Findings Of Fact Based upon the evidence presented, I submit the following: Patricia R. Franks was employed at Tampa General Hospital on November 14, 1988 and discharged August 7, 1989 for the stated reason of "continued rendering of unsatisfactory service after instruction and counselling for neglect of duty or failure to perform assigned duties." (Exhibit 2) Petitioner was admitted to Tampa General Hospital as an inpatient on July 20, 1989 with polycystic kidney disease (Exhibit 3) and discharged July 28, 1990 with instructions she would be able to return to work August 8, 1989. (Exhibit 3) During the period between December 27, 1988 and August 7, 1989, Petitioner had the following absences: December 27, 1988 - called in sick December 29, 1988 - called in sick March 29, 1989 - called in sick April 27, 1989 - May 2, 1989 - called in sick May 28, 1989 - called in sick June 24, 1989 - July 5, 1989 - called in sick July 20, 1989 - August 7, 1989 - sick. Following the absence in April 1989, Petitioner was given a verbal warning regarding the hospital policy that over four absences or tardiness within a twelve months period was considered excessive and subjected the employee to disciplinary action. Following the May 28, 1989 absence, Petitioner was given a written warning. Another written warning was given Petitioner following the absence ending July 5, 1989. In her six months evaluation given 5/01/89, Petitioner received only one unsatisfactory mark but received only 49 points out of a maximum of 136 for an average of 1.167 points out of a maximum average of 3. Under this scoring unsatisfactory performance received 0 points, effective received 1 point, frequently exceeds received 2 points, and consistently exceeds received 3 points. (Exhibit 4) In June 1989, Petitioner was counseled concerning inconsistences in ordering supplies, reports were received from floor nurses concerning Petitioner's excessive length of "breaks", and on one occasion Petitioner was seen smoking on the balcony, in a non-smoking area. Petitioner testified she was unaware this was a non-smoking area and did not repeat this infraction. During the period Petitioner was hospitalized in late July, she requested permission to work between the time she needed to be in her room for treatment. This request was denied. Petitioner offered the testimony of a former employee of the hospital who was allowed to work in the lab between the time she needed to be in her room for her insulin tests. No employee who was in an infectious state, such as was Petitioner while an inpatient, had ever been permitted to work on the wards at Tampa General Hospital. In her Petition alleging discrimination Petitioner acknowledges that she missed six weeks of work in a three months period.
Recommendation It is recommended that the charge of discrimination by reason of handicap filed by Patricia R. Franks against Hillsborough County Hospital Authority, be dismissed. ENTERED this 3rd day of July, 1991, in Tallahassee, Florida. K. N. AYERS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of July, 1991. COPIES FURNISHED: Patricia R. Franks 11212 Garfield Court Seffner, Florida 33584 E. John Dinkle III, Esquire P.O. Box 1427 Tampa, Florida 33601 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570 Margaret Jones Agency Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32399-1570
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has been the victim of an unlawful employment practice by the alleged failure to re-hire him by the Respondent because of his alleged disability.
Findings Of Fact The Petitioner was employed as a machinist operating a "pega" machine for the Respondent at times pertinent hereto, in 1992 and 1993. On or about February 24, 1992, while he was home for lunch, the Petitioner apparently suffered a stroke. He was hospitalized and his wife and a nurse informed his employer of his medical condition. The Respondent is an employer within the meaning of Chapter 760, Florida Statutes. It is a manufacturer of commercial laundry equipment and employs more than 15 employees. Because of the medical condition related to his stroke, the Petitioner applied for and was granted a medical leave of absence on or about February 24, 1992 or shortly thereafter. There is apparently some question whether the Petitioner's supervisor actually signed the leave request, but the employer does not dispute that he was legitimately on a medical leave of absence until August 13, 1992. There is also some dispute concerning whether the Respondent employer knew that the Petitioner had suffered a stroke or not. The complainant's personnel file, however, contained two notes dated March 12, 1992 and August 17, 1992 from Dr. Watts, his treating and attending physician. The March 12, 1992 note confirmed that the Petitioner had been hospitalized and had had an abnormal cerebral imaging result, also suffered from hypertension and, at that time, was unable to return to work. The August 17, 1992 note from Dr. Watts stated that the Petitioner could return to work and stated that there were no restrictions on his activities. Thus, the evidence of record indicates that there was a basis for the Respondent to know that the Petitioner had a stroke or some type of disability between February 24, 1992 and August 17, 1992. Upon his release by his attending physician on August 17, 1992, without medical restriction of his activities, so that he could return to employment, there was no basis for the Respondent to believe from that point forward that the Petitioner had any disability. This is borne out by the Petitioner's own testimony revealing that he repeatedly sought re-employment with the Respondent during the period from August 1992 through February 1993 without advising the Respondent of any employment restrictions due to his medical condition or any purported disability. When the Petitioner returned to the Respondent's place of business on August 17, 1992 and sought to come back to work after his medical leave, the plant manager informed him that he had no openings for him at that time. There were two positions being filled at that time, but they were not positions for which the Petitioner was qualified. One was a position requiring skill at electrical schematic reading, which was an electrical assembly position. The Petitioner was not qualified for this position. The other position was as a "tig welder", a highly-skilled type of welding process. The Petitioner was not qualified to perform this, as well, because of his lack of knowledge of welding. The position, and similar positions, operating "pega" machines (machine tools), which the Petitioner had filled and performed prior to his illness, were all filled and unavailable at the time the Petitioner sought to return to work in August of 1992. Neither the Petitioner nor his physician had given any indication of when the Petitioner could return to work, prior to August 13, 1992, nor was there any communication with the Petitioner or his physician for six months during his leave of absence, other than the provision to the company of the physician's note in March 1992 concerning the brief description of his medical condition. Consequently, on August 13, 1992, when Mr. Rieff, the plant manager, received a note from the Petitioner's physician stating that he could return to work without restriction, there were no positions available for his type of skill and training. Therefore, the company recorded the Petitioner's status, as of August 1992, as being discharged due to the conclusion of his medical leave with no open positions suitable for him being available. The Petitioner testified that he sought employment several times during the period of August 1992 through January 1993 by attempting to contact or contacting Mr. Rieff. He stated that Mr. Rieff told him to check with him every two or three weeks because each time he spoke with him, Mr. Rieff informed him that no openings were available at that time. The Petitioner, however, filed no application for employment until he learned, from a visit to the state employment service office in February of 1993, that the Respondent was looking for a "pega machine operator". The Petitioner filed an application with the company at that time. Upon receiving the application or learning of it, Mr. Horton, Human Resources Director of the company, reviewed it and noted that the Petitioner had had previous experience with the company performing this same job. Mr. Horton had not been with the company at the time the Petitioner had left for his medical leave and, therefore, had no knowledge of his medical history, skills, abilities, and other past history with the company. Consequently, he consulted with Mr. Rieff concerning the advisability of re-hiring the Petitioner. Mr. Rieff advised against re-hiring the Petitioner because the Petitioner had had an attendance problem while he was employed by the company. In fact, although his other job skill and performance ratings were the highest, his attendance rating was the poorest in the company's system and means of rating performance. Consequently, because of Mr. Rieff's negative recommendation, on the basis of the Petitioner's past poor attendance record, which is substantiated by the evidence, Mr. Horton elected not to re-hire him. Mr. Horton did not know at that time of the medical history of the Petitioner because the medical records were housed in a different department of the company. Mr. Horton was the decision-maker for that employment decision. The employment action which resulted in the Petitioner filing the charge of discrimination at issue occurred when the Respondent failed to hire the Petitioner. The Petitioner maintains that it was on account of his medical condition or disability. The Petitioner verbally sought employment by contacting Mr. Rieff periodically from August 1992 through January 1993. On approximately January 7, 1993, Mr. Rieff effectively told the Petitioner that he would not hire him in the foreseeable future and that if he needed the Petitioner, he could call him. In February 1993, the application was actually filed by the Petitioner for employment, and Mr. Horton took the above negative action with regard to it. It is undisputed that the Respondent granted the Petitioner six months of medical leave. Whether or not the Respondent knew of the precise nature of the medical problem for which the Petitioner was given medical leave, the fact is established that upon the Petitioner being released by his treating physician with no restrictions and able to return to work, the Petitioner had no disability in terms of any impediment to his full employment, performing the full range of duties he had performed before the medical incident occurred in February 1992. Consequently, the Petitioner was not disabled from August 13, 1992 forward. The established reason that the Petitioner was not hired again by the Respondent company was because of his poor attendance record and not because of any perceived disability suffered by the Petitioner. In fact, at the times pertinent hereto when the decision at issue was made not to re-hire the Petitioner, the Petitioner suffered from no disability, and the Respondent had no perception that he did.
