The Issue Whether Respondent, Sojourn Hospitality-Naples Bay Resort, discriminated and retaliated against Petitioner, Richard Puccini, on the basis of his sex, in violation of section 760.10, Florida Statutes.
Findings Of Fact The record is comprised solely of Petitioner’s Exhibits 1 and 2, which constitute inadmissible hearsay for which no exception to the hearsay rule has been established.3/ Because no testimony or other admissible evidence exists, as to which such hearsay could be used to explain or otherwise supplement, there can be no findings of fact.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order in this proceeding finding that the Petitioner failed to establish that Respondent discriminated against him on the basis of his sex or retaliating against him and dismissing the Petition in its entirety. DONE AND ENTERED this 29th day of January, 2019, in Tallahassee, Leon County, Florida. S ANDREW D. MANKO 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 29th day of January, 2019.
The Issue Whether disciplinary action should be taken against Respondent's license to practice as a physician.
Findings Of Fact The Agency is that state agency charged with regulating the practice of medicine pursuant to Section 20.42, Florida Statutes; Chapter 455, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is a physician licensed to practice medicine in the State of Florida. Respondent holds license number ME 0055126. The State of Michigan Department of Commerce Board of Medicine is the licensing authority for the State of Michigan. On or about April 18, 1994, the State of Michigan Board of Medicine issued a letter of reprimand to Respondent, and ordered that Respondent pay a fine in the amount of $1,500.00 within ninety days of the Order for prescribing anabolic steroids for the purpose of improving body-building or weightlifting. Respondent is guilty of having action taken against his license to practice medicine by the licensing authority of the State of Michigan. The State of Michigan notified the agency of its action against the Respondent. A search of the agency's records revealed he had not notified the agency of the action taken by Michigan against him. On or about September 5, 1995, an attempt was made to notify Respondent about the information the agency had received. This letter was subsequently returned unclaimed with a forwarding address in Dallas, Texas. On or about November 9, 1995, a second attempt was made to notify Respondent of the complaint. The letter was sent to Post Office Box 12131, Dallas, Texas 75225, which is the Respondent's current address.1 The Respondent returned the election of rights form and a letter requesting a formal hearing. Respondent failed to notify the Florida Board of Medicine within thirty days of the action taken against his medical license in Michigan. The Respondent failed to notify the Board of his change of address. The Respondent was preciously disciplined by the Board of Medicine by Final Order number AHCA96-00464. The Respondent's license was suspended until he appeared and demonstrated that he could practice with skill and safety.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is, RECOMMENDED: That Respondent the Agency enter its Final Order finding the violation of Section 458.331(1)(b), Section 458.331(x) and 458.331(1)(kk) and, Florida Statutes, and revoking the Respondent's license to practice medicine in Florida. DONE and ENTERED this 28th day of February, 1997, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 1997.
Recommendation The Hearing Officer recommends that the Board require that DeBruin provide the Board, prior to seeking employment, a statement from her physician regarding her ability to practice and any restriction or recommendation he would place on her, and further that any restrictions be communicated to the potential employer so that she is not placed in a position or circumstances that would jeopardize her health, the care of any patient, or her employer. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: E. O. Musleh, Esquire 415 Northwest 1st Avenue Ocala, Florida 32670 Julius Finegold, Esquire 1130 American Heritage Building Jacksonville, Florida 32202 Geraldine B. Johnson, R.N. State Board of Nursing 6501 Arlington Expressway Building B Jacksonville, Florida 32211
The Issue Whether Petitioner is entitled to temporary licensure as a physician assistant pending her successful completion of the licensure examination.
