The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to an unlawful employment practice based upon her disability or based upon retaliation, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner was employed as a Training Specialist II in the staff development department of the Sunland facility of the Department of Children and Families. (Now the Agency for Persons With Disabilities.) At times relevant hereto, in October 2003, the Petitioner, Constance Gatewood, was employed by "Sunland Marianna" (Sunland). The Respondent Department of Children and Family Services is an agency of the State of Florida charged, as pertinent hereto, with implementing statutes, rules, and policies concerning persons with disabilities who are within its custody or otherwise. A meeting was conducted with Sunland's management and the Petitioner on October 8, 2003, in which the Petitioner provided documentation from a physician confirming that she suffered from a condition triggered by exposure to certain chemicals or perfumes. This condition was described as "potentially life threatening." The condition apparently primarily involved the Petitioner's respiration. Sunland sought to accommodate this condition by instructing attendees to training sessions conducted by the Petitioner to refrain from using perfumes, colognes, etc., which might aggravate the Petitioner's condition. There is no dispute that the Petitioner has a disability of this nature. Sunland also provided each new employee who came for training with the Petitioner with a separate similar notification. Sunland also posted the notification in and around the staff development building, the Petitioner's primary work place. Sunland also relocated the Petitioner's office and ordered alternative non- irritating cleaning supplies in order to accommodate the Petitioner's condition. Despite these accommodations the Petitioner's condition still sometimes became symptomatic. In an effort to minimize her exposure to perfumes or other chemicals the Petitioner on occasion would teach from her doorway, rather than standing in her accustomed place in front of the class. On occasion she would have to teach her class with all the doors opened, which sometimes created an uncomfortable draft in cold weather. On other occasions she would send students out of her class in the belief that they were wearing a perfume, cologne, or other chemical agent which was irritating her respiratory condition. On one or more occasions she had to rely on a co-worker to perform a cleaning task for which she was responsible. The Petitioner received a performance evaluation in March of 2004, which contained an overall rating of 4.33, a score which reflects that her performance exceeded expectations. On performance expectation number one, however, she received a grade of three rather than the four she had received the prior year. This was based upon a decline, in her employer's view, of her performance related to team work and respect for others. Because of this reduction from a four to a three on this category of her performance evaluation the Petitioner filed a Career Service Grievance. She contended that her performance had been based upon "confidential information," despite her supervisor's assurances that it was based on her supervisor's perception of problems the Petitioner had in the areas of cooperation with co-workers and respect for class attendees. Upon investigation, the Career Service Grievance was denied by a memorandum of April 8, 2004. Dr. Clemmons, the superintendent of the Respondent's facility, continued efforts to accommodate the Petitioner and her disability. He offered the Petitioner a job in an open position as a social worker on or about April 1, 2004. This position would have no deleterious effect on the terms, conditions, privileges, or benefits of the Petitioner's employment. The Petitioner was apparently pleased to have the job transfer to the new position and, in fact, volunteered to begin the position prior to the customary two week notice period. The Respondent has continued to attempt to accommodate the Petitioner and her disability as she has raised issues regarding her disability upon assuming her new position. The Petitioner, however, did not identify in advance any accommodation-related issues to her employer prior to beginning work in her new position.
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 in its entirety. DONE AND ENTERED this 1st day of April, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of April, 2005. COPIES FURNISHED: Constance Gatewood Post Office Box 262 Campbellton, Florida 32426 Amy McKeever Toman, Esquire Agency for Persons With Disabilities Sunland Center 3700 Williams Drive Marianna, Florida 32446 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether the intended contract award to Intervenor pursuant to Request for Proposals P2056 for a Community Based Intervention Services Program in Brevard County, Florida, is contrary to Respondent’s governing statutes, Respondent’s policies and rules, and the request for proposals.
Findings Of Fact The Department is an agency of the State of Florida and is the procuring agency for the RFP at issue in this proceeding. Eckerd is a not-for-profit corporation duly-organized under the laws of the State of Florida. White is a not-for-profit corporation duly-organized under the laws of the State of Florida. On September 4, 2009, the Department issued the RFP to select a provider to operate a 44-slot Community Based Intervention Services Program for youth ages ten through 21 in Brevard County, Florida. Eckerd did not protest the specifications of the RFP nor the methodology that the Department had historically used in scoring proposals for similar services within 72 hours of the issuance of the RFP. Eckerd and White submitted timely responses to the RFP on or before October 14, 2009. Under the RFP, one of the categories that the Department evaluates is the “Evaluation of the Past Performance for Non-Residential Programs.” One of the three components of the past performance standard is: Part I—Evaluation for Past Performance in Florida. This includes, as a subcomponent, the provider’s “Combined Success Rate” (CSR), with an assigned value of 200 points. The RFP defines CSR as “Percentage of youth who do not recidivate,” and further provides, “Points are awarded based on the combination of successful youth program completions, and the percentage of youth who do not recidivate.” Each proposer was required to complete and submit with its proposal Attachment C to the RFP entitled “Data Sheet: Past Performance of Non-Residential Programs” (Data Sheet). The Data Sheet was to provide certain information for non-residential programs that the proposer had operated in Fiscal Year (FY) 2006-2007, including program name, contract number, number of completions during FY 2006-2007, and FY 2006-2007 Recidivism Rates. Some of the information, such as the completions and the recidivism rates, was to be based on information found in the Department’s 2008 Florida Comprehensive Accountability Report [CAR].1 The CAR is prepared by the Department and includes program outcomes, including total releases, number of completions, completion rates, and success rates for all types of probation and community intervention programs that released youth in FY 2006-2007. The information is reported by judicial circuit. The CAR may report information on different programs in a judicial circuit, and some of the programs may be included in one contract with a provider. For