The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was the victim of discrimination by the Respondent because of an alleged disability and whether the Respondent retaliated against the Petitioner for filing a complaint of discrimination with the Equal Employment Opportunity Commission (EEOC).
Findings Of Fact The Petitioner Gregory L. Stubbs, was employed by the Respondent Department as a maintenance yard Welder for approximately five and one-half years. In 1993, he suffered a back injury on the job, resulting in chronic pain. On January 28, 1997, the Petitioner accepted a position with the Department's Office of Motor Carrier Compliance (MCC) as a Weight Inspector. The Weight Inspector position accepted by Mr. Stubbs was an open, advertised position at the time, for which the Department accepted applications and conducted interviews, including that of Mr. Stubbs. He applied for the position, was interviewed and selected for the position. When Mr. Stubbs was offered the Weight Inspector position, he was advised that appointment to the position would amount to a demotion from his current position with the Department, in the sense that he would have to accept a base rate of pay of 5 percent less than he had been earning. He voluntarily accepted that position and the reduction in pay. The pay for the position was set when the position was released for hire and was not changed because Mr. Stubbs elected to apply for the position and became the selected candidate hired for the position. Weight Inspectors work at fixed-scale weigh stations where trucks are weighed. Mr. Stubbs was assigned to the "Northbound scales" on Interstate 95 near Yulee, Florida in Nassau County. Weight Inspectors are responsible for enforcing the motor vehicle weight laws, writing citations for violations, as well as writing citations for fuel tax violations and enforcing the dimensional limits on motor vehicles. The job involves weighing and measuring vehicles, writing citations, answering the telephone, operating a computer and checking vehicle tags and registration numbers. The job does not involve any heavy lifting, loading or any physically demanding tasks. Weight Inspectors employed by MCC work alone at the scale houses, except when a new inspector is present for training. Mr. Stubbs was able to perform these duties and, when present for work, performed them well. Mr. Stubbs was supervised by Sgt. Robert Bryan. Sgt. Bryan participated in interviewing Mr. Stubbs and in selecting him for the position. During the interview process Sgt. Bryan informed Mr. Stubbs of the Weight Inspector's job duties. Mr. Stubbs never informed Sgt. Bryan that he would have any trouble performing the job duties. Mr. Stubbs also did not tell Sgt. Bryan, at that time, that he had trouble with his back or that he would have trouble reporting for work on time. Sgt. Bryan later learned that Mr. Stubbs had trouble with his back, but did not consider the problem to restrict Mr. Stubbs' ability to perform the Weight Inspector job. Weight Inspectors are required to report for work on time. The failure to report for work timely, results in closure of the scale facility. When a Weight Inspector has to be late or is unable to report for work before the beginning of a shift, he is required to advise the supervisor before the scheduled time for the shift. This requirement is contained in the Department's published Conduct Standards. Copies of the Department's published Conduct Standards are provided to all Weight Inspectors that work for MCC, including the Petitioner. Department employees are advised that unexcused tardiness or absences will be grounds for disciplinary action and the Petitioner was so informed. On October 19, 1997, Sgt. Bryan counseled Mr. Stubbs about failing to notify him of an absence from work. Sgt. Bryan stressed the need for Mr. Stubbs to contact him as soon as he became aware that he would not be able to timely report for work. On October 12, 1998, Sgt. Bryan counseled Mr. Stubbs for failing to report to work on time. Sgt. Bryan again stressed the need for Mr. Stubbs to timely report to work. On December 31, 1998, Mr. Stubbs acknowledged receipt of a Memorandum from Lt. Vicki D. Thomas concerning tardiness and the use of leave. Lt. Thomas is the Jacksonville Field Office supervisor for MCC and is Sgt. Bryan's immediate supervisor. Lt. Thomas' Memorandum requires Weight Inspectors to contact both the main MCC office and the inspector who they are scheduled to relieve whenever they will be tardy or absent. On January 13, 1999, Sgt. Bryan again counseled Mr. Stubbs about failing to report to work as scheduled In 1998, Mr. Stubbs filed a grievance through his union, the American Federation of State, County and Municipal Employees (AFSCME). The subject of the grievance was the reduction in pay Mr. Stubbs' sustained by accepting employment with MCC. He sought re-instatement of the pay he had received as a Welder. Lt. Thomas