Findings Of Fact Petitioner is an applicant to sit for the examination for licensure as a physician assistant in Florida. Petitioner was found by Respondent to be eligible to sit for the licensure examination. Petitioner also requested a temporary certificate as a physician assistant, which request was denied by the Respondent. In requesting temporary certification, Petitioner relies on the provisions of Section 458.347(7)(b), Florida Statutes, which provide, in pertinent part, as follows: (b)1. . . . [T]he department shall examine each applicant who the board certifies: Has completed the application form ... Is an unlicensed physician who graduated from a foreign medical school listed with the World Health Organization .. Has applied for certification as a physician assistant in this state between July 1, 1990, and June 30, 1991. Was a resident of this state on July 1, 1990. . . The board may grant temporary certification to an applicant who meets the requirements of subparagraph 1. Petitioner's application to sit for the examination for licensure as a physician assistant was granted by an Order entered by the Board of Medicine on March 12, 1992. The Order also denied her request for temporary certification because she had not recently worked in the field of medicine and because she had not received significant continuing education in the interim. The Board determined that Petitioner had not established her ability to currently practice as a physician assistant with reasonable skill and safety to the public. The Board determined that Petitioner could establish that ability by passing the licensure examination. Petitioner graduated from medical school in Ecuador in December 1975. Between March 1976 and April 1980, she was in medical residency in Ecuador. She has not practiced medicine since April 30, 1980, when she moved from Ecuador to the United States. Physician assistants in Florida work under the supervision of a supervising physician. A physician assistant is permitted to examine patients, to diagnose conditions, and to prescribe treatment plans. Because of the rapid changes that occur in the field of medicine, the current ability to practice as a physician assistant should be demonstrated. The applicant can demonstrate that current ability through recent practice, through recent education, or through examination. Petitioner's testimony and the documentary evidence she presented at the formal hearing fail to establish that she is currently able to practice as a physician assistant with reasonable skill and safety to the public. She has not practiced medicine since 1980. Her participation in a program at the University of Miami School of Medicine in December 1991 and her volunteer work for Dr. Rodolfo Binker from August 1991 to November 1991, do not establish her current ability. The evidence offered by Petitioner as to continuing medical education likewise fail to establish her current ability. Both the quality and the quantity of her continuing education fail to meet the level of continuing education required of physician assistants.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a Final Order denying Petitioner's application for temporary certification as a physician assistant. DONE AND ORDERED this 28th day of July, 1993, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 28th day of July, 1993. COPIES FURNISHED: John H. Duhig, Esquire 702 National Bank Building 25 West Flagler Street Miami, Florida 33130-1770 Allen R. Grossman, Esquire Office of the Attorney General Plaza Level 01, The Capitol Tallahassee, Florida 32399-1050 Dorothy Faircloth, Executive Director Department of Professional Regulation Board of Medicine 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jack McRay, General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether Respondent, Superior Optical Shop (Respondent), violated the Florida Civil Rights Act of 1992, Sections 760.01– and 509.092, Florida Statutes, by subjecting Petitioner, Janice Jennings (Petitioner), to discrimination in employment and by discharging Petitioner in retaliation for Petitioner’s opposition to Respondent’s discriminatory employment practices.
