The Issue The issues in this cause concern whether disciplinary action should be taken against the Respondent's license to practice medicine, based upon alleged violations of Section 458.331(1)(b), Florida Statutes. Specifically, the disputed issue concerns whether his license to practice medicine was revoked, suspended or otherwise acted against by the licensing authority of another state.
Findings Of Fact The Respondent is and at all times material hereto, has been licensed as a physician in the State of Florida. He holds licensed number ME0028248 issued by the State of Florida, Board of Medical Examiners. Respondent is also licensed in the State of New York as a medical doctor. The Petitioner is an agency of the State of Florida charged with enforcing the medical practice standards contained in Chapter 458, Florida Statutes and related rules. Pertinent provisions of that chapter and Chapter 455, Florida statutes authorize the Petitioner to make investigations of physician's licenses in the State of Florida and, if probable cause exists to indicate that a physician has engaged in conduct proscribed by Chapter 458, to commence formal proceedings seeking disciplinary action against such physicians. The New York State Department of Education and its Board of Regents is the licensing authority for medical doctors for the State of New York, (Petitioner's Exhibit 3 is evidence.) On August 14, 1986, the Commissioner of Education of the State of New York, on behalf of the State Education Department and its Board of Regents entered an order wherein the Respondent'S license to practice medicine in the State of New York was suspended for one year. That suspension was stayed and the Respondent's license to practice medicine was placed in probationary status with the probation being subject to certain conditions. See Petitioner's Exhibit 3 in evidence. In that order, the Respondent, had been found guilty of professional misconduct by being convicted of committing crimes under the state law of New, York. Specifically, he was convicted of four counts of violations of Public Health Law 12.B(2), by being registered as a medicaid provider and leasing space for the practice of medicine at a dental office, a "shared health facility", the rental fee for which was calculated and paid as a percentage of the defendant's earnings for medical services rendered on the premises. The Respondent was also found guilty of falsely representing that he was certified by the American Board of Internal Medicine when in fact he was not so certified, and by the willful making and filing of a false report, which also constitutes unprofessional conduct within the meaning of the law of the State of New York, specifically 8NYCRR 29.1(b)(6), (1984), cited in Petitioner's Exhibit 3 in evidence.
Recommendation Accordingly, it is therefore RECOMMENDED that a Final Order be entered by the State of Florida, Board of Medical Examiners suspending the Respondent's license for one full year or until such time as the Respondent appears before the Board of Medicine and demonstrates that he is capable of practicing medicine with care, skill and safety to patients including a demonstration that his license to practice medicine in New York is reinstated and is unrestricted, whichever time period is less. DONE AND ENTERED this 3rd day of July, 1989, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1989. COPIES FURNISHED: Jonathan King, Esquire Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Vijay Sakhuja, M.D. 120 Secor Drive Port Washington, New York 11050 Vijay Sakhuja, M.D. 90-10 Sutphin Boulevard Jamaica, New York 11435 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 Kenneth Easley, General Counsel Department of Professional Regulation Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0729 ================================================================= DISTRICT COURT OPINION ================================================================= IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA VIJAY SAKHUJA, M.D., NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND Appellant, DISPOSITION THEREOF IF FILED. vs. CASE NO. 89-2296 DOAH CASE NO. 88-4658 DEPARTMENT OF PROFESSIONAL REGULATION, Appellee. / Opinion filed October 10, 1990. Appeal from an Order of the Department of Professional Regulation Walter D. Forehand, of Myers & Forehand, Tallahassee, for appellant. Lisa S. Nelson, Department of Professional Regulation, for appellee. WENTWORTH, J. Appellant seeks review of an administrative order by which appellee Department of Professional Regulation, through its Board of Medicine, suspended appellant's medical license. The duration of this suspension exceeds the penalty which the hearing officer had recommended. Although we find no error with regard to appellant's other contentions, we do find that the Board did not fully and adequately delineate the basis for increasing the recommended penalty. We therefore reverse the order appealed. Appellant was licensed to practice medicine in both Florida and New York, and the current