Findings Of Fact 11. The factual allegations contained in the Stop- Work Order and Order of Penalty Assessment issued on December 13, 2007, and the Amended Order of Penalty Assessment issued on January 10, 2008, and the 2"4 Amended Order of Penalty Assessment issued on July 30, 2009, the Order Granting Motion for Order to Show Cause issued on July 15, 2010, and the Order Closing File issued on July 29, 2010, which are fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Alex Sink, Chief Financial Officer of the State of Florida, or her designee, having considered the record in this case, including the Stop- Work Order and Order of Penalty Assessment, the Amended Order of Penalty Assessment, and the 2" Amended Order of Penalty Assessment, served in Division of Workers’ Compensation Case No. 07- 292-D3, and being otherwise fully advised in the premises, hereby finds that: 1, On December 13, 2007, the Department issued a Stop-Work Order and Order of Penalty Assessment to STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. 2. On December 13, 2007, the Stop-Work Order and Order of Penalty Assessment were personally served on STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. A copy of the Stop-Work Order and Order of Penalty Assessment are attached hereto as “Exhibit A” and incorporated herein by reference. 3. On January 10, 2008, the Department issued an Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 07-292-D3 to STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. The Amended Order of Penalty Assessment assessed a total penalty of $14,149.55 against STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. The Amended Order of Penalty Assessment included a Notice of Rights wherein STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 4. On June 26, 2008, the Amended Order of Penalty Assessment was served by a process server on STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On July 30, 2009, the Department issued a 2°4 Amended Order of Penalty Assessment in Division of Workers’ Compensation Case No. 07-292-D3 to STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. The 2™ Amended Order of Penalty. Assessment assessed a total penalty of $10,262.31 against STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. The 2™ Amended Order of Penalty Assessment included a Notice of Rights wherein STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. was advised that any request for an administrative proceeding to challenge or contest the 2™ Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 2™4 Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes. 6. On April 7, 2010, the 2°4 Amended Order of Penalty Assessment was served by personal service on STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. A copy of the 2™ Amended Order of Penalty Assessment is attached hereto as “Exhibit C” and incorporated herein by reference. 7. On April 28, 2010, STEVEN R. BARTHOLOMEW dba EAST COAST HANDYMAN SERVICES, INC. filed a request for Administrative Review (“Petition”), requesting review of the 2nd “Amended Order of Penalty Assessment. The petition for administrative review was forwarded to the Division of Administrative Hearings on May 24, 2010, and the matter was assigned DOAH Case No. 10-2807. A copy of the Petition is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On July 14, 2010, a Motion for Order to Show Cause was filed. 9. On July 15, 2010, the Administrative Law Judge issued an Order Granting Motion For Order to Show Cause ordering the Respondent to file a written statement of why this proceeding should not be dismissed including a valid mailing address and telephone number, if available. A copy of the Order Granting Motion For Order to Show Cause is attached hereto as “Exhibit E” and incorporated herein by reference. 10. On July 29, 2010, the Administrative Law Judge issued an Order Closing File. The Order Closing File found that Respondent failed to comply with the Order Granting Motion for Order to Show Cause and relinquished jurisdiction to the Department. A copy of the Order Closing File is attached hereto as “Exhibit F” and incorporated herein by reference.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: Petitioner Human Development Center (HDC) is a nonprofit corporation which is located in Tampa, Florida and is dedicated to providing rehabilitative services to mildly and moderately mentally retarded clients received primarily through the respondent Department of Health and Rehabilitative Services (HRS). The services provided include transportation, education and training for the development of daily living skills, recreation skills and work-related skills. A one-year written contract existed between HDC and HRS for the provision of and payment for the professional services of education, training and transportation for HRS clients. The termination date of this contract was September 30, 1980. As early as February of 1980, negotiations began as to the rates for a new written contract for the provision of these same services for the following year beginning on October 1, 1980. In August of 1980, petitioner was advised of the Grant Review Committee's recommendations concerning the rates which HRS would allow for the provision of services during the next contract year. A special audit review team conducted an analysis of petitioner's facility and found insufficient ground for awarding levels of funding in excess of those recommended by the Grant Review Committee. The rates recommended were less than the previous years' rates. By letter dated September 22, 1980, petitioner's Executive Director was notified by respondent that respondent was in the process of preparing the contract for the following year and the contract amounts were stated. In a letter dated September 25, 1980 petitioner's Executive Director notified respondent that the proposed contract rates were unacceptable and advised respondent of the rates petitioner would charge effective October 1, 1980. This letter stated: "Should you choose to have your HRS clients continue in the Sunrise program beyond September 30th, 1980, you will be billed at these rates." Based upon petitioner's refusal to enter into a contract with the respondent, respondent orally advised petitioner on September 29 or 30, 1980 that HRS clients would be removed from petitioner's facility. On September 30, 1980 respondent's District Program Supervisor for Developmental Services went to the petitioner's facility for the purpose of removing those clients in the custody of HRS and advising other clients of the status of the contract between petitioner and the respondent. Sufficient HRS personnel and transportation accompanied her to the facility to accomplish this purpose. Several clients were removed, but most clients expressed a desire to remain at the petitioner's facility. The majority of HRS clients who were placed at the petitioner's facility were not in the sole legal custody of HRS and could not be summarily removed without their consent, or, if they were minors, without their parent's or guardian's consent. Alternative placement plans were pursued by the respondent during the month of October, 1980. Petitioner's Executive Director was advised on September 30, 1980, that payments for room and board, as well as for additional other services on a pre- authorized basis, would be provided for HRS clients remaining at the facility. This agreement was affirmed in writing by letter dated October 2, 1980, which stated: "To facilitate counselling clients as to their rights and plan for placement in other facilities, HRS will continue to provide Long Term Residential Care funds. These monies will provide for basic care and supervision. Any additional services will be purchased on an individual client basis and is to be pre- authorized by the social worker. (Example: transportation of employed clients to place of employment through reimbursement at 19 cents a mile.) Expiration of the 1979-80 Purchase of Services Contract prohibits any payment by HRS of services previously covered by that contract." By letter to respondent dated October 4, 1980, petitioner's Executive Director, while protesting "the abrupt and cruel manner in which your office is discontinuing services for Sunrise clients," acknowledged petitioner's understanding that respondent would only continue to fund its clients room and board expenses at petitioner's facility. Respondent did pay petitioner for its clients' room and board during October of 1980 in spite of the fact that no written contract existed. Although it never sought pre-authorization for the provision of additional services, petitioner continued to provide the additional services of education, training and transportation to HRS clients. Respondent's personnel were aware, through visits to petitioner's facilities, that these services were being provided by petitioner to HRS clients. Effective November 1, 1980, petitioner and respondent did enter into a new written contract for the provision of and payment for educational, training and transportation services for the following year. The rates agreed upon in this contract were more than those originally offered by respondent in its September 22nd letter, but less than those stated in petitioner's letter of September 25, 1980. On or about November 3, 1980, petitioner submitted to respondent five invoices amounting to $13,841.75 for the payment of educational and transportation services performed by petitioner for HRS clients during October of 1980. The rates charged by petitioner corresponded to the new rates established in the contract which became effective on November 1, 1980. Respondent refused payment on these invoices by letter dated November 18, 1980, stating, in part: "Lack of a contract between HRS and the Human Development Center during the month of October prohibits payment of the purchase of service invoices submitted with your letter of November 3, 1980. After its informal attempts to secure payment from respondent failed, petitioner requested an administrative hearing on the issue pursuant to Section 120.57(1), Florida Statutes.
