Findings Of Fact By letter dated April 14, 1986, the Respondent denied the Petitioner's application to take the medical technologist examination in microbiology under the provisions of the Florida Clinical laboratory Law, Chapter 483, Florida Statutes because the Petitioner did not show "verification of 4 years pertinent microbiology experience required under Section 10D-41.69(5), Florida Administrative Code." By letter dated May 6, 1986, the Petitioner disputed the factual allegations contained in the Respondent's letter of denial and requested an administrative hearing. An informal administrative hearing was held in this cause on August 25, 1986. The hearing officer at the informal proceeding concluded that there were disputed issues of material fact and that the case should be reset for a formal hearing. On November 26, 1986, the Department of Health and Rehabilitative Services referred the matter to the Division of Administrative Hearings for conduct of a formal administrative hearing. On February 17, 1987, a Notice of Hearing was mailed to both parties setting this cause for April 15, 1987, in Miami, Florida. The Petitioner's notice was addressed to 461 Lee Drive, Miami Springs, Florida 33166. All documents within the case file indicate that that is the Petitioner's correct address. The Notice was not returned to the Division of Administrative Hearings by the postal service. The Petitioner failed to attend the formal hearing, did not send a representative and did not communicate with the undersigned in any way regarding the formal hearing. After waiting approximately 45 minutes past the scheduled time for commencement of the formal hearing, the hearing was opened and the Respondent indicated that it did not desire to present any evidence. Therefore, no evidence was taken and the hearing was adjourned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petitioner's application to take the medical technologist examination in microbiology be denied. DONE and ORDERED this 6th day of day May, 1987 in Tallahassee, Florida. W. MATTHEW STEVENSON 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 6th day of May, 1987. COPIES FURNISHED: Leonard Helfand, Esquire District XI Legal Counsel 401 Northwest 2nd Avenue Suite 1040 Miami, Florida 33128 Robert Acle 461 Lee Drive Miami Springs, Florida 33166 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is qualified to be licensed as a medical doctor in Florida by endorsement.
Findings Of Fact Petitioner Jeffrey Jad Gaier applied for licensure by endorsement in Florida by filing a written application in November of 1983 with the Board of Medical Examiners, which is within the Department of Professional Regulation. He made a personal appearance before the Foreign Graduate Committee of the Board of Medical Examiners in April 1984. After Petitioner's appearance before the Foreign Graduate Committee, the Foreign Graduate Committee made a favorable recommendation regarding Petitioner's application for licensure to the Board of Medical Examiners. However, the full Board of Medical Examiners voted to deny Petitioner's application for licensure. On May 21, 1984, the Board of Medical Examiners rendered an Order denying Petitioner's application for licensure as a physician by endorsement, stating as the grounds: Your application and supporting documentation does not provide sufficient information to demonstrate that you can practice medicine with reasonable skill and safety. See Section 458.331(3), F.S. More specifically, the clinical training you received while attending the American University of the Caribbean as disclosed within your documentation was determined to be insufficient insofar as the clinical training was not received at a hospital affiliated with a medical school approved by the Counsel [sic] on Medical Education of the American Medical Association. The denial of Petitioner's application for licensure by endorsement was taken before the Board of Medical Examiners for reconsideration on February 3, 1985. Counsel for Petitioner was present at the hearing. At that hearing, the discussion by the Board of Medical Examiners of the request for reconsideration clarified the basis for the denial of the medical license as being the overall inadequacy of the clinical training and not specifically because the clinical training was not obtained at teaching hospitals. Except for the purposes of clarifying the issue(s) herein the collegial actions of the board are irrelevant to the instant de novo proceedings. Petitioner received a B.S. degree from Clark University, Massachusetts and a Masters degree in science education from Florida Institute of Technology, August 1978. Petitioner was granted a medical degree by the American University of the Caribbean after being enrolled at that school for less than three years. During that time, Petitioner was on the campus of the American University in Montserrat, British West Indies for only eight months. There the class used prepared slides instead of gross tissue samples. Before that, Petitioner studied at the campus in Cincinnati, Ohio, where the class used rubber cadavers instead of human cadavers. All of the clinical training received by Petitioner as part of the requirements for the completion of the medical degree consisted of preceptorships at hospitals in south Florida which included Florida Medical Center, Plantation General Hospital, University Community Hospital, and