received the AFSCME grievance on August 17, 1998, and responded to it by noting that the grievance was untimely and that Mr. Stubbs had voluntarily accepted the Weight Inspector position and attendant reduction in pay. Although the grievance was unsuccessful Mr. Stubbs continued his employment with MCC. On or about February 9, 1999, the Petitioner filed a Charge of Discrimination with the EEOC alleging that the Department had discriminated against him on the basis of race and disability by reducing his pay when he accepted the Weight Inspector position. On May 13, 1999, the EEOC advised the Petitioner that it could not investigate his charge because it was not filed within the time required by law. A copy of the EEOC Dismissal and Notice of Rights was provided to the Department. A copy of the EEOC Notice was also sent to Mr. Stubbs at the Department's address. This copy was mistakenly opened by the Department and then forwarded to Mr. Stubbs. Sgt. Bryan became aware of the complaint when the letter was opened in the Department offices, but the complaint was not a factor in his supervision of Mr. Stubbs. On April 2, 1999 through June 25, 1999, the Petitioner was absent from work. He exhausted all of his sick leave and was authorized additional, unpaid leave under the Family Medical Leave Act. On June 25, 1999, Mr. Stubbs returned to his Weight Inspector assignment. He was scheduled to work on July 2, 7, 8, 9, 13 and 16, 1999. He did not report for work on those days. On July 8, 1999, he failed to advise Sgt. Bryan that he would not be reporting for work. Sgt. Bryan checked with other supervisors to see if Mr. Stubbs had advised anyone else that he would be absent, and learned that Mr. Stubbs had not contacted them. Lt. Thomas issued a written reprimand to the Petitioner for these absences. The reprimand was issued because he was absent from work without authorized leave and failed to follow the Department's rules concerning advance approval for leave. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the reprimand. On July 20, 1999, Sgt. Bryan spoke with Mr. Stubbs about a cash penalty that Mr. Stubbs had collected on a "load report." Weight Inspectors who collect cash penalties are required to convert the cash funds to a money order or cashier's check within 48-hours after the date the report is issued. Weight Inspectors are allowed to use work time to convert cash penalties to money orders or cashier's checks. Sgt. Bryan asked the Petitioner about the cash because the load report involved was apparently issued six days earlier. The Petitioner told Sgt. Bryan that he had not converted the cash to a money order, that he had the cash with him and that he believed the inquiry was ridiculous. Sgt. Bryan then had to go to Mr. Stubbs's doctor's office to retrieve the cash penalty. Mr. Stubbs received a suspension for his handling of the cash penalty and related behavior. Lt. Thomas investigated the allegations contained in the suspension letter and believed them to be correct. She prepared the letter for signature. Neither Mr. Stubbs' prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. During the period from July 21, 1999 to August 6, 1999, the Petitioner was repeatedly absent and late to work. At 12:25 p.m., on August 1, 1999, the Petitioner advised Lt. Thomas that he had not worked as scheduled on July 31, 1999, and had not reported for work on the morning of August 1, 1999. On August 26, 1999, the Petitioner received a suspension for his unauthorized and excessive absences. Lt. Thomas investigated the allegations contained in the suspension letter, believed them to be correct and prepared the letter for signature. Neither the Petitioner's prior complaint to the EEOC or his back problem motivated Lt. Thomas to issue the suspension. The Petitioner was advised that any further violations of the Department's Conduct Standards would result in more severe discipline, up to and including dismissal. The Petitioner was scheduled to work from October 11 through October 15, 1999, but did not report for work on those days. He did not contact Sgt. Bryan or Lt. Thomas to advise them that he would not be at work. Lt. Thomas and Sgt. Bryan checked with other MCC supervisors and staff but were not advised that Mr. Stubbs had contacted anyone. Sgt. Bryan and Lt. Thomas did not hear from Mr. Stubbs from October 11 through October 15, 1999, and had not authorized his absences. The Department dismissed Mr. Stubbs from employment for those unauthorized absences. The Petitioner was apparently ill during that period but did not provide the Department with a doctor's note until approximately six weeks after the absences. The doctor's note does not indicate that the Petitioner was unable to call his supervisors to report his anticipated absence. The Petitioner did not establish that he was unable to report to his supervisors as required. The Department's discipline of the Petitioner and