proceeding ensued after disciplinary action was taken by the licensing authority in New York for violations which had occurred in that state. The New York licensing authority acted upon appellant's conviction for violating a public health law which prohibits calculating medical office rental fees on a percentage of earnings, and upon appellant's false reporting and false representation of a medical certification. The proceeding in Florida was based upon this New York action, as appellant was charged with violating section 458.331(1)(b), Florida Statutes, which specifies that disciplinary action may be taken in this state when a license has been "acted against" by the licensing authority of another jurisdiction. After an administrative hearing on this charge the hearing officer recommended that appellant's Florida license be suspended for one year or until such time as he satisfies certain conditions including the reinstatement of his New York license. The Board of Medicine adopted the hearing officer's recommended findings, but increased the penalty so as to suspend appellant's license in Florida for one year and until such time as the various other conditions are satisfied. The order increasing the recommended penalty recites that: Rule 21M-20.001(1)(b), F.A.C., provides for discipline for action taken in another jurisdiction to be the discipline which would have been imposed if the substantive violation had occurred in Florida. Although this explanation identifies a permissible basis for the Board's action, and it does not appear that the hearing officer considered the applicability of the cited rule, the order does not specify the asserted substantive Florida violation had appellant's conduct occurred in this state. While appellant's conduct in New York, as indicated by the substantive violations in that state, might be such as would also constitute substantive violations in Florida, the Board's failure to delineate a particular substantive Florida violation does not fully satisfy the Board's obligation, as mandated by section 120.57(1)(b)10, Florida Statutes, to provide a particularize statement of the reason for increasing the recommended penalty. Appellee concedes that the Board's order is deficient, but contends that it should be afforded the opportunity to enter a more thorough and explicit order on remand. Because the order now being appealed reflects a legally permissible basis for the challenged action, on remand the Board may address the matter with greater particularity should it again decide to increase the recommended penalty. See Van Ore v. Board of Medical Examiners, 489 So.2d 883 (Fla. 5th DCA 1986); see also, Pages v. Department of Professional Regulation, 542 So.2d 456 (Fla. 3d DCA 1989). The order appealed is reversed and the cause remanded. MINER and WOLF, JJ., CONCUR.
The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations. Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if the Petition was not timely filed.
Findings Of Fact On December 15, 1994, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a Charge of Discrimination with FCHR on November 2, 1993, charging an unlawful employment practice by Respondent in connection with her lay off on October 29, 1992. On October 21, 1994, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was mailed to Petitioner and Respondent on October 21, 1994 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial to seek legal counsel prior to filing the petition. If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Counsel for Petitioner, George T. Paulk II, received the Notice of Determination on behalf of Petitioner and prepared the petition to be "filed" with the FCHR. On November 25, 1994, 35 days after the Notice was mailed, Counsel for Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR. The petition was sent by regular U.S. Mail. The Petition for Relief was filed with the FCHR on November 29, 1994, 39 days after the Notice of Determination was issued. The FCHR transmitted the pleadings to the Division of Administrative Hearings for further proceedings. At the same time of the transmittal to Division of Administrative Hearings, FCHR issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. Respondent timely filed its answer with affirmative defenses, including the first affirmative defense that "Petitioner failed to file her petition within the time allowed by law." Respondent also filed a separate Notice to Dismiss raising the same issue. The Petition for Relief was deposited in the mail on Friday, November 25, 1994, the day after Thanksgiving which is an official state holiday. The next business day was Monday, November 28, 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in Division of Administrative Hearings' Case No. 94-6976 and FCHR Case No. 94-7490, for failure to timely file the Petition. DONE AND ENTERED this 29th day of March, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1995.
The Issue Whether Petitioner was discriminated against based on his race in violation of Chapter 760.10, Florida Statutes.