Recommendation Based on 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 RECOMMENDED that a Final Order be entered by the Commission on Human Relations dismissing the petition filed by the Petitioner, Dennis W. Thomas, in its entirety. DONE AND ENTERED this 1st day of December, 1994, in Tallahassee, Florida. P. MICHAEL RUFF Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of December, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2126 The parties were accorded the opportunity to submit proposed findings of fact and conclusions of law in the form of Proposed Recommended Orders. The Respondent submitted proposed findings of fact, which are accepted (Nos. 1-6) to the extent they do not conflict with or are inconsistent with the findings of fact made by the Hearing Officer. The Petitioner submitted a post-hearing pleading, in letter form, which really amounts to an argument as to the quantity, quality and weight to be ascribed to the evidence and included citation to the relevant statute, Section 760.10, Florida Statutes, and a court case which merely is cited for the purpose of pointing out that employment cannot be denied a person on account of illness and disability. That principle is not in dispute in this proceeding. The Petitioner did not separately state proposed findings of fact which can be specifically ruled upon by the Hearing Officer. Nevertheless, all legal and factual issues alluded to in the Petitioner's pleading have been addressed and ruled upon in the body of this Recommended Order. COPIES FURNISHED: Dennis W. Thomas 4396 Clyde Lane Post Office Box 56 Marianna, Florida 32447 Roger W. Horton, III Human Resources Director Unimac Company, Inc. 3595 Industrial Park Drive Marianna, FL 32446-9458 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149 Dana C. Baird, Esq. General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, FL 32303-4149
The Issue The issue is whether Respondent discriminated against Petitioner because of his disability by refusing to renew Petitioner’s contract for employment.
Findings Of Fact Respondent is a private university located in Pasco County, Florida (Saint Leo or the university). Respondent employed Petitioner as an assistant professor from sometime in January 2000 until the end of the 2005-2006 school year in May 2006. Petitioner initially taught sports management courses in the Business Department of Saint Leo and, following the university reorganization, taught sports management courses in the Sports Management Department of the School of Business (the Department). The Charge of Discrimination and Petition for Relief allege, in relevant part, that Respondent violated Section 760.10, Florida Statutes (2004), when Respondent allegedly discriminated against Petitioner because of Petitioner's handicap. Neither the Charge of Discrimination nor the Petition for Relief expressly allege that Respondent violated the Americans with Disabilities Act (ADA) of 1990, Pub. L. No. 101-336, 104 Stat. 328, codified as amended at 42 U.S.C. Sections 12101-12213 (2000). However, judicial decisions discussed in the conclusions of law instruct the trier of fact to make findings in a manner that is consistent with the ADA.1 Petitioner is a person with a handicap within the meaning of Subsection 760.10(1)(a), Florida Statutes (2000). Petitioner was paralyzed in an automobile accident on December 19, 2001, and is a disabled person within the meaning of 42 U.S.C. Section 12112 (2004). Petitioner is a qualified person within the meaning of 42 U.S.C. Section 12111(8) (2004). Petitioner is a person with a disability who can perform the essential functions of a tenured employee. Petitioner was qualified for the position for which Respondent employed Petitioner in January 2000. Petitioner received his doctorate of education in sports management from the United States Sports Academy in 1990. Although Petitioner had no prior experience teaching at the college level, Petitioner was the only doctorate teaching sports management courses in the Business Department of the university when Respondent employed Petitioner in January 2000. At the time, Respondent needed a doctorate to teach sports management courses in order to satisfy the accreditation requirements of the Southern Association of Colleges and Schools (SACS). Respondent does not allege that Petitioner is not qualified to perform the requirements of a tenured employee. Respondent argues, and submitted evidence intended to prove, that Petitioner either lacked the motivation to perform the required job duties or simply refused to perform those duties. On November 12, 2004, Respondent notified Petitioner that Respondent would not renew Petitioner’s teaching contract at the end of the 2005/06 school year. The refusal to renew Petitioner's teaching contract was an adverse employment action. There is no direct evidence that the adverse employment action was motivated by discrimination. However, the circumstantial evidence, taken as a whole, supports a reasonable inference by the trier of fact that the adverse employment action was motivated by both legitimate non-discriminatory and discriminatory reasons. Legitimate non-discriminatory reasons, in part, motivated the adverse employment action against Petitioner. When a third-year review of Petitioner's job performance began on August 26, 2004, Petitioner had not prepared sufficient papers for conferences, had not demonstrated consistency in presenting papers at conferences, and had not served on any conference panels. Petitioner had not published a sufficient number of articles or books and had not engaged in sufficient scholarly research. Petitioner did not submit any paper or abstract to present at a conference until June 2004. The first paper was accepted for publication in November 2004. In September 2004, Petitioner had his first test bank accepted for inclusion in a textbook published by another author. Petitioner utilized at least one course syllabus that was below grade level. The syllabus included some grammatical errors and inaccurate information. Petitioner episodically cited incorrect facts during class. Petitioner was occasionally late to class for up to five minutes. Petitioner frequently read from the textbook when lecturing students. Petitioner sometimes did not give prior notice to his supervisor of his unavailability for a class. The supervisor was unable to arrange for a substitute. Petitioner sometimes cancelled classes without providing class notes for the substitute. Petitioner failed to maintain consistent office hours for academic advice of students. One faculty member in an adjacent office provided academic advice to Petitioner's students in Petitioner's absence. Petitioner failed to attend a meeting in Atlanta, Georgia, as a reviewer on a national council chaired by Petitioner's supervisor. Petitioner did not ascertain the correct starting time or location of the meeting. The failure to attend the meeting in Atlanta caused the council to be short a reviewer for one year. The inclusion of Petitioner as a reviewer on the council would have provided Petitioner with an opportunity to improve his national reputation and meet many influential people in his field of employment. Record evidence supports a reasonable inference that discriminatory reasons, in part, motivated the adverse employment action against Petitioner. Two of four evaluators in the third-year review of Petitioner's job performance that began on August 26, 2004, referred to Petitioner's disability in their formal evaluations. The two evaluators testified at the hearing that Petitioner's disability did not influence their evaluations. Their testimony is neither credible nor persuasive to the trier of fact. The testimony of the two evaluators, among other considerations, is not plausible. The testimony does not adequately explain why the evaluations address Petitioner's disability if the evaluators disregarded the disability in evaluating Petitioner.2 The immediate supervisor of Petitioner commented on Petitioner's disability in her third-year evaluation of Petitioner. The supervisor stated she was "extremely disappointed" during the previous academic year when Petitioner declined her request to "be a role model and show our students what individuals with handicaps could achieve." The supervisor further explained in her evaluation that "disability sport has - become a major segment of - our sport business industry - and there are many career opportunities for students in this area." The supervisor further stated in her third-year evaluation of Petitioner that she could not "fully understand what it is like to have [Petitioner's] disability." However, the supervisor stated that she had "worked with physically challenged individuals for approximately 16 years, and they never ceased to amaze [her] at what they could do." One of three outside evaluators also included references to Petitioner's handicap in the third-year evaluation of Petitioner. The evaluator devoted approximately one-third of the evaluation to a discussion of his experience working with one disabled colleague who had been seriously injured in a motorcycle accident and was, like Petitioner, wheelchair bound. After recounting the many laudable accomplishments of the evaluator's disabled colleague after becoming disabled approximately 12 years ago, the evaluator stated that his disabled colleague did not consider himself disabled. The evaluator explained that his disabled colleague "never makes excuses