Recommendation Based upon the findings of fact and conclusions of law recited above, it is RECOMMENDED that the petition of the Human Development Center be DISMISSED. Respectfully submitted and entered this 10th day of March, 1982, in Tallahassee, Florida. DIANE D. TREMOR 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 10th day of March, 1982. COPIES FURNISHED: George L. Waas, Esquire Slepin, Slepin, Lambert & Waas 1114 East Park Avenue Tallahassee, Florida 32301 Claire D. Dryfuss, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301 Mr. David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether Respondent failed or refused to provide the legal representation to which Petitioner was entitled because of Petitioner’s race or in retaliation for Petitioner’s prior charges against Respondent.
Findings Of Fact At all times relevant to this proceeding, Petitioner, a black male, was employed by Miami-Dade County as a correctional officer. At all times relevant to this proceeding, Respondent was a public employees bargaining unit established pursuant Chapter 447, Florida Statutes (2004).1 At all times relevant to this proceeding, Petitioner was a dues-paying member of Respondent and was entitled to all rights and benefits of such membership. Prior to March 1, 2002, Petitioner filed a complaint with the EEOC alleging that Respondent had discriminated against him in an unrelated matter. That complaint was resolved in Respondent’s favor. Petitioner was notified by his employer on March 1, 2002, that his employment was being terminated for reasons that are irrelevant to this proceeding. Petitioner immediately requested legal representation from Respondent. On March 4, 2002, Respondent, through Tyrone W. Williams (Respondent’s then general counsel), advised Petitioner as follows: We have completed our review of your request for legal assistance of March 4, 2002. Based upon the information provided, it has been determined that a conflict in representation has arisen. Accordingly, this matter has been assigned to the Law Offices of Slesnick & Casey. . . . . We have provided the Law Office of Slesnick & Casey with a copy of your file for their immediate reference. Please contact the Law Office of Slesnick & Casey upon receipt of this correspondence. At the times relevant to this proceeding, the Law Offices of Slesnick & Casey was a private law firm that had contracted with Respondent to provide conflict representation to its members. Thereafter, the Law Office of Slesnick & Casey undertook Petitioner’s representation at Respondent’s expense. The procedures followed by Respondent in determining that a conflict existed and in assigning the Law Office of Slesnick & Casey to this representation were consistent with Respondent’s bylaws and written policies. Petitioner was not satisfied with the representation of Slesnick & Casey and asked Respondent for other counsel. On June 24, 2002, Blanca Greenwood (Respondent’s then general counsel) notified Petitioner that if he did not want the assigned representation, Respondent would give him $500.00 towards his legal fees and he could retain any lawyer he wished. Petitioner was also told he would have to absolve Respondent of any liability regarding his representation by private counsel, which Petitioner refused to do. Petitioner thereafter filed the complaint with EEOC and, following its dismissal, the Petition for Relief that underpins this proceeding. The evidence presented by Petitioner failed to establish that Respondent discriminated against him by assigning the Law Office of Slesnick & Casey to represent him or by offering to pay $500.00 towards his legal fees for a private lawyer. There was no evidence that Mr. Williams (who is a black male) or any other representative of Respondent discriminated against Petitioner on the basis of his race. There was no evidence that Mr. Williams or any other representative of Respondent discriminated against Petitioner because he had filed an unrelated EEOC against Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of February, 2005, in Tallahassee, Leon County, Florida. S CLAUDE B. ARRINGTON 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 24th day of February, 2005.
The Issue Whether Petitioner is entitled to creditable service with the Florida Retirement System (FRS) from February 1, 1997 through November 30, 1999.
Findings Of Fact Hendry County is governed by the Hendry County Board of County Commissioners (Board). The period in dispute is February 1, 1997, through November 30, 1999. During this 32- month period, Petitioner served as legal counsel for the Port LaBelle Utility System (PLUS), a division of Hendry County, under the direction of the County Administrator. (Stipulation e.2.b., modified. See also Finding of Fact 11.)1/ Both immediately prior to and immediately following the period in dispute, Petitioner was employed full-time by Hendry County in the regularly established position of "County Attorney." (Stipulation e.1.a. modified) Regularly established positions in Hendry County, such as "County Attorney," are created by the Board and supervised by the County Administrator. When Petitioner resigned the County Attorney position in 1997, he was approached by a Board member to work on two specific PLUS projects for $500.00 per month minimum, at the rate of $100.00 per hour. The Board and Petitioner initially called the $500.00 a "retainer fee" and anticipated that Petitioner would only work on two specific PLUS projects. Petitioner is only claiming that this guaranteed $500.00 per month, which was paid for 32 months, should have been covered by FRS. The new County Attorney had no experience in water and sewer utilities, so Hendry County and Petitioner later struck a deal for Petitioner to take up the additional role of counsel of record for all routine PLUS matters, including special projects, and to act (as he had when he was County Attorney) as PLUS contact person between PLUS and all governmental regulatory agencies at the rate of $100.00 per hour for every hour he worked above the guaranteed minimum of $500.00 per month. Petitioner was hired in this capacity due to his legal expertise in the area of utilities. Both Petitioner and the Board contemplated that he would personally render his legal services, and it was never anticipated by either party that Petitioner would sub-contract out those legal services. All of his services were rendered personally by Petitioner during the disputed period of time. At the commencement of the agreement, both parties anticipated their arrangement would continue indefinitely. No formal written contract was executed between Petitioner and the County for the period at issue. Either Petitioner or the Board could terminate the oral contract at any time without financial liability, but Petitioner would have had a professional duty to assist in the transition of cases to a replacement attorney. (Stipulation e.l.k. expanded.) The County Administrator could terminate the County Attorney, but only the Board could terminate Petitioner. During the disputed period of time, Petitioner's responsibilities and services as counsel for PLUS became essentially the same as the responsibilities and services he had provided to PLUS in his regularly-established position as County Attorney prior to the disputed period and which he subsequently provided to PLUS as County Attorney after the disputed period. However, during the period at issue, Petitioner did not perform all the other non-PLUS duties of the County Attorney. The oral agreement between Petitioner and the Board provided for Petitioner to be paid $500.00 per month by the County on behalf of PLUS. (Stipulation e.2.b., modified. See also Finding of Fact 1.)2/ Originally, Petitioner understood that the agreement guaranteed him $500.00 minimum per month even if he did no routine or special project work for PLUS. Ultimately, the oral agreement also contemplated that Petitioner could charge the County at an hourly rate of $100.00 per hour for any time he spent working on PLUS projects. This was substantially more money per hour than the full-time regular employee salary Petitioner had previously received from the County as its County Attorney. Petitioner is not claiming FRS coverage for any additional amounts of money above $500.00 per month that he charged Hendry County for PLUS work during the 32 months at issue. Petitioner is only claiming that the $500.00 per month constitutes his part time employee "salary" for this period of time. The parties stipulated that the $500.00 fee was paid to Petitioner by the County on a monthly basis, and Petitioner was not required to submit a time card to his supervisor setting forth his time worked each month in order to be entitled to the $500.00 payment. (Stipulation e.1.d. expanded.) Petitioner was not required to submit a timesheet or to similarly account for his