Findings Of Fact Petitioner, Fabian L. Dixon, is an African-American male. At all times relevant to this Petition, Petitioner was employed by the Florida Department of Children and Families as a Unit Treatment and Rehabilitation Specialist–Forensic Corrections at Florida State Hospital, Chattahoochee, Florida. Petitioner was aware of Florida State Hospital’s strict policies regarding Falsification of Records or Statements; Willful Violation of Rules, Regulations or Policies and Conduct Unbecoming a Public Employee. Petitioner was also aware that violations of such policies could result in dismissal of the employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. 4. On June 22, 2001, at 8:32 a.m. and 8:33 a.m., Unit 21 received two faxed copies of Inter Agency Leave Transfer forms from Petitioner, each donating twenty-four hours of sick leave for a total of forty-eight hours and both purportedly signed by Norman Torres. Mr. Torres subsequently discovered that over twenty-four hours had been deducted from his sick leave balance, and discovered that forty-seven hours had been used by Fabian L. Dixon. Mr. Torres then informed his timekeeper that he only donated twenty-four hours of sick leave to Petitioner. In reviewing the sick leave donation forms it appeared the date was changed on one of the forms, then the two forms were faxed to Unit 21. Written statements from Mr. Torres indicated that he only donated twenty-four hours of sick leave to Petitioner. Because of the serious nature of the violation, and given Petitioner's past history of discipline, Respondent terminated Petitioner on September 21, 2001. The employment decision was not based on Petitioner's race and was consistent with Respondent’s disciplinary policy. On October 1, 2001, AFSCME elected to file a grievance on behalf of Petitioner under the provisions of the Master Contract between the State and the American Federation of State, County and Municipal Employees. The grievance was initially reviewed by the Department of Children and Family Services and it was determined that there was cause for Petitioner’s dismissal. The grievance was then appealed to Step 3 of the grievance procedure, which provided for review of agency action by the Department of Management Services. The issue determined at Step 3 was whether the Department had just cause to discipline Petitioner. Review of the Department’s actions revealed that the Department had just cause to discipline Petitioner and that the penalty imposed was within the range for each charged violation. The grievance and relief requested was denied. On December 4, 2001, a “Request for Arbitration” was filed by AFSCME on behalf of Petitioner and a hearing was scheduled for June 2, 2003. On May 20, 2003, AFSCME filed a Notice of Withdrawal of Arbitration. In response to the notice, the hearing was cancelled and an Order Closing the File of the Department of Management Services was issued on May 20, 2003. At hearing, Petitioner admitted that he altered the Inter Agency Leave Transfer Form, but contended that the hospital did not terminate other white employees for similar offenses. However, Petitioner failed to present any independent testimony to corroborate this claim and made absolutely no showing that there was any relationship between his race and his termination.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a Final Order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 23rd day of July, 2003, in Tallahassee, Leon County, Florida. S STEPHEN F. DEAN 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 23rd day of July, 2003. COPIES FURNISHED: Fabian L. Dixon 4634 Century Road Greenwood, Florida 32443 Kathi Lee Kilpatrick, Esquire Florida State Hospital Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Other Judicial Opinions A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.
The Issue The issue is whether Petitioner's request for an exemption from disqualification from employment in a position of special trust should be granted.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: This case involves a request by Petitioner, Bobby Jones, for an exemption from disqualification from employment in a position of special trust. If the request is approved, Petitioner would be allowed to return to work as a unit treatment rehabilitation specialist in a unit for developmentally disabled adults at Florida State Hospital (FSH). Respondent, Department of Children and Family Services (DCFS), is the state agency charged with the responsibility of approving or denying such requests. In a preliminary decision entered on an unknown date, a DCFS committee denied the request. Petitioner is now barred from doing such work because of a disqualifying offense which occurred on June 4, 1989. On that date, Petitioner was arrested for the offense of "battery- domestic," a misdemeanor under Section 784.03(1)(a), Florida Statutes (1987). According to Petitioner, the victim in the incident was his former wife. Thus, the offense constituted domestic violence as it subsequently became defined in 1994 by Section 741.28, Florida Statutes. Petitioner entered a plea of guilty to the charge of "battery" on August 10, 1989. He was fined $75.00, and he was placed on probation for a period of "up to 9 months." In addition, the court retained jurisdiction "to [o]rder rest[itution]," and Petitioner was required to complete a mental health counseling program. Petitioner successfully completed all terms of his probation, including the counseling course which lasted around "six to nine months." In October 1989, Petitioner began working at FSH as a human services worker in a unit for developmentally