Bennett Community Hospital. Dr. Neil Katz, Petitioner's principal expert medical witness, supervised Petitioner for six weeks in a preceptorship in Family Practice. Dr. Katz is a board-certified Family Physician and a fellow of the American Academy of Family Practice. He has been Chairman of the Emergency Room Department, a member of the Credentials and Qualifications Committee, and a member of the Intensive Care Unit Committee at University Hospital, Tamarac, Florida. He has taught both foreign medical students in a clinical setting and has briefly qualified as a preceptor for the University of Florida College of Medicine. Dr. Katz actually supervised Petitioner only for the six-week period at the very beginning of Petitioner's rotations. After that six-week period of time, he only "touched base" with Petitioner, seeing him on an informal basis in the cafeteria or at meetings. During the six weeks formal observation period, Petitioner accompanied Dr. Katz in his work in his office, during hospital rounds, at the emergency room, and for most other activities that Dr. Katz participated in, including committee meetings at the hospital. Petitioner took histories and did physicals on patients under direct supervision. Petitioner displayed enthusiasm and energy in his association with Dr. Katz and the rest of the program. Dr. Katz found Petitioner "barely acceptable" in three of the nine categories for which he was to evaluate Petitioner during the preceptorship. These categories were diagnostic acumen, therapeutics and management, and medical knowledge. In explaining that evaluation, Dr. Katz testified that although Petitioner was able to take a history and a physical examination, he was not able to make a diagnosis. In fact, Dr. Katz testified that Petitioner did not have truly acceptable knowledge at the time as to the various therapeutic modalities available to a physician. He encouraged Petitioner to do more reading. During his preceptorship with the University of Florida Medical School students in their first clinical semester, Dr. Katz also saw problems similar to those exhibited by Petitioner, specifically that the University of Florida students were not "super ready," so to speak, on diagnosing and doing differential diagnoses and therapeutics at that particular stage in medical school because they were still learning. I accept Dr. Katz' opinion that Petitioner had adequate exposure to the major diseases and injuries which are common to Family Medicine, sufficient for Petitioner to go into an internship, but in light of his lack of involvement with Respondent's other preceptorships in several different hospitals after the first six weeks, and in light of his specific testimony that in his professional opinion, American-trained students were far superior to the Caribbean-trained students at the same level in terms of general knowledge (TR-65-66), Dr. Katz' opinion that Petitioner did "quite good" at the end of the year and a half period is without adequate predicate and is not persuasive. Dr. Isidoro Dunn was the primary force in the arrangements for preceptorships. Dr. Dunn talked with each preceptor to work out areas which should be covered in their respective rotations. Each preceptor had a "fair amount of latitude" in deciding how to supervise the students. Petitioner was assigned by his school to do his clinical rotations in Florida. He did 14 weeks in internal medicine, 14 weeks in surgery, 10 weeks in pediatrics, 10 weeks in obstetrics/gynecology, 4 weeks in psychiatry, and 10 weeks in electives. This totals 62 weeks, not even close to two years which is the norm in medical schools in the United States. Petitioner was required to follow patients from admission to discharge in each specialty within each of these clinical rotations. Petitioner had didactic teaching on a daily basis, weekdays. Petitioner represents that he had specific didactic courses in hematology, EKG readings, pathology, orthopedics, cardiology, radiology, and gastrointestinal invasive procedures. In each subspecialty, he had a written examination after completion of the rotation, didactic teachings in each rotation, and was required to read medical journals. On Saturdays, Petitioner was required to participate in case conferences, make case presentations, and complete assigned reading from current medical journals. The case presentations necessitated review of patient records, laboratory tests, x-rays, and pathology slides. On "patient management reviews," the Petitioner was "exposed to" or "spent time in" the dialysis unit, pathology laboratory, intensive care unit, emergency room, gastrointestinal unit, blood lab, catherization department, radiology department, EKG unit, and cardiac surgery unit. Petitioner testified, and Dr. Katz confirmed, that there was an entity called the "Doctors' Club," which had a considerable amount of audiovisual equipment available for use 7 days a week, 24 hours each day. Practicing physicians used this media to obtain continuing medical education approved for credit by the American Medical Association. Petitioner represented that "on several days" he signed out equipment or reading material. There is no precise language in his testimony that he used the equipment or that he read the reading material, but drawing any other inference is straining the clear meaning of Petitioner's unrebutted testimony. Petitioner and the other students were required