time. However, Petitioner, in fact, billed the County for his services. The testimony is that he billed monthly, but his invoices appear to have been rendered every two or three months. Petitioner referred to the $500.00 as a "retainer" on each invoice he prepared. Each of his invoices included a vendor number, recognizable by the County Finance Department. Regularly established positions in Hendry County have no numbers. He sent his invoices from a law office in his home. Most, if not all, of the months during the disputed period, Petitioner billed more than $500.00, including time for projects and legal work not originally anticipated. Most of his services were frequent and sometimes recurring; other were not. Despite his testimony that his agreement with the County guaranteed him a retainer of $500.00 per month, regardless of how few or how many hours he worked on PLUS projects, Petitioner conceded that from the first invoice, he always credited the guaranteed $500.00 to the County and deducted it from the total hours of legal work he billed the County. Petitioner's invoices itemized all services for PLUS and any other projects he performed for the County in tenths of hours worked at the rate of pay of $100.00 per hour, and the $500.00 was always applied each month against the total PLUS hours worked. The County's Finance Department's policies were directed by the Board. Testimony shows that during the period at issue, Petitioner's monthly $500.00 was paid by the County's Finance Department, out of funds exclusive to PLUS, in response to Petitioner's invoices. However, the invoices which are in evidence show that the $500.00 and all additional charges were paid by a single County check for a lump sum in response to the total on each invoice, whenever the invoice was received. The accompanying check stub differentiated between specific projects and general charges, but the $500.00 was not isolated on the check stub. The greater weight of the credible evidence is that during the period at issue, the County Administrator's Office, Human Resources Office, and Clerk of Court did not handle Petitioner's situation as if he were an employee filling a regularly established part-time position. Rather, they treated the whole of his services, invoices, and remuneration as if he were a vendor or independent contractor. Payments to him were designated by the Finance Department as paid out of "professional services." However, the County's current Finance Director, an accountant who was not hired by the County until later, testified that the County should have separated out the $500.00 retainer and the cost of Petitioner's monthly services above that amount into separate amounts because Petitioner was performing non-vendor services for the $500.00 base amount. The County reported Petitioner's pay by Form 1099 for an independent contractor, rather than by Form W-2 for an employee. The Hendry County Personnel Manual requires that one work 7.5 hours per day in order to qualify as a full-time County employee. By law, the County is required to withhold income tax, social security, and medicare deductions for its employees, even the part-time ones. The County withheld no taxes, social security, or medicare deductions from the amounts it paid to Petitioner during the period at issue. The County did not make matching contributions for social security or medicare from the amounts it paid to Petitioner in this period. (Stipulation e.1.c., expanded.) The County did not include any fees paid to Petitioner in its wage computations for its workers' compensation insurance premiums, but had Petitioner claimed to have been injured on the job, and coverage denied by the company, only litigation would have determined if he were "covered" by workers' compensation. (Stipulation e.1.c., expanded.) Petitioner did not accrue, and was not paid, sick pay or vacation time during this period. (Stipulation e.1.c., expanded.) According to the County Personnel Manual, a County employee who works less than 22 hours per bi-weekly pay period does not earn sick or vacation leave, but would still be eligible for FRS. No FRS payments are linked to Petitioner's employment during this period. All County employees in regularly established positions, both part-time and full-time, are paid bi-weekly. Petitioner billed every two or three months. In response, the Finance Department paid Petitioner's invoices in lump sums, as if Petitioner were a vendor or independent contractor. Petitioner did not consider himself a County employee during the disputed time period, and, in fact, considered his arrangement with the County to be a classic retainer agreement. Petitioner treated his income from the County as "other income" by paying both the employer's and employee's share of social security during this period. During the period at issue, Petitioner did not list himself in the business section of the phone book or the yellow pages or otherwise offer his services to the general public, although he could have done so without violating his arrangement with the County. Petitioner had a separate and independent law office in his home during this period and charged individuals for occasional deeds and wills. Petitioner did not have to account to the County for any of his time not on the clock for County business. During this period, Petitioner also acted and was paid as counsel for the Central County Water Control District. Prior to accepting the District as his client, Petitioner sought from the Hendry County Board of County Commissioners permission to represent the Central County Water Control District, because of the Florida Bar Rules on attorneys' conflicts of interest and, presumably, rules on full disclosure to clients, but not because Hendry County was his employer. During the period at issue, Petitioner advised the Hendry County Attorney of what work he was performing, but the County Attorney could not instruct Petitioner how to do his job and did not assign him tasks or direct him. (See Findings of Facts 40 and 42.) During the period at issue, Petitioner received no training from the County. Most of the knowledge Petitioner had regarding County procedures and PLUS issues had been acquired prior to the period in question while he had been serving as the County Attorney. Some of the additional issues Petitioner represented Hendry County on during the disputed time period were assigned by the County Administrator or the Board, but Petitioner could prioritize issues and had discretion as to when he would work on them. The Board, as Petitioner's client, could direct certain of Petitioner's actions as its utilities counsel and had to agree or disagree to certain proposals. On most of these matters, votes of the Board were necessary. A major part of Petitioner's duties as counsel for PLUS during the disputed period involved attendance and providing advice to the Board and other County personnel at meetings or appointments scheduled unilaterally by the County Administrator. Petitioner was required to make reports at these events. No one in the County's administrative hierarchy could instruct Petitioner how to do his job as an attorney but the Board, County Administrator, and Utility Director could assign him tasks and instruct him on projects. In the main, however, the Board and its County Administrator had to rely on Petitioner's expert legal capabilities and professionalism as would any client in an attorney-client situation. During the disputed period, almost all of Petitioner's work for PLUS was done at a County office facility or at meeting sites designated by the County. The County made available office materials, books, and other equipment to Petitioner. All of the clerical and other staff assisting Petitioner in the performance of his duties for the County were employees of the County in regularly established County positions. Petitioner reimbursed the County for its paralegal's services at the rate of $15.00 for each hour she worked on PLUS projects. Petitioner's reimbursement to the County was in the form of a deduction from his invoices. The County paid Petitioner's cell phone and travel expenses or provided reimbursement of these expenses during this period, as billed on his invoices. Petitioner submitted his travel expenses as starting from the County courthouse, not from his home with its private law office. During this period, the services provided by Petitioner were critical and essential to the continued operation of PLUS. Petitioner did not use any of his personal capital in performing the services as counsel for PLUS during the disputed period.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order ratifying its denial of FRS creditable service for February 1, 1997 through November 30, 1999. DONE AND ENTERED this 7th day of April, 2005, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 7th day of April, 2005.