disabled adults. Eventually, he attained the position of unit treatment rehabilitation specialist, a position involving supervision of developmentally disabled adults. Due to a change in the law, in 1996, he was required to undergo a background screening. That screening uncovered his 1989 offense, and on July 14, 1997, he was disqualified from working in a position of special trust with developmentally disabled adults. Petitioner was then offered a temporary assignment effective July 24, 1997, without any "direct care duties." Most recently, however, he has been employed at a Wal-Mart store in Tallahassee, Florida. Because of his desire to return to his former position, he has applied for an exemption from disqualification. Since the disqualifying incident in 1989, Petitioner worked continuously at FSH for almost eight years. Since leaving FSH, he has been steadily employed by Wal-Mart. Petitioner was described by a former supervisor at FSH as being "dependable," "very good" with residents, and someone who got along well with other staff. Three former co-workers echoed these comments. A present co-worker at Wal-Mart also described Petitioner as friendly, helpful, and courteous with customers. Except for the fact that a former wife was the victim, the circumstances surrounding the incident for which the exemption is sought are not of record, and the "harm [if any] caused to the victim" is unknown. Despite the glowing comments of other workers, the adverse testimony of a former supervisor at FSH must be taken into account. In December 1995, she found Petitioner engaged in a verbal confrontation with another worker. She then directed that Petitioner report to her office. On the way to the office, he told her that the other employee was "going to make [Petitioner] put a board on his ass." At the ensuing meeting, Petitioner became extremely upset and told the supervisor that he wished she were dead, that she would get killed in a traffic accident on the way home, and that he would "spit on her grave." Petitioner subsequently received a written reprimand for using "Threatening and/or Abusive Language" towards his supervisor. In another incident that occurred on May 22, 1997, Petitioner was observed by the supervisor "horseplaying with another employee" in the dining room. When told by the supervisor that such conduct was inappropriate for the workplace, Petitioner stated in a loud, hostile manner, in the presence of both co-workers and clients, that he "would choke the motherfucker out." For this conduct, he received another written reprimand for "Threatening and/or Abusive Language," and he was suspended from work for three days. According to the same supervisor, Petitioner has an "explosive" temper, and she would not want him returning to her unit. Given this testimony, it is found that Petitioner has failed to demonstrate by clear and convincing evidence that he will not present a danger if continued employment is allowed. Besides the disqualifying offense, Petitioner has a long string of misdemeanor convictions beginning in 1979 and continuing through 1992. The specific crimes are described in Respondent's Exhibits 1-7 and 9-31 received in evidence. Petitioner himself acknowledged that he has been convicted of passing worthless bank checks approximately thirty times. Most recently, he was convicted for the offense of disorderly conduct in November 1992. In addition, he was convicted for the offense of simple battery on a former wife in October 1990. These convictions, by themselves, are not disqualifying offenses, and many are so old as to be arguably remote and irrelevant. They do, however, establish a continuing pattern of misconduct, especially since Petitioner has at least eight convictions for various misdemeanors since the disqualifying offense in 1989. Given these circumstances, it is found that Petitioner has failed to demonstrate sufficient evidence of rehabilitation since the disqualifying event. This being so, his request for an exemption should be denied.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying Petitioner's request for an exemption from disqualification for employment in a position of special trust. DONE AND ENTERED this 3rd day of March, 1998, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of March, 1998. COPIES FURNISHED: Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Pete Peterson, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Ben R. Patterson, Esquire Post Office Box 4289 Tallahassee, Florida 32315-4289 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252A Tallahassee, Florida 32399-2949
The Issue Whether petitioners have standing to challenge the validity of respondent's proposed rules, 38F-5.30 through 38F-5.70, Florida Administrative Code I.
The Issue The ultimate issues are whether ACT Corporation (ACT) engaged in unlawful employment practices by discriminating against Petitioners Rosa Gibson (Gibson) or Lillian Brown (Brown) on account of race. More specifically, both Petitioners allege that they were terminated based on race.