to use various materials from this service, but there is no evidence that Petitioner or other students were objectively checked by Dr. Dunn or their preceptors to verify that they had actually read or viewed the material assigned. Petitioner specifically testified that there was not necessarily any follow-up by the preceptors. Dr. Katz did talk with Petitioner about the reading assignments he gave. Petitioner was required to pass a competency examination for each rotation. Petitioner's clinical studies evaluation forms in his school records indicate no overall evaluation grades below "Good." Petitioner was required to attend and pass both a written and practical examination for a two-day Advanced Cardiac Life Support Course. This course is required even of board certified emergency room (ER) physicians. In Petitioner's opinion, this course was imperative for medical doctors who might work in an emergency room because they need to be very familiar with how to handle a patient presenting with a cardiac arrest, including the administration of drugs, "cardioversion" and "intubation." To the best of Petitioner's knowledge, Dr. Dunn was to report the students' progress to the dean of the American University of the Caribbean. However, the predicate for that testimony is hearsay, uncorroborated by any direct, credible evidence. As for the relationship with the university, Dr. Katz had no knowledge as to any arrangement between Dr. Dunn and the American University of the Caribbean or any counterpart-sponsoring organization in the United States. He did not know if there was any arrangement whatsoever. Dr. Katims was accepted as an expert physician witness, as an expert teaching fellow witness, and as an expert witness in medical applications and licensure. He testified that in the normal course of medical education in the United States, part of a student's medical education is clinical training, and that experience consists of bedside outpatient treatment and supervised training under the supervision of a faculty selected particularly for their knowledge, background, and interest in education and teaching. Dr. Katz testified unequivocally that a preceptorship is very different from a clinical rotation or a clerkship. A clerkship takes place in a teaching hospital, which is a very structured environment, wherein students make rounds in a very large hospital and are given instruction in an approved clinical structure. In contrast, a preceptorship gives students more knowledge about what private practice is like and it gives students a view of direct patient care, but does not replace a formal teaching setting in clinical medicine. As recognized above, in Dr. Katz' opinion, American-trained students were far superior to the Caribbean-trained students at the same level in terms of general knowledge. In Dr. Katims' opinion, Petitioner's clinical studies consisting of only four semesters were not sufficient for him to practice medicine with reasonable skill and safety. Dr. Katims testified concerning the importance of clinical training in medical education, commenting that clinical training is the sine qua non of the practice of medicine. In the usual clinical rotation, medical students are assigned to a particular area of a hospital and perform under the full-time supervision of attending physicians. In teaching hospitals, faculties are selected for their ability, interest, and dedication to education, as well as to the practice of medicine. The attending staff at a teaching hospital include house physicians, interns, and residents. Dr. Katims himself has served as a preceptor and testified that a preceptorship is one method of obtaining a minor portion of clinical training, but is very unstructured and unsupervised. Dr. Katims testified that preceptorship training is an inferior method of training because the quality of training depends totally on the quality of the physician to whom the student is assigned and the program is unstructured. There was no testimony that any of the preceptors that supervised, or purportedly supervised, Petitioner were faculty members of any medical school, let alone the American University of the Caribbean. Upon the Requests for Admissions and the Joint Pre-Trial Stipulation of the parties, it is found that: the State of Florida Board of Medical Examiners has granted a medical license to a Dr. Flugsrud-Breckenridge and a Dr. Cobb, both having non-teaching clerkships. Three doctors, Adela Fernandez, Andrew Gonzalez, and Manuel E Garcia, did their clerkships principally at the International Hospital (Miami), a non-teaching/non-medical school-associated hospital, and obtained Florida medical licenses. At least 25 foreign graduates received Florida medical licenses within the years 1981-1984 and did their clerkships principally in non-teaching/non-medical school associated hospitals. No further information appears of record by which the undersigned may determine any other similarities or dissimilarities of these licensees to each other and/or to Petitioner. Nor does the record divulge what, if any, other facts may have been considered in these cases. Petitioner is licensed to practice medicine in Georgia and is a resident of Florida. Petitioner passed the first time his Educational Commission for Foreign Medical Graduates' (ECFMG) examination was given in June, 1981. The examination is a prerequisite to acceptance in a medical residency