example, White has one contract in the Second Judicial Circuit, contract number P2028, but the CAR reports information for two programs under contract number P2028. In the Fourth Judicial Circuit, White has one contract, contract number D7102, under which services are provided in Duval and Nassau Counties. The CAR treats the counties as being separate programs and provides separate data for the services provided in Duval County and for the services provided in Nassau County. As set forth in the Data Sheet, the number of completions is defined as “[t]he number of youth completing the program during FY 2006/2007 documented in the Department’s 2008 Florida Comprehensive Accountability Report.” In the CAR, the column titled “N4” provides the number of youth who successfully completed a specific program. The recidivism rate is the percentage of youth who later offended. The Data Sheet provides that the recidivism rate is found in the “2006-2007 Recidivism Column as reported in the Department’s 2008 Florida Comprehensive Accountability Report.” The CAR does not report recidivism rates; it reports success rates. Instead of providing the percentage of youth who completed the program and reoffended, the CAR reports the percentage of youth who did not reoffend. Thus, the recidivism rate is calculated by subtracting the success rate from 100. The Department relies on data from the CAR in determining the percentage of recidivism because the success completion percentages that are reported in the CAR have been calculated already. Therefore, it is easy to calculate the recidivism percentages using the CAR success rates. Paul Hatcher, senior management analyst for the Department, is the individual responsible for determining the CSR for providers who have submitted proposals in response to requests for proposals issued by the Department. Mr. Hatcher is the only individual who performs this function for the Department and has been in this position, performing this task, for over nine years. Mr. Hatcher processes the proposals through a standard procedure. The RFP provides that the information submitted in the Data Sheet “will be verified by the Department [and] [a]ny inaccurate or omitted information will be corrected.” After receiving the proposals, Mr. Hatcher verifies the accuracy of the information provided, including the number of completions and the recidivism rate reported on the Data Sheets submitted with each proposal, against the information provided in the corresponding CAR. If the information regarding a program is reported incorrectly, Mr. Hatcher corrects it to conform to the information in the appropriate CAR. The information submitted on the Data Sheet is submitted by contract number. The contract number is how the Department identifies quality assurance reviews, as well as fiscal and other data sources. For example, for contract number P2028, White submitted the completions for both programs in the Second Judicial Circuit. One program had 19 completions and the other program had 29 completions, for a total of 48. White intended to combine the completions for placement under Column 9 of the Data Sheet but erroneously used the combined number of releases. Pursuant to the RFP, Mr. Hatcher corrected the data to reflect the combined completions as reported in the CAR.2 The CAR reported a success rate of one program as 63% and the success rate of the other program as 69%, which equated to recidivism rates of 37% and 31%. White recorded the recidivism rates for the contract on the Data Sheet as 37%/31%. The same approach was used for reporting the information on contract number D7102 for the services provided in Duval County and Nassau County in the Fourth Judicial Circuit. The services provided in Duval and Nassau Counties were considered by the Department to be one program; however, the CAR reported the information by county as if they were separate programs. The completions for both counties were intended to be combined for reporting on the Data Sheet, but White recorded the combined number of releases on the Data Sheet.3 Mr. Hatcher corrected the data to reflect the combined completions as reported in the CAR. The CAR reported the success rates for the Duval County program as 62% and the success rate of the Nassau County program as 100%. These success rates equated to recidivism rates of 38% and 0%. Because the Department is looking for the recidivism rate for each contract, and the CAR reports the success rates used to calculate recidivism rates by program as in the Second Judicial Circuit or by county as in the Fourth Judicial Circuit, Mr. Hatcher averages the combined recidivism rates to come up with one recidivism rate for each contract in the Second and Fourth Judicial Circuits. Thus, the recidivism rates for contract number P2028 for the Second Judicial Circuit were averaged, resulting in one recidivism rate of 21%. The same method was applied to the recidivism rates for the Fourth Judicial Circuit, resulting in one recidivism rate of 19%. After checking the reported numbers and making all necessary changes, including making corrections to the data to match the data reported in the CAR and averaging the recidivism rates for contracts encompassing more than one program or more than one county, Mr. Hatcher inputs the number of completions and the recidivism rate for each contract into a standardized Microsoft Excel spreadsheet (Spreadsheet), which performs the actual calculations and computes the total CSR for each individual proposal. The Spreadsheet uses fixed formulas to perform the mathematical calculations necessary to determine the CSR for each proposal. The last two columns on the right hand side of the Spreadsheet relate to the CSR, and the numbers shown therein are generated by the fixed formulas. The Spreadsheet performs several calculations. It multiplies the number of completions by the recidivism rate for each contract to obtain the number of youth recidivating. Then, from each contract, the number of youth recidivating was subtracted from the number of total completions to obtain the number of successful youth for each contract. It then adds each of these successful youth figures together and divides the total by the combined total number of completions, resulting in the total CSR. The Department awarded Eckerd a score of 129 points based on a 64.5% Combined Success Rate. The Department awarded White a score of 160 points based on an 80% Combined Success Rate. On December 11, 2009, the Department posted its Notice of Agency Action, which indicated its intent to award the contract to White. The Department awarded White the highest overall score of 1554.49 points. The Department awarded Eckerd the second highest overall score of 1544.49 points. On December 28, 2009, Eckerd filed the Petition pursuant to Subsection 120.57(3), Florida Statutes (2009),4 and Florida Administrative Code Rule 28-110.004. The same Spreadsheet had been used by the Department for several years in calculating the CSR for proposals submitted in response to requests for proposals. Additionally, the Department’s practice of averaging scores for single-contract programs with more than one set of data was not a new scoring concept for the procurement at issue. In 2007, Eckerd submitted a response to Request for Proposal P2303 (RFP P2303) issued by the Department and was awarded the contract by achieving the highest score that was calculated in the same manner as the scores for the procurement at issue.5 In the Data Sheet submitted by Eckerd for RFP