Findings Of Fact ACT Corporation is a comprehensive community mental health provider. In 1989, it had five major clinical departments and employed approximately 500 people, of whom 24% were minority employees and 18% were black. One of the clinical departments includes two residential facilities for mentally ill clients, Big Pine and Big Tree. The Petitioners herein have been employed at both facilities, but were on the staff of Big Tree at the time of their terminations. Brown began working for ACT on September 14, 1982. She worked at several different facilities, but was working at Big Pine in 1987 as a Residential Specialist or Residential Advisor (RA) under the immediate supervision of the house manager, Myra Morris, who is black. Gibson began working for ACT in November, 1987, as Residential Specialist or Residential Advisor (RA) at Big Pine under Morris. Gibson was often tardy for work and Morris counseled with her about the problem. During one discussion between Morris and Gibson about tardiness, Gibson became haughty and verbally aggressive toward Morris. Morris would have terminated Gibson for this aggression, but she knew Gibson needed the job. Instead, Morris had Gibson transferred to Big Tree. In early 1988, Morris was transferred to another position with ACT. She was replaced as house manager by Kenneth Polite, a black employee. Brown continued as an RA at Big Pine. Brown was transferred to Big Tree and promoted to House Manager on September 30, 1988. Gibson continued as an RA at Big Tree under Brown. In January, 1989, Ann Turley became the Clinical Administrator for Adult Services and the immediate supervisor over both facilities. Brown was still on probation in the House Manager position because Turley's supervisor, Chris Kennedy, had extended Brown's probation. The extension resulted from Brown's poor performance, including poor follow through on assignments, incorrect preparation of reports and paperwork, inability to communicate effectively, and inability to conceptually grasp and carry out programs. Turley kept Brown on in the House Manager position despite the poor performance because Brown told her that Kennedy and she just did not understand all that Brown was doing. Turley told Brown to keep a written record to show what she was doing. In July, 1989, Polite left employment with ACT. Turley made some organizational changes at that time. ACT and her department needed to come up with $100,000 in revenue or in expense reduction. Turley made the decision to cut back one staff person at Big Pine. The position of house manager at Big Pine was eliminated. The two facilities were reorganized to have a Team Leader at Big Pine and a Residential Coordinator at Big Tree. Turley told Brown of these changes before they were announced. Brown was promoted to the Residential Coordinator position. Donna Dooley, a white employee was made Team Leader at Big Pine. She received a 5% raise, not a raise to the salary level of House Manager. Turley made the selection for Team Leader from the five eligible employees remaining at Big Pine. All five had been employed at ACT by Turley's predecessor. Turley examined the personnel files of the five employees, including performance evaluations. The employee with the best evaluation, within the most recent evaluations made by Polite, was Dooley. Polite noted in her evaluation that Dooley had filled in for him and had done a good job at it and that the other staff at Big Pine came to Dooley for leadership and advice. Turley's decision was poorly received by some of the staff. Polite had wanted the house manager position to go to his roommate, a black employee. Other staff thought the position should have been awarded based on seniority. Staff from the various facilities of ACT asked Turley by letter to meet with them to discuss the position. Turley met with the staff, but no real discussion occurred. The staff in attendance was racially mixed. Individual staff members, including Gibson, verbally attacked Turley because they failed to understand that the house manager position had been eliminated and that the Team Leader position was not its equivalent. Turley was quite emotionally upset about the hostile tone displayed at the meeting. She was also concerned that Brown had signed the staffs' letter requesting a meeting and had attended the meeting, because Brown was a supervisor and not a member of the supporting staff. Brown also had been told before anyone else the reasons for the reorganization and she knew that she was being promoted to Residential Coordinator. Turley had made the decision to promote Brown as Residential Coordinator because the reorganization had to go through and Brown's duties would not change that dramatically. The Residential Coordinator would work closely with the Team Leader to organize and coordinate the operation of both facilities. The position of House Manager ceased to exist at either facility. Brown's inadequate performance continued while she was on probation as Residential Coordinator. The same problems were apparent and some new ones arose. One significant problem was in Brown's supervision and discipline of Gibson. Gibson was repeatedly late for work and she brought her child to work with her. Brown was told by Turley to take certain corrective and disciplinary actions with Gibson, but she failed to do so. Gibson also was rude to a case manager at medication clinic (med clinic), refused to get a client's chart for a case worker, and repeatedly yelled at, demeaned and was uncooperative with the staff at med clinic. Turley instructed Brown to give a counseling statement to Gibson for this behavior, but again Brown did not do so. Because of Brown's lack of appropriate job performance, Turley demoted her from Residential Coordinator to Residential Advisor at Big Tree on September 7, 1989. Turley assumed Brown's job duties temporarily. Brown and Gibson were very upset over this demotion. The evidence taken as a whole shows that Brown and Gibson developed an "us versus them" attitude which significantly interfered with their job performance thereafter. After Brown's demotion, Turley discovered a new fiscal problem. One option for addressing the problem was to change Big Tree from a level two to a level one facility. That