, contrary to the Florida Civil Rights Act of 1992 (the Act)?
Findings Of Fact Petitioner as an "aggrieved person" filed a complaint with FCHR. § 760.02(10), Fla. Stat. (2005). Given the posture of this case, Respondent is an "employer" employing 15 or more employees in each of 20 or more calendar weeks within the period contemplated by Petitioner's complaint. It is so inferred. § 760.02(7), Fla. Stat. (2005) Petitioner's race as he describes it, and it is found, is Black. In October 2003 Petitioner began employment with Respondent in its Bureau of Laboratory Services, Jacksonville, Florida, as a Medical Laboratory Scientist III (Scientist III). His status was as a probationary employee. He remained in that status throughout his employment with Respondent. Before beginning employment with Respondent, Petitioner had earned a bachelor of science in microbiology in 1982 from the University of Alabama. In 1989 he earned a master's of science in microbiology from that same institution. In 1996 he was awarded a Ph.D. in microbiology from the University of Alabama. Upon achieving his master's degree, Petitioner served as a research assistant for the University of Alabama at Birmingham from September 1, 1989 through December 31, 1992. Part of that employment overlapped his employment as a graduate researcher from September 1, 1992 through May 29, 1996, at the University of Alabama in Tuscaloosa, Alabama. There was overlapping service at the University of Alabama at Tuscaloosa in the period of September 2, 1992 through April 29, 1996, when Petitioner had a position as a teaching assistant. Between September 5, 1996 and February 25, 2000, Petitioner worked as a research fellow for the National Institute of Health at the University of Florida in Gainesville, Florida, where, as he indicated in an employment application, "Petitioner was responsible for developing new recombinant Interferon Gamma ligands and receptors for the treatment of viral disease and cancer (accomplished). Responsible for supervision [sic] (two) graduate students in molecular techniques." Following the work with the National Institute of Health, Petitioner took a position with ELISA Technologies, Inc., in Gainesville, Florida, as a laboratory director for the period March 1, 2000 through February 5, 2003, in which his application for a job position indicated that Petitioner was: "Responsible for directing laboratory testing of customer samples and supervising a five-member staff. Responsible for developing, performing, and directing new test development for the CDC and WHO (accomplished). All other research and development projects (accomplished)." Petitioner next worked at Jacksonville University in Jacksonville, Florida, as a adjunct assistant professor from what is perceived the date of January 6, 2003 through his employment with Respondent in its Bureau of Laboratory Services. While serving as an adjunct assistant professor Petitioner in his job application recounts that he was: "Responsible for teaching nursing and biology majors microbiology courses. Responsible for teaching general-clinical laboratory techniques." In his role as Scientist III with Respondent, Petitioner was expected to meet the following expectations: Will learn DNA fingerprinting methods for salmonella and tuberculosis as well as 16S sequencing. Will learn techniques sufficiently to act as a back-up as needed. Timeframe: November - January Will oversee development of universal procedural manual for all testing in molecular section. Will produce master copy by end of February. Timeframe: November - February Will oversee the development and documentation of quality control, quality assurance and proficiency testing procedures in the molecular section. Will incorporate all into a single document by the end of March. Timeframe: November - March Will eventually be responsible for the ordering of all equipment and reagents for the molecular section. Duties to include monthly reconciliation reports. Timeframe: November - April Will represent the molecular section in the development of BOLIMS. Will become familiar with reporting and date management of all reports generated in the molecular section. Timeframe: November - Ongoing Will act as back-up for BT testing. Will learn all procedures once security clearance has been granted. Timeframe: January - Ongoing Will assist in implementation of VNTR-MIRU and PCR testing for malaria. Timeframe: January - Ongoing The months reflected in this statement of expectations began in November 2003 and extended into 2004. In his role as a Scientist III Petitioner had no supervisory duties. He was given projects to do. He was provided an appraisal task form in relation to his responsibilities. Petitioner also worked on a QA/QC manual (quality assurance and quality control). Initially Petitioner was supervised by Dennis Nolan. Mr. Nolan left his employment with Respondent to take another position. Dr. Dean Willis, who has a doctorate in public health, became Petitioner's supervisor with Mr. Nolan's departure. The interaction between Petitioner and other members of the laboratory at Jacksonville is reflected in the Petitioner's Exhibits numbered 4, 5, 6, 11, 19, 25, 26, 27, 28, 29, 31 and 45. This series of e-mails are an indication of Petitioner's participation in the organization and inclusion in the efforts of that organization in carrying forward its duties. Petitioner during his employment in the Scientist III position worked on a malaria project. In addition he worked on a whooping cough test. Earlier in his employment Petitioner underwent a performance appraisal or review of his work. In February 2004 when Mr. Nolan resigned from the laboratory in Jacksonville, his position as BA II, an SES- classified position in the personnel system in Florida government, came open. In that month Respondent advertised to fill the position. In that solicitation Petitioner was the only applicant to replace Mr. Nolan. As a consequence the position was re- advertised. The initial advertisement for BA II position closed on February 16, 2004. The second advertisement for that position closed on March 15, 2004. The information concerning the position was the same in both instances. Dr. Willis as the responsible person at the Jacksonville laboratory, decided to re-advertise the position to try and attract additional applicants. The position was re-advertised and more candidates expressed an interest by applying for the position. Petitioner was among the applicants applying during the re- advertisement. Unlike the circumstance in the first advertisement, on this occasion there was the expectation that someone would be hired for the BA II position. Ultimately Dr. Ming S. Chan, Chief of Laboratory Services, also referred to as a Bureau Chief for Respondent at its Jacksonville office, condoned the re- advertisement. Dr. Chan holds a Ph.D. in chemistry. Among the candidates for the BA II position, four had their applications considered and were interviewed for the position. Petitioner