P2303, under program name, it entered in one cell, a single-contract program (contract number P70444) operated by Eckerd in the Tenth and Twelfth Judicial Circuits as “Circuit 10, 12, West/EYDC.” In its Data Sheet for RFP P2303, Eckerd took the total number of completions from the 2006 CAR for the Tenth Judicial Circuit and the Twelfth Judicial Circuit for contract number P7044, 19 and 31, respectively, and added them together for a total of 50 completions, which it entered under the “Number of Completions” column. The 2006 CAR reported recidivism rates for the Tenth and Twelfth Judicial Circuits as 26% and 23%, respectively, for contract number 7044. Eckerd listed both recidivism rates in its Data Sheet for RFP P2303 under the “2004-2005 Recidivism Rate.” Mr. Hatcher averaged the recidivism rates for contract number 7044 resulting in a single recidivism rate of 25%. This figure was used in the Spreadsheet to calculate the CSR. The Data Sheet submitted by Eckerd for RFP P2303 also contains two boxes at the bottom of the page that contain statements indicating that each circuit was reported separately and that the cell contains both circuits. The boxes have arrows that point to the relevant combined data cells in the “Number of Completions” and “2004-2005 Recidivism Rate” columns. The information contained in the data cells was derived from the 2006 CAR, which listed separate data for the Tenth and Twelfth Judicial Circuits even though the services provided were through a single contract. Eckerd has also submitted responses for other requests for proposals, RFP P2028, RFP P2032, and RFP P2034, using the same data for each Data Sheet as it used for the Data Sheet submitted for RFP P2303. On February 15, 2010, the Department changed its policy on the scoring methodology to be used in procurements such as the one at issue. The change in policy was expressed in an addendum to RFP P2062. The addendum stated in part: If the 2008 CAR Report lists a program with more than one recidivism percent, list all of the percentages and the number of completions for the program on Attachment C [Data Sheet], and the Department will be treating a Provider’s program with more than one recidivism rate as separate programs for the purposes of calculating success rate and will not be averaging the programs. The Department verifies all program information from the CAR Report. This change in policy was in response to the anticipated changes to the 2009 CAR, which will report and identify multiple areas of information, including more programs with several separately reported recidivism rates. The change in policy was implemented upon evaluation of the 2009 CAR and in anticipation of the release of the 2009 CAR. Eckerd claims that the policy of averaging recidivism percentages for contracts in which the CAR lists more than one recidivism rate resulted in an inaccurate recidivism percentage for White’s contracts for the Second and Fourth Judicial Circuits. For example, in the Fourth Judicial Circuit, the recidivism rate for Duval County was 38%, and the recidivism rate for Nassau County was 0%. Eckerd contends that the multiple recidivism rates as calculated from the CAR should have been used in the Spreadsheet rather than an average of multiple recidivism rates for a single contract. When the recidivism rate that is calculated from the CAR report for Duval County is used, the number of youth reoffending is 87.4, and the number of youth reoffending in Nassau County is 0%. When the average recidivism rate of 19% is used for Duval and Nassau Counties, the number of youth reoffending drops to 44.08, which is not an accurate accounting of the actual number of youth who reoffended. When the recidivism rate is lowered, the success rate will rise. Therefore, if the method espoused by Eckerd was used, White would have received a 71.9 score for CSR, resulting in a decrease of the points awarded to White of 16 points for CSR and a corresponding decrease in the total points awarded to White. Using Eckerd’s methodology, Eckerd would have received the highest number of points.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing the Petition filed by Eckerd. DONE AND ENTERED this 28th day of April, 2010, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 28th day of April, 2010.
The Issue Is Petitioner eligible for Developmental Services from the Department of Children and Family Services?
Findings Of Fact Audrey Smith is the natural mother of Petitioner Chester (Charlie) Smith. She filed an application with Respondent Department of Children and Family Services Developmental Services Program on behalf of her son. The application was denied, and this case followed. Chester Smith did not appear for formal hearing. Audrey Smith represented that she had a power of attorney to act on her son's behalf and that she was his payee for federal SSI benefits, arising from Petitioner's disability and his father's death. Neither of these instruments was offered in evidence, but because she had applied to the agency on Chester's behalf and had requested formal hearing, Mrs. Smith was accepted as Petitioner's "next friend" and qualified representative. The Developmental Services Program, administered by Respondent, provides services to persons with specific developmental disabilities, including mental retardation, cerebral palsy, spina bifida, autism, and Prader-Willi Syndrome, pursuant to Chapter 393, Florida Statutes. Petitioner, born October 18, 1953, had originally been turned down for services as not meeting the statutory and rule requirements of "mental retardation." During the informal hearings following that denial and preceding referral of the disputed issues of fact to the Division of Administrative Hearings for formal hearing, Mrs. Smith asserted Petitioner's entitlement to services on the basis of "autism." She also asserted this entitlement in her request for formal hearing. In determining Petitioner's eligibility for services, agency staff psychologist Fe Ripka reviewed four psychological evaluations previously performed on Petitioner. Ms. Ripka did not testify, but her January 27, 1997, report was placed in evidence. She only reviewed evaluations done in May 1965, July 1966, February 1995, and April 1996. Ms. Ripka's degrees and titles show "M.A.," "LMHC," and "Psychologist." No specific education, training or experience on her part was related. Her report emphasized Petitioner's verbal IQ and full scale IQs as controlling of eligibility. She concluded, on the basis of her review, that Petitioner did not suffer from mental retardation. Her report made no determination on the basis of autism. Petitioner's mother related that Petitioner was deprived of oxygen at birth and never developed normally. She has presumed him "brain damaged." Petitioner has required special classes and other remedial help throughout his life. He is now 45 years old. From 2 ½ to 8 ½ years of age, Petitioner was treated at the Putnam Children's Clinic. Not much is known about the treatment. Petitioner's Exhibit 9 (also part of Respondent's Exhibit 4) contains records from the Devereux Foundation Schools of Devon, Pennsylvania, including an August 22, 1967, "Exit Interview and Discharge Diagnosis Form" with a discharge diagnosis of "ooo-x28 Schizophrenic Reaction, Childhood Type . . . autism and possible mental retardation." The "Initial Psychiatric Evaluation" of November 5, 1965, by Robert Ewalds, M.D., a psychiatrist, related that Petitioner's manner was "generally autistic," with borderline intellectual