change would require a change in staffing patterns such that licensed practical nurses would be required around the clock and a registered nurse as the supervisor of the LPNs. Turley rewrote the job description for the Residential Coordinator position to require a registered nurse's license. In October, 1989, Darlene Hasenkamp, who is white, was hired as the Residential Coordinator because she was an RN and had experience with mentally ill patient care. As Residential Coordinator, Hasenkamp supervised all staff at both Big Tree and Big Pine. Donna Dooley, the Team Leader at Big Pine was the person immediately below Hasenkamp in the supervisory chain. While the staff at Big Tree were not immediately responsible to Dooley, Dooley did have some supervisory responsibilities over the staff at both facilities when Hasenkamp was not there. Brown and Gibson did not like working for Hasenkamp or Dooley. Both were subtly resistant and uncooperative with Hasenkamp and Dooley. Mentho Saafir is another black Residential Advisor with ACT. Her observation is that Brown and Gibson were part of a small tight group of black employees. The group got mad because Dooley was made Team Leader. Then when Brown was demoted and Hasenkamp was hired, they became openly oppositional to any encounter with Dooley. Gibson was especially hostile and uncooperative with Dooley. On a Saturday during November, 1989, Dooley and Hasenkamp were both off work, but they were on call for their respective facilities. A client at Big Pine was suicidal. The one staff person working at Big Pine was managing the client and called Dooley for assistance in getting the van and transporting the client to the hospital. The van was parked at Big Tree because Big Tree always had two staff persons on duty and Big Pine only had one. Therefore in an emergency, one staff person could leave Big Tree to take the van to Big Pine to assist. Dooley was at home and called Big Tree to get the van delivered to Big Pine. Gibson answered the telephone at Big Tree. She was evasive and refused to answer Dooley's questions about who was working at Big Tree and where that person was. Dooley told Gibson that she needed the van for a suicidal client. Gibson kept saying that her coworker wasn't there and finally told Dooley that if she needed the van "I suggest you come and get it yourself." After much pressing by Dooley, Gibson acknowledged that her coworker was Brown and Brown was not there. Dooley called Hasenkamp and explained the problem and described Gibson's evasiveness and lack of cooperation. Hasenkamp told Dooley to meet her at Big Tree. When Dooley arrived at Big Tree, Hasenkamp was discussing with Gibson her rude and uncooperative behavior toward Dooley on the telephone. As Dooley walked in to Big Tree, Gibson jumped up, leaned over the desk and shouted that Dooley was not her supervisor and she did not have to report (or listen) to Dooley. In order to avoid a confrontation and to get the van to the client in need, Hasenkamp told Dooley to take the van. Dooley left. Hasenkamp sat down and waited for Brown to return to work. When Brown came in 45 minutes later, she had a bag of fast food. Hasenkamp asked where she had been and Brown advised that she had been getting breakfast. Brown said she had only been gone 25 to 30 minutes. Hasenkamp told Brown that it was against normal procedures to leave like that while on duty. Brown simply said she didn't know that. Hasenkamp then took Brown to Big Pine to relieve Dooley who was there alone, having sent the staff person in the van with the client. On the way, Hasenkamp stopped at her home and at her mother's home. When they arrived at Big Pine, Hasenkamp's briefcase fell open to reveal a counseling statement to Brown regarding some furniture, however, that counseling statement was administered at a later time. The counseling statement about the furniture arose from Hasenkamp's direct instructions to Brown to inspect some furniture that was to be delivered before signing the invoice. Brown did not inspect the furniture, but did sign the invoice. When the furniture was finally inspected by Hasenkamp, a tear was discovered in one chair. Brown claimed that she had told the maintenance man to look at the furniture, but that was contrary to Hasenkamp's direct instruction. Brown was "written up" for this failure to carry out her supervisor's instructions. Brown and Gibson were also written up for the incident regarding the van. Gibson was also written up regarding another matter. Hasenkamp had sent a memo to all of the staff about eating pastry in the office. She instructed all staff to initial and sign-off on the memo by a certain date. Everyone signed the memo except Gibson, who refused. The time for signing the memo passed, but rather than write Gibson up for failing to carry out her instructions, Hasenkamp called Gibson to find out why she had not signed the memo. Gibson was off work at the time and Hasenkamp called her at home. Gibson was extremely rude, told Hasenkamp that she had no business bothering her at home, and refused to discuss the memo. Gibson gave Hasenkamp no choice except to write her up again. On December 12, 1989, at approximately 4:00 p.m., Hasenkamp and Dooley drove up to Big Tree. Dooley went in for Hasenkamp because Hasenkamp was on crutches. Brown came outside to the car and told Hasenkamp she needed to come inside regarding a problem. Dooley and Hasenkamp observed Gibson holding and comforting a client, Janice, who was suffering a locked jaw and an extremely painful muscular reaction as a side effect of her psychotropic medication. The patient had to have been in severe discomfort