program. The Federation of State Medical Boards of the United States, Inc.'s (FLEX) examination is recognized by all 50 states, including Florida. Petitioner took this examination after completing his rotations in Florida. Petitioner passed the June 1982 FLEX examination with an 84 percentile ranking. Fifty percent of this test is on patient management. This clinical competence examination was taken before Petitioner started his first year of residency. Petitioner had passed the FLEX examination, completed one year of residency, and obtained a medical license in another state, Georgia, by the time of the April 1984 application hearing. In Dr. Katims' opinion, Petitioner's successful passage of the FLEX examination in the 84 percentile does not show Petitioner to have had good clinical rotations, even though the FLEX test consisted of 50 percent on patient management. Dr. Katims did not feel that by the time Petitioner was in his fourth year of residency, this would be curative of deficiencies in the clinical semesters at a non-teaching hospital, but expressed the opinion that if Petitioner passes his internal medicine board examination and becomes board certified, his clinical deficiencies would be cured and Petitioner should then be granted a Florida medical license by endorsement. Dr. Katz opined that Petitioner presently possesses the medical knowledge, judgment and competency to act with reasonable skill and safety in the practice of medicine in Florida. Affidavits of Ira Spiler, M.D. and John R. Middleton, M.D. support similar opinions of these New Jersey medical physicians. Petitioner has completed three years (July 1, 1982 to June 30, 1985) of Internal Medicine residency at Raritan Bay Medical Center, Perth Amboy General Hospital, New Jersey. Petitioner is presently enrolled in a Nephrology Fellowship program, Medical College of Georgia, a teaching hospital located at, and affiliated with, the University of Georgia Medical School. Petitioner is currently eligible for board certification in internal medicine and will be certified in the event he passes the board examination taken September 10-11, 1985. Petitioner has submitted letters of Ira Spiler, M.D. and Salvatore Chiaramida, M.D., both of New Jersey attesting to Petitioner's good moral character, and no contrary evidence was turned up by the Board's investigation. The parties have stipulated that Rule 21M-22.18, Florida Administrative Code, is not applicable to Petitioner's situation.
Recommendation That the Florida Board of Medical Examiners enter a final order denying Petitioner a medical license by endorsement. DONE and ORDERED this 16th day of January, 1986, in Tallahassee Florida. ELLA JANE P. DAVIS 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 16th day of January, 1986.
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 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 Based on my observation of the witnesses and their demeanor while testifying, the documentary evidence received and the entire record compiled herein, I hereby make the following findings of fact: By letter dated August 11, 1986, the Respondent advised the Petitioner that her application for supervisor license under the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, was denied. The letter provided that the application was denied because the Petitioner does "not have a B.S. degree required under Section 10D-41.68(3), Florida Administrative Code." By letter dated September 9, 1986, the Petitioner requested a formal administrative hearing. The Petitioner took and passed the proficiency examination for clinical laboratory technologists given by the U.S. Office of Health and Human Services (formerly Department of Health, Education and Welfare) in 1977. Based in part on the Petitioner's satisfactory grade on the federal examination, she was licensed in the State of Florida as a clinical laboratory technologist in microbiology, clinical chemistry, hematology and histology. The Petitioner has over six years of pertinent clinical laboratory experience. The Petitioner does not have a bachelor's degree.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That Charlotte Holton's application for supervisor license under the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes, be DENIED. DONE AND ORDERED this 11th day of May, 1987, in Tallahassee, Florida. W. MATTHEW STEVENSON 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 11th day of May, 1987. APPENDIX TO RECOMMENDED ORDER, CASE NO. 86-4067 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 Petitioner Rejected as subordinate and/or unnecessary. Adopted in substance in Findings of Fact 1 and 2. Addressed in Conclusions of Law section. Rejected as subordinate and/or unnecessary. Adopted in substance in Finding of Fact 5. Rejected as argument. Addressed in Conclusions of Law section. Rulings on Proposed Findings of Fact Submitted by Respondent Adopted in substance in Finding of Fact 1. Adopted in substance in Finding of Fact 4. Addressed in Conclusions of Law section. Addressed in Conclusions of Law section. Rejected as legal argument. Rejected as legal argument. COPIES FURNISHED: Ms. Charlotte Holton 4200 Northwest 76th Avenue Pompano Beach, Florida 33065 Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 401 Northwest Second Avenue, Suite 790 Miami, Florida 33128 Sam Power, Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact At some time prior to