for his special challenge nor does he ask or demand special considerations due to his situation." The evaluator went on to compare Petitioner's paralysis with the evaluator's self-proclaimed "disability" following open heart surgery. The evaluator stated that he had undergone open heart by-pass surgery and did not let his "disability" prevent him from achieving performance standards. After recounting numerous professional accomplishments after his surgery, the evaluator explained: The reason I have provided this information is not to brag but rather to illustrate that if one has a positive attitude about life he/she can do anything he/she wishes whether or not they are disabled. A disability is an extra challenge in life not a sentence to do less. I have not let my disability negatively affect my career. Respondent's Exhibit 44 at 4. When prima facie evidence shows that an adverse employment action is motivated by both non-discriminatory and discriminatory considerations, an employer does not escape liability under the ADA on the ground that the adverse employment action was not motivated "solely" by prohibited discrimination. Rather, judicial decisions discussed in the conclusions of law require the trier of fact to apply a so- called motivating-factor standard, or mixed-motive standard.3 The motivating-factor standard requires the trier of fact to determine whether the prohibited discriminatory motive made the difference in the decision to take the adverse employment action.4 The motivating factor standard has been judicially explained as a "but-for" standard.5 Liability for prohibited discrimination requires the trier of fact to find that Respondent would not have taken the adverse employment action but-for the prohibited discrimination. The but-for standard requires the trier of fact to determine whether the evidence supports a reasonable inference that Petitioner's failure to comply with performance standards for tenure was caused by his handicap.6 If the evidence supports such an inference, the adverse employment action would not have been taken but-for the prohibited discrimination. The record evidence supports a reasonable inference that Petitioner's failure to comply with performance standards for tenure by the beginning of the third-year review on August 26, 2004, was caused by his handicap. The inference is supported, in relevant part, by comparing the record evidence of Petitioner's performance during his employment before his disabling accident on December 19, 2001, with Petitioner's performance from the date of the accident until the beginning of the third-year review on August 26, 2004. Prior to the accident on December 19, 2001, Petitioner taught classes at Saint Leo for four semesters.7 Petitioner received four evaluations by three different evaluators. Even though it was Petitioner's first teaching experience at the college level, all but one of those evaluations rated Petitioner's job performance as "outstanding." The one exception rated Petitioner's job performance in his first year as "satisfactory." In the second year, however, the same evaluator rated Petitioner's job performance as "outstanding." The supervisor for Petitioner during the first and second academic years of employment was the acting chair of the Business Department at Saint Leo. The supervisor rated Petitioner's job performance during the first year as "satisfactory." However, a second-line evaluator who was also a dean at Saint Leo rated Petitioner's job performance during the first year as "outstanding." In the second academic year, the supervisor rated Petitioner's job performance as "outstanding." The supervisor found that Petitioner was "developing into a highly competent and effective classroom teacher." An outside evaluator retained to evaluate Petitioner during the second academic year found that Petitioner had made "positive contributions to [the] sport management program." The evaluator recommended that Respondent retain Petitioner based on Petitioner's academic background, sport management experience, and teaching performance. Prior to the accident, Petitioner was selected to serve on the Panel of Reviewers for the Sport Management Program Review Council (SMPRC) to review institutional portfolios. The selection provided Petitioner with an opportunity for professional development, an improved national reputation, and enhanced professional relationships. However, the opportunity was postponed due to the accident that paralyzed Petitioner. On January 29, 2002, Petitioner received a fifth evaluation by a fourth evaluator. The dean of the School of Business (the Dean) evaluated Petitioner's job performance for the four academic semesters that Petitioner worked before the accident. The Dean found that Petitioner was: cademically competent and very committed to Saint Leo University and the well being of his students. Stewart is relatively new to university level teaching and the expectations associated with this level of performance. His classroom manner is casual yet he holds the students to high performance standards. Stewart will need to identify an area of research interest and begin to prepare papers for the conferences in his discipline. I approached him with an idea and a willingness to co-author a paper. Unfortunately, due to his accident, Stewart will be involved full-time for the next six months in rehabilitation and relearning. Stewart has excellent potential to develop into an effective senior faculty member. Respondent's Exhibit 10. After the accident on December 19, 2001, Petitioner taught three academic semesters before his third-year review that began on August 24, 2004, and led to the adverse employment action on November 12, 2004. During the semester that began in January 2002, Petitioner was on medical leave to undergo surgery and recover. Petitioner worked during the semester that began in August 2002, but returned to medical leave during the semester that began in January 2003 in order to undergo additional surgery. Petitioner worked the two semesters that began in August 2003 and January 2004. On August 24, 2004, at the start of the fourth semester of work after the accident, Respondent began the third-year review that led to the adverse employment action on November 12, 2004. During the three semesters that Petitioner worked between the accident and the start of the third-year review, the Dean, who evaluated Petitioner on January 29, 2002, did not pursue the idea he had described for co-authoring a paper with Petitioner. Petitioner was learning to adjust to life in a wheel chair. Petitioner experienced, and continues to experience, a great deal of pain unless Petitioner takes pain medication. Petitioner has also had to learn new toileting skills and has expressed embarrassment over his condition. Petitioner did not attend the council meeting in Atlanta, Georgia, because he became confused over the correct time and location of the meeting. Petitioner did not make a volitional choice not to attend the meeting. On December 5, 2003, Dr. Michael Moorman was Petitioner's immediate supervisor. Dr. Moorman found that the quality of Petitioner's classroom teaching was "outstanding." After December 5, 2003, Respondent changed the job performance standards for employees teaching sports management courses at Saint Leo.8 While Petitioner was on medical leave, each school at Saint Leo designated a program as a "flagship" program. Each flagship program would be funded and supported in an effort to enable the program to grow into a nationally recognized program that would serve as a paragon for other Saint Leo programs to emulate. The job performance requirements in each flagship program were also intended to establish a standard for emulation by other programs. The School of Business designated the Sport Management Program as its flagship program and reorganized the program into the Sport Management Department. In February 2003, Respondent commissioned an outside study of the Department. The study concluded that the Department lacked academic rigor, failed to challenge students, and was poorly organized for the purpose of becoming a flagship program for Saint Leo. Respondent searched for a nationally known professor to chair the Department. Respondent wanted someone who could make the necessary curriculum changes, improve the Department's national recognition, increase the academic rigor of the Department, and enhance the national reputation of its professors, including Petitioner. In August 2003, Respondent selected a person to chair the Department. After December 5, 2003, the new chair succeeded Dr. Moorman as Petitioner's immediate supervisor. The new chair found, during the academic semester that began in January 2004, Petitioner did not meet the job performance requirements of the new flagship Department of Sport Management. One deficiency the chair described in her third- year evaluation of Petitioner pertained to errors in a syllabus used by Petitioner. For example, the syllabus continued to use the title "Saint Leo College" instead of "Saint Leo University." The new chair confided to an associate in the Department that the vice president of Academic Affairs (Vice President) had told the new chair in so many words that Petitioner would have been fired long ago if Petitioner had not been in a car accident. The associate testified to the statement she attributed to the new chair, and the associate's testimony is found to be credible and persuasive. The Vice President