Conclusions Having reviewed the Administrative Complaint, and all other matters of record, the Agency for Health Care Administration finds and concludes as follows: 1. The Agency has jurisdiction over the above-named Respondent pursuant to Chapter 408, Part II, Florida Statutes, and the applicable authorizing statutes and administrative code provisions. 2. The Agency issued the attached Administrative Complaint and Election of Rights form to the Respondent. (Ex. 1) The Election of Rights form advised of the right to an administrative hearing. 3. The parties have since entered into the attached Settlement Agreement. (Ex. 2) Based upon the foregoing, it is ORDERED: 1. The Settlement Agreement is adopted and incorporated by reference into this Final Order. The parties shall comply with the terms of the Settlement Agreement. 2. The Respondent shall pay the Agency $2,000.00 in administrative fines. If full payment has been made, the cancelled check acts as receipt of payment and no further payment is required. If full payment has not been made, payment is due within 30 days of the Final Order. Overdue amounts are subject to statutory interest and may be referred to collections. A check made payable to the “Agency for Health Care Administration” and containing the AHCA ten-digit case number should be sent to: Office of Finance and Accounting Revenue Management Unit Agency for Health Care Administration 2727 Mahan Drive, MS 14 Tallahassee, Florida 32308 Filed November 29, 2011 10:11 AM Division of Administrative Hearings 3. Conditional licensure status is imposed on the Respondent beginning on May 24, 2011 and ending on June 24, 2011. ORDERED at Tallahassee, Florida, on this 2S day oP seeder 2011. va Agency for Health Administration
Other Judicial Opinions A party who is adversely affected by this Final Order is entitled to judicial review, which shall be instituted by filing one copy of a notice of appeal with the Agency Clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the Agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I CERTIFY that a true and correct c of this Final Order was se on the below-named persons by the method designated on this 28 Ot of Lak » 2011. Richard Shoop, Agency Cre Agency for Health Care Administration 2727 Mahan Drive, Bldg. #3, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 412-3630 Jan Mills Finance & Accounting Facilities Intake Unit Revenue Management Unit (Electronic Mail) (Electronic Mail) Thomas J. Walsh II Brian M. Bursa, Esq. Office of the General Counsel Counsel for Respondent Agency for Health Care Administration 3812 Coconut Palm Drive (Electronic Mail) Suite 200 Tampa, Florida 33619 (U.S. Mail) J. D. Parrish Administrative Law Judge Division of Administrative Hearings (Electronic Mail)
Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration ("the Agency"), which finds and concludes as follows: The Agency issued the Petitioner ("the Applicant") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of $4,000.00 within 30 days of the entry of this Final Order. A check made payable to the "Agency for Health Care Administration" containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney's fees. This matter is closed. ORDERED in Tallahassee, Florida, on this _ (· _ day of r{r> , 2013. tary Administration Filed November 4, 2013 11:15 AM Division of Administrative Hearings
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy is Final O ebelow named persons/entities by the method designated on this / y of '"'---' 2013. Richard Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone (850) 412-3630 Jan Mills Facilities Intake Unit Agency for Health Care Administration (Electronic Mail) Thomas M. Hoeler, Chief Facilities Counsel Office of the General Counsel Agency for Health Care Administration (Electronic Mail) Finance and Accounting Revenue Management Unit Agency for Health Care Administration (Electronic Mail) Peter A. Lewis, Esquire Law Office of Peter A. Lewis, P. L. 3023 North Shannon Lakes Drive, Suite 101 Tallahassee, Florida 32309 (U.S. Mail) 2
Findings Of Fact Respondent was employed as building inspector of Suwannee County on or about November, 1974. and was terminated by action of Petitioner at a meeting on or about September 18, 1980. Respondent received a letter dated October 14, 1980 from Claude McDonald, Chairman, Suwannee County Board of County Commissioners, listing the following reasons for his termination: Gross neglect of duty. Absence without leave. Incompetence or unwillingness to render satisfactory services. Insubordination or serious breach of discipline. Habitual absences, tardiness or abuse of sick leave. Substantial violations of personnel regulations. Falsifying travel records. Fraudulent claims filed with the Board of County Commissioners `for reimbursement of travel expenses to job sites for inspections when, in fact, such inspections were not made, or in the alternative, making inspections which were not documented by signing building permits as required by established procedures. Respondent was the first building inspector for Suwannee County and established all of the procedures and forms used in the building department. He was bound by the personnel and fiscal regulations of Suwannee County, but was given a substantial degree of independence in setting up the building department, and thereafter in conducting the daily work of the department. In establishing and administering the department, Respondent consulted with other building inspectors and officials. In January, 1975 Respondent hired Connie Robinson as his secretary, and in February, 1979 he hired Pat Sura to be his assistant building inspector. Sura is now building inspector for Suwannee County. The evidence establishes that the regular business hours of the building department while Respondent was building inspector were from 5:00 a.m. to 5:00 p.m. This is consistent with the county's policy and with the practice of other county offices. Both Connie Robinson and Pat Sura, "employees" of the building department, testified that they worked from 8:00 a.m. to 5:00 p.m. Respondent would regularly arrive at the office at about 5:30 a.m., but he frequently conducted official county business both before arriving at the office and after leaving in the evening by visiting job sites. The building inspector is a "department head" as that term is defined in Part I, Suwannee County Personnel Regulations, and as such is exempt from a 8:00 a.m. to 5:00 p.m. work day and the 40 hours per week required by Part XIV, Section C, Suwannee County Personnel Regulations. Therefore, the evidence establishes that the "employees" of the building department maintained work hours consistent with applicable personnel rules at all times relevant herein, and also that Respondent's own work hours were not violative of applicable personnel rules. As a "department head", Respondent did not accrue compensatory time or earn over-time pay for hours worked beyond forty hours a week. Department heads were expected, when the need existed, to work more than forty hours a week. Respondent did earn vacation and sick leave. In order to use earned vacation or sick leave, Respondent was required to submit a request for leave as provided in Part XVI, Sections A4 and 55, Suwannee County Personnel Regulations. The evidence establishes that Respondent was absent from his office and did not perform official duties for the county on the following dates, although he was paid for work on these dates and did not submit a request to use either vacation or sick leave: February 5-12, 1980; June 3-13, 1980; September 15-16, 1980. This finding is based on the testimony of Connie Robinson and Pat Sura. Although Respondent called the office once during the February absence, notified the Board of County Commissioners in advance that he would be gone for two days during the June absence to attend an educational seminar in Orlando and also that he would need some additional time off due to his son's medical emergency, and had his wife call the office and leave a phone number where he could be reached during the September absence, Respondent never submitted a request for leave for any of this time. This failure followed a formal written warning concerning the use of leave issued by the Chairman of the Board of County Commissioners to Respondent on December 6, 1979. Despite being absent from the office without claiming leave on the dates specified in finding of fact 7 above, Respondent submitted false reports to the county indicating that he had conducted inspections on June 6 and 9, 1980 when in fact he was in