the ultimate decision to dismiss him from the Department were not motivated by Mr. Stubbs' prior complaint to the EEOC. Although some of his absences from work may have resulted from his back injury, the evidence does not establish that all of his absences were related to his injury. He was absent for material amounts of time in excess of his available leave. In 1999, he exhausted his accrued leave and used twelve weeks of unpaid leave under the Family Medical Leave Act. After returning from family medical leave, he continued to be absent for a significant period of time. There was no showing that additional leave would enable Mr. Stubbs to return to work on a regular basis. Additionally, he failed to notify his superiors in advance of his absences as required and instructed.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations denying the Petition in its entirety. DONE AND ENTERED this 3rd day of October, 2002, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with Clerk of the Division of Administrative Hearings this 3rd day of October, 2002. COPIES FURNISHED: Robert M. Burdick, Esquire Department of Transportation 605 Suwannee Street Haydon Burns Building, Mail Station 58 Tallahassee, Florida 32399-0458 Gregory L. Stubbs 3563 North Hampton Cove Court Jacksonville, Florida 32225 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue DOAH Case No. 02-0033: Whether Respondent's licensure status should be reduced from standard to conditional. DOAH Case No. 02-1788: Whether Respondent committed the violations alleged in the Administrative Complaint dated March 13, 2002, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing, and the entire record in this proceeding, the following findings of fact are made: AHCA is the state Agency responsible for licensure and regulation of nursing homes operating in the State of Florida. Chapter 400, Part II, Florida Statutes. Healthpark operates a licensed nursing home at 16131 Roserush Court, Fort Myers, Florida. The standard form used by AHCA to document survey findings, titled "Statement of Deficiencies and Plan of Correction," is commonly referred to as a "2567" form. The individual deficiencies are noted on the form by way of identifying numbers commonly called "Tags." A Tag identifies the applicable regulatory standard that the surveyors believe has been violated and provides a summary of the violation, specific factual allegations that the surveyors believe support the violation, and two ratings which indicate the severity of the deficiency. One of the ratings identified in a Tag is a "scope and severity" rating, which is a letter rating from A to L with A representing the least severe deficiency and L representing the most severe. The second rating is a "class" rating, which is a numerical rating of I, II, or III, with I representing the most severe deficiency and III representing the least severe deficiency. On October 15 through 18, 2001, AHCA conducted an annual licensure and certification survey of Healthpark, to evaluate the facility's compliance with state and federal regulations governing the operation of nursing homes. The survey team alleged three deficiencies during the survey, two of which are at issue in these proceedings. At issue are deficiencies identified as Tag F224 (violation of 42 C.F.R. Section 483.13(c)(1)(i), relating to neglect of residents) and Tag F325 (violation of 42 C.F.R. Section 483.25(i)(l), relating to maintenance of acceptable parameters of nutritional status). Both of the deficiencies alleged in the survey were classified as Class II under the Florida classification system for nursing homes. A class II deficiency is "a deficiency that the agency determines has compromised the resident's ability to maintain or reach his or her highest practicable physical, mental, and psychosocial well-being, as defined by an accurate and comprehensive resident assessment, plan of care, and provision of services." Section 400.23(8)(b), Florida Statutes. Both of the deficiencies alleged in the survey were cited at a federal scope and severity rating of G, meaning that each deficiency was isolated, caused actual harm that is not immediate jeopardy, and did not involve substandard quality of care. Based on the alleged Class II deficiencies in Tags F224 and F325, AHCA imposed a conditional license on Healthpark, effective October 18, 2001. The license expiration date was September 30, 2002. Tag F224 The survey allegedly found violations of 42 C.F.R. Section 483.13(c)(1)(i), which states: Staff treatment of residents. The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. The facility must-- (i) Not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion.... In the parlance of the federal Health Care Financing Administration Form 2567 employed by AHCA to report its findings, this requirement is referenced as "Tag F224." The Agency's allegations in this case involved neglect of a resident rather than any form of