denied making the statement to the new chair during his testimony, and that portion of his testimony is found to be credible and persuasive. The statement attributed to the Vice President that he would have fired Petitioner but-for the accident conflicts with the predominantly "outstanding" job performance of Petitioner prior to his accident. The testimony of the new chair also conflicts with two evaluations of Petitioner's job performance by different deans on January 29, 2002, and December 5, 2003. Both of those evaluations occurred after the accident, but before the new chair became the immediate supervisor of Petitioner sometime after December 5, 2003. It is more likely that the new chair expressed her own view that the university was holding Petitioner to a lower standard of job performance because of his disability. When the third-year review process began on August 26, 2004, Petitioner was no longer the only doctorate employed in the Department. However, he was the only disabled doctorate employed in the Department. The record evidence supports a reasonable inference that Respondent required Petitioner to comply with standards exemplified by unidentified disabled persons described in two of the four third-year evaluations of Petitioner.9 Respondent did not require non-disabled employees to comply with similar standards. The Vice President testified that the references in the evaluations to standards exemplified by other disabled persons did not influence his decision to take the adverse employment action on November 12, 2004. That portion of the testimony of the Vice President is neither credible nor persuasive. The Vice President, in relevant part, relied on the third-year evaluations. His denials of influence conflict with other relevant evidence. Before the Vice President began the third-year review process on August 26, 2004, he conferred with the new chair and reviewed Petitioner's record, including Petitioner's record of "outstanding" performance on or before December 5, 2003. In a letter to Petitioner dated August 26, 2004, the Vice President told Petitioner, in relevant part, that he had "serious concerns regarding your performance." The Vice President instructed the Dean and the new chair to "carefully monitor" Petitioner's "teaching and professional development activities in the fall semester of 2004." However, neither the Dean nor the chair monitored Petitioner's activities, and the Vice President initiated the adverse employment action on November 12, 2004, prior to the conclusion of the fall semester. Respondent applied a different timeline to Petitioner's tenure track than the timeline that Respondent generally applied to the tenure track of other employees. Tenure track employees may apply for tenure after their fifth year of employment, but may apply no later than their seventh year of employment. Most tenure track employees apply for tenure during their sixth year of employment. Employees on tenure track at Saint Leo receive annual contracts for their first, second, and third years of employment. Tenure track employees that receive a favorable third-year review are given a two-year employment contract after the third and fifth years of employment. Petitioner began his tenure track in January 2000. The seventh year of his tenure track would have expired at the end of the academic semester in December 2006.10 The third year of Petitioner's tenure track would have expired at the end of the academic semester in December 2002. Due to the accident on December 19, 2001, however, Respondent extended the time for the third-year review until August 26, 2004. The extension provided Petitioner with seven academic semesters, rather than six, before the third-year review began.11 Although Respondent extended the time for beginning the third-year evaluation, Respondent did not extend the seven- year limit for tenure. Respondent thereby reduced the time after the third-year evaluation in which Petitioner had to correct his deficient job performance to a period less than that enjoyed by non-disabled employees. Other tenure track employees normally have 14 academic semesters in which to complete their seven-year tenure track. Upon the expiration of six academic semesters, Respondent conducts a third-year evaluation. A tenure track employee then has eight more academic semesters, or four academic years, in his or her tenure track. Respondent reduced Petitioner's tenure track by a semester when Respondent terminated Petitioner's employment at the end of the academic semester in May 2006, rather than at the end of the academic semester in December 2006. By extending the third-year evaluation by a semester and reducing the remaining tenure track by an additional semester, Respondent reduced by one year the period that non-disabled tenure track employees have after their third-year review to complete their tenure track requirements. The Vice President has conducted third-year reviews on approximately 20 tenure track employees at Saint Leo since 1997. He has terminated the employment of two of those candidates. Petitioner is one of the two terminated from employment. The Vice President acknowledged in his testimony that he may have given Petitioner more time if the adverse employment decision were based solely on research and acceptable publication levels. Petitioner's teaching performance on and before December 5, 2003, was predominantly "outstanding." Moreover, one of the outside evaluators found that syllabi deficiencies were nothing that could not be easily corrected. Another evaluator found the syllabi "are consistent with guidelines established by NASSM/NASPE." It is unlikely, therefore, that the adverse employment action was motivated by job performance deficiencies in teaching, research, and syllabi. The Vice President relied on findings of evaluators that evaluated Petitioner, in relevant part, on Petitioner's inability to comply with standards exemplified by other disabled persons. The Vice President articulated no intelligible standards he used for discerning whether, or to what degree, the disability of Petitioner influenced the negative opinion of the evaluator. Moreover, the Vice President did not undertake an independent determination of whether Petitioner's handicap prevented Petitioner from complying with applicable job performance requirements by August 26, 2004. The job performance requirements for tenure are prescribed in the Collective Bargaining Agreement (CBA) and a Faculty Handbook (FHB). The CBA provides, in relevant part: Promotion and tenure decisions at Saint Leo University are made on the basis of documented and evaluated performance in three areas: (1) teaching; (2) scholarly growth [sic] (3) institutional and community service. (a) Tenure and Promotion: The primary criteria for decisions regarding reappointment, tenure and promotion are excellence in classroom teaching and in facilitating student learning. Teaching Faculty must demonstrate excellence in teaching, a part of which is academic advising. Teaching faculty must demonstrate excellence in either (1) scholarly growth or (2) institutional and community service. Scholarly growth may be demonstrated through professional development and/or research. The definition of professional development and scholarly research will be determined by the relevant School. The University will recognize both traditional and non- traditional means of demonstrating professional development and/or research. Respondent's Exhibit 1 at 44. The FHB describes guidelines for promotion and tenure applications in terms similar to those in the CBA. The FHB provides, in relevant part: Promotion and tenure decisions at Saint Leo University are made on the basis of documented and evaluated performance in three areas: teaching; professional development, research, and scholarly growth; and institutional and community service. For teaching faculty excellence in teaching and demonstrated student learning are essential to tenure and promotion. Either professional development, research and scholarly growth or institutional and community service must be judged excellent for tenure. Respondent's Exhibit 2 at 73. The School of Business does not provide written job performance requirements that determine the tenure requirements for scholarly research and professional development. Testimony at the hearing suggested tenure requires at least two publications or presentations each year. However, that testimony is belied by predominantly "outstanding" job performance evaluations of Petitioner during his first two academic years in which Petitioner published no articles and made no presentations. In the three complete academic semesters that Petitioner had available to him after the accident to pursue his scholarly research, one article authored by Petitioner was accepted for publication and a test bank authored by Petitioner was included for publication in a text book. Petitioner also attended three conferences.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law it is, RECOMMENDED that a final order be entered granting Petitioner’s Charge of Discrimination and Petition for Relief for the reasons stated herein, and reinstating Petitioner to his position of employment with back pay and benefits. DONE AND ENTERED this 29th day of December, 2006, 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 29th of December, 2006.
The Issue The issue is whether Respondent should renew Petitioners' license to operate a family foster home.