was among the candidates whose applications were reviewed and who underwent an interview. The applications were considered and interviews conducted by Dr. Willis and by Susanne Crowe, another BA II at the Jacksonville laboratory. She holds a master's in health and an undergraduate degree in biology. Ms. Crowe was chosen to interview candidates for the available BA II position as a person who was in a similar position within the organization. The result of the process for ranking the candidates whose applications were considered and who underwent an interview for the job placement was that Dr. David Stuart Beall, a non- Hispanic white male, was selected to fill the BA II position as the top ranked candidate, with Petitioner placing second among the four finalist. The other two persons interviewed for the BA II were interviewed by phone. It is not perceived that any advantage was created for those persons interviewed by phone compared to the live interviews afforded Petitioner and Dr. Beall, given the ranking of the candidates. When Dr. Beall applied for the BA II position he was working for the Center for Disease Control and Prevention (CDC) and was housed in the offices of the Bureau of Laboratory Services in Jacksonville, Florida. Dr. Beall decided to apply for the BA II position without prompting from anyone employed by Respondent. He was not given any special training to allow him to gain the BA II position nor allowed any other form of preference that could be considered discriminatory when compared to the opportunities made available to Petitioner. The office that Dr. Beall was placed in before he became an employee with Respondent in the BA II position, was based upon space available and not in furtherance of a preference that aided Dr. Beall in gaining the BA II position. By comparison to Petitioner in the application process, the details within the Petitioner's application, which have already been described as to education and work history, the following information was provided by Dr. Beall in his application for the BA II position. He graduated from the University of Florida in 1986 with a bachelor of science in microbiology and cell science. He received a masters in microbiology and cell science from that institution in 1992. He earned a Ph.D. in microbiology and cell science in 1995 from the University of Florida. Dr. Beall served as a graduate assistant at the University of Florida from June 1, 1989, through August 1, 1995. During that time, as he indicated in his application he: Executed several lab projects including the study of ethanol fermentation by recombinant Escherichia coli expressing Zymomonas mobilis pdc and adhb genes for the conversion of xylose and other biomass carbohydrates to fuel ethanol. Also isolated and genetically engineered several novel strengths of Erwinia for the production of fuel ethanol from waste plant biomass. From November 1, 1996, through March 31, 1999, Dr. Beall worked as a post-doctorial research associate with the CDC. During that time as the application described he: Designed and executed experiments that resulted in the identification of several differentially expressed gene products that are associated with the induction of latency in Mycobacterium . Incorporated design improvements to the shift-down model for MTB growth. Part of this with TB lead to the issuance of a U.S. for an assay to detect antigens associated with latent tuberculosis infections. Attempted to identify Mycobacterium tuberculosis virulence factors using RNA subtractive hybridization. Trained new laboratory technicians how to work safely inside a BSL-3 containment facility. From April 5, 1999, through April 30, 2000, Dr. Beall worked as a guest researcher for the CDC, during which time he as the application described: Helped organize and contributed work to several lab projects including the development of novel assays for bacterial meningitis detection in clinical samples using TaqMan and Light Cycler technologies and the sequencing of the variable loop regions of the porA gene from several hundred clinical isolates of Neisseria meningitidis. From August 4, 2000, until March 12, 2004, Dr. Beall acted as a visiting professor of biology at the University of North Florida in Jacksonville, Florida, during which time as his application relates: My duties involve instruction of approximately three to four hundred students in lecture and laboratory sections per semester along with organizing and coordinating the presentation of each courseA, A's materials and tests. Additionally, I provide recommendations for students entering professional programs and mentor students for their senior presentations. Beyond my teaching responsibilities I help administer and the development of the Masters degree program as well as participate search committees to fill vacancies. This past summer semester I developed and instructed the Pathogenic Bacteriology course. The applications for the BA II position executed by Petitioner and Dr. Beall had a section which called upon the applicants to set forth in their own words the knowledge/skills/abilities that they believed they would bring to the position. In that context Petitioner said about himself: Knowledge and skills needed to isolation [sic] and identification [sic] (biochemical and Molecular procedures) pathogenic and medically important bacteria and some viruses. Knowledge and skills needed to identify Mycobacterium tuberculosis complex (biochemical and Molecular procedures). Experience in supervising testing staff and directing basic and applied research projects. Working and written knowledge of CLIA, CAP, GMP, and ISO 2000 requirements for QA/QC. Ability to generate, analyze, present and publish (independently and collaboratively) data in referred scientific Journals. Ability to implement, direct, and complete simple and complex projects. In contrast, Dr. Beall related his knowledge/skills/ abilities as being: My formal training has afforded me a wide range of technical skills. My graduate school projects focused on the genetic engineering and development of novel, environmental benign methods of producing fuel ethanol from waste plant material. These studies relied heavily on knowledge of molecular biology, bacterial genetics, and cellular physiology. My postdoctoral training as an ASM/NCID fellow at the Centers for Disease Control and Prevention in Atlanta provided me invaluable experience in fields of Public Health and bacterial pathogenesis. This work involved the development of model growth systems and nucleic acid based assays for detecting pathogenic bacteria such as N. meningitides, H. influenzae, and M. tuberculosis. There I adapted traditional assays for use with the latest generation PCR machines TaqmanA, A and Light CyclerA, A. I have also trained and supervised numerous laboratory personnel in the techniques of molecular biology and advanced laboratory safety practices. I managed and supervised the projects of a variety of associates including visiting