August 14, 1986, the Petitioner herein, Marilyn L. Edwards, submitted an application for examination for licensure as a technologist in Florida under the provisions of the Florida Clinical Laboratory Law, Chapter 483, Florida Statutes. Petitioner's application was reviewed in the Office of Licensure and Certification of DHRS by Mr. George S. Taylor, Jr. Assistant Administrator of the Laboratory Personnel Licensure Section. The criteria for licensure as a technologist are outlined in Section 10D-41.69, Florida Administrative Code, which provides that the applicant must have one of the following: A bachelor's degree, from an accredited college or university in an approved Medical Technology Program, or 90 semester hours at an accredited college or university in addition to one year in an AMA approved school of medical technology, or A bachelor's degree from an accredited college or university in one of the chemical, physical, or biological sciences with one year laboratory experience at the technician level, or An associate degree or 60 semester hours at an accredited college or university in an approved Medical Laboratory Technician Program which includes 8 hours in chemistry and 8 hours in biological science, or 60 semester hours at an accredited college or university including 20 hours of science of which at least 8 hours is in chemistry and 8 in biological science plus 4 years experience as a chemical laboratory technician. Petitioner's application was filed under the provisions of Rule 10D- 41.69(4), Florida Administrative Code, above. However, Petitioner did not meet that criteria. The school at which she was trained a program administered by the Veteran's Administration, (VA), Hospital in Dublin, Georgia, was not an accredited college as required. Ms. Edwards attended a VA certified laboratory assistant program in Dublin, Georgia, approved by the American Society of Clinical Pathology during 1970 and 1971. After graduating from that program, she took and passed the technician's examination in Florida. The course work included in the VA program included 1388 of classroom hours of course work which have not, to this date, been converted to equivalent credit hours. The course work did, however include such subject matters as anatomy, organic and inorganic chemistry, hematology parasitology, microbiology, urinalysis coagulation, and aminohematology. Ms. Edwards contends that according to the current schedule of Miami-Dade Community College the above courses make up the course work for the Associate degree in technology and in addition to the above, Ms. Edwards did her practicals, which included phlebotomy training, at the VA Hospital in Dublin. Ms. Edwards has had fourteen years of training and experience in the medical technician field. Based on the course work taken and her fourteen years experience, she contends she meets the criteria for examination. It is her opinion that the agency, in denying her application for examination, has failed to consider the years of experience she has and it is her contention that some of the programs approved by the agency are not as thorough in the laboratory sciences as that which she took. Ms. Edwards feels she has the knowledge to be a technologist, but admits the rules currently existing prohibit her certification because of the fact that she does not have the required course work at an approved college or university. The American Medical Association approves various types of allied health education and three types of medical technology education which are referenced in the agency rule. These are: Medical technologist (a four year degree program from an accredited academic institution), A medical laboratory technician associate degree program offered by various community colleges (This is very similar to and generally geared to the technician levels but there is more academics involved than for the technician certification. This second pathway meets the academic requirements for certification.), and A one year medical laboratory technician course (not referenced for technologist licensure but for technician only). There is a difference between a technician and a technologist. The former can perform with supervision and undertake tasks requiring limited judgment. The latter may work independently without supervision. Petitioner is already designated as a medical technician. In her application, according to the agency, Petitioner submitted evidence of a course of training for a technician in order to be certified as such. She also submitted the same educational background with her application for licensure as a technologist. The Veteran's Administration Hospital's course is not accredited for college credit. Even though she applied under Section (4) of the rule, she could be considered under Subsection (5) which calls for 60 semester hours plus 20 hours of scientific courses in biology and chemistry, along with four years clinical laboratory experience. Petitioner has the clinical laboratory experience and has taken some courses, but she is not considered as meeting the academic requirement because the institution where her educational courses were taken is not an accredited academic institutions as outlined in the Education Directory published by the National Center for Education Statistics sponsored by the United States Department of Education. As a result, the courses she took do not qualify as college academic courses at the technologist level. DHRS does not establish equivalent course work. The 1388 hours of classroom work taken by the applicant are not semester hours. Though Mr. Taylor said that if she had an accredited junior college or other academic institution translate the equivalents within its degree program and give her academic credit for them and if it is determined by the institution that her course work is equivalent to the required 60 hours for licensure, Petitioner will be permitted to sit for the examination, this really cannot be done. The equivalents outlined in the rule refer to equivalent courses that is semester hours to quarter or trimester hours - not equivalent institutions.