Findings Of Fact Petitioner is an African-American female. Respondent is a corporation with its corporate headquarters located in Ocean Springs, Mississippi. Respondent operates an optical shop in a Veteran’s Administration (V.A.) Hospital located in Lake City, Florida. At its Lake City location, Respondent fills prescriptions written by eye physicians at the V.A. Hospital, assists patients with choosing frames, and fits patients with their prescription eye glasses. Respondent’s optical shop in Lake City is fast-paced, with a constant stream of patients, averaging 50-to-60 patients a day. If the optical shop is running behind schedule, it is problematic because often physicians at the V.A. Hospital are waiting to see the patients served by the optical shop. In 2009, Petitioner interviewed for a position at Respondent’s optical shop in Lake City, Florida. During her interview, Petitioner advised Respondent that she had competent computer skills and significant experience working in an office environment and with eye doctors. On May 27, 2009, Respondent hired Petitioner as a part- time clerk at the optical shop. Petitioner was terminated prior to working 90 days for Respondent. When Petitioner was hired, two full-time employees worked at the optical shop: office supervisor, Jean Hartup, and optician, Kathleen Denton. Ms. Hartup has been employed with Respondent for approximately five years. Ms. Denton has been with the optical shop for approximately two and a-half years. As office supervisor, Ms. Hartup can be distant with employees and “hard” at times. She can also be “direct” when speaking to employees. Ms. Hartup demonstrates these traits with all of the employees at the optical shop. Ms. Hartup has written up Ms. Denton in the past and the two have had personality conflicts. Both Ms. Hartup and Ms. Denton assisted with training Petitioner. Evidence indicated that Petitioner received adequate training to perform the tasks she was assigned to perform as a clerk. She often had to be re-trained on the same tasks. Respondent’s optical shop in Lake City is a very small room, approximately ten-feet by ten-feet square inside the V.A. Hospital. There are two small desks in the shop and it is very crowded. Petitioner was aware of the small working environment at the time she accepted employment with Respondent as a part- time clerk. Past and present employees at the optical shop have had to share desk space. Sometimes work has to be performed in the hallway because of the small office space. All new hires for Respondent are subjected to a 90-day probationary period. As explained in Respondent’s “Employee Handbook of Office Policies and Benefits,” of which Petitioner was aware: There will be a 90-day probationary period during which time the employer may terminate the employee at any time for any reason or for no reason regardless of any other provision of these policies. Sick leave and personal days are accrued but cannot be used during this period. Respondent’s Employee Handbook of Office Policies and Benefits also provides: [Respondent] does not and will not tolerate any employee discriminating against their work peers for any reason i.e., race, color, religion, sex, national origin or handicap. Any known verifiable discrimination will be grounds for immediate termination. Once on the job, Petitioner was not proficient on the computer and, despite repeated training, failed to show any improvement and was slow in performing her job duties. Because of this, service to patients at the optical shop slowed down and the optical shop was frequently behind, resulting in physicians having to wait for patients being served by the optical shop. Ms. Hartup became frustrated with Petitioner’s unsatisfactory job performance and the resulting delays. In addition, Petitioner began to show a lack of interest in her job and even stated that she “didn’t really need a job; she just wanted to be out of the house.” Despite repeated training and opportunities to improve her work performance, Petitioner failed to improve. Petitioner was given a notebook with information from the American Board of Opticians for review but she failed to read it or return it to Respondent. Prior to the end of her employment with Respondent, Petitioner called Respondent’s corporate headquarters in Mississippi and spoke to Mary Walker. Petitioner complained to Ms. Walker that Ms. Hartup was being too hard, was impatient, and was expecting too much of her. Petitioner did not raise concerns with Ms. Walker that she was being discriminated against based on her race, or that she had been subjected to a hostile work environment because of her race. In fact, there is no evidence that Petitioner ever complained of race discrimination or a hostile work environment based on race discrimination while she was still employed by Respondent. During that first telephone conversation with Petitioner, Ms. Walker suggested to Petitioner that she should talk to Ms. Hartup about the problems. Petitioner assured Ms. Walker that she would. Two days later, Ms. Walker called Ms. Hartup and inquired whether Petitioner had discussed her concerns with Ms. Hartup. Petitioner, however, had not spoken to Ms. Hartup about her complaint. Ms. Walker gave Ms. Hartup the authority to run the optical shop at Lake City, including making hiring and firing decisions. Ms. Walker did not discipline Ms. Hartup because of Petitioner’s complaints. Rather, Ms. Walker told Ms. Hartup to handle the situation regarding Petitioner’s complaints. Ms. Hartup then met with Petitioner and they spoke about Petitioner’s concerns that Ms. Hartup was being too harsh and about Petitioner’s poor work performance. As a result of that meeting, Ms. Hartup felt the situation had been resolved. Petitioner subsequently advised both Ms. Denton, as well as Ms. Walker at Respondent’s headquarters, that the conversation with Ms. Hartup had gone well and that their issues had been resolved. Petitioner’s work performance, however, did not improve. Prior to the end of her 90-day probationary period of employment, Respondent terminated Petitioner from employment for poor work performance, for failing to reach her capabilities as an employee, and because her poor work performance was a detriment to Respondent’s Lake City optical shop. Petitioner testified that, from her point of view, she truly felt as though she had been discriminated against because of her race. That testimony, however, was without further support and was unpersuasive, especially in view of the fact that there is no evidence that Petitioner ever mentioned to anyone during her employment with Respondent that she believed she was being discriminated against. There was otherwise no evidence presented at the final hearing that would support a finding that Respondent’s decision to terminate Petitioner was in retaliation for Petitioner’s complaint against Ms. Hartup. Further, the evidence produced at final hearing does not support a finding that either the manner in which Petitioner was treated during her employment with Respondent, or her termination from that employment, was based on Petitioner’s race. Respondent filled the position of part-time clerk left vacant after Petitioner’s termination by hiring a Native- American male.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner’s Charge of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 29th day of July, 2010, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 29th day of July, 2010.