abusive treatment. The Form 2567 listed two incidents under Tag F224, both involving Resident 10, or "R-10." The surveyor observations read as follows: Based on observations, record review and interviews with a resident and a Certified Nursing Assistant (CNA), the facility failed to provide toileting needs as care planned for 1 (Resident #10) of 8 sampled residents reviewed for incontinence and toileting programs. The resident was not toileted for more than 5 hours causing multiple creased areas and redness to her left groin, perineum and buttocks. The findings include: On 10/15/2001, Resident #10 was in her room, #141, in bed A at 2:20 P.M. Resident stated she was wet. The call bell cord was clipped to the sheet, but the bell mechanism was off the side of the bed, out of the resident's reach. Surveyor walked to the North nurse's station and continued to observe the resident's room entrance. Record review revealed Resident #10's most recent quarterly Minimum Data Set (MDS) completed 8/27/2001, assessed her with bladder incontinence at 3 (frequently incontinent), bowel incontinence at 1 (less than once weekly), activity is assessed as bed mobility 3/3 (needs extensive assistance to move in bed), and toilet use at 3/2 (needs extensive assistance). At 4:15 P.M., the resident requested the surveyor to get someone to change her as no one had come in and the call bell was still out of her reach. The resident's request was given to the nurse at 4:20 P.M. On 10/16/01, Resident #10 was observed in her wheelchair in the hall outside her room from 8:55 A.M. until 12:05 P.M., when she was escorted to the main dining room. At 2:20 P.M., resident was still sitting in her wheelchair. After surveyor intervention, the CNA put the resident to bed at 2:30 P.M. When the adult diaper was removed, it revealed the resident to be incontinent of feces and urine. The odor of urine was very strong in the room. The resident's perineum and buttocks were red and moist, with multiple creased areas. The left groin was especially red. During an interview with the CNA, she stated the resident was last toileted before lunch at approximately 11:00 A.M. This was during the time of direct observation by the surveyor of the resident in the hall outside her room. Review of the resident's Care Plan revealed that she was to have the call bell in place at all times and scheduled toileting. Diane Ashworth was the survey team member who recorded the observation of R-10. Ms. Ashworth was assigned the task of observing R-10, and based her findings on a review of the resident's medical records, observations and interviews. R-10 was a 96-year-old diabetic female who had been admitted to Healthpark on March 28, 2000. R-10's most recent Minimum Data Set ("MDS"), completed on August 27, 2001, indicated that R-10 had short and long-term memory difficulties and moderately impaired decision making as to tasks of daily life. R-10 was generally confused as to place and time. She could make herself understood, and had no difficulty understanding what was said to her. She was easily angered and could be physically abusive to staff. R-10 required extensive assistance to move, dress, toilet, and maintain general hygiene. She was confined to her bed or to a wheelchair, and required assistance to move the wheelchair. R-10's MDS indicated a loss of voluntary movement in her hands, including her wrists and fingers. The MDS indicated that R-10 experienced daily incontinence of the bladder, and bowel incontinence once a week on average. The nurse's notes for R-10 indicated that she was able to make her needs known and that she was encouraged by staff to call for assistance as needed. The care plan for R-10 stated that she should have "scheduled toileting," but set forth no firm schedule. Ms. Ashworth testified that she would have expected R-10 to be toileted before meals, before bed, and upon rising, at a minimum. Mona Joseph was the CNA who attended R-10 on a daily basis. Ms. Joseph testified that R-10, like all residents who wore adult diapers, was scheduled for toileting every two hours and whenever necessary. In practice this meant that Ms. Joseph would inquire as to R-10's need for toileting every two hours. Ms. Joseph testified that R-10 would ask her for toileting at least twice a day, and that she never refused the request. She always toileted R-10 before lunch, and testified that on October 16 she toileted R-10 at about 11 a.m. before taking her to lunch. Toileting R-10 required the use of a Hoyer lift to move the resident from her wheelchair to the bed. Ms. Joseph estimated that the entire process of toileting R-10 took seven to eight minutes. Caroline Nicotra, the supervisor of the long-term care unit in which R-10 resided and Ms. Joseph's supervisor, confirmed that Healthpark's CNAs were trained to make rounds every two hours and ask those residents requiring assistance if they needed to be toileted. R-10 was capable of making that