Orlando for his son's medical emergency and for an educational seminar. From February 24, 1979 to November 21, 1979, Respondent was in the process of building his house. He did not use a general contractor, but rather acted as an owner-builder. There is conflicting testimony as to whether Respondent was absent from his job without claiming leave during this time, and whether he spent time during his normal working hours working on his house, rather than as building inspector for Suwannee County. After considering all of the evidence, it is specifically found that Respondent did take unreported time off during his normal work day to either work on his house, receive materials on site, or check on contractors who were working on his house. The frequency of his visits with these contractors indicates that these were not normal inspections made during the course of his duties as building inspector. This finding is based upon the testimony of Connie Robinson, Pat Sura, Respondent himself, and also Buddy McCall, Anthony Donald Selph, Jan Touchton and James Benton who either worked on Respondent's house or delivered materials to the job site between 5:00 a.m. and 5:00 p.m. during this time, and who testified that Respondent was regularly present on the site between the hours of 8:00 a.m. and 5:00 p.m. This finding is specifically made after considering the contrary testimony of Raymond Key, and Alfred Smith, and Respondent's denial that he took unreported leave to build, or worked on his home during his normal work hours. Although the exact number of unreported days off which Respondent took to work on his house in 1979 cannot be determined, there is competent substantial evidence based on the testimony of Connie Robinson and Pat Sura that Respondent took between 15 and 20 work days off between May and August, 1979 and did not report these absences. Respondent was paid his normal salary for these days by Petitioner. In May, 1980 Respondent was asked to submit a report to the Board of County Commissioners on the number of inspections he had personally made during the preceding twelve months, and thereafter to submit monthly inspection reports to the Board. This request was made on behalf of the Board by Jerry Scarborough, Clerk of the Court and Clerk to the Board. Claude McDonald, Chairman of the Board in 1950, testified that Commissioners had been receiving some complaints from the public that Respondent was frequently absent from his office, and that he was spending time at the real estate office of Robert Mahan where his wife worked. Robert Mahan confirmed that Respondent visited his wife during normal work hours quite often. Respondent reported to the Board of County Commissioners that he had made between 200 and 250 inspections during the preceding year while Pat Sura had made approximately 1200. He explained the difference was due to the fact that he had other duties, such as Public relations and administration, while Sura's sole job was to make inspections. However, subsequent to the request for regular reports which was made in May, 1980, the number of days per month when Respondent reported that he had conducted inspections increased substantially. Specifically, from January to April, 1980 he averaged inspections on 3 days per month while from May to August he averaged inspections on 11 days per month, according to his reports. From the evidence presented, it is found that Respondent did copy Pat Sura's inspection reports and submit them as his own regarding some of the inspections he reported after May, 1980. The exact number of falsified inspection reports cannot be determined, but it is clear that Respondent falsely reported an increased number of personal inspections in response to the request by the Board. From the evidence presented, it is also found that Respondent falsely claimed travel expense reimbursement for inspections which, in fact, he did not make on April 14 and 15, 1980 and September 2-4, 8, 9, 1980. The reimbursement received for travel associated with inspections during this time was less than $100, but it cannot be determined exactly how much of this claim was false. It is clear, however, from an independent audit conducted by Steven Collins, C.P.A., that the system for documenting travel expenses does not support a substantial number of the inspection trips claimed by Respondent on these vouchers. Respondent sought to explain the matters in findings of fact 12 and 13 by contending that on most of the inspections he made, he did not sign the building permit. However, he acknowledged that it was standard practice for the inspector to sign the permit when he made an inspection. Respondent indicated that his visits to a building site were not always formal inspections and that he might simply stop by to check up on a contractor or on the work of Pat Sura, or to make a public relations visit. Notwithstanding the possibility that some of his site visits and reported inspections may have, in fact, occurred as uncalled, surprise visits, a substantial number of these visits and inspections, as well as associated travel vouchers, were falsified by copying Pat Sura's inspection reports. On May 22, 1981, Lynn B. Martin, Appeals Referee, Unemployment Compensation Section, determined that Respondent was disqualified from receiving benefits for having been discharged for misconduct connected with his work. Respondent was not represented by counsel in that proceeding.
The Issue The issue is whether the termination of Respondent, Otis Paul Whatley, was in accordance with the personnel procedures established by the Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to Chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. Mr. Whatley was employed by ECUA. On October 31, 2001, Mr. Whatley signed an acknowledgement that he received the ECUA Employee Handbook. The ECUA Employee Handbook is a summary of benefits, policies, procedures, and rules, which are more fully set forth in ECUA's Human Resources Policy Manual. While on the ECUA Rotation Schedule Standby List on Sunday, July 26, 2009, Mr. Whatley, and his co-worker Jonathan Wheat, were required to be available to make repairs when summoned by ECUA customers. Mr. Whatley submitted a Daily Overtime Report dated July 26, 2009, which indicated that he worked on that day from 9:00 a.m. until 10:30 a.m. at 926 Lake Terrace, in Pensacola, Florida. The overtime report further stated that he worked from 10:30 a.m. until 11:00 a.m. at 1283 La Paz Street, in Pensacola. He further asserted that he worked at 402 West Lloyd Street, from 6:00 p.m. until 11:00 p.m. According to the Global Positioning System (GPS) installed on the ECUA truck assigned to Mr. Whatley, he did not depart his residence at the time he claimed to be working at 926 Lake Terrace or at 1283 La Paz Street. Moreover, the evidence provided by the GPS indicated that he was at the 402 West Lloyd Street for four hours rather than the five claimed as overtime. Mr. Whatley's co-worker, Jonathon Wheat, did work at 926 Lake Terrace and at 1283 La Paz Street, but he worked alone. Mr. Wheat joined in Mr. Whatley's prevarication with regard to the quantity of time expended at 402 West Lloyd Street. Mr. Wheat confessed to his prevarication when confronted. Mr. Whatley lied about his whereabouts when initially confronted, but eventually admitted that his timesheet contained false entries. It is found as a fact that Mr. Whatley, on his time sheet for July 26, 2009, claimed one hour and a half overtime for work at 926 Lake Terrace, one-half-hour overtime for work or at 1283 La Paz Street, and an hour more overtime than actually worked at 402 West Lloyd Street. None of the forgoing periods were worked by Mr. Whatley. Accordingly, these entries on his time sheet were false.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utility Authority, based on the findings of fact found herein, impose such penalty on Otis Paul Whatley, as he or she determines to be appropriate. DONE AND ENTERED this 24th day of November, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of November, 2009. COPIES FURNISHED: Otis Whatley 8655 Ramblewood Place Pensacola, Florida 32514 John E. Griffin, Esquire Carson & Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 Stephen E. Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
The Issue Whether Petitioner failed to secure worker’s compensation coverage for seven employees who worked from February 28, 2006, to March 3, 2006, in violation of Chapter 440, Florida Statutes, and whether, as a result, Petitioner should be assessed a penalty in the amount of $1,115.52.