Findings Of Fact Petitioner, Omerea E. Herring, is a registered nurse with a degree in nursing from LaGrange College in Georgia which she attended between 1976 and 1978. No limitation was placed on her degree nor on her license as a registered nurse because of her handicap. Petitioner is handicapped visually. She was born with toxoplasmosis, a condition which leaves her nearsighted. This congenital condition has stayed the same over the years and will not likely change in the future. During Petitioner's education, she used regular textbooks, not Braille. She continued college for a year after receiving her nursing degree taking courses in liberal arts, and then was hired as an R.N. in September, 1979 by West Georgia Medical Center. Petitioner worked as a floating nurse, filling in and doing routine care and other general duties until she voluntarily left employment to move with her husband to another area in Georgia where she again secured employment as a registered nurse. Her duties entailed primarily sterilizing instruments and she remained in that job for approximately four months until her husband completed his education and they moved to Gainesville, Florida. When Petitioner applied for her nursing jobs, she informed her prospective employers of her condition and because of her handicap, there were some limits placed on her duties. For example, she requested not to be assigned to a heavy medication area and in each case, the hospital accommodated her. She asked for these limitation so as to not run the risk of inadvertently placing patients in danger. When Petitioner came to Gainesville, she was interviewed at Shands and at the time of her application, advised the interviewer she was physically handicapped and noted it on her application for employment. She was, nonetheless, selected for a further interview with the head nurse of the newborn nursery, Mrs. Wyman. Subsequently, as a result of this second interview, she was hired as an RN I in the newborn nursery starting in July, 1980. Petitioner worked on several shifts, primarily the seven am to three pm shift, but for three weeks during October, 1980, she worked the three to eleven pm shift. While on duty, her primary duties were to admit and assess patients, describe vital signs and discharges, and bathe and feed babies. She was also required to instruct new mothers on how to care for their children and did substantial charting. During her time in the nursery she did not give injections or administer medications because of her vision problems. She was unable to read the small print on the medicine bottles. Her supervisor knew this and agreed to the limitation and made alternate arrangements for the administration of medications. There was ample staff to do this consisting of between six and eight people on the shift of whom four or five were RN's and the others LPN's, Clerks and Aides. In November, 1980, she went on maternity leave. When she was originally hired, she was five months pregnant and it was obvious she would have to take maternity leave within a short time. Before leaving, she orally got permission from her supervisor. Her leave was to be for three to six months and when she left work, she was given no indication she would not be allowed to come back. It was only after the birth of her child, when she went to the hospital to fill out certain insurance forms for the hospital group insurance policy, that she was told by Mr. Bruce Malsbury, an official in the hospital personnel department, that there had been some difficulties with her work in the nursery and she would not be re-placed at Shands Hospital when she was ready to return off maternity leave. When she asked Mr. Malsbury about the availability of alternate employment with the hospital, since it was apparent to her that the decision not to bring her back was related to her visual handicap, he said there was no alternative placement available. To the day of the hearing, she has not received any official notice in writing of her termination. However, in January, 1981, she submitted a letter of resignation to Mr. Malsbury based on her need to be at home with her new child. Petitioner claims however, that this letter was suggested to her by Mr. Malsbury, after he advised her that she would not be rehired, on the basis that if she could show that she resigned, it would be easier for her to secure employment elsewhere. No evidence to contradict this was presented by Respondent. Mr. Malsbury did not testify and the custodian of the records was unfamiliar with the background relating to the letter in question. When it became obvious that Petitioner would not be rehired at Shands, she applied at the Alachua General Hospital in early 1981 for employment as an RN. Though she interviewed, she was turned down on the basis, she was told, of a poor recommendation from Shands. Respondent contends that Petitioner was terminated from employment as a part-time temporary employee on November 12, 1980, involuntarily, because of derogatory comments contained in her personnel record. On the termination report, signed