functioning, "a history of autism," and a thinking disorder/chronic schizophrenic process, and that Petitioner would require custodial care indefinitely. The January 7, 1966, "Psycho- Educational Evaluation" of F. Howard Buss, Ph.D., and W.S. Holloway, B.A., of Devereux's Psychology Department, made an "Educational Diagnosis" of Petitioner as "achieving academically at a level below measured intellectual functioning and well below chronological age expectations." Henry Platt, Ph.D., of the Psychology Department performed a July 30, 1966, "Psychological Evaluation" which related the following critical matters: Intelligence: Current intellectual functioning, as measured by the WISC, was at a low average level in the verbal area (IQ 86), submarginal in the performance area (IQ 62), with a marginal level for the full test (IQ 72). * * * . . . findings were in line with those reported on the WISC about a year ago, despite the slight drop in scores on present testing. VIQ2 PIQ3 FSIQ4 May 1965 89 68 77 July 1966 86 62 72 After Pennsylvania, Petitioner lived in Minnesota with his adult married sister until recently. He received developmental disability benefits from the State of Minnesota until he moved to Florida to live with his mother in 1997. Petitioner was tested February 14, 1995, by Scott County, Minnesota, Human Services agency (Petitioner's Exhibit 10). The Weschler Adult Intelligence Scale and the Vineland Adaptive Behavior Scale tests were administered. In a written opinion, April Leaveck, Psy.D., opined that Petitioner had scored a verbal IQ of 82; performance IQ of 67 and full scale IQ of 74, with a percentile ranking of four, which constituted a "borderline range of intellectual functioning." The Vineland testing showed a low-deficit adaptive level in each of the three domains and overall low-deficit adaptive level with an age equivalent score of seven years, eight months. Petitioner was 42 years old at the time. In the evaluator's opinion, a significant discrepancy in his verbal and performance scores reflected "brain damage at birth." All of the foregoing reports also attest to Petitioner's lifelong impairment in reciprocal interpersonal relationships and social interaction. All of them indicate he was hard to test because of distractibility. An April 1996 evaluation, performed when Petitioner was 43, showed a Stanford-Binet IQ of 59. (Petitioner's Exhibit 2) Approximately April 16, 1998, and subsequent to Ms. Ripka's review, Petitioner was tested by Larry Neidigh, Ph.D., Licensed Psychologist and Diplomate of the American College of Forensic Examiners. His Weschler test scoring when Petitioner was 45, showed a Verbal IQ of 69, a Performance IQ of 62, and a Full Scale Select IQ of 63. He opined that, applying all variables, a valid estimate of Petitioner's intellectual functioning was between 60 and 68. Petitioner is currently being seen at the Clay County Florida Behavioral Services Day Treatment Program by Russell Findley, M.D. Dr. Findley is a Florida-licensed medical physician. He is treating Petitioner for Bipolar Disorder, using a variety of modalities, including psychotropic drugs. He has concluded that Petitioner's medical history, including the historical facts of birth trauma and initiation of mental health treatment when Petitioner was only 2 ½ years old, is suggestive that Petitioner's "primary process is best described as developmental, not [a] mental health problem;" and that Petitioner has significant intellectual impairment, not consonant with BiPolar Disorder. Dr. Findley testified that Petitioner is "mildly mentally retarded," (TR 76-77) and again, "In my clinical impression, it is mental retardation." (TR 77) He did not consider "schizophrenia" to be a valid current diagnosis. Petitioner's Bipolar Disorder is in remission due to the drugs currently being administered to him. With the Bipolar Disorder in remission, what Dr. Findley sees in Petitioner is consistent with mental retardation. It is possible that the new medications render Petitioner's more recent IQ tests more accurate than the earlier ones because he is less distractible and more easily tested. With a standard deviation of two, Dr. Findley is aware of the prior IQs of 72 and 74. He has administered no IQ tests himself. He considers modern testing to be more accurate. Within the DSM-IV standards of medical/psychiatric diagnosis, he considers Petitioner to be "Axis I, bipolar disorder in remission with mild MR5 " extending over the whole of Petitioner's life. (TR 84) Dr. Findley was not asked about autism. The parties agreed to the admission of an excerpt from "Mental Retardation: Definition, Classification, and Systems of Support," published by the American Association of Mental Retardation which reads: Mental Retardation Diagnostic Features The essential feature of Mental Retardation is significantly subaverage general intellectual functioning (Criteria A) that is accompanied by significant limitations in adaptive functioning in at least two of the following skill areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety (Criterion B). The onset must occur before age 18 years (Criterion C). Mental Retardation has many different etiologies and may be seen as a final common pathway of various pathological processes that affect the functioning of the central nervous system. General intellectual functioning is defined by the intelligence quotient (IQ or IQ-equivalent) obtained by assessment with one or more of the standardized, individually administered intelligence tests (e.g., Wechsler Intelligence Scales for Children -- Revised, Stanford-Binet, Kaufman Assessment Battery for Children). Significantly subaverage intellectual functioning is defined as an IQ of about 70 or below (approximately 2 standard deviations below the mean). It should be noted that there is a measurement error of approximately 5 points in assessing IQ, although this may vary from instrument to instrument (e.g. a Wechsler IQ of 70 is considered to represent a range of 65-75). Thus, it is possible to diagnose Mental Retardation in individuals with . . . [remainder missing] To sum up, Petitioner's documented assessments, by year and age, are as follows: Exhibit No. Date Age Full Scale IQ P-9 5/65 11 ½ 77 Other Diagnosis, if any P-9 11/5/65 12 ½ generally autistic; a history of autism; P-9 7/30/66 13 72 P-9 8/22/67 14 000-x28 schizophrenic reaction, autism and possible mental retardation P-10 2/14/95 42 74 P-2 4/96 43 59 P-6 4/16/98 45 63 true IQ between 60-68 Also, the current diagnosis of Dr. Findley, pursuant to the generally recognized authority of DSM-IV, may be summed up that Petitioner suffers from mild mental retardation, previously camouflaged by his Bipolar Disorder. Petitioner has never met the standards of personal independence and social responsibility of his chronological age. He has never held other than a protected job. He has never solely cared for his own person. Since infancy, he has been under the care and supervision of either his family in Pennsylvania, his adult sister in Minnesota, where he has long received developmental benefits, or his mother since 1997. He has suffered from impairment in reciprocal social interaction continuously since infancy.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Children and Family Services enter a Final Order determining Petitioner eligible for "autism" benefits and denying him retardation benefits. DONE AND ENTERED this 8th day of January, 1999, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 8th day of January, 1999.