researchers, lab technicians, and student interns. The occupation profile related to the BA II position, for which the candidates contended, indicated in the way of Examples of Work: Plans laboratory services according to statewide program needs. Consults with county health officers and staff regarding laboratory procedures and program planning related to laboratory testing. Coordinates state and federal laboratory services in outbreaks or situations when testing by specialized laboratory units is required. Consult to physicians and private hospital laboratories. Plans and participates in special research projects. Performs comparative evaluation of new and existing laboratory procedures. Prepares reports and provides information to the director, assistant director and program office. Further, the occupation profile set out examples of job characteristics when it stated: Provide Consultation and Providing consultation and expert Advice to Others advice to management or other groups on technical, systems- related, or process related topics. Communicating With Providing information to Other Workers fellow workers, and subordinates. This information can be exchanged face-to-face, in writing, or via telephone/electronic transfer. Documenting/Recording Entering, transcribing, recording, Information storing, or maintaining information in either written form or by electronic/magnetic recording. Getting Information Needed Observing, receiving, and otherwise To Do The Job obtaining information from all relevant sources. Developing and Encouraging and building mutual Building Teams trust, respect, and cooperation among team members. Analyzing Data Identifying underlying principles, or Information reasons, or facts by breaking down information or data into separate parts. Updating and Using Keeping up-to-date and knowing Job-Relevant Knowledge one's own jobs' and related jobs' and related jobs' functions. Communicating With Persons Communicating with persons outside Outside Organization the organization, representing the organization to customers, the public, government, and other external sources. This information can be exchanged face-to-face, in writing, or via telephone/electronic transfer. Establishing and Developing constructive and Maintaining Relationships cooperative working relationships with others. Developing Objectives Establishing long range objectives and Strategies and specifying the strategies and actions to achieve these objectives. Within BA II position examples of knowledge, skills, and abilities were to the following effect: Coordination Adjusting actions in relation to others' actions Reading Comprehension Understanding written sentences and paragraphs in work related documents Critical Thinking Using logic and analysis to identify the strengths and weaknesses of different approaches Speaking Talking to others to effectively convey information Judgment and Decision Weighing the relative costs and Making benefits of a potential action Time Management Managing one's own time and the time of others Implementation Planning Developing approaches for implementing an idea Management of Personnel Motivating, developing, and directing Resources people as they work, identifying the best people for the job Identification of Identifying the things that must be Key Causes changed to achieve a goal Visioning Developing an image of how a system Should work under ideal conditions Administration Knowledge of principles and processes and Management involved in business and organizational planning, coordination, and execution. This may include strategic planning, resource allocation, manpower modeling, leadership techniques, and production methods. English Language Knowledge of the structure and content of the English language including the meaning and spelling of words, rules of composition, and grammar Mathematics Knowledge of numbers, their operations, and interrelations including one or more of the following: arithmetic, algebra, geometry, calculus, statistics, and their applications Chemistry Knowledge of the composition, structure, and properties of sub- stances and of the chemical processes and transformations that they undergo. This includes uses of chemicals and their inter- actions, danger signs, production techniques, and disposal methods Economics and Accounting Knowledge of economic and accounting principles and practices, the financial markets, banking, and the analysis and reporting of financial data Law, Government Knowledge of laws, legal codes, court and Jurisprudence procedures, precedents, government regulations, executive orders, agency rules, and the democratic political process The job description for BA II stated that the employee "must be licensed or eligible for a clinical/public health laboratory license at the supervisor level." Petitioner held a clinical laboratory technician's license issued by the State of Florida, Department of Health, Division of Medical Quality Assurance. He did not, and neither did Dr. Beall, hold a license as a clinical/public health laboratory licensee at the supervisory level. Both Petitioner and Dr. Beall met the education requirements for BA II that called upon the candidate to have a masters or equivalent work experience. Both candidates had Ph.D.s. The candidates for the BA II position were scored in relation to their applications through a matrix. Within the matrix was the consideration of education, experience, to include years of experience, supervisory experience, and management experience. There was a potential score for veterans' preference. Neither candidate, Petitioner nor Dr. Beall was entitled to veterans' points. There was a score for licensure in a supervisors or directors capacity, as to eligibility as well as licensure. There was a score for writing ability and a score for public health lab experience. The matrix scores for Dr. Beall and Petitioner respectively are found within Respondent's Exhibits numbered 5 and 6 admitted as evidence. In the last analysis, Dr. Beall received a 68 on his application. Petitioner received a 61. The differences in the scores pertain to a two point difference for ability to communicate in writing, in which Dr. Beall received a score of 8 out of 10 and Petitioner received a score of 6 out of 10 possible points. Dr. Beall received 10 points maximum for having worked at least three years in a public health lab, where as Petitioner did not receive points in that category. Apparently the basis for assigning the points for public health lab experience was in relation to Dr. Beall's experience with the CDC referred to in his application. Petitioner scored 15 points for work experience and Dr. Beall received 10 points. Petitioner and Dr. Beall were interviewed by Dr. Willis and Ms. Crowe, with each interviewer assigning scores for the interview to the respective candidates. Dr. Willis assigned Dr. Beall a score of 73.5 and Petitioner a score of 65 for the interview. Ms. Crowe assigned Dr. Beall a score of 72 and Petitioner a score of 64 