The Issue The issues in this case are those promoted by the administrative complaint, DOI Case No. 91-11-353AKL, in which Petitioner alleges certain violations by Respondent according to Chapter 626, Florida Statutes.
Findings Of Fact At times relevant to this inquiry Respondent has held licenses issued by the Petitioner which allow him to do insurance business in Florida as a life agent; a life and health agent; a life, health and variable annuity contracts agent and a general lines agent. As the licensing body Petitioner has regulatory authority concerning the Respondent's activities in these insurance fields. That authority is found in Chapter 626, Florida Statutes. In furtherance of its duties as regulator Petitioner brought the previously described administrative complaint calling into question conduct by the Respondent as a general lines agent. Respondent is an officer of M/A Insurance, Inc. (M/A). He has bank account signature privileges for the corporation associated with account no. 13360004759 at the First Union National Bank of Florida, Port Orange Office, Port Orange, Florida. Pertinent to this case Respondent conducted business as a general lines agent through M/A. On January 1, 1988, M/A entered into an Agency Agreement with Georgia Casualty & Surety Company of Atlanta, Georgia (Georgia Casualty). Respondent executed this agreement for M/A as vice-president for that corporation. Among the coverages which M/A agreed to carry for Georgia Casualty were workers' compensation and general liability. The Agency Agreement set out responsibilities concerning premium payments by customers for policies written by M/A. The requirements were announced in Article III where it states: The Agent shall pay to the Company all premiums with respect to policies written by him under this Agreement, whether or not collected by the Agent, from the insured. All premiums received by the Agent are the property of the Company and shall be held by the Agent, as trustee, in trust for the Company until delivered to the Company, and it is expressly understood and so agreed that the privilege, if granted, of taking or deducting commissions from such premiums before remitting such premiums to the Company shall not be construed as changing or affecting the status of the Agent as a trustee. The Company's maintenance of an account for the Agent on the Company's books, such as a creditor and debtor account, or a declaration of account, or otherwise, is hereby declared a memorandum of business transacted, and the maintenance of such account shall not be con- strued as changing or affecting the status of the Agent as a trustee. The Agent shall keep a complete record of account of all transactions pertaining to all of the business transacted by the Agent with the Company, which record of account, regardless of the nature thereof, shall be accessible to any duly authorized representative of the Company at any reasonable time while this Agreement is in force or within one (1) year after the termination hereof. The commissions due to M/A were based upon a commission schedule which was part of the agreement and is discussed in Article V to the agreement. The arrangement between M/A, Georgia Casualty and customers who bought workers' compensation and general liability policies was that the customer would pay premiums to M/A. M/A would then deposit the customer's check to the M/A bank account alluded to in the fact finding. The amount set out in the check would be based upon a report prepared by the customer pertaining to activities on the policies, referred to as production. Respondent was obligated to forward those reports to Georgia Casualty. Georgia Casualty would then determine the proper premium amount by an audit process, deduct appropriate commissions for the benefit of M/A and bill M/A for the net premium amount after deducting the commission. This statement of account between Georgia Casualty and M/A is described in Article VI to the agreement where it states: The Company shall furnish the Agent with a statement of account covering transactions for the preceding month and the Agent shall remit to the Company the net amount shown on such statement to be due to the Company, so that such remittance will be received by the Company by the 15th of the second month after the end of the month for which such statement of account is rendered. (Example: Payment for balance shown due for the month of July must be received by the Company no later than September 15). An account for which payment is not received by the 15th of the month, as specified, shall be considered to be delinquent; provided, however, that an account shall not be considered delin- quent solely as a result of the withholding of payment for a specific item over which there is a bona fide difference of opinion. As described in Petitioner's Exhibit No. 2, the Agency Agreement, the statement of account was generated for each customer which M/A had written insurance on through Georgia Casualty. The form statement of account had a column