The Issue The issue for determination is whether Respondent, the Orange County Convention Center, discriminated against Petitioner, Norman H. Siales, on the basis of a handicap within the meaning of Section 760.10, Florida Statutes (2004).
Findings Of Fact Petitioner was first employed by Respondent in October 2000 as a set-up worker on an on-call basis. In June 2001, Respondent hired Petitioner in a regular full-time position as a set-up worker. Throughout his employment with Respondent, Petitioner's supervisors considered him a good employee who always performed his job properly and did assigned tasks to the best of his ability. Petitioner was incarcerated on or about July 8, 2004. Shortly after his incarceration, Petitioner called Steve Miller, one of the assistant supervisors in the Event Set-Up Department, and informed him that he was in the county jail. Petitioner was then told that he should keep Respondent updated on his situation. On or about July 9, 2004, Mr. Miller advised Mr. Schildgen, his supervisor, that Petitioner had called and reported that he was incarcerated. After first learning that Petitioner was incarcerated, Mr. Schildgen never heard from Petitioner. Moreover, Mr. Schildgen asked the two shift supervisors if they had heard from Petitioner, and they indicated they had not. Mr. Schildgen considered Petitioner a good employee and wanted him to return to work. However, in late July or early August 2004, after not hearing from Petitioner for about three weeks, Mr. Schildgen, in consultation with the manager of the Event Set-Up Department, determined that Petitioner's continued absence from the workplace, without notice, was a violation of the Orange County policy. According to the policy, employees could be terminated from employment if they were absent from the workplace for three consecutive days without notice to the employer. At or near the time Petitioner was employed by Respondent, he received a copy of the Orange County Government Employee Handbook (on June 11, 2001). He also received training on the Orange County Policy Manual. Petitioner signed an Employee Acknowledgement (March 30, 2004) form stating that he had received the training. The Employee Acknowledgement form, signed by Petitioner, further stated "I understand that I am responsible for complying with all Policies, Operational Regulations, Departmental Operating Procedures, and Departmental Guidelines, and that the failure to do so may be grounds for corrective action, up to and including termination." As a result of the training described in paragraph 6, Petitioner was aware of the Orange County policy that authorized employees to be terminated if they were absent from work three consecutive days and did not notify Respondent. Based on Petitioner's extended absence from the workplace and his failure to communicate with his supervisors regarding the absences, Respondent terminated Petitioner's employment. By letter dated August 26, 2004, Respondent terminated Petitioner's employment with the Event Set-Up Department. The reason for Petitioner's termination was that he had not communicated with Respondent since July 8, 2004. The letter also stated, "while we understand there were some extenuating circumstances involving the Orange County Sheriff's Office, we can no longer wait to address this violation of . . . policy." According to the termination letter, the applicable policy provides the following: "Failure to work for three (3) or more consecutive working days without proper authorization shall be considered job abandonment and result in immediate termination, unless the employee presents written proof that he/she was unable to make appropriate notifications through no fault of his/her own." When he was first incarcerated, Petitioner thought he would be held for 24 to 48 hours. However, he was not released until December 3, 2004. After Petitioner was released from jail, he went to his employer and asked if he could return to work, but was told that he could not return due to his excessive and consecutive absences without notifying his employer. Petitioner had a psychological evaluation when he was incarcerated, and a psychological report dated October 11, 2004, was generated as a result of that evaluation. Petitioner did not offer the evaluation into evidence, but testified that the evaluation indicated he had a mental illness. However, this report and the findings and conclusions therein have no bearing on this case as the report was prepared after Respondent terminated Petitioner's employment. Respondent was unaware of the psychological evaluation or report until the final hearing. During his employment with Respondent, Petitioner never advised his supervisor that he had a disability. Petitioner testified that in 2002 or 2003, he asked his three supervisors to help him "with the grievances." At hearing, Petitioner explained that when he used the term "grievances" he meant the mental, psyche, and physiological abuses he was suffering. In early 2002, while employed with Respondent, Petitioner sent a letter to Mr. Schildgen. According to Petitioner, the letter was about "psychological and physiological experimentations of science and technology." Mr. Schildgen found the letter described in paragraph 17 to be somewhat "strange," but nothing in the letter stated that Petitioner had a handicap or disability. After receiving the letter, Mr. Schildgen and two other supervisors met with Petitioner and asked him about the letter. During the meeting with his supervisors, Petitioner broke out in a cold sweat and rather than talking about the letter, started talking about subjects such as "Sigmund Freud and other stuff [Mr. Schildger and the other two supervisors] and we didn't quite understand where it was going." At no time during the meeting did Petitioner state or indicate that he had a disability. Moreover, there was nothing in Petitioner's personnel file that indicated he had a disability. At no time during his employment with Respondent did Petitioner advise anyone there that he had a handicap or disability. Also, Respondent never knew or considered Petitioner to be handicapped or disabled. The sole basis for Petitioner's termination was his violation of Orange County's "absentee policy."