for the interview. The scores in relation to the interviews were averaged. That average was added to the score received for the application review, the result being that Dr. Beall received an overall score of 138.25 and Petitioner a score of 125.50 when finally concluded. In fact, the chart reflecting these scores and averages is such that the actual score for Dr. Beall by that process could have been somewhat higher than is reflected in the chart. The chart is Respondent's Exhibit numbered 7 admitted as evidence. Ms. Crowe in her testimony established that Petitioner was disorganized during his interview session to obtain the BA II job. The ranking of the candidates for the BA II position was first assigned on April 13, 2004. Petitioner was not satisfied with the outcome in which he was not offered the job. He refers to an April 14, 2004 discussion pertaining to the interview score he received aside from the assignment of points during the application evaluation. Petitioner's Exhibit numbered 14 admitted as evidence is constituted of an e-mail sent from Petitioner to Dr. Willis, the subject being the April 14, 2004 discussion of the interview score. It also refers to a meeting on the morning May 4, 2004, between Petitioner and Dr. Willis on the decision that had been reached to hire Dr. Beall. The emphasis in this communication related to Petitioner's background and his complaints about the score received in the interview. At the end of this communication Petitioner described how he stood on professional principle and was seeking reciprocation of those principles in what he refers to as "this grievance process and in the future." In the e-mail to Dr. Willis Petitioner referred to, "elimination of a candidate based on race is especially frightening when the minority candidate is more qualified than the individual offered the position." The e-mail was sent from Petitioner to Dr. Willis on May 18, 2004, as amended on that same date by a separate E-mail. On May 24, 2004, Dr. Willis acknowledged receipt of the E-mail. The effect of Petitioner's complaints about the scoring directed to Dr. Willis led to further review by Dr. Willis. The outcome was that 5 points Dr. Beall received for management experience in relation to his application were deducted, while 15 points were added for eligibility for licensure as a director. This adjustment is reflected in the scoring matrix previously described. Petitioner was not assigned any points for management experience and received the same 15 points for eligibility to be licensed as laboratory director that were assigned to Dr. Beall in his application. This outcome is also reflected in the scoring matrix previously described. The decision to hire Dr. Beall for the BA II position was not based upon race or a decision contrary to Petitioner's race. Sometime in the latter part of May 2004, Dr. Beall assumed the BA II position and became Petitioner's supervisor by virtue of being hired in the position. At about the same time Petitioner made an internal complaint, a complaint within the Respondent Agency claiming discrimination on the basis of race, pertaining to the manner in which Dr. Beall was selected for the BA II position to the exclusion of Petitioner. The internal complaint which Petitioner filed was with Respondent's EEOC Office. Petitioner was not satisfied with the internal process for resolving his complaint of discrimination through the Respondent and decided to file a complaint with FCHR, which forms the basis for the present case. After Dr. Beall became Petitioner's supervisor he reviewed Petitioner's work. He observed that Petitioner was aloof, difficult, recalcitrant, obstructive, and had a questionable demeanor. He found Petitioner's work to be unorganized. He met several times with Petitioner to address the question of organization. Responses required from Petitioner to Dr. Beall were not prompt or clear when made. There was a problem about failure to contact Dr. Beall as supervisor when Petitioner decided to take leave. Petitioner claimed to have been at work when he was not at work, as Dr. Beall perceived the situation. Dr. Willis, who supervised Dr. Beall at that time, was aware of Dr. Beall's concerns about Petitioner's performance, in particular, his lack of cooperation and the inability to find Petitioner at the office, in that Petitioner would leave the premises without advising Dr. Beall. By comparison, during the time that Dr. Willis supervised Petitioner there was a situation concerning a county health department and tests for rabies. Petitioner became involved and gave a response to the inquiry by the county health agency that Dr. Willis considered to be inaccurate or misleading. This lead to a situation in which the person within the Bureau of Laboratory Services who properly should have responded to the county agency inquiry, being addressed by Petitioner in a manner that Dr. Willis found troubling, as to Petitioner's ability to work with other persons within Respondent agency. Eventually Dr. Beall recommended that Petitioner be dismissed from his position before completing his probationary period. The reason for this recommendation related to Petitioner's demeanor, to include his willingness to cooperate while undergoing the review of his work. There were issues with reports rendered by Petitioner, considered to be lacking in professionalism, problems with attendance and leave and a lack of progress in the list of expectations that have been referred to earlier. Dr. Willis concurred with the recommendation that Petitioner be dismissed. Linda Boutwell, who was personnel officer within the Bureau of Laboratory Services in Jacksonville, was also consulted concerning the dismissal. Concerning the disposition of Petitioner's employment, Caroll David Fulgher was consulted as an employee of Respondent's Office of Human Resources in Tallahassee. It was explained to Mr. Fulgher that Petitioner tended to ignore his supervisor Dr. Beall and to do what Petitioner preferred, contrary to the wishes of his supervisor. It was explained to Mr. Fulgher that the quality of Petitioner's work was not satisfactory and that difficulties were experienced in relation to Petitioner's attendance and leave. Following discussion with Mr. Fulgher, it was suggested that the matter be considered by the Bureau Chief, Dr. Chan. Mr. Fulgher prepared a letter dismissing Petitioner from his employment. This letter was dated October 13, 2004. It was signed by Dr. Chan indicating his agreement with the choice to dismiss Petitioner. Respondent's Exhibit numbered 10 is a copy of that letter. It was presented to Petitioner, thus terminating his employment with Respondent. The supervision of Petitioner, to include supervision by Dr. Beall, evidenced no discriminatory intent based upon race, nor was the choice to dismiss Petitioner one motivated by any desire to retaliate against Petitioner for his complaint concerning the decision to hire Dr. Beall in preference to Petitioner for the BA II position.