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Lawn it is, therefore: RECOMMENDED that Petitioner, Marilyn Edwards, be denied examination for 1icensure as a certified laboratory technologist in Florida based on her current educational background. RECOMMENDED this 23rd day of July, 1987, at Tallahassee Florida. ARNOLD H. POLLOCK, 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 23rd day of July, 1987. COPIES FURNISHED: Sam Powers, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32399-0700 Marilyn L. Edwards 2300 Northwest 94th Street Miami, Florida 33147 Leonard T. Helfand Esquire Department of Health and Rehabilitative Services 401 Northwest 2nd venue, Suite 1040 Miami, Florida 33128
Findings Of Fact Petitioner is licensed by the State of Florida as a laboratory technologist. Petitioner applied to the Respondent for licensure as a supervisor. On February 2, 1982, Respondent denied Petitioner's application to take the supervisory examination for the stated reason that Petitioner did not have ten years of experience. Petitioner holds a Bachelor's degree in Fine Arts from Florida International University. Petitioner has supplemented his education by taking additional science courses. The science courses taken before and after Petitioner received his Bachelor's degree total 26 semester credits. The courses taken after receipt of his degree have been specifically related to his field. Petitioner has been employed by the Miami Heart Institute since July 11, 1976, except for the period between September, 1976, and August, 1977. Dr. Jerome Benson is a pathologist and is the Director of Laboratories at the Miami Heart Institute. He is also Vice Chairman of the National Accreditation for Clinical Laboratory Sciences, the organization which accredits approximately 1,000 programs in the medical technology field and which is responsible for the Committee on Higher Education and Accreditation of the United States Office of Education, which accredits laboratories. He is familiar with accreditation of medical technology programs throughout the country and locally. He serves on the Advisory Committee at Miami-Dade Community College, and he planned the curriculum for the medical technology programs at both Miami- Dade Community College and at Florida International University. He was recognized as an expert by both parties. Dr. Benson believes that Petitioner is qualified to sit for the supervisory examination in terms of education, in terms of experience time, in terms of intent of the law, and in terms of protecting the public safety. He further believes that the science courses Petitioner has taken, both pre-baccalaureate and post-baccalaureate, qualify Petitioner for a Bachelor's degree in medical technology. Norman Bass was formerly Petitioner's immediate supervisor. He evaluates Petitioner's performance in the laboratory as excellent and believes that Petitioner is qualified through experience and academic courses to sit for the supervisory examination. At the time of the formal hearing in this cause, Petitioner had a total of 12,935 hours of work time at the Miami Heart Institute. Respondent considers 37.5 hours as constituting a full work week. George S. Taylor, Jr., reviewed Petitioner's application on behalf of Respondent. The application was received on January 18, 1982, and was denied on February 2, 1982, for the reason that Petitioner did not have ten years' experience. At the time, Respondent did not have current transcripts reflecting courses taken by Petitioner. Respondent did not request any, but simply used transcripts on file with Respondent which had been filed when Petitioner applied for his technologist's license, even though Petitioner's application for licensure as a supervisor reflected that he had taken various science courses at Miami-Dade Community College. Taylor is of the opinion that an applicant with 120 college credits must have between 25 and 30 of those credits in science courses in order to have a major in science; an applicant with 90 semester hours in college is required to have 17 to 24 credits in science in order to have a science major.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered denying Petitioner's application to take the examination for a supervisor's license. DONE and RECOMMENDED this 14th day of January, 1983, in Tallahassee, Leon County, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of January, 1983. COPIES FURNISHED: Samuel S. Forman, Esquire The Counsel Building 2016 Harrison Street Hollywood, Florida 33020 Morton Laitner, Esquire Dade County Health Department 1350 North West 14th Street Miami, Florida 33125 David H. Pingree, Secretary Department of HRS 1323 Winewood Boulevard Tallahassee, Florida 32301
