The Issue The issue in this case is whether the Respondent, Respiratory Care of Florida (RCOF), discriminated and retaliated against the Petitioner, Veronica Johnson, on the basis of race, in violation of Section 760.10, Florida Statutes (1995).
Findings Of Fact The Petitioner, Veronica Johnson, was employed by the Respondent, Respiratory Care of Florida (RCOF), on April 7, 1995. (Clearwater Community Hospital no longer has any ownership interest in RCOF.) RCOF furnished respiratory therapy services, on a contract basis, to skilled nursing facilities throughout the State of Florida. The Petitioner was hired by Debbie Stott (whose name is now Debbie Clark.) Stott, who was then the Assistant Manager of RCOF, hired the Petitioner to work as a Certified Respiratory Therapy Technician (CRTT). As a CRTT, the Petitioner's primary responsibility was to care for patients who have respiratory problems. The Petitioner was hired on a "PRN" basis. She was given job assignments only on an "as needed" basis. The Petitioner was not guaranteed any job assignments or any number of hours of work. There was no guarantee that she would ever be called to work at all. On August 26, 1995, Stott assigned the Petitioner to work at the Arbors of Tallahassee ("Arbors") for the night shift. A patient under the Petitioner's care had acute respiratory problems, including apnea. At times, the patient could not breathe without assistance. He was connected with a Bipap ventilator machine with a "dialed in rate" that breathed for the patient. Although patients sometimes remove the ventilator on purpose to sound the automatic alarm (instead of using the patient call button), it was necessary to check this patient whenever the alarm sounded to be sure he was not in distress and to replace the ventilator apparatus. After the Petitioner's shift on August 26, 1995, Stott received an Employee Counseling Form that had been filled out by the night-shift nurse supervisor at Arbor, Connie Waites, whom Stott knew and trusted. The Employee Counseling Form stated that the Petitioner spent the majority of the 7:00 p.m. to 7:00 a.m. shift asleep on a couch while the Bipap ventilator machine in room 400 "alarmed frequently." This Counseling Form also stated: "Patient needed to be checked often and was in distress on several occasions. RT did not respond to alarm on several occasions." Stott also learned from Cathy Smith, a CRTT who was leaving her shift when the Petitioner was coming on, that the Petitioner had been talking about getting a pillow so she could sleep during her shift. While the actual danger to this particular patient from the Petitioner's inattention to the Bipap ventilator was not clear, sleeping on-the-job clearly would expose the patient to a risk of danger and clearly was unacceptable. On August 28, 1995, Stott filled out a Record of Employee Conference based on the information reported to her. She also telephoned the Petitioner to tell her that they would have to discuss the matter before the Petitioner could work again. The Petitioner's version of the telephone call that Stott told the Petitioner not to worry, that it was "no big deal" is rejected as improbable. Stott could have terminated the Petitioner's employment on August 28, 1995, but did not primarily because she liked the Petitioner personally and needed her services at the time. Stott decided to give the Petitioner another chance. Stott met with the Petitioner on September 11, 1995, before the Petitioner's next shift at Arbors. At the conference, the Petitioner denied the allegations against her and asked for a conference with her accusers. Stott agreed to support the Petitioner's request for a conference but pointed out that it would have to be arranged with the appropriate personnel at Arbors. They contacted the nursing supervisor at Arbor to arrange a conference with Waites, but they never heard back, and no conference ever materialized. On October 1, 1995, the Petitioner worked a 12:00 p.m. to 5:00 p.m. shift at the Arbors. There, she noticed that her name was not written on the work log for October and telephoned Stott, who in another office doing the end of month billing, to point this out and question its significance. Stott told her that the omission was insignificant and that the Petitioner should just write her name in on the work log. The Petitioner then questioned Stott as to why the Petitioner had not been called in to work since September 11, 1995, and complained that Stott was being partial to other respiratory therapists with whom Stott was alleged to have supposedly improper personal relationships. Stott ended the telephone call at that point. The Petitioner did not prove that there was any basis in fact for the allegation regarding Stott's personal relationships with other respiratory therapists. Some of them were longer-standing, full-time employees who naturally received more hours than the Petitioner. Later during the Petitioner's shift on October 1, 1995, the therapist on the next shift failed to show up for work. When the Petitioner telephoned Stott to tell her, Stott asked the Petitioner if she would stay beyond the end of her shift to help out since they were short-staffed. In fact, the only other respiratory therapist on duty was licensed but had not yet passed her credentialing examination and could not be allowed to work except with a credentialed respiratory therapist. Stott