by Mrs. Wyman on January 12, 1981, there was a recommendation that Petitioner not be rehired in any job. The termination was based on two incidents reflected in incident reports both dated October 27, 1980, thirty minutes apart. In each case, the shift supervisor, Ms. Hitchcock, wrote the Petitioner up because of minor injuries to infants which, it was claimed, were resulting from the improper handling of the infants by Petitioner. Petitioner did not take any action to contest the decision of the Respondent at the time. When Mr. Malsbury discussed the situation with Petitioner at the time she came in to file the insurance forms, he merely indicated there had been a complaint filed by Ms. Hitchcock, but gave no specifics. This was the only notice she was given of any complaints about her work and it related only to the one shift in October, 1980. Her license as a registered nurse is currently in effect, but during the period June, 1981 through June, 1984, her license was suspended for a period of time. The complaints submitted by Ms. Hitchcock to the Board of Nursing were identical to those described above including allegations that she was too rough with the babies, bumped into things with them, and was improper in her bottle feeding. Though she has applied for employment at other hospitals besides Shands and Alachua General in the general area where she lives, she has not been hired. She is now employed in industry as an industrial nurse doing primary care for employees. In addition to the part time job in industry, Petitioner also worked for the Sunland system as a cottage nurse during the period August to December, 1981. She left there because of a second pregnancy and decided to stay home and raise her children. Her three children are now ages 5, 3 and 8 months. She has never been fired from any employment other than with Shands. Petitioner contends there are many RN positions available at Shands where her handicap would not interfere with her duties and she is convinced she could satisfactorily fill any of them. Lists of vacant positions at Shands in the nursing career field for the period February 17, 1984 through September 10, 1984, reveal numerous staff nurse positions available in various departments throughout the hospital. However, Petitioner has failed to show that she is capable of performing duties safely in any of the numerous Staff Nurse I positions. Her unsupported allegations that she can perform many nursing positions which do not require good eyesight is insufficient to establish that she is qualified for any of the listed positions. Notwithstanding, her license is currently in good standing and current and she has completed all educational and other requirements necessary to keep her license current. In 1984, Petitioner again applied for employment with Respondent but was not given an interview. She was advised in writing that her application would be kept on file but that there was no job available for her at that time. A phone call to Mr. Malsbury revealed she was not hired because of her termination in 1980. It is because of this 1984 failure of Shands to hire her that Petitioner filed the complaint with the CHR. Shand's Policy C, as outlined in Memorandum PM-218, dated January 5, 1984 states that former employees terminated because of unsatisfactory performance, job abandonment, or misconduct, will not be considered for rehire. Since Petitioner had been terminated in 1980 because of unsatisfactory performance, consistent with that policy she was not eligible for rehire in 1984. Notwithstanding the fact that Ms. Hitchcock and Mrs. Wyman, along with several of the other nurses with whom Petitioner worked considered her performance to be unsatisfactory, others, all of whom are either RN's or LPN's who worked with her at various times when she was a Staff Nurse I in the newborn nursery, and who had the opportunity to observe her on a repeated basis, felt certain that she did her job in a satisfactory fashion. Petitioner made it known what duties she could not do and in all cases, when confronted with a situation where she felt it was improper for her to attempt to render patient care, she got assistance from someone else to do that particular job. None of them ever observed any deficiencies in Petitioner's nursing performance or her educational background which resulted in poor patient care. No one ever saw her injure any child under her care either intentionally or negligently. Most of these witnesses, who have been active in nursery nursing for a period of time, have concluded that babies do, in fact, scratch themselves due to long fingernails and there is no evidence that Petitioner was directly responsible for the injury to any patient under her care. It is also the opinion of one of her associates who complained about Petitioner, that she tended to over-react. Within the nursing community at Shands in the nursery, there was some difference of opinion as to the appropriateness of Petitioner's discharge in the first place. While it is obvious that Petitioner may not have been responsible for substandard care (though her license was suspended for a period) and her discharge may have been more the result of internal ward factionalism rather than ineptitude, there is no evidence that it was the result of unlawful discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Omerea Herring's Petition for Relief from Unlawful Employment Practice be denied. RECOMMENDED in Tallahassee, Florida this 29th day of April, 1986. ARNOLD H. POLLOCK, 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 29th day of April, 1986. COPIES FURNISHED: Phil S. Whiteka, Esquire 537-3 N.E. 1st Street Gainesville, Florida 32601 Thomas M. Gonzales, Esquire P. O. Box 639 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