decision, and her wishes regarding her need for toileting would be respected by the CNA. Ms. Ashworth's testimony was generally consistent with her written findings. She met R-10 on the afternoon of October 15. R-10 was lying in bed, and told Ms. Ashworth that she was wet. Ms. Ashworth noted that the call bell cord was clipped to R-10's bed, but that the bell mechanism itself was not within R-10's reach. Ms. Ashworth left the room and took a position at the nurses' station, from which she could see the door to R-10's room. She watched to see if any staff person from Healthpark went into R-10's room. She saw no one enter the room between 2:20 p.m. and 4:15 p.m., at which time she asked a CNA to toilet R-10. Ms. Ashworth returned at 8:55 a.m. on October 16, and observed R-10 sitting in her wheelchair in the hallway outside her room. Ms. Ashworth took up her post at the nurses' station and watched R-10 until 12:05 p.m. At no time in the morning did Ms. Ashworth see R-10 being moved or taken for toileting, though Ms. Joseph testified that she toileted R-10 at about 11 a.m. The evidence established that R-10's room was at the opposite end of a corridor from the nurses' station. The corridor was approximately 200 feet long from the nurses' station to R-10's room. The corridor was busy. Medications were passed at 9:00 a.m., meaning that medication carts went up and down the corridor. Staff carried breakfast trays in and out of rooms. Housekeeping and treatment carts were in the hallway. Given the distance of the nurses' station from R-10's room and the constant activity in the corridor, it is unlikely that Ms. Ashworth's view of R-10 was unobstructed at all times. Moreover, the nurses' station itself was a hub of activity. At the end of the nurses' station where Ms. Ashworth stood was the fax machine. The fax machine was kept constantly busy sending physicians' orders to the pharmacy. The unit secretary was stationed in this location. Nurses passed through this area to retrieve forms from the filing cabinets or to go to the medication room. The likelihood that Ms. Ashworth was unable from her vantage point to view R-10 at all times makes credible Ms. Joseph's testimony that she regularly checked with R-10 to ask whether she required toileting. However, it is unlikely that R-10 was ever out of Ms. Ashworth's sight for the period of seven to eight minutes necessary to actually toilet the resident. Ms. Ashworth's testimony that R-10 was not toileted at 11 a.m. on October 16 is therefore credited. At 12:05 p.m., R-10 was taken to the dining room for lunch. Ms. Ashworth followed and observed R-10 in the dining room. After lunch, R-10 was wheeled back to the outside of her room. Ms. Ashworth observed her from the nurses' station until 2:20 p.m. Ms. Ashworth did not see R-10 being taken for toileting between 12:05 and 2:20 p.m. At 2:30 p.m. on October 16, Ms. Ashworth approached Mona Joseph, the CNA responsible for R-10, and asked her to put R-10 to bed so that Ms. Ashworth could examine her buttocks. Ms. Ashworth asked another AHCA surveyor, Maria Donohue, to accompany her to confirm her observations. There was some delay while Ms. Joseph finished a task for another resident, but eventually Ms. Joseph wheeled R-10 into the room and placed her into bed. Ms. Joseph changed R-10's adult brief in the presence of Ms. Ashworth and Ms. Donohue. Ms. Ashworth testified that there was a strong smell of urine in the room, even before the brief was removed, though she noticed no smell of urine about R- 10 prior to entering the room. When Ms. Joseph removed the adult brief, Ms. Ashworth noted that it was wet and that there was a large amount of feces in the brief and on R-10's buttocks. Ms. Ashworth noted that the skin on R-10's perineum and buttocks was creased and red. The area of R-10's left groin was so red that Ms. Ashworth at first thought there was no skin. Ms. Ashworth stated that this kind of redness is associated with not being toileted as scheduled, though she conceded that such redness can also result from pressure. Ms. Ashworth also conceded that this was her first observation of R-10's buttocks, and thus that she had no baseline to judge how abnormal the redness was at the time Ms. Joseph changed the adult brief. Ms. Donohue also recalled a strong urine smell as soon as they entered the room. She agreed that R-10's buttocks were red in some areas, but recalled no further details. She could not recall if there was feces in the adult brief, but did recall that it was saturated with urine. Mona Joseph, the CNA who changed R-10's adult brief, believed that the urine smell in the room came from the next bed, because she had just changed the adult brief of the person in that bed. Ms. Joseph smelled no odor of urine or feces about R-10. Ms. Joseph testified that R-10's brief was dry, and that she began having a bowel movement while being changed. She noted no redness on R-10's buttocks. Caroline