Findings Of Fact Respondent is the state agency responsible for licensing and regulating family foster homes. Respondent first licensed Petitioners to operate a family foster home on April 11, 2003. Respondent renewed Petitioners' license in April 2004. Petitioners began accepting foster children into their home shortly after the renewal of their license in April 2004. Respondent renewed Petitioners' license on April 14, 2005. Petitioners were required to renew their license before April 14, 2006. Petitioners timely applied for the renewal of their license before April 14, 2006. Respondent denied the application for renewal by letter dated April 14, 2006 (notice of denial). The notice of denial alleges that child abuse involving a child identified in the record as C.S. violated safety standards in Florida Administrative Code Rule 65C-13.010. The notice of denial states, in relevant part: . . . The decision to deny your foster care license is based on the following reason: On or about 12/19/05 one of your foster children, C.S., was brought to the emergency room with a fractured left elbow. The night before while sleeping, the [sic] Ann Holt heard C.S. crying and went into her room to pick her up so she wouldn't wake up another child. C.S. and the other child shared the same bedroom. While Ms. Holt was removing C.S. from the crib she heard a pop. During the next morning C.S. complained of pain. Foster care mother called child's pediatrician and got an appointment at 3:30 PM where the doctor advised Ms. Holt to take C.S. to the emergency room. The foster mother brought C.S. to Lakeland Regional Medical Center at 8:15PM on 12/20/05. Child Protection Team Medical Director, Dr. William Brooks, reviewed the emergency room records and child's x-rays and concluded the injury was child abuse. Dr. Brooks sought a second opinion from Dr. Guidi, a pediatric radiologist at Tampa General Hospital. Dr. Guidi also concurred with Dr. Brook's findings. Both doctors agreed that the injury required significant pulling force and could not be considered accidental. It is the responsibility of the Central Zone Licensing Office to make a determination whether a foster home is in compliance with the standards for licensure set forth in the Florida Administrative Codes [sic] and the Florida Statutes. Your lack of compliance with safety standards towards the foster children that were in your home at the time of the incident which are governed by Florida Administrative Code 65C13.010 [sic] prohibits the Department from re-licensing your home. Please note that pursuant to Florida Statutes 409.175, the Department may deny, suspend, or revoke a license for noncompliance with the requirements for licensure. . . . Petitioners do not dispute most of the factual allegations in the notice of denial. However, Petitioners dispute that the injury suffered by C.S. was the result of child abuse. The trier of fact finds that a preponderance of the evidence shows the injury to C.S. did not require "significant pulling force" and could be accidental.1 The trier of fact weighed expert medical testimony presented by each party concerning the issue of child abuse. Neither of the two medical experts who testified for Respondent actually examined C.S., and neither is an orthopedist. One physician is a "pediatric ER doctor" at Tampa General Hospital in Tampa, Florida. The other physician is a pediatric radiologist. The pediatric radiologist who reviewed the X-rays could not quantify the force required to cause such an injury, but stated that the mere lifting of a child of 25 pounds could cause such a fracture. He had no independent recollection of reviewing the X-rays, had never seen the child, and based his testimony on the report of the other non-treating physician that testified for Respondent. The expert who testified for Petitioners is an orthopedist, was the treating physician for C.S., and was the only expert witness that actually examined C.S. The treating physician has over 30 years' clinical experience diagnosing and treating orthopedic injuries. The treating physician is a Fellow of the Royal Academy of Physicians and Surgeons in Ireland; a Fellow of the Royal Academy of Surgeons in Scotland; and a Fellow of the British Orthopaedic Association in England. The treating physician has practiced in the United States since 1975, was Chief of Orthopedics at the VA Medical Centers in Gainesville and Bay Pines, Florida, and was an assistant professor in the colleges of medicine at the University of Florida and the University of South Florida. The testimony of the treating physician was credible and persuasive. The treating physician's clinical experience with C.S., and his extensive experience in diagnosing and treating similar types of injuries in children assisted the trier of fact in resolving the relevant factual dispute between the parties. In addition, the trier of fact found the testimony of Petitioner, Ann Holt, the foster mother and the only witness present at the time of the alleged abuse, to be credible and persuasive. Mrs. Holt was in her bedroom at approximately 11:00 p.m. on December 19, 2005, when she heard a frantic cry from C.S. Petitioner, Michael Holt, the foster father, did not hear the cry or witness the incident because he was in the shower at the time. Mrs. Holt hurried down the hallway to the bedroom that C.S. shared with another baby girl. C.S. was approximately 19 months old, and the roommate was approximately 11 months old. C.S. and her roommate each had separate cribs. The roommate was ill, and Mrs. Holt feared C.S. would awaken the roommate. Mrs. Holt reached into the crib where C.S. was crying and picked up C.S. by her left arm, held her to her shoulder with both hands, and took her out of the room. The manner in which Mrs. Holt lifted C.S. from the crib was somewhat awkward. While Mrs. Holt was lifting C.S., C.S. slipped slightly, but Mrs. Holt retained her grip on the left arm of C.S. The awkward lift caused an injury to C.S. that was diagnosed by an emergency room physician on December 20, 2005, as a metaphyseal chip fracture of the left distal humerus, with elbow joint effusion (fractured elbow). Pursuant to the instructions of the emergency room physician, Mrs. Holt took C.S. to the treating physician on December 22, 2005. The treating physician confirmed the diagnosis and placed C.S. in a cast for several weeks. C.S. recovered without complication and returned to full range of motion. The medical experts for Respondent testified that the injury could only have been caused by excessive force consistent with abuse. However, the treating physician determined the fracture was not a significant injury, did not require extraordinary force, and was not related to abuse. The fracture suffered by C.S. was a small chip about a millimeter thick that can occur with "relatively minimal force." A fracture like that suffered by C.S. can be inflicted by the child rolling over in bed without any outside cause. If the fracture were higher up the humerous bone, it may have been consistent with child abuse because of the significant force necessary to cause an injury at that location. In this case, however, the area of injury is near or in the area of the child's growth plate that is more fragile and susceptible to injury. C.S. did not cry in response to the injury. Rather, C.S. stopped crying when Mrs. Holt lifted C.S. from her crib and held C.S. to Mrs. Holt's shoulder. That night, C.S. used both hands to drink from her "sippy cup." The next day, December 20, 2005, Mrs. Holt observed that C.S. was not using her left hand to hold her "sippy cup." Mrs. Holt also observed some favoring of the left arm and some swelling. Mrs. Holt reported the incident to the licensing retention counselor and arranged an appointment with a pediatrician. The pediatrician referred C.S. to the emergency room. Mrs. Holt took C.S. to the emergency room and remained with C.S. for support and reassurance. Mrs. Holt and C.S. returned home from the emergency room at approximately 5:00 a.m. on December 21, 2005. On December 29, 2005, Respondent removed the three foster children residing with Petitioners. Respondent has not placed any other foster children with Petitioners. Petitioners did not fail the required screening described in Subsection 409.175(6)(h), Florida Statutes (2005). Respondent never conducted the required screening.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioners' application to be re-licensed as a family foster home be GRANTED. DONE AND ENTERED this 26th day of December, 2006, 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 26th day of December, 2006.
The Issue The issues for determination are: 1) whether Carden House failed to ensure daily observation by staff of a resident at the facility in violation of Florida Administrative Code Rule 58A-5.0182(1)(b); 2) whether Carden House failed to maintain written records of any significant changes in residents' normal appearance or state of health in violation of Florida Administrative Code Rule 58A-5.0182(1)(e); (3) if yes, what penalty should be imposed; and (4) whether Carden House is liable for a complaint survey fee of $400.00.