in which Respondent could mark the customer accounts which his agency M/A wished to designate for disbursement made from the proceeds of a monthly check written from M/A to Georgia Casualty to satisfy the account obligation between M/A and Georgia Casualty. Petitioner's Exhibit No. 3 gives examples of that selection by M/A to have Georgia Casualty credit the account between Georgia Casualty and M/A associated with policy activities between M/A and its customers. Having considered the evidence, it is determined that the marks for crediting the account were made by M/A and not by Georgia Casualty. Georgia Casualty honored the selection by M/A concerning credits against the various customer accounts as part of the overall account between Georgia Casualty and M/A. Article XII to the Agency Agreement sets out the basis for termination. In the event that termination was for other than cause the outstanding and unexpired policies of insurance written by M/A as agent for Georgia Casualty continued in force subject to Georgia Casualty's normal underwriting standards as one of the alternative arrangements between the parties upon termination other than for cause. In that event, M/A concurrently with the termination of the agreement would enter into a Limited Agency Agreement with Georgia Casualty to permit orderly servicing of the policies until expiration or termination. With the selection of that alternative Article XIIA.3. calls upon M/A to continue to service the policies and receive the prevailing rate of commission on policies renewed by Georgia Casualty under the Limited Agency Agreement or under state laws or regulations pertinent to the transactions. Commissions and return commissions are allowed and paid on all transactions consummated following the effective date of the termination in accordance with the Limited Agency Agreement. Under Article XIIC., in the event the termination was for cause M/A would still be obligated to complete collection of and account to Georgia Casualty for premium transactions unaccounted for at the time of termination. As contemplated by Article XII, on April 3, 1990, M/A entered into a Limited Agency Agreement with Georgia Casualty. Respondent executed that agreement as then President for M/A. Respondent's Exhibit No. 1 sets forth the Limited Agency Agreement and its terms wherein it is stated: WHEREAS, the Company and the Agent are parties to a certain Agency Agreement effective as of January 1, 1988 (the "Agency Agreement"); and WHEREAS, the notice of termination of the Agency Agreement has been duly given pursuant to Article XII of the Agency Agreement; and WHEREAS, the parties hereto desire to enter into this Limited Agency Agreement pursuant to which the Agent shall continue to serve as an agent of the Company for certain purposes upon the terms and subject to the conditions hereinafter set forth; NOW, THEREFORE, in consideration of the premises and the mutual promises and covenants hereinafter set forth, the parties hereto agree as follows: The Agent's authority to solicit appli- cations for insurance and to request issuance of or issue and countersign binders and policies of insurance as well as customary endorsements effecting policy changes, shall be continued in effect for policies with an effective date prior to April 3, 1990. The Company agrees to provide renewal policies and to accept renewal policies produced by the Agent with effective dates prior to June 30, 1990. After June 30, 1990, the Agent shall have authority to issue appropriate endorsements or certificates of coverage on policies of insurance in force, provided that any such endorsement or certificate shall not increase any coverage limit, add any coverage or extend the term of any policy or contract of insurance without the prior written consent of the Company. * * * Contrary to Respondent's contentions at hearing, while the Limited Agency Agreement restricted the scope of his activities in terms of their duration and the breadth of business activity associated with policies of insurance written by Georgia Casualty through M/A as agent, the Limited Agency Agreement did not relieve M/A in its responsibilities to continue to service the policy in the manner set forth in the January 1, 1988 Agency Agreement for accounts that could be maintained. This included the obligations described for collecting premium payments from insureds to be deposited to the account of M/A and the obligation to receive reports from the insureds to be forwarded to Georgia Casualty to aid Georgia Casualty in preparing a statement of accounts for the preceding month's business by M/A, leading to the deduction of appropriate commissions followed by net billing on the account after deducting the appropriate commission. Again this speaks to the individual accounts of insureds as a part of the overall statement of agency account provided by Georgia Casualty to M/A. With the advent of the Limited Agency Agreement Georgia Casualty continued to provide the overall statement of agency account with