Recommendation Upon consideration of the facts found and the conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing Petitioner's claims of discrimination and retaliation based upon race. DONE AND ENTERED this 28th day of March, 2006, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 28th day of March, 2006.
Findings Of Fact In October 1985, Dennis J. Donegan, Petitioner, qualified for and took the examination for medical technologist in hematology. He passed the examination and was subsequently so licensed. Effective January 1, 1986 new rules were adopted increasing the requirements for eligibility for applicants to take examinations in the various fields of medical technologist specialties. Although this rule was adopted by Respondent after complying with the procedural requirements for adopting rules, Petitioner was not personally notified of the change and was unaware of the increased requirements until his application to take the fall 1986 examinations in chemistry and microbiology specialties was denied. By letter dated August 27, 1986 Respondent denied the application because Petitioner did not meet the education requirements established by the rule which became effective January 1, 1986. Petitioner contends that had he known of the proposed rule change he would have applied and sat for all of the various laboratory technologist specialty examinations before the rule change became effective. Petitioner further contends that under Rule 10D-41.69(6) he is qualified to sit for the examination by reason of being an applicant who was qualified to sit for an examination prior to January 1, 1986.
Findings Of Fact Petitioner is licensed by the State of Florida as a Clinical Laboratory Technician. He applied to the Respondent for licensure as a Clinical Laboratory Technologist with specialties in microbiology, serology, clinical chemistry, hematology, immunohematology, histology, and chemistry (special). On March 25, 1980, Respondent denied Petitioner's application for technologist's license for the reason that Petitioner has not completed the sixty semester hours required by Section 10D-41.25(9), Florida Administrative Code. Petitioner holds a high school equivalency diploma. He has taken courses at Chicago City College, Southeast Junior College, Roosevelt University, Olive-Harvey, and the U.S. Army medical school. He is a graduate of the American Academy of Medical Technology; however, the Academy is not an accredited school. He holds a Medical Technologist`s Certificate from the Registry of the American Medical Technologists. He has been employed as a technologist for over twelve years, principally at Michael Reese Hospital and Medical Center, and is licensed as a medical technologist in the State of Illinois. Based upon his college transcripts, the Respondent has given Petitioner credit for forty-eight hours of academic work and as advised the Petitioner that he need obtain only twelve additional credits for satisfying educational requirements. An approved course of study is available to him at Miami-Dade Community College. Petitioner has not taken the U. S. Public Health Service proficiency examination in clinical laboratory technology.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED THAT: A Final Order be entered denying Petitioner's application for a technologist's license pursuant to the provisions of The Florida Clinical Laboratory Law. RECOMMENDED this 16th day of October, 1980, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Collins Building Room 101 Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of October, 1980. COPIES FURNISHED: Morton Laitner, Esquire Dade County Department of Public Health 1350 N.W. 14th Street Miami, Florida 33125 Mr. Yehuda Weinbaum 536 Euclid Avenue Miami Beach, Florida 33139 Mr. Alvin J. Taylor, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
Findings Of Fact The Petitioner, Shelly Gans, graduated from high school in June, 1973. She attended Broward Community College during terms 1 and 3 of the 1973-74 academic year, where she earned fifteen (15) credits. She does not have two years of academic study as required by Rule 10D-41.069(5). She then attended Sheridan Vocational Technical Center from February, 1974 to February, 1975. She was thereafter employed by Dr. Stephen Katzman from March, 1975 through August, 1979 as a technologist doing laboratory testing including phlebotomy. She was thereafter employed at Florida Medical Center as a technologist doing blood banking, hematology, chemistry and part time phlebotomy. Ms. Gans passed the October, 1983 proficiency examination for clinical laboratory technologists given by the U.S. Department of Health and Human Services, Public Health Service, Centers for Disease Control. After passing the U.S. Department of Health and Human Services examination, Ms. Gans was licensed as a clinical laboratory technician by the Department of Health and Rehabilitative Services Office of Licensure and Certification, Laboratory Personnel Licensure, through June 30, 1986. In October, 1984, Ms. Gans was examined by HRS for licensure as a clinical laboratory technologist in the specialties of clinical chemistry, hematology and immuno- hematology. She passed the immunohematology examination but failed the hematology and clinical chemistry examinations. She re-applied and took those examinations in April, 1985 when she passed the hematology examination but failed the chemistry examination a second time. Under Rule 10D- 41.071(9), Florida Administrative Code, Ms. Gans was required to take continuing education before she could re-apply to sit for the chemical chemistry examination a third time. Ms. Gans enrolled in Broward Community College in the second term of the 1985-1986 school year and took three hours in general chemistry. That course ended after January 1, 1986. She re-applied for examination as a technologist in the specialty of clinical chemistry on July 14, 1986. Her application for that examination was denied on August 14, 1986 because she did not have sixty (60) semesters of college credits which the Department believed was required under Section 10D-41.C69(5), Florida Administrative Code.