The Issue Whether respondent is guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, the following findings of fact are determined: This discrimination case involves an allegation by petitioner, David Coleman, that he was denied employment by respondent, City of Jacksonville (City), because of his handicap. The City denies this allegation. A preliminary investigation by the Commission on Human Relations (Commission) found no probable cause that an unlawful employment practice had occurred. By way of background, petitioner has been employed by the City on four separate occasions, the last time as an employee in the mosquito control department in 1984. He was "released" the same year for "unacceptable leave." Since 1990, he has applied for at least twenty separate positions with the City. In conjunction with those and earlier efforts to obtain a job with the City, he has filed several job applications, including one in December 1987 and another in June 1992. Such applications are valid for a period of two years after they are signed and filed with the City. Therefore, if petitioner applied for a position with the City in March 1991, he did not have a valid job application on file. The petition for relief filed by Coleman describes the unlawful employment practice allegedly committed by the City as follows: unlawful hired or employment practice: with veteran preference that I have, and a handicap, which is alleged. The petition for relief does not describe the handicap. At hearing, however, petitioner contended he suffers from paranoia schizophrenia. Petitioner says that he applied for a job as a "traffic checker" with the City's engineering department in March 1991. City records reveal, however, that it has no such position called "traffic checker," and thus it hired no one for that job in 1991. It does have a position called "parking enforcement specialist," but since no description of the functions of that job is of record, it is unknown if the two positions are the same. Even so, City records do not show that petitioner made application for that position in March 1991. Notwithstanding this shortcoming, petitioner says that he interviewed for the position with an unidentified "supervisor," and he was told to prepare a resume, which he later gave to the interviewer's secretary. Thereafter, he made inquiry with the City's affirmative action office and learned that a veteran, not disabled, had been hired to fill the slot. Petitioner then brought this action charging the City with an unlawful employment practice. It is noted he has subsequently filed a second discrimination claim pertaining to another job application with the City. At hearing, petitioner contended that he suffers from paranoia schizophrenia. Other than his own assertion, however, no evidence was produced to confirm this disability, and as to this issue it is found that insufficient credible evidence exists to support a finding in petitioner's favor. The City admits that in one of petitioner's job applications filed with the City, petitioner attached a copy of a DD214 form reflecting that he was honorably discharged from the military. Also, the City acknowledges that in one of the applications is found a statement that petitioner had a 30 percent service related disability but the type of disability is not described. Whether the service related disability was still valid in March 1991 is not of record. Finally, petitioner's exhibit 1 is a copy of what purports to be a "statement of patient's treatment" from a VA outpatient clinic prepared in February 1985, but this document is hearsay, and in any event, is so dated as to have no probative value in this case. The more credible evidence shows that petitioner did not apply for the position of "traffic checker" or parking enforcement specialist in 1991. Moreover, petitioner had no valid application on file at that time, and there is no credible evidence as to who, if anyone, was hired to fill the position or what were the qualifications of the person hired. Even if one assumes an application was filed, the record is silent as to why petitioner's application may have been denied or, assuming he had a handicap, whether he could adequately perform the essential functions of the job. Given these considerations, and the lack of evidence to establish that petitioner is disabled with a handicap, it is found that the City did not commit an unlawful employment practice.