Findings Of Fact Respondent, Department of Financial Services, Division of Workers’ Compensation ("the Division"), is the state agency responsible for enforcing the statutory requirement that employers provide workers' compensation coverage for their employees. Subsection 440.107, Florida Statutes (2006). Petitioner, Boudreau Concrete, Inc. (BCI), was, at all relevant times, an employer and engaged in concrete construction work in Florida. John Cipyak is a vice president with Builders Plus, a Boynton Beach Company hired to work on a Westview Office Building Site, in Port St. Lucie, Florida. Builders Plus subcontracted with BCI to perform pre-concrete form carpentry work at the site, including construction of the foundation and panels into which the concrete slab would be poured. Near the end of February 2006, Mr. Cipyak told Mr. Boudreau that the Westview project was falling behind schedule and that BCI needed more laborers on the job. Mr. Cipyak testified that Mr. Boudreau specifically agreed that his company, BCI, would hire sufficient additional manpower and would not use subcontractors. That agreement was not reduced to writing. In response to the need for additional laborers, the Division claims that BCI violated the applicable statutes and the insurance code by hiring seven carpenters, who worked at the Westview site from February 27, 2006, through March 3, 2006, as employees of BCI without providing workers' compensation insurance coverage for them. The seven carpenters are Dimas Zelaya, Francisco Figueroa, Gerardo Nava, Hector Sevilla, Jeremias Martinez, Carlos Quevedo and Jesse Hernandez. BCI claims that the seven carpenters were employees of a subcontractor, J. A. J. Construction Company, owned by Jose Alfredo Jiminez, and that Mr. Jiminez, BCI believed, carried the required workers' compensation insurance. The arrangements to have the additional workers on the project were made during a telephone call between Mr. Boudreau, Mr. Jiminez and Mr. Zelaya, who got the other six men to come with him and once they reported to the job, served as a translator for them. On March 2, 2006, Lynn Cornelius, a manager with Woodland Construction Company, Inc. (“Woodland”), sent an e-mail to Thomas Puglis, of the Division, listing the names of seven former employees of Woodland who had left Woodland’s employment, on February 24, 2006, to work for a subcontractor on another project. He named the same seven people who started work on the Westview site on the following Monday, February 27, 2006. On March 3, 2006, Mr. Puglis and Lieutenant Vance Akins, both investigators for the Division, visited the construction site where the seven former Woodland employees were working. With the assistance of an interpreter over the telephone, because no Spanish speaker was available for the site visit, the investigators instructed the seven workers to fill out Spanish language questionnaires for public works contractor licensing, provided by St. Lucie County. The investigators also tape recorded a statement from the only one of the seven men who spoke some English, Dimas Zelaya, during which, at best, he could be understood to have recognized and identified a picture of Mr. Boudreau. Lieutenant Akins telephoned another Division investigator Robert Barnes from the work site. Mr. Barnes testified that he telephoned someone who identified himself as Todd Freeman, a BCI employee, from whom he got the name of William Yocum of First Financial Employee Leasing, Inc., as the leasing company that provided workers' compensation coverage for BCI. Although he had no personal knowledge about where the seven carpenters were working from February 27 through March 3, 2006, Mr. Yocum noted that they were not covered on the policy for BCI and that the failure of BCI to report the names of all of its employees to the leasing company would violate the agreement between those two companies. Mr. Boudreau, on behalf of BCI, wrote a check dated March 10, 2006, to J. A. J. Construction Services, Inc., for $3860.00, with the notation "7 men - 2/27-3/3." BCI had no evidence of a written agreement with J. A. J. and the compensation to J. A. J. was solely for the wages earned by the carpenters. The Division's case is essentially based on the inference, without corroborating evidence, that Mr. Boudreau fabricated the subcontractor relationship and furthered that deception by writing the check after he knew BCI was being investigated for failure to secure workers’ compensation insurance. The Division based its assertion on the fact that Mr. Boudreau could not name the subcontractor during his first interviews by Mr. Barnes, saying that he was dealing with the subcontractor through Mr. Zelaya. The Division also presented evidence to demonstrate that the nature of the working relationship between BCI and the seven men was that of employer and employee, not independent contractors. That evidence was inconclusive. Although Mr. Boudreau kept their time sheets and personally supervised the work at the job site everyday from Monday through Thursday, with the assistance of Mr. Zelaya, as a translator, the carpenters brought their own tools and used materials and supplies provided by Builders Plus. The argument that J. A. J.'s role was administrative in nature is not convincing, since the same can be said of the leasing company, with which the Division asserted BCI should have obtained coverage. Mr. Barnes testified that he reviewed records of J. A. J., that someone from his office questioned Mr. Jiminez, and that they determined that the seven carpenters were not covered by J. A. J.'s workers' compensation policy during the time that they were working for Mr. Boudreau, based on some sworn statement made by Mr. Jiminez to the investigators. Mr. Jiminez did not appear as a witness in this case. The Division's investigator conceded that the Division did not determine whether or not the seven workers should have been on the J. A. J. policy. Mr. Zelaya testified that he spoke to Mr. Jiminez about getting more pay and understood that he would ". . . work with the license and insurance of Jose Jiminez. Mr. Boudreau was going to pay Jose and Jose was to pay me." Further, he stated that "Jose gets the workers, Jose makes a dollar off of the pay that we make. Mr. Boudreau was to give Jose a check, and Jose was to pay us, but Jose never paid us." Before he paid Mr. Jiminez, Mr. Boudreau requested and received from J. A. J. a workers' compensation policy, but that certificate of insurance was dated March 6, 2006, and did not appear to cover BCI for the prior week. At the same time, Mr. Boudreau added some of the workers to his own lease company policy, in an apparent attempt to continue the job, but was unable to do so after the stop work order was issued.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order rescinding the Stop Work Order and Order of Penalty Assessment, Amended Order of Penalty Assessment, and Second Amended Order of Penalty Assessment. DONE AND ENTERED this 8th day of June, 2007, in Tallahassee, Leon County, Florida. S ELEANOR M. HUNTER 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 8th day of June, 2007. COPIES FURNISHED: John M. Iriye, Esquire Department of Financial Services Division of Workers' Compensation 200 East Gaines Street Tallahassee, Florida 32399-4229 Mary Morris, Esquire Morris & Morris, P.A. 224 Datura Street, Suite 300 West Palm Beach, Florida 33401 Honorable Alex Sink Chief Financial Officer Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0300 Daniel Sumner, General Counsel Department of Financial Services The Capitol, Plaza Level 11 Tallahassee, Florida 32399-0307