Nicotra was the supervisor of the long-term care unit in which R-10 resided. She knew R-10, and stated that R-10 regularly used her call bell, and would call out for help if she could not reach the call button clipped to her bed. She noted that all of the rooms to which Ms. Joseph was assigned were in the same area of the corridor, so that Ms. Joseph would always be able to hear R-10 call out. There would also be nurses in the area who could hear R-10. Ms. Nicotra knew the surveyors had gone into R-10's room with Ms. Joseph, and she went into the room moments after the surveyors left the room to ascertain whether anything had occurred that she needed to address. Ms. Joseph told Ms. Nicotra what had happened. Ms. Nicotra asked R-10 for permission to examine her body and R-10 assented. Ms. Nicotra removed R-10's adult brief and inspected R-10's buttocks. She observed no creasing or redness of the perineum or the buttocks. R-10's skin was intact and no different than Ms. Nicotra had seen it on other occasions. R-10 told Ms. Nicotra that she was not experiencing pain or discomfort in her buttocks area. Ms. Nicotra stated that R-10 weighed about 180 pounds, and that the creasing and redness observed by the surveyors could have been caused by the pressure of sitting in her wheelchair for a long time. Ms. Nicotra examined the adult brief that had been removed from R-10. She observed that it was slightly damp, which she attributed to sweat, and that it contained a smear of bowel movement. It did not smell strongly of urine. Viewing the evidence in its entirety, and crediting the honesty of the testimony of each witness, it is found that AHCA failed to prove the elements of Tag F224 by a preponderance of the evidence. Ms. Ashworth did not observe R-10 being toileted. However, Ms. Ashworth's observation does not establish that R-10 required toileting or that the facility was negligent in not toileting the resident. After the first meeting on October 15, Ms. Ashworth did not ask R-10 whether she needed to be toileted. Ms. Joseph inquired as to R-10's toileting needs every two hours. R-10 was able to make her needs known to facility staff, and she did so on a daily basis. If her call bell was out of reach, she would call out to staff. Ms. Joseph's testimony that the adult brief was dry of urine and contained only a slight amount of fecal material is supported by that of Ms. Nicotra, the only other witness who actually handled the adult brief, and is therefore credited. The only harm alleged by AHCA was the irritation to R- 10's bottom, claimed to be the result of R-10's sitting in a soiled adult brief for an extended period of time. The surveyors' testimony that R-10's perineum, buttocks, and left groin were creased and red at the time of changing is credited. Also credited, however, is Ms. Nicotra's testimony that R-10's perineum, buttocks and left groin were no longer creased or red a few minutes after the changing. Ms. Nicotra's testimony indicates that the creasing and redness were caused, not by irritation from urine and/or feces in the adult brief, but by an extended period of sitting in her wheelchair. The evidence indicates no neglect of R-10, and that R-10 suffered no harm during the sequence of events described in the Form 2567. II. Tag F325 The survey allegedly found a violation of 42 C.F.R. Section 483.25(i)(1), which states: Nutrition. Based on a resident's comprehensive assessment, the facility must ensure that a resident-- Maintains acceptable parameters of nutritional status, such as body weight and protein levels, unless the resident's clinical condition demonstrates that this is not possible.... This requirement is referenced on Form 2567 as "Tag F325." The survey found one instance in which Healthpark allegedly failed to ensure that a resident maintained acceptable parameters of nutritional status. The surveyor's observation on Form 2567 concerned Resident 17, or "R-17": Based on record review and staff (Unit Manager and Registered Dietician) interviews, the facility failed to adequately assess and revise the care plan to address the significant weight loss of 1 (Resident #17) of 15 from a sample of 21 residents reviewed for nutritional concerns. This is evidenced by: 1) After Resident #17 had a significant weight loss of 6.8% in 4 weeks, the facility did not have an adequate nutritional assessment and did not revise the care plan to prevent the resident from further weight loss. The findings include: 1. Resident #17 was admitted to the facility on 9/6/01 with diagnoses that include Sepsis, S/P Incision and Drainage (I&D) of the Right Knee and GI Bleed. The resident has a history of Coronary Artery Disease (CAD). During the clinical record review, it revealed [sic] that the resident's physician ordered Ancef (antibiotic) 2 grams every 8 hours on 9/6/01, to be given for 25 days. During the review of the resident's initial MDS (Minimum Data Set) completed on 9/19/01, it