Findings Of Fact The Agency is the state agency charged with the responsibility of licensing assisted living facilities in Florida and with evaluating such facilities to ensure that they are in compliance with state regulations. Carden House is an assisted living facility in St. Petersburg, Florida, licensed by, and subject to, regulation by the Agency. On January 10, 2003, the Agency conducted a complaint investigation of Carden House following a complaint made to the Agency hotline. The complaint alleged that a resident at the facility (Resident #1) was "found dead on the bed" and that the facility had failed to properly supervise the resident. Sharon McCrary conducted the complaint investigation at Carden House. As part of the survey, Ms. McCrary interviewed staff at the facility regarding Resident #1 and reviewed documentation provided by the staff. Based on information obtained by staff at the facility, the Agency found that on January 9, 2003, at 8:30 a.m., Resident #1 was found dead by his caseworker, who had come to the facility to take the resident to an appointment. As a result of Ms. McCrary's interviews with staff, the Agency also made the following finding in its report of the investigation: According to information received from staff interview, Resident #1 had been sick during the holidays but attempts by his family member to take him to a physician were met with refusals by the resident. According to the staff [Tina], another staff member had told her that on 1/8/03 the resident [Resident #1] was coughing badly and couldn't catch his breath. Resident #1 reportedly told staff that he wasn't feeling well and was going to his room to go to sleep. Tina, a facility staff member, was interviewed by Ms. McCrary and provided the above information regarding Resident #1's condition on January 8, 2003. However, Tina was not on duty or present at the facility on January 8, 2003. Therefore, she had no first-hand knowledge regarding Resident #1's condition on January 8, 2003, the day prior to the resident's death. Bridget LaPoint was not at the facility during the investigation and, thus, was not interviewed by Ms. McCrary prior to the report being written. However, Ms. LaPoint was aware that Resident #1 had not been feeling well during the holidays, two weeks prior to his death. Moreover, at that time, Ms. LaPoint informed the resident's mother and his caseworker of his condition. During this time, Resident #1's mother had attempted to take him to the doctor, and he refused to go. On the evening of January 8, 2003, the night before Resident #1 was found dead in his bed, Ms. LaPoint saw Resident #1 and talked to him. During that conversation, Resident #1 told Ms. LaPoint that he was feeling much better and had a doctor's appointment the next day. The Complaint summary indicated that Resident #1 was last heard at about 3:00 a.m. on January 9, 2002, when asking someone for cigarettes. However, this factual allegation was not verified by the Agency evaluator or substantiated at hearing. On the morning of January 9, 2003, Resident #1 did not come down for breakfast, which at Carden House begins at 8:00 a.m. As of 8:30 a.m., no staff member had yet checked on Resident #1 to see if he wanted to come down for breakfast. Prior to any facility staff member's checking on Resident #1, his caseworker arrived at the facility and went to the resident's room to take him to a doctor's appointment. When the caseworker entered Resident #1's room at about 8:30 a.m., she discovered that the resident was dead. Ms. LaPoint had personal knowledge of Resident #1's health situation during the two weeks prior to his death, contacted appropriate individuals about taking him to the doctor, and spoke with him about his condition the night before he died. However, the facility provided no documentation or other written information to the Agency regarding Resident #1's health or any change in his health status. As a result of the complaint investigation, the Agency concluded that Carden House failed to maintain documentation that it was aware of Resident #1's changed health status or his illness and the facility's interventions, such as contacting his family, physician, or caseworker. The Agency further concluded that the lack of such documentation indicated that the facility had not monitored the Resident #1 on a daily basis, assisted him, or checked on his condition. During the investigation of Carden House, Ms. McCrary accompanied a facility staff member into the room of Resident #3. When Ms. McCrary entered his room, who was diagnosed as suffering from severe chronic schizophrenia, Leucopoenia, anemia, and gerd, Resident #3 acted in a very threatening manner and yelled obscenities toward her. As part of her complaint investigation, Ms. McCrary interviewed a facility staff member who reported that Resident #3 had also threatened her. The staff member apparently did not provide the dates, circumstances, or the nature of those threats to the Agency evaluator. However, the staff member told Ms. McCray that, lately, Resident #3 had not been taking his medication. A review of Resident #3's records confirmed that in December 2002 and in January 2003, the resident had not taken his medicine as prescribed. It is not unusual for residents such as Resident #3 to refuse to take their medication. However, when a resident refuses to take his medication, that information should be noted on his or her record. In the case of Resident #3, no such notations appeared on his records. There was no indication in the resident's records or other facility documents that the facility had contacted the resident's family, caseworker, or health care provider regarding his behavior, condition, or refusal to take his medication. As a result of the complaint investigation, the Agency cited Carden House for violating two minimum standards. First, the Agency alleged that, with regard to Resident #1, the facility failed to provide daily observation of the activities of the resident while on the premises and was not aware of the general health, safety, and physical and emotional well-being of the individual. Second, the Agency alleged that, with regard to Resident #1 and Resident #3, the facility failed to maintain a written record of significant changes in the residents' normal appearance or state of health. The Agency classified the two deficient practices as Class II deficiencies because the Agency determined that the violations or deficiencies were serious and posed a great potential for harm to the residents. The Agency gave Carden House until January 31, 2003, to correct the alleged deficiencies. For each of the two alleged Class II violations, the Agency seeks to impose the maximum fine of $5,000.00, for a total of $10,000.00. The Agency seeks to impose a survey fee of $400.00 against Carden House for investigating the complaint.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency of Health Care Administration enter a final order finding that Carden House violated Florida Administrative Code Rule 58A-5.0182(1)(e) and imposing a fine of $1,500.00. DONE AND ENTERED this 30th day of January, 2004, 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 30th day of January, 2004. COPIES FURNISHED: Bridget LaPoint Carden House 2349 Central Avenue St. Petersburg, Florida 33713 Gerald L. Pickett, Esquire Agency for Health Care Administration Sebring Building, Suite 330K 525 Mirror Lake Drive, North St. Petersburg, Florida 33701-3219 Lealand McCharen, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 Valda Clark Christian, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Respondent's facility is a duly licensed child care facility. Rule Section 10M-12.002(5), Florida Administrative Code, requires direct supervision of groups of children by specified numbers of a child care facility's staff personnel. The number of staff personnel required for supervision is generated by the age and number of children to be supervised. Children three years of age must be supervised by at least one staff member for each group of 15 or less children. On June 12, 1990, two of Respondent's staff members were assigned to oversee 16 three-year-old children. The children were taken by the two staff members to the facility's outdoor play ground. While on the playground, one staff member left for a period of time not exceeding two minutes to retrieve snacks for the children. The 16 children were left to the supervision of another staff member while the one staff member walked alone approximately seventy-six (76) feet from the playground to an area inside a building where the snacks are kept. During the brief time she was inside the building, she could not see or observe children on the playground. During the staff member's absence, one of the children became entangled in playground equipment. Upon her return with the snacks, the staff member spotted the child. The child appeared to be unconscious. Mouth-to-mouth resuscitation was administered by the staff member and another Respondent employee telephoned emergency medical personnel. Immediately after the incident, Respondent's facility manager reported the matter by telephone to an investigator employed by Petitioner's licensing division. One week later, the investigator visited Respondent's facility, conducted a review of the premises and found no violations at that time. However, based upon the momentary absence of the one staff worker at the time of the incident the previous week, Petitioner's investigator determined that Respondent had violated provisions of Chapter 10M-12.002(5), Florida Administrative Code, relating to the number of staff members required to provide direct supervision of the children in Respondent's facility at that time. Petitioner's investigator interpreted the "ratio" provision of Rule Section 10M-12.002(5), Florida Administrative Code, to require issuance of a citation for a violation at any time an assigned worker left the exact area in which children were at the time such children were playing. Petitioner has cited other child care providers for staffing ratio violations, even when the absence of a facility's supervising staff member was temporary. Petitioner's interpretation of the requirements of Rule Section 10M- 12.002(5), Florida Administrative Code, does not exclude a facility from the exercise of reasonable alternatives which would prevent a citation for staffing ratio violations. Such an alternative would include having another facility employee temporarily provide supervision when one of the staff supervisors is required to leave the children.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered imposing an administrative fine of $75 against Respondent. DONE AND ENTERED this 16th day of January, 1991, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1500 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of January, 1991. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on findings of fact submitted by the parties. RESPONDENT'S PROPOSED FINDINGS 1.-12. Adopted in substance, but not verbatim. 13.-18. Rejected as unnecessary to result. PETITIONER'S PROPOSED FINDINGS 1.-15. Adopted in substance, though not verbatim. COPIES FURNISHED: Scott D. Leemis, Esq. Department of Health and Rehabilitative Services P.O. Box 2417 Jacksonville, FL 32231-0083 Mary S. Kearsey, Esq. 13000 Sawgrass Village Circle Suite 16 Ponte Vedra Beach, FL 32082 General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Sam Power Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700
The Issue The issue is whether Petitioner has been subjected to an unlawful employment practice, namely, discrimination on the basis of her age, gender, religion, or disability.