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 9th day of May, 1994, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of May, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-5926 Respondent: Partially accepted in finding of fact 4. Partially accepted in finding of fact 5. Partially accepted in finding of fact 6. Note - Where a proposed finding of fact has been partially accepted, the remainder has been rejected as being irrelevant, unnecessary, subordinate, not supported by the evidence, or a conclusion of law. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commissioin Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esquire Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Mr. David Coleman 1071 Ontario Street Jacksonville, FL 32205 Brian M. Flaherty, Esquire 600 City Hall 220 East Bay Street Jacksonville, FL 32202
The Issue Whether the Petitioner demonstrated that she was terminated from employment by Respondent as the result of an unlawful employment practice based on her race, or as retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice.
Findings Of Fact Respondent is a provider of health-care services that receives funding from the West Volusia Hospital Authority (WVHA). Respondent operates health clinics in Pierson, DeLand, and Deltona, Florida. Petitioner was employed by Respondent as a Certified Medical Assistant on September 25, 2009. After a period of time in Respondent’s Pierson office, Petitioner was transferred to Respondent’s DeLand office. Petitioner’s duties included those as a referral clerk. In that capacity, Petitioner arranged, scheduled, and coordinated referrals from Respondent’s medical providers to outside physicians and laboratories. Petitioner also performed blood-draws, Pap smears, and related services. Petitioner was frequently behind in her referrals. Petitioner sought assistance with her referrals. Taken in the light most favorable to Petitioner, an employee of Respondent with some apparent supervisory authority denied her requests, and advised other employees that they were not to assist Petitioner in catching up. In October 2010, Petitioner was assigned to Respondent’s newly created Emergency Room Diversion (ERD) program. That assignment caused a change in Petitioner’s shift from the 9:00 a.m. to 5:00 p.m. shift, to the 12:00 p.m. to 8:30 p.m. shift. She was returned to her normal day shift in mid-November. The disruption in her standard shift caused Petitioner to fall further behind in her referrals. To minimize the problem, nurses began to make referrals for their doctors when they had the time. On November 19, 2010, Petitioner called Juanita McNeil, an elected commissioner of the WVHA, to discuss what Petitioner perceived to be sub-standard patient care that, in some cases, related to referrals that were not being timely completed, and for which Petitioner was receiving no assistance. Petitioner asked Ms. McNeil to keep their conversation confidential because she feared that she would be terminated for going outside of the chain of command. Later in the day on November 19, 2010, Petitioner was presented with a separation notice by which she was terminated from employment. The separation notice listed four reasons for her termination. The reasons were “employee not doing job in a timely manner, being rude with patients, being rude with other employees, [and] insubordination (calling the WVHA) instead of talking with appropriate supervisors.” During the hearing, Petitioner admitted that “100% of the reason that I was fired is because of me calling the WVHA.” Upon follow up inquiry, Petitioner reiterated that she was terminated for insubordination in bypassing her supervisors to contact a WVHA commissioner, and that reason formed the basis for her complaint that she had been the subject of discrimination or retaliation. Petitioner knew of no other employee that ever communicated directly with a WVHA commissioner, or that ever escaped disciplinary sanctions for having done so. Thus, there was no comparator upon which to measure whether Petitioner was treated differently under like circumstances as a result of her race. Petitioner’s admission of the basis for her termination is dispositive of this case. Being terminated for insubordination, in the absence of evidence that persons outside of her protected class were treated differently, is not related to Petitioner’s race. Petitioner’s admission demonstrates that her claim is not founded on an unlawful employment practice based on her race, or retaliation for Petitioner’s opposition to a practice which is an unlawful employment practice. Based on Petitioner’s admission, the undersigned concluded that there was no legal basis upon which relief could be ordered under the Florida Civil Rights Act. Thus, the final hearing was adjourned.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 10th day of October, 2012, in Tallahassee, Leon County, Florida. S E. GARY EARLY 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 10th day of October, 2012.