the discreet account references for the insureds for whom M/A had written policies issued by Georgia Casualty. By contrast M/A did not always forward reports generated when an insured would pay M/A for production on policies. The consequence would be that M/A had money paid by the insured as premium payments, but Georgia Casualty would not know about those payments because it had not received the reports due from the insured to M/A and from M/A to Georgia Casualty. Therefore Georgia Casualty did not receive premium payments that it was entitled to in that not having the information from the reports it did not bill M/A for the net premium amounts after deducting commissions due to M/A. In his testimony at hearing Respondent alluded to the impression which he held concerning the Limited Agency Agreement entered into on April 30, 1990, which he executed as President for M/A, as being an arrangement in which the insured would send the reports directly to Georgia Casualty for production together with the insured's premium payment. This as contrasted with the prior arrangement under the original agreement of January 1, 1988 wherein the report would be made to M/A and a check written to M/A with the report being forwarded to Georgia Casualty to assist in the preparation of the statement of account from Georgia Casualty to M/A. As referred to earlier, this impression is contrary to the terms of the Agency Agreement as modified by the Limited Agency Agreement. Moreover, the activities concerning the arrangement between the insured, M/A, and Georgia Casualty belie such an impression by the Respondent and discredit the purported reading which he gave to the Limited Agency Agreement when contrasted with the original agency agreement. In view of those facts to be detailed next, the Respondent's assertion that he read the Limited Agency Agreement to modify the responsibilities by M/A to accept premium payments at its agency and render a report to an arrangement where reports and premium payments were transmitted directly from the insured to Georgia Casualty is rejected. On four separate occasions after April 3, 1990, the effective date of the Limited Agency Agreement, M/A accepted monthly premium payments and reports from Lamar Linton Logging for workers' compensation and general liability coverage. The monies were deposited by Respondent to M/A's account with First Union National Bank of Florida described before. Again, Respondent had signature authority concerning withdrawal of the monies from that account. The monthly checks from Lamar Linton Logging were written on June 14, 1990 in the amount of $3,529.92; on July 16, 1990, in the amount of $4,006.37; on August 16, 1990 in the amount of $2,648.27; and on September 14, 1990 in the amount of $4,109.11. The reports routinely issued by Lamar Linton Logging to M/A to be forwarded to Georgia Casualty were not forwarded to Georgia Casualty as required. Thus M/A was not billed. Around the fall of 1990, Georgia Casualty through contact with Lamar Linton discovered that Linton had paid M/A for the premiums and rendered the appropriate reports. Georgia Casualty then contacted M/A about the missing reports and in October 1990 Respondent faxed the four missing reports to Georgia Casualty. Georgia Casualty in turn sent a statement of the account to M/A for the four months of production associated with Lamar Linton. M/A did not honor its obligation to pay the net premium owed on the four months of transactions. These circumstances make it obvious that Respondent continued to receive premium payments through his company M/A from his customer Lamar Linton, together with reports, in the same manner as had been customary before the Limited Agency Agreement was executed on April 3, 1990, thus discounting his testimony that he was no longer obligated to receive the money and reports. Beyond the receipt of the money and reports, Respondent when confronted with his failure to honor the obligations to transmit the reports to assist in preparing a statement of account from Georgia Casualty to M/A, belatedly sent the reports but his company has failed to honor the account statement on the net premiums owed. Moreover, M/A did not return the premium payments written in the months of July through September, 1990 to Lamar Linton. Respondent was responsible to see that the reports were rendered on the Lamar Linton account in the periods June through September, 1990, in aid of having Georgia Casualty prepare the statement on account. He bore that responsibility as the officer who executed the original Agency Agreement on January 1, 1988, and the subsequent Limited Agency Agreement of April 3, 1990. Respondent stands to profit from not paying the money owed to Georgia Casualty given his ability to access the M/A bank account at the First Union National Bank of Florida. Respondent is held accountable for the failure by M/A to pay the net premium due to Georgia Casualty for the four months of production by Lamar Linton having gained a knowledge of the report