Recommendation It is RECOMMENDED that Shelly Gans be permitted to sit for the technologist examination in clinical chemistry when it is next given because she meets the requirements of Rule 10D- 41.069(6), as currently written and has taken retraining in clinical chemistry after she twice failed the examination, as is required by Rule 10D-41.071(9), Florid Administrative Code. DONE and ORDERED this 23rd day of July, 1987, in Tallahassee, Florida. WILIAM R. DORSEY, JR. 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 23rd day of July, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-3670 The following constitute my rulings on proposed findings of fact pursuant to Section 120.59(2), Florida Statutes, (1985). Rulings on Proposed Findings by Petitioner The proposals by the Petitioner are generally in the form of argument rather than proposed findings of fact. Relevant proposed factual findings have been made in the Recommended Order. Rulings on Proposed Findings by Respondent Covered in Finding of Fact 4. Covered in Finding of Fact 4. Covered in Finding of Fact 1. Rejected as an improper reading of Rule 10D-41.069(6). Rejected because the issue is not when notice of the rule was given, but what the rule says. Rejected as based on hearsay. Moreover, even if it was the intention of Centers of Disease Control that the Department of Health and Human Services examination not be a permanent means of credentialing in lieu of education and experience requirements, the Department of Health and Rehabilitative Services has not implemented that intent in the rule which it enacted. Rejected as unnecessary. That Ms. Gans' application was received after January 1, 1986 is covered in Finding of Fact 4. Rejected as unnecessary. COPIES FURNISHED: Michael O. Mathis Staff Attorney HRS Office of Licensure & Certification 2727 Mahan Drive Tallahassee, Florida 32308 Shelly Gans 4163 Southwest 67th Avenue Apartment 104C Davie, Florida 33314 Gregory L. Coler, Secretary 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 issue in this case is whether Petitioner wrongfully revoked the Respondent's Pinellas County paramedic certification.
Findings Of Fact The Director is responsible for, inter alia, providing paramedic certifications in Pinellas County. Respondent, Adam C. Baginski, was duly-certified as a paramedic by Pinellas County in February 2005. Respondent was employed by Sun Star, n/k/a Paramedics Plus (hereinafter referred to as "Sun Star"), and had filed an application through his employer for certification by Pinellas County. Respondent had first entered the general health care field as a life guard; he then became an EMT in 1994. After training received at the University of Toledo, Respondent became a paramedic in 2001. He held three positions in Ohio before coming to Florida, where he became employed by Lee County. After approximately nine months, he resigned his position with Lee County and went to work with Sun Star. The application process in Pinellas County to obtain paramedic certification entails a training seminar and a background check. The requisite background check is performed and attested to by the employer. At the training seminar, applicants are required to submit written responses to a two- page questionnaire. The questionnaire contains the following preface: Please answer the following questions so that we may gather the necessary data to provide a positive, educational and stress- free learning experience. All information will be confidential. At the end of the questionnaire, this statement is found: By signing this release, I understand that any falsification, incomplete or misleading information contained on this application or in any documents presented to obtain County Certification may be grounds for immediate suspension and/or revocation of may [sic] County Certification. The Director processed Respondent's application for certification by first reviewing the questionnaire. On the first page of the questionnaire, Respondent listed all of his work experience in Ohio, but did not list his Lee County experience. He does not remember why he omitted that employment history, but thinks it may have been due to lack of adequate space on the line provided.1 A cursory review of the questionnaire would show that appropriate space is provided. Notwithstanding the omission, the Director issued a paramedic certification to Respondent.2 Upon receipt of his certification, Respondent began performing paramedic services for Pinellas County through his employer. He was generally partnered with one particular EMT for ambulance runs, but sometimes had a different partner if circumstances so dictated. (E.g., if his partner was ill or on vacation, he may be temporarily assigned to another EMT. It was generally the duty of the EMT to drive the ambulance and for the paramedic to perform direct care to the patient.) On July 11, 2007, Respondent was on duty with Kristin Burns as his EMT for that shift. Respondent cannot remember why his regular partner was not there on that day.3 Respondent and Burns were responding to an emergency call when they were interrupted by dispatch and told to go to a different location. The new location was a doctor's office located at 929 First Avenue North in downtown St. Petersburg. Before arriving on the scene, Respondent and Burns received telephone/radio reports indicating the fire department was already on the scene. Fire department employees had assessed the patient (William Newcomb) and determined him to be stable. As a result, the call was "downgraded" so that Respondent and Burns could proceed to the scene without lights or siren. A downgrade indicates the situation is no longer critical. Upon arrival, Respondent talked to a firefighter and was told that the patient believes he has had a seizure and wants to go to the VA hospital. It was again confirmed that the situation was not an emergency. The patient had walked to his eye doctor's office because he was having vision impairment. When the doctor could not see him, the patient called 911 and asked for an ambulance to take him to the hospital. There was no distress noted by the firefighters or Respondent. The patient came out of eye doctor's office building and, using a walker, walked himself directly towards the waiting ambulance. Respondent began to question the patient at that time, attempting to assess his condition. All he was able to ascertain was that the patient wished to go to the VA hospital. The cot was taken out of the ambulance, the patient was strapped in, and the ambulance headed toward the VA hospital.4 During the trip to the VA hospital, Respondent and the patient were in the rear of the ambulance; Burns was driving. Respondent was seated in the "CPR seat" which is the seat to the right of the patient. There is a window between the driver compartment and the back of the ambulance that allows some visual contact between the driver and the paramedic. Burns did not actually see Respondent provide any care to the patient (but it is unclear how well she could have seen into the rear of the vehicle due to its