revealed [sic] he weighed 185 lbs (pounds) and is 72 inches tall. Review of the MDS also revealed the resident is independent with his cognitive skills for daily decision making. Further review of the MDS also revealed he requires set up and supervision during meals. He requires extensive assistance with dressing, bathing, and ambulation. Review of the nutritional assessment revealed the RD assessed the resident on 9/10/01. The assessment stated, "Resident has decreased appetite which may be R/T (related to) current meds (medications); Resident's wife feels he has lost wt (weight) but wt is increased due to edema in feet. Resident's current diet meets assessed needs. Will include food preferences to increase intake." Under "Ethnic/Religious Food Preferences" it stated, "No cultural preferences stated." The nutritional assessment completed by the RD on 9/10/01, stated that the resident weighs 185 lbs. His UBW (usual body weight) is 182 lbs. During an interview with the Unit Manager and Registered Dietician (RD) on 10/18/01 at approximately 11:00 AM, they stated that the resident's weight of 185 lbs., which is documented in the initial MDS, was inaccurate. The resident's accurate weight on admission was 175 lbs. During the review of the weight record, it revealed [sic] the resident remained 175 lbs. on 9/11/01. On 9/18/01, the resident weighed 168 lbs., indicating a weight loss of 7 lbs. in 7 days. During the review of the Resident Assessment Protocol (RAP) completed on 9/19/01, it revealed [sic] she [sic] triggered for "Nutritional Status." The care plan developed on 9/19/01 stated, "Res. (resident) leaves 25% or more of food uneaten at most meals. Weight: 168 lbs; UBW (usual body weight) 182 lbs." The goal stated, "Res will maintain weight up or down within 1-2 lbs. through next quarter: 10/17/01." The following approaches are listed: "Diet as ordered." "Encourage fluids." "Monitor weights." "Food preferences and substitute for uneaten foods." "Assist with tray set-ups, open all packages." Review of the physician's order dated 9/18/01 revealed the resident was started on TwoCal HN (supplements) 60cc's four times a day, ice cream everyday [sic] at 8:00 P.M., fruit everyday [sic] at 10:00 A.M. and peanut butter, cracker, and juice everyday [sic] at 2:00 P.M. During the review of the Medication Administration Record (MAR) for the months of 9/01 and 10/01, it confirmed [sic] that this additional supplements were given to the resident, however there is no documentation to indicate the resident's consumption of each supplement. Interview with the Unit Manager on 10/18/01 at approximately 11:15 A.M. also confirmed there is no documentation in the clinical record to indicate the resident's consumption of each snack. Review of the CNA (Certified Nursing Assistant) Care Plan for the month of 9/01 revealed no documentation being offered at bedtime and no documentation for the month of 10/01 that the resident received bedtime snacks. Further review of the resident's weight record revealed the resident weighed 163 lbs on 10/2/01. This indicates a significant weight loss of 12 lbs or 6.8 percent of his total body weight in 4 weeks. Review of the nurses' notes revealed that this significant weight loss had been identified on 9/26/01, 20 days after the resident's admission to the facility. The nurse's notes dated 9/26/01 stated that the care plan to address the risk for weight loss was reviewed. Review of the care plan confirmed it was reviewed on 9/26/01 and 10/6/01. The goal stated, "Will lose no more weight, 11/6/01." Added to approaches stated, "Nutritional supplements as ordered." However, further review of the clinical record and the care plan revealed no documentation to indicate that a comprehensive nutritional assessment was done. There is no documentation in the resident's clinical record to indicate that the care plan was revised. During an interview with the Unit Manager on 10/18/01 at approximately 2:15 P.M., she confirmed that after the resident's admission to the facility on 9/6/01, the resident was refusing to eat, but his appetite improved in the beginning of 10/01. He was consuming 75 percent-100 percent of his meals. She also stated that the resident had "pedal (foot and ankle) edema" on admission to the facility. There is no documentation in the resident's clinical record to indicate that this edema was monitored. There is no documentation in the clinical record that the resident was on a diuretic. She further stated that the final report on the blood culture done on the resident, dated 10/1/01, was positive for Candida sp (yeast infection). During the review of the clinical record, it did not have [sic] documentation to indicate that an assessment of the resident's protein intake was assessed at this time. There is no documentation in the resident's clinical record to indicate that the resident's albumin and protein levels were assessed. During an interview with the