Findings Of Fact Petitioner, Esther Kay Gibbs, is a resident of Ocala, Florida, whose date of birth is January 31, 1956. Petitioner has many years of experience in a variety of clerical positions. Petitioner applied for the position of Court Clerk I with the Marion County Clerk of the Court’s Office on September 20, 1999. Petitioner’s application for employment stated that she has the ability to type at the rate of 35-40 words per minute. The Marion County Clerk’s Office employs approximately 200 persons in approximately 14 different departments. Petitioner initially interviewed for the position of Court Clerk I with Mr. Jack Seese, Chief Deputy Clerk for Administrative Services; and Ms. Maribeth Hudson, Chief Deputy Clerk for Court Services. During the interviews, Petitioner was explained the varied duties of a Court Clerk I, which included typing at the rate of 45 words per minute. At the time of the interview, Petitioner was aware that typing was an essential job function. The interview notes of Mr. Seese and Ms. Hudson showed Petitioner to be an “above average” candidate for the position. Mr. Ellspermann interviewed Petitioner and hired her effective October 14, 1999. Mr. Ellspermann reviewed Petitioner’s employment application and was aware that she listed her typing speed at 35-40 words per minute. Petitioner was never told she would be placed in a particular department or division of the Clerk’s Office. All of the Clerk I positions required typing. Petitioner was hired as a Court Clerk I in the traffic division and remained in that position until her resignation on August 23, 2001. Petitioner suffers from scleroderma, the symptoms of which include pain in her fingers, extreme sensitivity to cold temperatures, difficulty swallowing, loss of sleep, and the inability to garden or use her hands for any fine motor work. The Social Security Administration issued Petitioner a determination of disability in 1989. Petitioner concealed her medical condition from Respondent. Petitioner told Respondent’s officials during her interviews that she was able to type. Respondent had no way of knowing that Petitioner had a disability or a problem with typing at the time of the interviews. Respondent hired Petitioner with the knowledge that she was able to type only 35-40 words per minute. Throughout her employment with Respondent, Petitioner’s supervisors were Ms. Kudary or Ms. Rodgers. As her supervisors, Ms. Kudary and Ms. Rodgers counseled Petitioner on numerous occasions about mis-keyed citations and other performance issues. Petitioner presented no evidence concerning her claim of gender discrimination. Petitioner presented no evidence concerning her claim of age discrimination. Petitioner claimed that a non-supervisory co-worker made a derogatory remark about her religious beliefs. Petitioner presented no evidence concerning her claim of religious discrimination. Petitioner made an effort to be a cooperative employee and to fit into office culture by volunteering to work comp time and overtime. Petitioner published recipes for and cooked meats at the request of her fellow co-workers and supervisors, even though she is a vegan. Petitioner wrote a complimentary e-mail to her supervisor, Karen Rodgers. On November 9, 2000, Mr. Ellspermann approved a two percent pay increase for Petitioner. In his memo to Petitioner, Mr. Ellspermann noted that “Your evaluation reflects your interest and commitment in providing the citizens of Marion County with an effective Clerk’s Office. I thank you for your hard work and continued dedication. Congratulations on a job well done." Also, on November 9, 2000, Mr. Ellspermann directed Respondent’s payroll department to provide eight hours of incentive time to Petitioner’s annual leave. Mr. Ellspermann wrote to Petitioner, “I want to take this opportunity to recognize and thank you for the special effort you have taken not to use sick time throughout the year.” The letter noted that he took this action because Petitioner was “blessed with good health and displayed a commitment of service to Marion County and the Clerk’s Office.” All employees in the Marion County Clerk’s Office are required to attend annual harassment/discrimination training seminars. Petitioner attended a harassment/discrimination training seminar on the morning of August 22, 2001. Petitioner and the other attendees at the seminar were encouraged to report incidents of harassment to their supervisors. During a break in the training, Petitioner approached Ms. Hudson and told her she believed that her supervisor, Ms. Rodgers, was harassing her. Ms. Hudson agreed to arrange a meeting with the Deputy Clerk, Mr. Seese. At a meeting with Mr. Seese and Ms. Hudson, Petitioner stated that Ms. Rodgers was mean and belittling to her and everyone else in the traffic and misdemeanor divisions. Petitioner stated that the alleged harassment by Ms. Rodgers had nothing to do with her race, color, religion, national origin, age, or marital status. Mr. Seese and Ms. Hudson concluded that Ms. Rodgers' alleged acts toward Petitioner had nothing to do with harassment within the interpretation of the law and the Clerk’s Office Anti-Harassment Policy. Mr. Seese concluded his investigation at this point. Petitioner made multiple data entry errors as a Court Clerk I. Petitioner had previously had a dispute with Ms. Rodgers over errors she had made in entering citations into the system. On the afternoon of August 22, 2001, Mr. Ellspermann summoned Petitioner to his office to meet with Ms. Hudson and him concerning Petitioner’s data entry errors. At the August 22 meeting, Mr. Ellspermann discussed Petitioner’s errors in keying-in citations with her. In response to Mr. Ellspermann’s concerns regarding Petitioner’s performance, Petitioner threw her hands in the air, and for the first time since she had become employed with the Clerk’s Office, stated that she could not do her job because she could not type. Mr. Ellspermann and Ms. Hudson were surprised by Petitioner’s revelation concerning her inability to type. Mr. Ellspermann informed Petitioner that he would see if any positions were available at the Clerk’s Office that did not require typing. Mr. Ellspermann made a good faith effort to find Petitioner a position that did not require typing. No positions existed at the Clerk’s Office for Petitioner that did not require typing. Petitioner told Mr. Ellspermann that she could neither type nor remain in a position that required typing. Earlier in 2001, Petitioner had submitted a form to the Department of Health in which she stated “I can’t work in the cold; I can’t type anymore.” Petitioner did not ask for an accommodation from Respondent other than asking for a position that required no typing. Mr. Ellspermann and Ms. Hudson met again with Petitioner on August 23, 2001, at which time Mr. Ellspermann reported that Respondent had no positions available into which she could transfer that required no typing. Petitioner was informed that she could either resign or be terminated since she was unable to work at a position that required typing, and no positions were available that did not require typing as an essential part of the job. Petitioner resigned from her employment with Respondent due to her “health problems.” Since her resignation from the Marion County Clerk’s Office, Petitioner has not been able to secure employment at a comparable salary to what she previously earned as a Court Clerk I.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations dismiss Petitioner’s charge of discrimination. DONE AND ENTERED this 6th day of May, 2004, in Tallahassee, Leon County, Florida. S ROBERT S. COHEN 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 May, 2004. COPIES FURNISHED: Sharon Attas-Kaplan, Esquire Fisher & Phillips, LLP 450 East Las Olas Boulevard, Suite 800 Fort Lauderdale, Florida 33301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Esther Kay Gibbs 3415 Northeast 17th Terrace Ocala, Florida 34479 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue Whether the Respondent (the Agency) may assess costs against the Employer, who is denominated the Petitioner in the case, for rehabilitative temporary total disability benefits for an employee who was injured on the job, returned to work for approximately three years, and then was discharged for cause unrelated to his injury?
Findings Of Fact James Rutan (Rutan) was hired by Piedmont Airlines of Jacksonville on June 4, 1985. The employer changed its name to U.S. Airways (US Air) in April 1997. Rutan’s position was a fleet service employee. In this capacity, his duties were varied, but among his duties were loading and unloading baggage and freight from aircraft. On September 25, 1993, Rutan was loading baggage, picked up a heavy bag, pulled it across his chest, and injured his shoulder. He went first to the emergency room, then to Dr. Depadua, and finally to Dr. Fady Bahri, who determined that Rutan had torn his rotator cuff. Dr. Bahri operated on Rutan’s shoulder in November 1993, and Rutan returned to light duty with US Air in January 1994. Rutan continued in light-duty status until March 15, 1994. Two contradictory documents were introduced from Dr. Bahri’s office regarding Rutan’s status as of March 15, 1994. One document, sent to the workman’s’ compensation insurer, indicates that Dr. Bahri determined Rutan had reached Maximum Medical Improvement (MMI) with a 12 percent impairment rating and physical restrictions of light work, lifting a maximum of 20 pounds, lifting and carry objects weighing up to ten pounds, and no repetitive overhead activities. However, the other document, attached to Dr. Bahri’s deposition, from the US Air file indicates that Rutan was cleared to return to “full duty.” The doctor was unable to explain in his deposition the apparent contradiction in the two determinations. Rutan testified at hearing concerning his injury and its effect upon his work. Rutan loaded and unloaded baggage and freight from aircraft, and that to do so, he crawled into the cargo bay of the aircraft several times each day and either stacked bags or boxes, or threw bags or boxes to the person stacking them. This caused him pain, and he took quantities of over-the-counter and prescription pain relievers to cope with the pain and continue working. He did not complain to his supervisor(s) about discomfort from performing his duties or seek an accommodation for his handicap. Rutan's supervisor, Lynn Moore, testified regarding Rutan’s job performance. She was his supervisor for approximately two months. She observed his work during that time, and Rutan performed full duty, lifting everything he needed to lift. During the