The Issue Whether Respondent Employer committed a discriminatory employment practice against Petitioner on the basis of handicap, in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Petitioner is a Licensed Practical Nurse (LPN). She has worked as an LPN for Respondent Hospital on multiple dates. Her most recent employment with Respondent commenced on or about April 5, 2007, and gave rise to this case. Respondent is an “employer” as defined in Section 760.02(7), Florida Statutes. Petitioner was first hired by Respondent on July 11, 1996, as an LPN, on a part-time, on-call, substitute, “as needed” basis. In the context of this case, “PRN” means “as needed.” In other words, the discretion to summon a PRN nurse in to work or not to do so is solely that of the Employer, and the Employer can call in particular PRN nurses or not call them in as it sees fit, provided the reason a nurse is not called in is not a discriminatory reason. Upon this first hire, Petitioner was required to attend a general orientation, which included a review of the Employee Handbook, verification by Petitioner of her ability to perform the minimum requirements and essential functions of an LPN, execution of a PRN Agreement (see Finding of Fact 23), and completion of an Application for Employment. During her first employment with Respondent, which lasted 19 months, Petitioner missed time from work to undergo neck surgery. Upon her return to work, Petitioner presented Respondent with a “returned to work with no restrictions” note from Dr. Shipman. On March 5, 1998, Respondent discharged Petitioner over medication and/or behavior issues. Petitioner was essentially cleared of professional nursing error by an April 1, 1999, notification from the Florida Agency for Health Care Administration of a “no probable cause” determination. In 1998, while employed as an LPN with a different employer, Petitioner suffered an injury to her back and knee when she slipped and fell trying to catch a patient. Catching patients is a common way in which nurses are injured, and there is no way to accurately predict which patients will fall or when one will fall. A falling patient triggers a nurse’s rescue response and he or she will react without stopping to assess the danger to him- or herself. After her 1998 injury, Petitioner underwent several back surgeries which were successful in correcting damage to one nerve. However, since that time, Petitioner has continued to have residual pain and numbness. Petitioner returned to work with Respondent in 2003. In connection with her 2003, application, Petitioner provided Respondent with a workers’ compensation DWC-9 Form, completed by orthopedic surgeon, Dr. Charles Wingo. This form indicated that, effective December 3, 2003, Dr. Wingo had determined, for workers’ compensation purposes, that Petitioner had reached “maximum medical improvement”; was permanently impaired at a rating of nine percent of the body as a whole; and could return to full-time employment as of January 5, 2004. Dr. Wingo further opined that Petitioner should observe one hour- restrictions on sitting, standing, and walking, with infrequent bending, squatting, crawling, climbing, and reaching. In his opinion, Petitioner could continuously lift up to 10 pounds, frequently lift up to 20 pounds, and occasionally lift up to 100 pounds. He stated that she could continuously carry up to 10 pounds, frequently carry up to 20 pounds, and occasionally carry 100 pounds. Despite the foregoing medical opinion, Respondent re- hired Petitioner on or about December 22, 2003, without challenging her ability to perform her duties as an LPN and without requiring that she first provide a full duty medical release with no restrictions. Upon this second hiring, on January 5, 2004, Petitioner signed for, and acknowledged reading, Respondent’s Employee Handbook and Respondent’s LPN job requirements, and assured Respondent that she understood the Handbook and that she could perform the job requirements. Upon her three-month review, dated April 15, 2004, Petitioner again acknowledged she could perform the job requirements. Petitioner resigned in May, 2004, due to back problems, but her resignation letter to Respondent was less specific, stating only that she was resigning for “medical reasons” and hoped to be re-hired when the medical reasons were resolved. The Social Security Administration determined on January 31, 2006, that Petitioner had become “a disabled person,” effective August 1, 2004, and awarded her disability benefits. Thereafter, Petitioner continued, and still continues to receive these benefits. (Cf. Finding of Fact 16.) In 2006-2007, Petitioner wanted to “ease back into” full-time employment without losing her Federal disability benefits until she was certain she could handle full-time employment. She repeatedly approached Lisa Story, Respondent’s Intensive Care Unit (ICU) Supervisor, about employment with Respondent. Eventually, Ms. Story advised Petitioner that Respondent Hospital wanted to avoid paying overtime to its presently employed LPNs by hiring a new LPN willing to work PRN in ICU for only three shifts per month. Petitioner notified the Social Security Administration of the arrangement described by Ms. Story and was approved for a trial work period. During the trial work period, Petitioner would continue to receive Federal disability benefits, provided she earned an amount below the earnings cap set by the Social Security Administration. She also continued to receive her Federal medical benefits. There is no evidence that Petitioner presented any Social Security disability documents to either Ms. Story or Respondent’s Human Resources Department in 2007. Although she knew Petitioner continued to receive disability benefits, Ms. Story believed Petitioner’s physical problems had been resolved. At all times material, Ms. Story believed that hiring Petitioner for only three shifts per month would fulfill Respondent Hospital’s needs, while accommodating Petitioner in terms of how much Petitioner could earn under Social Security guidelines. Ms. Story recommended to her superiors that Petitioner be hired, but Ms. Story had no independent authority to hire anyone for Respondent. The position was posted, and Petitioner was requested to come in to apply. In connection with her third hiring in 2007, Petitioner filled out a series of papers for Respondent on two occasions: once on March 29, 2007, just before her first day on the job, and once on or about June 4, 2007, when the next “new employee orientation” became available. Because Petitioner passed an examination on Respondent’s basic employer/employee requirements, Respondent allowed Petitioner to start work in April 2007, without taking the usual orientation program and without receiving/completing all the paperwork required by Respondent for new employees. Respondent hired Petitioner as an LPN/PRN employee at will by a contract dated March 29, 2007, and assigned her to the new three-shifts-per-month slot in ICU. Respondent did not view this as a “light duty” position. Respondent has no “light duty” positions for any type of direct patient care personnel, including nurses of any description, unless they are already Respondent’s employees who have been injured on the job and are covered by Respondent’s workers’ compensation plan/policy, pursuant to Chapter 440, Florida Statutes. (See Finding of Fact 30.) In fact, Respondent’s March 29, 2007, LPN/PRN contract which Petitioner signed, specified, in pertinent part: I further understand that to maintain my PRN employment, it is required the employee work at least 2 (two) shifts per month and not refuse to work or call off more than 3 (three) times in a one year period. Recognizing that Doctors’ Memorial Hospital provides care on a continuous basis, I further commit to floating to other areas to which I have been oriented during my assigned shifts. As part of her initial hiring process in March-April 2007, Petitioner also filled out an Equal Opportunity Voluntary Self-identification Current Employee Survey, denying that she was a disabled individual “defined as an individual who has a mental or physical impairment which substantially limits one or more major life activities, has a record of such impairment or who is perceived as having such impairment.” The foregoing language tracks the definition of “disability” originating in the Americans With Disabilities Act (ADA) and adopted as the definition of “disability” under the progeny of case law arising from the ADA and adopted as the definition of “handicap” under the progeny of case law arising from Chapter 760, Florida Statutes. Petitioner also did not specify any accommodations she needed from Respondent in the blanks provided for such accommodation requests on this Equal Opportunity Voluntary Self- identification Current Employee Survey. Petitioner testified that by declaring that she was not a disabled individual and stating that her physical impairments did not limit one or more of her major life activities, she intended to convey that her life activities (like “activities of daily living”: eating, cooking, bathing, doing housework) were not limited by her physical condition, even if her lifting (of patients, etc.) ability was limited. Petitioner signed and dated a “Position Description, Annual Appraisal” form on March 29, 2007, wherein she verified that, “I have reviewed these job requirements and verify that I can perform the minimum requirements and essential functions of this position.” Part of this document sets out the physical requirements of the LPN position, which included medium, heavy, and very heavy work. The form defines “medium work” as exerting up to 50 pounds force occasionally and/or up to 20 pounds frequently and /or up to 10 pounds constantly.” The form defines “heavy