explained this situation to the Petitioner and explained that this was the Petitioner's opportunity to "clean the slate" from her previous counseling and show that she was a team player. The Petitioner declined, citing not only her personal needs as a single parent but also "things going on" that she did not like and made her uncomfortable and her insistence on another conference before she would work again. In Stott's view, the Petitioner had let her down again. Based not only on the Petitioner's refusal to work extra hours for Stott on October 1, 1995, but also on the incident on August 26, 1995, and a seasonal decrease in census at Arbors, Stott decided not to use the Petitioner's services any longer. The Petitioner had been on the schedule to work on October 4, 1995, but Stott called on October 3, 1995, to cancel. The Petitioner testified that Stott agreed to discuss the Petitioner's status on October 11, 1995, when the Petitioner was next scheduled to work. But while the Petitioner may have informed Stott of the Petitioner's intention to have such a discussion and may have thought Stott agreed, it is found that Stott made no such agreement, as Stott already had decided to cancel the Petitioner again on October 11 and not to use her again. Inconsistent with the Petitioner's testimony that Stott agreed to discuss the Petitioner's status on October 11, 1995, the Petitioner consulted an attorney, Mark Zilberberg, on October 10, 1995, for assistance in requiring Stott to put the Petitioner on the work schedule. In the Petitioner's presence, Zilberberg telephoned Stott at approximately 12:15 p.m. on October 10, 1995, to request that the Petitioner be put back on the work schedule. Stott hung up on him and did not take his call back. At 12:33 p.m., Stott telephoned the Petitioner's home and left a message on the Petitioner's answering machine that Stott was canceling the Petitioner for October 11, 1995, and that RCOF would not be having any further need for the Petitioner's services. The Petitioner interpreted these events to signify that Stott was terminating the Petitioner in retaliation for the Petitioner's consulting an attorney and having the attorney intervene. But Stott's testimony to the contrary is accepted-- the decision not to use the Petitioner any more already had been made after the Petitioner refused to work extra hours for Stott on October 1, 1995. During the time period from August through October 1995, Stott's PRN pool included four African-American PRN therapists: the Petitioner; Artesa; Shana; and Shawana.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order denying the Petition for Relief. DONE AND ENTERED this 8th day of June, 1998, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 8th day of June, 1998. COPIES FURNISHED: Veronica Johnson, pro se 1724-A Buckingham Court Tallahassee, Florida 32308 Sue Willis-Green, Esquire 2501 Park Plaza Nashville, Tennessee 37203 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue addressed in this proceeding is whether Respondent's license to practice nursing should be suspended, revoked, or otherwise disciplined for alleged violations of Chapter 464, Florida Statutes.
Findings Of Fact Respondent, Nan Lynn Baumgartner, is a licensed practical nurse in the State of Florida, holding license number PN-34192-1. Respondent was licensed in 1972. In 1974, Respondent was employed at Tallahassee Convalescent Home located in Tallahassee, Florida and during the time period relevant to this proceeding, worked the 3-11 p.m. shift. The Home's function is to provide for the care of its geriatric residents. Respondent had responsibility for 72 residents. Respondent was employed at the Center until April 26, 1988, when she was terminated by the facility for incompetent nursing skills, exercising poor judgment, failure to follow-up on orders and inability to pass out medications on time and appropriately. Ms. Baumgartner's employer suspected her performance problems were due to a alcohol or drugs. None of the evidence presented at the hearing clearly or convincingly established that Respondent had an alcoholic or drug abuse problem which impaired her ability to function. The bulk of the evidence which would have indicated such a problem was uncorroborated hearsay some of which was contradicted by other more reliable testimony. The remainder of the evidence which was relied upon by the Department to show impairment due to a drug or alcohol abuse problem was Respondent's demeanor, her lethargy and slowness in handing out medications, and various examples of her using poor judgment in performing her duties. All of these incidents occurred during a 1-1 1/2 month period during which Respondent had suffered four broken ribs in the fall from a horse. In fact, her doctor had advised her not to work for several weeks after her fall from the horse. However, Respondent could not get the time off from work and attempted to work during this period of time. As to Respondent's demeanor and lethargy, there was a great deal of conflict in the evidence depending on how each respective witness thought or assumed Respondent should behave. More importantly, however, is that Respondent's demeanor and lethargy during this time period can be attributed to some medical difficulties she had with her jaw and blood pressure and to the fact that she experienced a great deal of pain form her broken ribs. The