on production in the four months in question and having belatedly forwarded the four months reporting to Georgia Casualty and having been billed the net premium due. It is alleged in paragraph 22 to the administrative complaint that on September 21, 1989, Respondent drafted an application for commercial vehicle insurance for a 1982 G.M.C. tractor, serial number IGDT94J9CV582562 owned by Lamar Linton. Having considered the facts presented in the deposition of Robert Lamar Linton of Lamar Linton Logging together with Respondent's admission that he drafted the application, it is found that Respondent entered or caused to be entered in the schedule of automobiles referring to that 1982 G.M.C. tractor a valuation of $43,000 for purposes of establishing the amount of insurance premium to be charged. In that same schedule, prepared or caused to be prepared by Respondent, a 1984 G.M.C. tractor of similar nature was valued at $45,000. The latter truck had an initial value of $53,900. On January 16, 1988, the purchase price of the 1982 G.M.C. truck was $16,250. Subsequently, by way of a commercial auto general change endorsement to the Edison Insurance policy pertaining to Lamar Linton Logging, processed by Respondent, a virtually identical 1984 G.M.C. truck was added to the policy, making it two 1984 G.M.C. tractors. In that instance the valuation for insurance purposes for the 1984 truck that was added was $17,625 as opposed to the $45,000 for the original 1984 G.M.C. tractor and the $43,000 for the 1982 tractor. Respondent or his secretary were told when the second 1984 G.M.C. tractor was added that the purchase price of that truck had been $17,625. Another tractor which was added to the policy by the general change endorsement was a 1986 G.M.C. which had a value of $21,625. The 1982 G.M.C. tractor and the first 1984 G.M.C. tractor were put on the Edison Insurance policy effective September 21, 1989. The general change endorsement for the second 1984 G.M.C. tractor and the 1986 G.M.C. tractor occurred on March 15, 1990. The September 21, 1989 policy was policy no. EC013621. The general change endorsement of March 15, 1990 was under policy no. EC013896. The exact reason for the discrepancy in the stated amount insured on the various trucks which lead to a greater premium being paid than was necessary for the inordinately higher valued trucks in the September 21, 1989 schedule when contrasted with the schedule in the auto general change endorsement of March 15, 1990 is not clear from this record but the circumstances point to Respondent as the individual who is responsible. Lamar Linton was unaware that the 1982 G.M.C. tractor had been valued by Respondent or someone in his employee at $43,000 for purposes of the insurance policy of September 21, 1989. On the other hand he made M/A aware of the value of the 1984 tractor in the March 15, 1990 policy. That value was basically in keeping with the true value of the tractor. Again the September 21, 1989 valuation for the tractors to include the 1982 tractor was inappropriate and caused a premium charge to Lamar Linton for the 1982 tractor in excess of what was appropriate. This unduly profited Respondent and his agency and under the facts, when contrasted with the valuation in the March 15, 1990 policy for the two additional trucks, points out that the Respondent knew or should have known that the valuation on the 1982 G.M.C. tractor was inappropriate when taking into account that Respondent processed the policies of September 19, 1989 and March 15, 1990. It is alleged that Respondent without the consent, authorization, permission or present knowledge of Lamar Linton or any representative to Linton affixed the name or signature of Lamar Linton to various insurance agreements, including but not limited to an application for commercial automobile policy, later policy no. EC013621 issued by Edison Insurance and a premium finance agreement on that policy. The testimony by Lamar Linton concerning a policy about which Respondent allegedly failed to gain permission from Lamar Linton or a proper representative to Linton for affixing the Linton signature was associated with policy no. EC013896 by Edison Insurance. This is the March 15, 1990 policy. The information on policy no. EC013896 on the election of non- stacked coverage showing the signature of Lamar Linton was not signed by Linton next to the signature of the Respondent as witness. Likewise, Lamar Linton was certain that he did not sign the form which shows his signature in that policy associated with rejection/selection of uninsured motorist coverage or the form in that policy which shows his signature on the document entitled notice- deductible election. Nor did Linton authorize anyone else to sign his name on those forms. Linton did not offer any testimony as to the Linton signatures that appear in Petitioner's Exhibit No. 4 to his deposition, which is the policy no. EC013621, September 21, 1989. Having considered the testimony it is found that the Respondent witnessed a signature