for a couple of hours. The side effects are counteracted by another medication, Cogentin. It was obvious to Hasenkamp that the client needed emergency medical care. Hasenkamp asked if the client had been given her Cogentin. The Cogentin is to be given every day at 9:00 p.m., so Hasenkamp asked to see the medication records from December 11, 1989, to see whether the client had received her Cogentin. Gibson and Brown were the staff people for the 4 to 12 p.m. shift on both December 11 and 12, 1989. Hasenkamp asked Gibson if she had given the client the Cogentin on December 11th. Gibson said yes. Hasenkamp then looked at the medication records and found that no one had initialed to show that they had given the Cogentin on December 11th. Hasenkamp again asked Gibson, but when Gibson was shown the unsigned medication record, she admitted that she did not know if she had given the medication. Hasenkamp sent Gibson to take the client to the emergency room. The client was given an injection of Cogentin. When Gibson asked Hasenkamp if she should give the December 12th dose of Cogentin to the client, Hasenkamp told her no, because the injection would serve in place of the dose. Hasenkamp told Gibson to initial the medication record for December 12th to show that Cogentin was given. Hasenkamp also instructed Brown to hold the client back from work the next morning and to make sure the client was sent to med clinic so that the psychiatrist could review and adjust her medications. The next morning, December 13, 1989, Hasenkamp arrived at Big Tree just as the van was leaving with clients for med clinic. She flagged down the van and asked the driver, Rosario Rizzo, if that client, Janice, was on the van. Rizzo said "no" because no one had told him to take that client. Hasenkamp told Rizzo what had happened the night before, because Rizzo is a nurse. She then sent Rizzo to find the client and take her to med clinic. When Rizzo had arrived that morning, he went to the office and spoke with Brown and Nadine Banning. Banning was the person who had been on duty from midnight to 8:00 a.m. He personally asked Brown and Banning who was scheduled to go to med clinic. Brown read him the names off of a list, but did not mention Janice. At Hasenkamp's instructions, Rizzo found Janice at the bus stop, waiting to go to work. He took her to med clinic. When Hasenkamp went into Big Tree, she immediately asked Brown why she had failed to hold Janice and send her to med clinic. Brown's only reply was "It doesn't matter anyway because the psychiatrist won't see Janice without an appointment." Hasenkamp then went to look at the medication records for Janice and discovered that Gibson had gone back and filled in her initials to show that she had given the missed dose of Cogentin to Janice on December 11th. When Hasenkamp asked Gibson about this, Gibson told her that she remembered that she had given the medication on the 11th. In fact, it is not possible for the client to have had such a severe side effect reaction on December 12th if she had been given her medication on the 11th. Hasenkamp determined that Gibson and Brown had endangered the safety and health of a client and had failed to follow her direct instructions, because Gibson did not properly given the medication and Brown did not hold Janice for med clinic. Gibson's late "memory" that she had given the medication further undermined her confidence in Gibson. She felt she could no longer trust their judgment and could no longer entrust the care of patients to them. Hasenkamp recommended that both be terminated. Turley took that recommendation and did an investigation. From that investigation, she determined that they had, in fact, endangered the client. Specifically, Turley found that Gibson had failed to ensure that the medication was taken and had then tried to cover up that failure and that Brown had failed to get the client to med clinic as instructed. Turley terminated Brown and Gibson on December 14, 1989. The reason given to each in the letter of termination was "insubordination." This reason was given in writing because the personnel director of ACT recommended that they not say "endangerment of a client's health and safety" for liability reasons. Both Gibson and Brown filed a grievance with ACT's affirmative action officer, Carolyn Fleming, a black employee. Fleming did an extensive investigation of all of Gibson's and Brown's allegations of harassment and termination based on racial discrimination. Fleming determined that there was no racial discrimination in ACT's actions. Based on an observation of the candor and demeanor of all the witnesses and on a review of the contradictions in the testimony, it is determined that the testimony of Brown and Gibson is less credible than that of the witnesses for ACT. Both Brown and Gibson gave testimony that was calculated to show them in the best light. While it is not determined that their testimony was untrue, it is found that their memories of these events are skewed so as to diminish the severity of their failures.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitions for Relief filed by Rosa Gibson and Lillian Brown be DENIED and DISMISSED. DONE and ENTERED this 2nd day of April, 1993, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of April, 1992. COPIES FURNISHED: Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Margaret Jones, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Rosa Gibson 1129 Hillcrest Drive Daytona Beach, FL 32117 Reginald E. Moore Attorney at Law Post Office Box 1848 Daytona Beach, FL 32015 Mitchell A. Gordon Attorney at Law Post Office Drawer 9670 Daytona Beach, FL 32120