period Moore was Rutan’s supervisor, Rutan did not make any complaints of pain or complain of an inability to do the work. Rutan did not make any requests for transfers, or make any requests for accommodation for a handicap pursuant to the Americans with Disabilities Act. In the first week of April 1997, US Air terminated Rutan for cause. Although the details were not discussed, the discharge was not related to his previously injury or its impact upon his work. Ms. Moore was familiar with the records of Rutan’s employment, and these records reflected Rutan missed a total of 90 days of work due to the injury and surgery. The records further reflect he returned to full duty not later than October 16, 1996, and worked in that capacity until his discharge. Rutan worked for approximately six months following October 16, 1996, without requesting an accommodation or other relief. Ms. Moore testified regarding the positions available at US Air for persons with Rutan’s experience. There were positions available that would have accommodated Rutan’s limitations.2/ Subsequent to his discharge, Rutan had a second surgery on his shoulder on May 11, 1998, that related back to his original injury. Dr. Bahri made another determination of MMI following this surgery on October 1, 1998. Dr. Bahri again determined that there was a 12 percent impairment, but stated that Rutan was able to do medium level work restricted to occasional lifting 21-50 pounds, frequent lifting of 11-20 pounds, and constant lifting of ten pounds with no overhead activities with the right arm or shoulder. These limitations are less restrictive, and permit Rutan to lift more than the limitations originally imposed after the 1993 surgery. At the time of the second surgery, Rutan was a full time student pursuing the profession for which he was "retrained." Subsequent to his second surgery and approximately one year after his discharge for cause, Rutan filed a DWC-23 on April 14, 1998 seeking rehabilitation temporary total disability benefits pursuant to Chapter 440, Florida Statutes. The Agency interviewed Rutan, and was aware of his work history, injury, and discharge for cause unrelated to his injury. Because he had been terminated before his presented his application, and was already approved for tuition benefits and enrolled in college, Rutan’s application was handled differently than a person who was employed by an employer. The employer was not required to sign the DWC-23, and Rutan was sent directly to Mark W. Toigo for vocational evaluation. Mr. Toigo’s evaluation of Rutan’s potential for finding employment without retraining was consistent with the standards for such evaluations and the Agency’s rules. Tiogo concluded that Rutan needed to be retrained. His conclusion was based upon two primary determinations: his determination Rutan physically could not perform the work required to work in his old job which was based upon the documentation provided to the workman's compensation insurer, and his determination that Rutan could not make the amount of money he made in his old job without retraining. The first of these determinations is not supported by the facts presented at hearing. There is documentation that Rutan was returned to full duty, which implicitly is without restriction or limitation. If we assume that Rutan was not returned to full duty by Dr. Bahri after his first surgery, the facts reveal Rutan had performed the duties of his prior job under restrictions that were more stringent than those imposed after his second surgery without complaint or requests for accommodation. Mr. Tiogo did not consider the impact of Rutan’s termination for cause because the Agency’s position was Rutan could not physically perform the duties of his employment; therefore, the job was not and had never been suitable. Ms. Moore and Mr. Richard Hall testified that US Air had positions available in the same pay range as Rutan’s that did not require lifting of the type precluded by Dr. Bahri. Had Rutan not been discharged for cause and had he requested an accommodation due to his physical limitations, US Air would have been legally required to and able to accommodate his needs.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department enter its Final Order dismissing the administrative complaint seeking reimbursement for rehabilitation temporary total disability benefits from the Employer/Petitioner. DONE AND ENTERED this 31st day of January, 2001, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2001.
The Issue The issue is whether Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability in violation of the Florida Civil Rights Act, Chapter 760, Florida Statutes (2008).1
Findings Of Fact Petitioner is an "aggrieved person" within the meaning of Subsections 760.02(6) and (10). Petitioner is a 51-year-old white male who had cancer in one kidney at the time of an alleged unlawful employment practice. Respondent is an "employer" within the meaning of Subsection 760.02(7). Respondent is a construction company engaged in the business of building bridges and other highway structures in Florida. For the reasons set forth hereinafter, a preponderance of the evidence does not show that Respondent discriminated against Petitioner on the basis of Petitioner's age or perceived disability. Respondent employed Petitioner as a crane operator on February 22, 2008, at a pay rate of $18.00 per hour. Petitioner listed his residence as Naples, Florida. Petitioner was unaware that he had any disability and did not disclose any disability at the time of his initial employment. Petitioner solicited employment from Respondent and was not recruited by Respondent. Petitioner relocated from Wyoming to Florida to be with his family. Respondent assigned Petitioner to a construction job that was under the supervision of Mr. Scot Savage, the job superintendent. Mr. Brandon Leware was also a superintendent on the same job. Mr. William (Bill) Whitfield was the job foreman and Petitioner's immediate supervisor. Sometime in October 2008, medical tests revealed that cancer may be present in one of Petitioner's kidneys. The treating physician referred Petitioner to a specialist, David Wilkinson, M.D., sometime in October 2008. Medical personnel verbally confirmed the diagnosis of cancer to Petitioner by telephone on October 30, 2008. On the same day, Petitioner voluntarily resigned from his employment during a verbal dispute with his supervisors. Petitioner did not disclose his medical condition until after he voluntarily resigned from his employment. The verbal dispute involved Petitioner and several of his supervisors. On October 30, 2008, Mr. Whitfield, the foreman, assigned work to several employees, including Petitioner. Mr. Whitfield proceeded to complete some paperwork and, when he returned to the job site, discovered the work assigned to Petitioner had not been performed. When confronted by Mr. Whitfield, Petitioner refused to carry out Mr. Whitfield’s directions. Mr. Whitfield requested the assistance of Mr Savage. Mr. Savage directed Petitioner to return to work or quit. Petitioner quit and walked off the job. As Petitioner was walking off the job, Petitioner turned around and stated that he had cancer. Petitioner then left the job site. Petitioner's statement that he had cancer was the first disclosure by Petitioner and first notice to Respondent that Petitioner had cancer. The medical condition did not prevent Petitioner from performing a major life activity. Respondent did not perceive Petitioner to be impaired before Petitioner voluntarily ended his employment. None of the employees of Respondent who testified at the hearing regarded Petitioner as impaired or handicapped or disabled or knew that Petitioner had cancer prior to Petitioner's statement following his abandonment of his job on October 30, 2008.2 Within a week after Petitioner voluntarily left his position, Petitioner returned, approached Vice-President Mr. Scott Leware, and asked for his job back. Mr. Leware advised him that he would not get his job back. At the time, Mr. Leware was unaware that Petitioner had cancer. Mr. Leware was the ultimate decision-maker, and Mr. Leware was unaware that Petitioner had cancer when Mr. Leware made that decision approximately a week after Petitioner voluntarily left his employment. The terms of employment did not entitle Petitioner to a per diem payment while employed with Respondent. Petitioner's residence in Naples was within 75 miles of the job site where Petitioner worked. Respondent did pay for the hotel room that Petitioner used at the Spinnaker Inn while on the job, but not other per diem expenses, including meals. The cost of the hotel ranged between $50 and $60 a night. Mr. Brandon Leware followed Petitioner to a gas station and paid for gasoline for Petitioner’s vehicle. Mr. Leware and Petitioner then went to the Spinnaker Inn where Petitioner resided in a room paid for by Respondent. Mr. Leware advised the manager of the Spinnaker Inn that Respondent would pay for Petitioner’s lodging for that night, but not after that night. The rate of compensation that Respondent paid Petitioner was within the normal range of compensation paid to crane operators employed by Respondent. Crane operator compensation ranges from $16.00 to $20.00 an hour. Respondent paid Petitioner $18.00 an hour. A preponderance of the evidence does not show that Respondent ever offered to pay Petitioner $22.00 an hour. The allegation of age discrimination is not a disputed issue of fact. Petitioner admitted during his testimony that he never thought Respondent discriminated against him due to his age. Respondent employed another crane operator with cancer at the same time that Respondent employed Petitioner. The other crane operator is identified in record as Mr. Roddy Rowlett. Mr. Rowlett’s date of birth was October 14, 1949. Mr. Rowlett notified Respondent that he had cancer, and Respondent did not terminate the employment of Mr. Rowlett. Mr. Rowlett continued to work as a crane operator until a few weeks before his death. A preponderance of evidence does not show that age, cancer, or perceived impairment were factors in how Respondent treated Petitioner during his employment with Respondent. A preponderance of the evidence does not show that Respondent hired anyone to replace Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission enter a final order finding Respondent not guilty of the allegations against Respondent and dismissing the Charge of Discrimination and Petition for Administrative Hearing. DONE AND ENTERED this 2nd day of March, 2010, 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 2nd day of March, 2010.