examples of Respondent's judgment which Petitioner alleges demonstrate Respondent's poor judgment, frankly do not rise to such a level. The examples were: 1) Respondent called the oncall physician instead of the Director of Nursing when the oxygen concentrator being used by a patient malfunctioned; 2) She allowed a certified nursing aide to give oxygen to a patient; 3) She called the police when it was reported to her that a patient had mysteriously been burned; and 4) There was a patient who was not restrained. The incident involving the oncall physician simply does not demonstrate poor judgment. The fact that Ms. Baumgartner may or may not have followed some unproven chain of command in making her calls does not establish below standard judgment. She quite correctly called the physician who was on-call for that evening when she discovered the oxygen concentrator was not working. She then followed the Doctor's instructions. The alleged contents of a later conversation which occurred between the facility's Director of Nursing and the Doctor was the rankest of hearsay and is simply too unreliable to clearly and convincingly demonstrate poor judgment on Respondent's part. Connected with the oxygen concentrator incident was the incident involving Respondent's allowing a Certified Nursing Assistant to work the oxygen concentrator machine. The more persuasive evidence involving this incident was that it occurred during the oxygen concentrator's malfunction discussed above. A group of people surrounded the machine. One of the persons present around the machine was a CNA and at least two nurses were also present. They were attempting to figure out how to fix the oxygen machine. No one could and the Doctor was called. Given the fact that there were at least two other nurses present along with the CNA attempting to fix the oxygen machine, these facts do not clearly and convincingly demonstrate poor judgment on Respondent's part which would fall below minimum standards and constitute a breach of Chapter 479, Florida Statutes. Similarly, the facts surrounding the mysterious burn incident do not demonstrate that Respondent fell below minimum standards or failed to report the incident. There was no reliable evidence demonstrating Respondent's involvement in or knowledge of a patient being burned on her shift. Respondent was called at home around 3:00 or 3:30 in the morning. She had been asleep. The Respondent was called by Pat Yates, who was the charge nurse on the shift following Respondent. Respondent believed the incident had happened on Ms. Yates' shift. After Respondent spoke with Ms. Yates and because of some similar rumors about Ms. Yates floating around the facility, Respondent decided to call the police. 1/ She believed Ms. Yates was trying to "frame" one of the CNA's on Respondent's shift with whom Ms. Yates had a very heated argument at the shift change. Again this incident in which there was no reliable substantive evidence suggesting Respondent's involvement or responsibility, does not demonstrate poor judgment on Respondent's part or her failure to report the incident's occurrence. The incident involving the unrestrained patient likewise does not demonstrate poor judgment on the part of Respondent. The patient was prescribed by the doctor to be restrained on an as needed basis. The as needed prescription by the physician suggests that such restraints were not necessary all of the time unless the patient was showing some sort of behavior which would require her to be restrained. The evidence did not demonstrate that such restraints were needed on Respondent's shift. The only allegation established by the Department was that for approximately a month to a month and a half Respondent was extremely slow in passing out medications to the patients. The center had established medications at 5:00 p.m. and 9:00 p.m.. The 5:00 p.m. medication pass took approximately an hour and a half to perform. The 9:00 p.m. medication pass took approximately 45 minutes to an hour to perform. Respondent frequently, for at least half of the month to a month and a half time period would be handing out medications three hours late. It was not demonstrated that she was not documenting or charting the lateness of these medications since no medical records were introduced into evidence and the testimony on that point was unclear. The standard practice in Florida is to attempt to pass medicine to nursing home residents within plus or minus one hour of the designated time. The fact that the desired hour leeway is not always obtained does not indicate that a nurse is falling below minimum standards. The number of patients to be served, the difficulty in getting the patient to take his or her medication, and the types of medication being given all enter into the determination of whether a nurse is falling below minimum standards in the length of time it takes her to pass out medications. None of these factors were presented at the hearing. 2/ Without, such specific evidence it is impossible to determine whether Respondent was falling below minimum standards. 3/
Recommendation It is accordingly, RECOMMENDED: That the Division enter a Final Order dismissing the Administrative Complaint against Respondent. DONE and ORDERED this 1st day of October, 1990, in Tallahassee, Florida. DIANE CLEAVINGER 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 1st day of October, 1990.