Findings Of Fact Respondent graduated from the University of Havana Medical School in 1951 and practiced medicine in Cuba from that time until he immigrated to the United States in 1960. In Cuba his practice was primarily in the fields of obstetrics and gynecology. In his application dated 9 February 1975 to take the Florida Medical Examination, Respondent listed work at Hudson County Hospital for Mental Diseases (New Jersey) in 1960, work for the American Plasma Company (Miami) from 1965 to 1968, work at the Opa Locka General Hospital from 1967 to 1970, and that he was presently working as assistant doctor at 620 Southwest 1st Street, Miami. Prior to commencing this work at the Southwest Medical Clinic he contacted Physicians's Association of Clinics, Hospitals and Annex (PACHA), an organization which helps Cuban doctors obtain Florida licenses, and was told he could work at the clinic under Dr. Tomas and should register with the Board of Medical Examiners. Respondent registered with the Florida State Board of Medical Examiners as an unlicensed physician in two undated registrations, copies of which were admitted into evidence as Exhibit 5. In the earlier registration he states he is not a naturalized citizen and in the later application he states he is a naturalized citizen, although the year of naturalization is not shown. Anne West, who was apparently running an abortion referral service, called the State's Attorneys office in Miami on behalf of Respondent and was told Respondent could work at the clinic under a licensed doctor. She subsequently became Mrs. Bulas. Respondent testified he commenced doing medical work in the Miami area in 1975 when he became associated with and worked under the supervision of Kamel Tomas, M.D. in a clinic located at 620 Southwest 1st Street, Miami. He subsequently worked at this clinic under the supervision of two other licensed doctors whose names are Hernandez and Martin. In 1976 Respondent successfully passed the Florida Medical Examination and was licensed in July 1976. While working at the clinic on Southwest 1st Street Respondent performed several abortions. In an 18-count Information filed 23 March 1978 (Exhibit 1) for the period 1 May 1975 through 5 March 1976 Respondent was charged with 11 counts of unlawful practice of medicine, 6 counts of larceny and one count of unlawful termination of pregnancy. At his trial and upon the advice of counsel he pleaded nolo contendere, was found guilty of 10 counts of unlawful practice of medicine, six counts of grand larceny and one count of unlawful termination of pregnancy, and Adjudication of Guilt was withheld (Exhibit 2). Most of these charges alleged felonies. In Exhibit 3 the court stayed imposition of sentence and placed Respondent on probation for 5 years with a condition of probation that he be confined in the Dade County Jail for a term of one year. From reading the counts of the Information, as well as from the testimony of Respondent, it is clear that the larcenies alleged resulted from the fees charged by the clinic to those patients treated by Respondent, which formed the bases for the unlawful practice of medicine counts. The information alleging unlawful termination of pregnancy was based upon the performance of an abortion by Respondent while not licensed in Florida. The testimony was unrebutted that numerous clinics in Miami employ Cuban doctors who are unlicensed in Florida. In a class conducted at Jackson Memorial Hospital to prepare former Cuban doctors for the Florida examination there were about 460 in the class attended by Respondent, most of whom worked in clinics in Miami. At the time Respondent worked at the clinic he believed that so long as he was under a licensed doctor the medical work he performed was lawful. However, Respondent was not under the direct supervision of the licensed doctor as each was working on a different patient in separate examining rooms at the same time. No evidence was presented to indicate Respondent was not fully qualified by training and experience to perform the medical practices that he performed prior to receipt of his Florida license.