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing Petitioner, Norman H. Siales', Petition for Relief. DONE AND ENTERED this 25th day of January, 2006, in Tallahassee, Leon County, Florida. S CAROLYN S. HOLIFIELD 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 25th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman H. Siales Post Office Box 1772 Orlando, Florida 32802 P. Andrea DeLoach, Esquire Orange County Attorney's Office 435 North Orange Avenue, Suite 300 Orlando, Florida 32801
The Issue The issues to be resolved in this proceeding concern whether the Respondent Solutia, Inc., discriminated against the Petitioner Darlene Fitzgerald, by allegedly denying her employment because of her hearing impairment. Embodied within that general issue is the question of whether, under Chapter 760, Florida Statutes, and other relevant law, the Respondent is an "employer"; whether the Petitioner is handicapped or disabled; whether the Petitioner is qualified for the position for which she applied; whether the Petitioner requested a reasonable accommodation from the alleged employer; whether the Petitioner suffered an adverse employment decision because of a disability; and whether the Petitioner has damages, their extent, and whether the Petitioner properly mitigated any damages.
Findings Of Fact The Petitioner, Darlene Fitzgerald, is a 34-year-old woman who alleges that she applied for a "carpet walker" position with either the Respondent or "AmStaff" in March 1998. The Respondent, Solutia, Inc. (Solutia), is a company which owned and operates a manufacturing plant that manufactures fibers and carpet in Escambia County, Florida. A number of independent contractors operate at the Solutia plant, performing certain phases of the manufacture and related services and operations there, including "AmStaff" and "Landrum." AmStaff is a contractor which operates a tire yarn plant and a Kraft plant at the Solutia facility. AmStaff hires its own employees to work in its operations at the Solutia plant. It is solely responsible for all hiring, counseling, disciplinary and termination decisions concerning its employees. AmStaff has its own payroll, does the Social Security withholdings for its employees, pays workers' compensation premiums on its employees and provides retirement benefits to its employees. Landrum is a staff leasing company which is responsible for certain jobs at the Solutia plant, including carpet walkers. Landrum is solely responsible for all of its hiring, counseling, disciplinary and termination decisions concerning its employees. Landrum has its own payroll, does its own Social Security withholdings for its employees and pays workers' compensation premiums on its employees. A carpet walker is a person who tests carpet for wear and tear. A carpet walker is required to work 40 hours per week and to walk approximately 18 miles a day testing carpet. Neither Solutia nor AmStaff employs carpet walkers. The Petitioner has never been to Solutia's facility or offices and has never gone out to the Solutia plant to apply for a job. She has had no contact with anyone representing or employed by Solutia concerning a job. All of the Petitioner's contacts concerning employment in March 1998, were with either AmStaff or Landrum. The Petitioner testified that she saw a newspaper ad that AmStaff was taking job applications, but never produced a copy of that ad. The Petitioner went to AmStaff to fill out an employment application. AmStaff's office is not at the Respondent Solutia's plant. The Petitioner gave conflicting testimony as to the date she allegedly applied with AmStaff for a carpet walker position. First, she testified that she applied for the position on March 15, 1998, which was a Sunday. After that was established by the Respondent, as well as the fact that AmStaff was closed on Sundays, the Petitioner then maintained that she applied for the carpet walker position on March 19, 1998. This date is incorrect, however, as evidenced by Respondent's Exhibit two in evidence, which is AmStaff's "notification of testing." According to the Petitioner the company name printed on the employment application she filled out was AmStaff. The Petitioner was then scheduled for testing by AmStaff on March 12, 1998, at Job Service of Florida (Job Service). The notification of testing clearly indicates that the Petitioner applied for a job with AmStaff. While at the Job Service, the Petitioner spoke with an individual named Martha Wyse. The Petitioner and Robin Steed (an interpreter who accompanied the Petitioner to the job service site), met Martha Wyse, who never identified her employer. Subsequent testimony established that Martha Wyse was AmStaff's recruiting coordinator. Martha Wyse has never been employed at Solutia nor did she ever identify herself as being employed by Solutia. All applicants with AmStaff must be able to meet certain physical requirements, including, but not limited to pushing and pulling buggies weighing 240 to 1,080 pounds; lifting 50 to 75 pound fiber bags, lifting 60 pound boxes, stacking and pouring 55 pound bags and working indoors in temperatures of up to 100 degrees Fahrenheit. The Petitioner admitted that she could not push or pull buggies weighing 240 pounds; could not lift 50 to 75 pound fiber bags, could not lift 60 pound boxes nor stack and pour 55 pound bags or work indoors in temperatures in the range of 100 degrees. Additionally, the Petitioner admitted that her obstetrician and gynecologist had restricted her, in March 1998, to no lifting or pushing. On September 24, 1998, the Petitioner was involved in an automobile accident. Her doctors restricted her to lifting no more than 25 to 30 pounds as a result of the injuries sustained in the automobile accident. Because of the injuries sustained in the automobile accident, the Petitioner was unable to work and applied for Social Security disability. Apparently she was granted Social Security disability with attendant benefits. AmStaff employees must work around very loud machinery. There is noise from the machines themselves, combined with that of the air conditioning equipment. Horns blow signaling that forklift trucks are moving through the employment area. The machinery also emits a series of beeps that are codes to let employees know to do different things at different times regarding the machinery. Although the Petitioner stated that she had no restrictions concerning her hearing and could hear everything with the help of her hearing aid, she also stated that she could not stand loud noises generated by machines. In addition to the physical requirements, AmStaff employees were required to work rotating shifts. The employees had to rotate between a 7:00 a.m. to 7:00 p.m., shift and a 7:00 p.m. to 7:00 a.m., shift. The Petitioner did not want to work from 7:00 p.m. to 7:00 a.m. Additionally, AmStaff's employees were required to work 36-hour weeks followed by 42-hour weeks on alternating week schedules. The Petitioner did not want to work more than 20-hours per week in 1998, and in particular the months of April through September 1998. She did not want to work more than 20-hours per week, as she did not want to endanger her Social Security income benefits or have them reduced. Landrum did not have an opening for a carpet walker position at the time the Petitioner allegedly applied for that position. The Petitioner did not ask AmStaff or Landrum for any disability accommodations. If an employee is not entirely aware of the sounds and signals emanating from a plant and the machinery within the plant, that employee cannot respond immediately or accurately to situations that may cause problems with the machinery and ultimately could cause injury to the employee or to other employees. If a bobbin is not seated properly on a machine, for example, the machine will begin to produce a clanking noise. If the noise is not heard by the operating employee and the bobbin is not re-seated properly it can become detached from the machine and be thrown by the force of the machine potentially striking either the operator or anyone who happens to be moving through the machine aisle nearby at the time. Further, there are over 300 alarm boxes throughout the plant. These alarms are used in emergency situations. The alarms indicate the type of emergency, the location of the emergency and its severity. There are different types of warnings for vapor clouds and evacuations. All warnings come through that alarm system. An employee must listen for the type of sound or blast, the number of sounds or blasts and the sequence of the sounds or blasts in order to determine the type of emergency and to know how to react to it. The Petitioner was unemployed from September 24, 1998 until April 2000, when she became employed at Walmart. She left her employment at Walmart in July of 2000. After leaving Walmart the Petitioner has not been employed and has not looked for work. She apparently worked at Popeye's Fried Chicken for an undetermined period of time after March 1998. From April to September of 1998, she voluntarily restricted her work to no more than 20-hours per week in order to keep from reducing her Social Security disability benefits.