of Lamar Linton on the election of non-stacked coverage form to policy no. EC013896 which Linton did not sign. It has not been established who affixed the Lamar Linton signature to the forms in that policy or policy no. EC013621. Concerning the customer Florida Mulch, Inc., the administrative complaint, Count I, speaks in terms of $20,498.42 in monies which Florida Mulch paid to M/A for premium payments on workers' compensation and general liability coverage written by Georgia Casualty and placed in the M/A bank account already described. The witness Susan Shaw who testified as a representative from Florida Mulch brought four checks to the posthearing deposition session. In the deposition testimony she says that she is not sure that two of these cancelled checks written for insurance provided by Georgia Casualty correspond to the checks in the two months which Georgia Casualty complained about as being months upon which Georgia Casualty did not receive payments for activities by Florida Mulch on its policies with the insurer. Moreover, the policy number set out in the administrative complaint, which is CL701406, corresponds to another company, Speciality Insurance and not Georgia Casualty. The Georgia Casualty policy numbers for Florida Mulch were 914266 and 914261. The remarks by Jean Peevy who testified at the hearing for Georgia Casualty only indicated that there were two months for which Georgia Casualty was not paid, that Georgia Casualty got unspecified information from the customer and in turn billed the Respondent in the person of his company M/A which was not paid. Looking at the exhibit on account billings from Georgia Casualty to M/A, Petitioner's Exhibit No. 3, and the checks which the Florida Mulch witness brought to the deposition session, it is not clear where the prosecution got the information set out in the administrative complaint, that $9,983.38 in billings were owed to Georgia Casualty by M/A or that $20,490.42 was paid by Florida Mulch to M/A. The amounts in the administrative complaint, the cancelled checks provided at deposition and the account entries in Petitioner's Exhibit No. 3 are all different amounts. Consequently, it cannot be determined that $9,983.38 was owed and has not been paid as alleged.
Recommendation Based upon the facts found and the conclusions of law reached, it is, recommended that a Final Order be entered suspending all Florida insurance licenses held by Respondent for 90 days. RECOMMENDED this 14th day of April, 1992, in Tallahassee, Florida. CHARLES C. ADAMS, 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 14th day of April, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-8089 The following discussion is given concerning the proposed facts offered by the Petitioner: Paragraphs 1-4 are subordinate to facts found. Paragraph 5 is not necessary to the resolution of the dispute. Paragraphs 6 through 13 are subordinate to facts found. Paragraph 14 is not necessary to the resolution of the dispute. Paragraph 15 is subordinate to facts found. Paragraph 16 is not necessary to the resolution of the dispute. Paragraphs 17 through the initial sentence in Paragraph 37 are subordinate to facts found with the exception that the money amount set out in Paragraph 37 is incorrect. The remaining sentence in Paragraph 37 is not necessary to the resolution of the dispute. Paragraph 38 is subordinate to facts found with the exception of the money amount set forth. Paragraph 39 and those sentences within Paragraph 40, excepting the last sentence are subordinate to facts found. The last sentence is not necessary to the resolution of the dispute. Paragraphs 41 and 42 are subordinate to facts found. Paragraph 43 is rejected. Paragraphs 44 through 47 are subordinate to facts found. Paragraphs 48 through 60 as they pertain to the count concerning Florida Mulch, Inc. are rejected in the suggestion that proof of a violation has been established. Paragraph 61 is not necessary to the resolution of the dispute. Paragraph 62 is accepted as it establishes a demand for money for net premiums related to Lamar Linton Logging but not as it is associated with Florida Mulch concerning a claim of violation for that latter customer for the business dealings with that latter customer. Paragraph 63 is not necessary to the resolution of the dispute. Paragraph 64 is subordinate to facts found with the exception of the sentence that says "the Respondent took no action to correct any perception on the part of the insureds" which is not understood in the context of Paragraph 64. Paragraph 65 is subordinate to facts found. COPIES FURNISHED: Andrew Kenneth Levine, Esquire Department of Insurance Room 412, Larson Building Tallahassee, FL 32399-0300 Dennis Hamel Post Office Box 29-1221 Port Orange, FL 32129-1221 Tom Gallagher, Commissioner Department of Insurance and Treasurer The Capitol Tallahassee, FL 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 412 Larson Building Tallahassee, FL 32399-0300
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