configuration). Newcomb does not remember what care was rendered to him during the trip to the hospital. He believes his pulse and temperature may have been taken; his oxygen level was taken. He does not specifically remember what else was done. He cannot remember who helped him into the ambulance or much else about the trip. He does maintain that Respondent talked to him a lot about Newcomb's not needing the ambulance, but remembers little other than that. Newcomb signed the patient care report (twice) acknowledging Sun Star's billing practices and receipt of--or offer of--a Notice of Privacy Rights. The patient care report filled out by Respondent to officially record the Newcomb case indicates Newcomb's vital signs were taken three times in the ambulance trip. In addition, a visual check was done to track any changes in the patient's eyesight. Respondent noted that Newcomb had no facial droops, he was speaking clearly, and he was using purposeful movements of his extremities. Each of these is a visual means of ascertaining a hostile patient's condition. Newcomb doesn't remember the trip well, and Burns did not see Respondent taking vital signs, but Respondent maintains he took the vital signs, and they are recorded on the patient care report. There is no clear evidence as to whether that happened or not. The conversations between Respondent and Newcomb were only partially overheard by Burns. She was driving an ambulance with a diesel engine in mid-day traffic. The window between the cab of the ambulance and the back was not open. There was no radio communication between Burns and Respondent during the ride to the VA hospital. Burns could maintain some partial visual contact with Respondent during the ride. She could see through the window by turning her head around or she could glance in the rear view mirror. She remembers seeing Respondent sitting in the CPR seat at the patient's head. Respondent remembers sitting in the CPR seat at the patient's side. Newcomb remembers Respondent sitting at his right side. Whether Burns was able to see substantially all of Respondent's actions was not well established in the record. When the ambulance reached the VA hospital, Newcomb walked under his own power to the triage area in the emergency room. Respondent walked in front of Newcomb, Burns walked behind. Whether Newcomb walked voluntarily or because Respondent told him to do so is not clear. Burns testified that Respondent told the patient to walk; the patient testified that he was more or less able to get out of the ambulance on his own and walk; and Respondent testified that the patient moved out of the cot on his own accord. What actually transpired is unclear, but Newcomb expressed several times that EMT Burns was attentive to him. There is no evidence that he asked Burns for a wheelchair or other assistance. When the ambulance arrived at the hospital, Newcomb was reported to be stable with no apparent distress. He ended up remaining at the hospital for about three hours, after which he walked out on his own power (using his walker), caught a taxi, and went home. Back at the doctor's office, Newcomb had advised either the firefighters or Respondent that he (Newcomb) was HIV positive. Newcomb is extremely emotional and sensitive about his condition. It appears he drew conclusions about Respondent's feelings concerning the condition even though it was not discussed in any detail. Respondent must deal with HIV positive and AIDS patients regularly in the course of his work; it is unlikely this particular situation was significantly repulsive to him. The dialogue between Respondent and Newcomb during the ride to the hospital was sometimes loud, sometimes heated, and not necessarily friendly. Burns heard some words exchanged concerning whether the ambulance was necessary. Respondent remembers the patient as uncooperative; Newcomb's recollection is that Respondent was rude. There is insufficient evidence to ascertain anything other than that Respondent and Newcomb were not on amicable terms as patient and caregiver. Respondent's demeanor and "bedside manner" were considered relevant by the Director in making a decision to revoke the paramedic certification. Past allegations against Respondent were discussed but none of them were founded; thus, they have no weight in this proceeding. Respondent had, however, been counseled by his employer regarding his relations with patients. The counseling came about as a result of complaints by patients, family members, and other caregivers. Sun Star also disciplined Respondent based on the Newcomb complaint, denying him a full week's worth of work shifts. The basis of the discipline was that Respondent had allegedly treated Newcomb unkindly because of the fact that Newcomb was HIV positive. It is clear from Respondent's demeanor in the final hearing that he may not be a "people person." However, he is very knowledgeable about his work and possesses all the necessary medical skills. There was no evidence to support the allegation that he treated Newcomb unprofessionally due to Newcomb's HIV status.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Pinellas County Emergency Medical Services, Office of the Medical Director, reversing the decision to terminate Respondent's certification as a paramedic in Pinellas County. DONE AND ENTERED this 14th day of February, 2008, in Tallahassee, Leon County, Florida. S R. BRUCE MCKIBBEN 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 14th day of February, 2008.
Findings Of Fact Ruth Rogers is a licensed medical physician authorized to practice medicine in this state. The Complaint allegations centered around testimony of the Respondent, Ruth Rogers, during a custody proceeding in which the Child Protective Services (a State Agency) was attempting to gain custody of one Dena (Nikki) Decker based on facts which will be set forth in detail hereinafter. Jack McGowan, a medical doctor engaged primarily in pediatrics in Fort Pierce, Florida, testified that he first treated Dena Decker during August of 1973, at which time Decker was approximately seven weeks old. Dr. McGowan made subsequent treatments of Dena Deckur on a regular basis through December of 1976. During December, Dr. McGowan noted that Decker's lymph glands were enlarged and he ordered that certain lab work be performed, the results of which were returned to him sometime during early January of 1977. Based on the lab results, Dr. McGowan tentatively diagnosed Dena Decker as being a patient suffering from acute leukemia. To confirm this diagnosis, he referred her to the Shands Teaching Medical Center in Gainesville, wherein Dr. McGowan's diagnosis was confirmed. The treating physicians of Patient Decker at Shands Teaching Hospital were Drs. Jerry L. Arbosa and David Pockmore. It was their medical opinion that Dena was in fact suffering from acute lymphoblastic leukemia and that this disease should be treated by chemotherapy at Shands Teaching Hospital in Gainesville. Drs. Barbosa and Rockmore explained to the parents of Dena Decker the benefits and side effects of chemotherapy