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record and the candor and demeanor of the witnesses, as well as the pleadings and arguments of the parties, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 6th day of December, 2001, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 6th day of December, 2001. COPIES FURNISHED: Danny L. Kepner, Esquire Shell, Fleming, Davis & Menge, P.A. 226 South Palafox Street, Ninth Floor Pensacola, Florida 32501 Erick M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32501 Cecil Howard, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Denise Crawford, Agency Clerk Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issues for determination in this proceeding are whether Respondent discriminated against Petitioner on the basis of a handicap, within the meaning of Section 760.10, Florida Statutes (2002), and whether the same alleged discrimination violated Section 448.045, Florida Statutes (2002).
Findings Of Fact Petitioner is a handicapped person. Petitioner is bipolar and has episodes of psychosis and occasional ideations of suicide and homicide. On January 14, 2003, Petitioner returned to work after an extended vacation, during which he suffered a psychotic episode and was diagnosed with his handicap. Respondent scheduled an in-office hearing, identified in the record as a "fit-for-duty hearing," because Respondent was concerned for the safety of Petitioner and other employees. Respondent denied Petitioner's request to postpone the hearing for one day to allow Petitioner to get back into "the swing of work routine." Petitioner requested 30 days of accrued personal leave. Respondent granted the request, and Petitioner was due back on the job on February 18, 2003. At the conclusion of the 30-day leave, Respondent granted Petitioner's request for medical leave. The medical leave began on February 18, 2003, and Petitioner was scheduled to return to work on July 3, 2004. Respondent's policy requires every employee that is on medical leave, including Petitioner, to be certified by a physician that the employee is fit to return to work, with or without reasonable accommodation. A physician's certification is a prerequisite for any employee on medical leave to return to his or her job after medical leave. During Petitioner's medical leave, Petitioner sought treatment from several physicians. As of the date of the administrative hearing, no doctor had certified Petitioner as fit to return to work because Petitioner consistently refused to take medication prescribed for his handicap. After going on medical leave, Petitioner received short-term disability benefits and, at the time of the administrative hearing, was receiving long-term disability benefits. The long-term benefits were scheduled to expire in August 2005. Petitioner is not contractually entitled to long- term disability benefits unless Petitioner is unable to perform all of the material and substantial duties of his regular occupation. When Petitioner's medical leave ended on July 3, 2004, Petitioner was not medically certified as fit to return to work. Petitioner refused to take medication prescribed for his condition and continued to receive long-term disability benefits. Respondent refused to accommodate Petitioner any further with additional leave. Respondent terminated Petitioner's employment on July 3, 2004.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding that Respondent did not unlawfully discriminate against Petitioner by convening a "fit-for-duty hearing" or by subsequently terminating Petitioner's employment. DONE AND ENTERED this 21st day of December, 2004, in Tallahassee, Leon County, Florida. S DANIEL MANRY 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 21st day of December, 2004. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Norman K. Wright 826 Grand Cayman Court Orlando, Florida 32835 J. Lester Kaney, Esquire Cobb & Cole 150 Magnolia Avenue Post Office Box 2491 Daytona Beach, Florida 32115-2491 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Duane Pierson, M.D., purchased the property known as 1131 Lakeview Road, Clearwater, Florida, from Thomas Pellerin conditional upon the Board of Adjustment and Appeal on Zoning granting a special exception to operate a Level II group health facility at this site. When the Board granted the special exception, Pierson consummated the purchase. This property is zoned RM-8. Duane Pierson is a psychiatrist and runs a nonprofit corporation that provides services to disturbed young people. The residence at 1131 Lakeview Road is a three-bedroom, two-bath house in which Pierson's group is licensed to house six youths under 18 years of age in a halfway house. These boys and young men are those no longer requiring a very restrictive environment but who are not ready for a full return to society. Many of these youths have been in foster homes where they were unable to cope with the living conditions, some have been abused by parents, and all are classified as disturbed. None of the clients in the proposed facility is considered violent or has abused others. Some will go to a public school each day while those who are out of school will go to work each day. They will have meals prepared for them at this residence, will have a house manager who supervises their activities, sociologists and mental health technicians to aid with the patients' problems, and a night warden who will see the clients remain in the home at night. None of these clients is deemed to be a danger to the community or to the grammar school adjacent to this residence. The effect on the community in the vicinity would be the same as if a large family of teenage boys moved into the residence. The neighborhood in the vicinity of this proposed facility has been designated a blighted area so as to qualify for certain tax credits to businesses. Those witnesses opposing the special exception expressed concerns for the safety of the young children in the grammar school adjacent to this facility, expressed concern that their property values would drop because of the presence of this facility, expressed concern that traffic would be increased as a result of this facility and this would create more danger to the grammar school children, and expressed concern that the youths in the facility would create a danger to the community. No evidence to support these concerns was presented, nor was any evidence presented to rebut the testimony of Dr. Pierson that the facility would create no danger to the community. One witness testified that such a facility was not permitted in an area designated as a blighted area and cited Section 163.3177, Florida Statutes, as authority for this position. Section 163.3177 contains the required and optional elements of a comprehensive plan for local development. That section does not address Level II group health facilities being excluded from blighted areas.