work,” as exerting up to 100 pounds force occasionally and/or up to 50 pounds frequently and/or 20 pounds constantly. The form defines “very heavy work” as exerting over 100 pounds force occasionally and/or over 20 pounds constantly.” The form also sets out the minimum or essential requirements of the position which include standing for five hours, sitting for two hours, and walking for five hours, and requirements to engage in occasional bending, crouching, squatting, reaching, pushing/pulling up to 10 pounds, lifting/carrying up to 10 pounds, and lifting from floor and waist level. Ms. McRory, Respondent’s Director of Human Resources, testified that with regard to lifting or pushing, Respondent’s LPN requirements meant that an LPN had to exert force of 100 pounds occasionally and 50 pounds frequently, but the requirements for “standing for five hours, sitting for two hours, and walking for five hours,” were cumulative, rather than continuous requirements. Petitioner admitted at hearing that she signed the declaration when she was hired in 2007 stating that she had read and met the job requirements but that she would not have been able to perform work requiring her to exert 50 to 100 pounds of force occasionally. Her assessment was confirmed by Dr. Ghulam Mohammed. (See Findings of Fact 35 and 43.) A pertinent part of each Employee Handbook that Petitioner received, including the ones she had received during previous employments and the one she signed-for during orientation in June 2007, provided: Upon request, DMH [Respondent] provides reasonable accommodation to employees or applicants for employment with known disabilities as required under the employment provisions (Title I) of the Americans with Disabilities Act, or ADA. Employment opportunities shall not be denied because of the need to make reasonable accommodations to an individual’s disability. To request a reasonable accommodation, make your request known by completing the Reasonable Accommodation Based on Disability Request Form in Human Resources Department. Accommodation is not reasonable for direct patient care employees. For the direct patient care employee’s safety and DMH risk management, they must be physically able to perform their position’s job requirements and job duties with no limitations. However, a direct patient care employee may request or be offered to transfer to any available positions with job requirements they are physically able to perform. (Emphasis supplied.) When Petitioner underwent orientation in June 2007, she was required to complete a Health Information Form. In completing this form, Petitioner answered “yes” to a question asking if she had ever had a problem with her back; “yes” to a question asking if she had ever been hurt on the job; and “yes” to a question asking if she had ever had a back ailment. She further described having undergone a partial diskectomy with stabilizing plate and knee surgery. In answering a question as to whether she had any “physical disability or impairment,” she answered “back injury and chronic pain.” She also appended a page upon which she wrote “Back trouble. Had surgery 10/03 on lumbar area to relieve pressure on a nerve. 100 percent successful”; “knee trouble to repair torn meniscus (no further problem)”; and “neck trouble—stabilizer plate in cervical area 1998.” This was Petitioner’s first clear statement during her 2007, employment with Respondent that she might have some continuing inability to perform Respondent’s requirements for LPN employment. Petitioner worked for Respondent in its ICU between April 2007, and October 2007. During that time, Petitioner worked just three 12-hour shifts per month, always on the first three Wednesdays of each month. She worked during that period without any physical problems. She was able to do the work required of her there. During this period of employment, Petitioner did not work the same shifts as Lisa Story, but it was Ms. Story who reviewed Petitioner’s work, and at her three-month probationary review on September 9, 2007, Ms. Story graded Petitioner highly and recommended her for retention as an employee. Petitioner graduated at that point from probationary to regular employee. In late September 2007, after her “excellent” evaluation of Petitioner, Ms. Story requested that Petitioner obtain a statement from a physician outlining her work capabilities. Ms. Story had been instructed to do this by one of her superiors. All of the reasons for this request offered by Respondent at hearing are either incredible due to the timeline of other events or constitute unsupported hearsay, but Petitioner did not initially object to providing the statement. On or about September 24, 2007, Petitioner obtained a written statement from Dr. Ghulam Mohammed that read: Debra is followed by me for her medical problems for years. Medically she is able to work one shift a week as a nurse. (in ICU of Doctors Memorial Hospital, Perry FL.) (Corrected to close parentheses and for capitalization.) Petitioner hand-delivered copies of Dr. Mohammed’s letter to Respondent’s Interim Director of Nursing, Jeannie Harris, and to Ms. Story. She placed copies of the letter in the mailboxes of Diana McRory, Human Resources Director, and of Sarah Ann Gray, Interim Director of Nursing and Risk Manager. Ms. Story testified that she saw the letter and thought it was adequate for the work Petitioner would be doing in ICU. No one else consulted her on her opinion. Dr. Mohammed’s letter was reviewed by Diana McRory. She found it unacceptable because it did not state “no restrictions.” Having considered all the evidence, and particularly the competing and sometimes internally contradictory evidence, it is found that Petitioner was never advised by Respondent until after Petitioner had been terminated, that Dr. Mohammed’s September 24, 2007, letter was unacceptable or that she must provide the Employer with a doctor’s letter stating that she was currently able to work “with no restrictions.” However, Petitioner did not return with such a letter even after she was advised what was needed. This was apparently because she believes the unique slot she had been filling in the ICU had been created for her and that was the only amount and conditions of work she felt she could handle. Respondent’s Interim Director of Nursing and Risk Manager, Ms. Gray, testified that Respondent has a policy of requiring the equivalent language of “no work restrictions” because to do otherwise would be to risk liability to patients and employees alike. It is axiomatic that the Hospital Employer does not wish to incur workers’ compensation liability to employees or medical malpractice/premises liability to patients. (See Findings of Fact 7, 30, and 41.) Dr. Mohammed testified that Petitioner is incapable of performing the medium, heavy, and very heavy work outlined in the Respondent’s job requirements for an LPN. Petitioner was removed from Respondent’s payroll on September 27, 2007, because she had not brought in an acceptable return to work with no restrictions note from a doctor. This resulted in Petitioner’s badge not permitting her to clock-in, but through a variety of fiats and authorizations, various superiors and/or administrative officials overrode the system to allow her to do so. Accordingly, Petitioner worked as an LPN for Respondent on October 10, 2007, and on October 17, 2007. Although Petitioner testified that she thought she earned $20-21 per hour working for Respondent, depending on whether a particular shift did or did not span midnight, Respondent’s records appear to show that she was paid $17.00 per hour, during her probationary period and $18.00 per hour after her first evaluation on September 9, 2007. As a PRN employee, she was not receiving retirement and other emoluments to which a full-time employee was entitled. Respondent did not offer Petitioner more sedentary work until after Petitioner filed her complaint with FCHR. Petitioner began work as a Senior LPN for the Department of Corrections at the Mayo Correctional Institution on or about July 25, 2008. In that capacity, she does no significant lifting, pulling, pushing, or twisting. Petitioner testified that between October 17, 2007, and beginning work for the Department of Corrections, she was not gainfully employed; she was in school. (TR-60)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 3rd day of November, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2009. COPIES FURNISHED: Bruce Culpepper, Esquire Akerman Senterfitt 106 East College Avenue, Suite 1200 Tallahassee, Florida 32301 Paul M. Anderson, Esquire Anderson & Hart, P.A. 1584 Metropolitan Boulevard Tallahassee, Florida 32308 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