treatment, and they suggested that this was the best method of treating a patient such as Dena Decker, who was suffering from acute lymphoblastic leukemia. They noted, however, that there were some side effects, such as loss of hair and the destruction of certain "good" cells as well as "bad" cells. Dema Decker's parents requested time to consider the chemotherapy treatment and Drs. Barbosa and Rockmore stressed to her parents that "time was of the essence". After a few days, the parents of Dena Decker declined the treatment and at that juncture, Drs. Barbosa and Rockmore called in the Child Protective Services of Gainesville wherein a custody proceeding was convened, with the State seeking a custody award of Dena Decker. During that proceeding, Dr. Ruth Rogers, Respondent, testified that she would treat such a patient suffering from acute lymphoblastic leukemia with natural foods, herbs and optimal psychological support. It was Drs. Barbosa and Rockmore's opinion that the method of treatment outlined by the Respondent would be futile and that the patient would die in a short period of time. There was no evidence that the Respondent, Ruth Rogers, counseled with Dena Decker's parents or that she at any time treated Dena Decker by the method to which she testified during the custody proceeding in Gainesville. Following the conclusion of the Petitioner's case, Respondent's counsel moved for a directed verdict, summary judgment, or a judgment based on a failure on the Petitioner's part to establish a prima facie case. After some consideration, the undersigned concluded that, based on the evidence adduced during the Petitioner's case in chief, insufficient evidence was offered to establish that the Respondent had violated Chapter 458.1201(m), Florida Statutes, as alleged. Section 458.1201 is the section of the Medical Practices Act which deals with the power of the Board in the denial, suspension, revocation of license, and other discipline of medical practitioners. It reads, in pertinent part: "458.1201l--Demial, suspension, revocation of license; disciplinary powers-- The board shall have authority to deny an application for a license or to discipline a physician licensed under this chapter or any antecedent law who, after hearing, has been adjudged unqualified or guilty of the follow- ing: (Here is set forth several categories of disqualification or misconduct included in which is subsection (m))." Subsection (m) sets forth as grounds for. . . discipline of a physician, the following facets of misconduct: "(m) Being guilty of immoral or unprofessional conduct, incompetence, negligence or will- ful misconduct. Unprofessional conduct shall be any departure from, or the failure to conform to, the standards of acceptable and prevailing medical practice in his area of expertise as determined by the board, in which proceeding actual injury to a patient need not be established; when the same is committed in the course of his practice whether committed within or without this state." (Emphasis supplied) The administrative charge herein claimed to be proscribed by the above- quoted section of the statutes deals only with the testimony of the Respondent as to a method of treatment that she would use for treating acute lymphoblastic leukemia. Based on my examination of this record and an analysis of the reported case law, I conclude that the giving of such testimony is not proscribed unprofessional conduct as that term is included within this particular subsection of Chapter 485.1201(m). As the Court of Appeals stated in Lester v. Department of Professional and Occupational Regulation, Fla.App., 348 So.2d 923 (1977), the Court stated: "In construing the language and import of this statute we must bear in mind that it is, in effect, a penal statute since it imposes sanctions and penalties in the nature of denial of license, suspension from practice, revocation of license to practice, private or public reprimand, or probation, upon those found guilty of violating its prescriptions. This being true the statute must be strictly construed and no conduct is to be regarded as included within it that is not reasonably pro- scribed by it. Furthermore, if there are any ambiguities included such must be construed in favor of the applicant or licensee." This being so, I conclude that the above-cited conduct claimed to be violative of Chapter 458 is not proscribed by Chapter 458.1201(m) and I shall recommend that the Board enter a final administrative order dismissing the instant action against the Respondent.
Recommendation Based on the foregoing findings and conclusions, hereby RECOMMEND: That the Administrative Complaint filed herein against the Respondent be DISMISSED. RECOMMENDED this 28th day of August, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Michael I. Schwartz, Esquire Suite 201 Ellis Building 1311 Executive Center Drive Tallahassee, Florida 32301 David Rogers, Esquire 3101 Maguire Boulevard Post Office Box 20065 Orlando, Florida 32814 George S. Palmer, M.D. Execuivo Director State of Florida, Board of Medical Examiners 2009 Apalachee Parkway, Suite 220 Tallahassee, Florida 32301
Findings Of Fact Patricia Wilkins has been licensed as a laboratory technologist since 1976. She held a laboratory technician license from 1974 until 1976. She has been working continuously as a technician or technologist since 1974. (Testimony of Patricia Wilkins.) Ms. Wilkins obtained her Associate of Science degree from Valencia Community College in April 1974. Her major course of study was Medical Laboratory Technology. In May 1953, she was awarded a Bachelor of Science degree from Tennessee State University, with a major course of study in business. She obtained a masters in Business Administration from Vanderbilt University in July 1985. (Petitioner's application and transcript.) The Department of Health and Rehabilitative Services is responsible for administering Chapter 483, F.S., related to health testing services. The Department prescribes minimum qualifications and licenses clinical laboratory personnel. (Section 483.161, F.S.) Ms. Wilkins' application cites Section 10D-41.68(3)(a), Florida Administrative Code, as the rule under which she believed she qualified for licensure as a supervisor. (Petitioner's application.) The Department's denial letter dated July 23, 1986, is based upon Ms. Wilkins' lack of a bachelor's degree in a chemical, physical or biological science required by Section 10D-41.68(3), Florida Administrative Code.
Recommendation Based on the foregoing, it is hereby, RECOMMENDED: That Patricia Williams' application for licensure as a clinical laboratory supervisor be DENIED. DONE and ORDERED this 8th day of December 1986, in Tallahassee, Florida. MARY CLARK 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 December 1986. COPIES FURNISHED: James A. Sawyer, Jr. District Counsel Department of Health and Rehabilitative Services 400 West Robinson Street Suite 911 Orlando, Florida 32801 Pat Wilkins 1630 Grange Circle Longwood, Florida 32750 William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301