The Issue The issue is whether Respondent engaged in an unlawful employment practice.
Findings Of Fact Ms. Barnett is a resident of Ocala, Florida. She executed Lifestream's employment application form on January 30, 2007. She claimed a bachelor's degree from Brooklyn College and a Master's in Social Work from Upsala College in East Orange, New Jersey. Her application indicated that she was a social worker in New York from September 1987 until December 2003. Ms. Barnett moved to Florida and was employed by the Marion County Drug Court, but quit, according to Ms. Barnett, because she had a heart attack in November 2005. Thereafter, she worked for a company named ResCare in Gainesville, Florida. Her job entailed working with mentally handicapped adults. She was discharged from this job for losing her temper. Lifestream operates a detoxification facility and crisis stabilization unit among other things. It provides services to children, adults, and the elderly. Lifestream's mission is to provide quality life enrichment services through prevention, education, and treatment. Ms. Barnett was employed as an emergency evaluator on or about February 15, 2007. An emergency evaluator works in the receiving area of the Lifesteam facility. Clients are brought to the facility by law enforcement or friends or family. Some clients appear voluntarily. Clients enter the facility at irregular hours. As an emergency evaluator, it was Ms. Barnett's job to search new clients to ascertain if they possessed weapons, in order to ensure the safety of the client and staff, and to evaluate them for mental status using Diagnostic and Statistical Manual IV. It was her job to notify the nursing supervisor of the health status of new clients and to prepare records. Occasionally clients were violent, and at least once Ms. Barnett was attacked by a client. This attack occurred on May 3, 2007. She claimed that she had 17 injured discs in her back. She claimed that these injuries occurred in part while working for Lifestream, although she did not assert that all of these injuries occurred during the alleged attack. Ms. Barnett also stated that she was scheduled for surgery and stated that a steel rod would be inserted in her back at Tampa General Hospital. Although there was no medical evidence introduced that corroborated her testimony, it was unrebutted and is accepted as true. There was no proof that these claimed medical deficiencies resulted in a disability. In any event, the record is completely devoid of any evidence that anyone at Lifestream was aware of that Ms. Barnett might have been disabled or that anyone perceived her as disabled. Moreover, she never requested an accommodation. Ms. Barnett's alleged disability first surfaced in Ms. Barnett's Employment Complaint of Discrimination, subsequent to her termination, which occurred on December 15, 2007. During the approximately 10 months of employment at Lifestream, Ms. Barnett was absent for her scheduled shift on 56 days. She did not inform Lifestream in advance that she was not going to appear for work and as a result, Lifestream found it necessary to replace her with other employees. This often resulted in Lifestream bearing the cost of overtime pay. When Ms. Barnett did work, her performance was poor, and she was counseled about it. The charts that she was required to maintain often failed to contain necessary documentation and signatures. During the course of her employment, she received five verbal and written reprimands addressing her poor job performance. Lifestream's constant uncertainty regarding Ms. Barnett's attendance at work, an essential part of her job, coupled with her poor performance, culminated in her being removed from the work schedule in October 2008. She was not formally discharged until December 2008. She remains eligible for re-hire at Lifestream.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition of Candice Barnett. DONE AND ENTERED this 19th day of May, 2009, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 19th day of May, 2009. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Candice Barnett 1850 Southeast 18th Avenue, No. 1601 Ocala, Florida 34491 Victoria McCloskey, Esquire Albert Guemmer, Esquire Guemmer & Ritt 3002 West Kennedy Boulevard Tampa, Florida 33609 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether or not Petitioner's application for certification as an Independent Waiver Support Coordinator should be approved.
Findings Of Fact Respondent is the state agency that implements programs and services for persons who are developmentally disabled. In this capacity, Respondent certifies and enrolls qualified individuals, private businesses, not-for-profit organizations, and units of local government to provide services to developmentally disabled persons under the Developmental Disabilities Program Developmental Services Home and Community- based Services waiver program. In so doing, Respondent must ensure that all federal requirements are met and that the health and welfare of developmentally disabled persons are protected. Respondent has established reasonable academic, training and experience criteria for individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators as a part of the Developmental Disabilities Program Developmental Services Home and Community-based Services waiver program. For example, these minimum qualifications include a bachelor's degree and three years of professional experience in developmental disabilities, special education, or related fields. In addition to the academic, training and experience criteria, Respondent conducts background screening in an attempt to assess the suitability of individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators. Part of the background screening involves a review of the work product, performance appraisals, and achieved outcomes of any applicant who has rendered services to individuals receiving developmental disabilities services. Respondent may deny certification to an applicant if it receives evidence of an adverse history with Respondent or the Agency for Health Care Administration as a result of background screening. Prior to Petitioner's application to be certified as an Independent Waiver Support Coordinator, she was employed by an institutional services provider which provided services to individuals with developmental disabilities; her job with the institutional services provider had essentially the same responsibilities as she would have if she became an Independent Waiver Support Coordinator. Respondent solicited and received an evaluation of Petitioner's work performance with the independent services provider. Petitioner's supervisor indicated that Petitioner's work was not satisfactory and that she would not rehire her. Respondent determined this negative evaluation as evidence of an adverse history sufficient to disqualify Petitioner and deny her certification.
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 certification as an Independent Waiver Support Coordinator. DONE AND ENTERED this 12th day of September, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK 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 12th day of September, 2002. COPIES FURNISHED: Joseph K. Birch 34 East Pine Street Orlando, Florida 32802 Chelsea Predue-Washington Post Office Box 1117 Clarcona, Florida 32710-1117 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