Unit Manager on 10/18/01, at approximately 2:15 P.M., she stated that the resident's family members were encouraged to visit more often and encourage to bring foods that he likes. She stated that the resident liked Italian food. This is in contrary to [sic] the RD's nutritional assessment completed on 9/10/01. She also stated that the facility staff continued to honor resident's food preferences and provided alternatives. There is no documentation in the resident's clinical record to indicate that an assessment of the resident's nutritional status, based on his current weight of 163 lbs. and current food intake was done. Further review of the resident's weight record revealed he weighed 158 lbs. on 10/9/01. This reveals a weight loss of 5 more lbs. in 12 days. During the interview on 10/18/01 at approximately 2:15 P.M., she did not have an explanation why the resident continued to lose weight despite an improvement in his appetite. Maria Donohue was the survey team member who recorded the observation of R-17. This resident was initially assigned to Ms. Ashworth, who briefly assessed R-17 in his room and commenced a review of his medical records. Ms. Ashworth noted R-17's weight loss and that his situation required further investigation. Because Ms. Ashworth was busy with her observations of R-10, the survey team shifted responsibility for R-17 to Ms. Donohue. Ms. Donohue based her findings on a review of the resident's medical records and interviews with Healthpark staff. She did not speak to or observe R-17. She did not interview R-17's physician, and could not recall speaking to R- 17's family. R-17 was an 84-year-old male with a history of coronary artery disease who was admitted to Healthpark from a hospital. About a year and a half before his admission to Healthpark, R-17 had a total knee replacement. He was admitted to the hospital because of a fever. A medical work-up revealed that he was septic, with infection throughout his body. The infection stemmed from his knee, and an incision and drainage was performed. The infection was severe, requiring the parenteral administration of the cephalosporin Ancef for a period of 25 days, beginning September 6, 2001. Anorexia is a known adverse reaction to Ancef. Upon admission to Healthpark, R-17 was experiencing pain that was controlled by Percocet, an analgesic with the potential to affect appetite. R-17 was prescribed Zanaflex, a muscle relaxant that can affect appetite. R-17 was also diagnosed as prone to constipation and took laxatives. R-17 also had swelling in his feet and ankles that caused discomfort when he walked. On September 9, an attending nurse documented edema from his ankles to his feet. On September 10, R-17's physician prescribed T.E.D. hose (compressive stockings) for the edema. R-17 refused to wear them. On the same date, R-17's pain increased and his physician ordered a low-dosage Duragesic patch in addition to his other medications. The dosage was increased on September 12, when his pain became so severe that he was screaming out and having spasms. By September 13, R-17's spasms were abating. On September 14, the pain had lessened and he was able to move about, though he continued to voice complaints about the pain. On September 18, R-17 was weighed and it was noted that he had lost seven pounds in the week since his admission. This weight loss was attributed to his pain and the combination of drugs R- 17 was taking, as well as some subsidence of the edema. Healthpark's nursing staff reported the weight loss to R-17's physician, who ordered the snacks and the TwoCal protein drinks described in Ms. Donohoe's observation. The physician visited on September 24 because R-17's pain level had increased and he was again experiencing constipation. The physician ordered blood cultures and Methotrexate for his pain. The physician was making continued efforts to determine the cause of R-17's pain. After the blood cultures were performed, R-17 was referred to a rheumotologist. The blood cultures revealed the presence of another organism in R-17's system besides that being treated with Ancef. On October 2, R-17 was also seen by an infectious disease specialist. R-17's condition improved for about a week. By October 10, the physician was preparing to order his discharge from Healthpark. However, in the early morning hours of October 11, R-17 became confused, incontinent, and had greatly increased pain. His physician ordered new lab work, including a total protein array and electrolyte tests. The record shows that on October 12, R-17 was screaming out in pain and his appetite, which had shown some improvement in early October, was very poor. Though R-17's condition and appetite showed some improvement over the next few days, on October 16 his physician decided to admit him to a hospital to determine the cause of R-17's weight loss and why his pain could not be controlled. Ms. Donohue explained the protocol followed by AHCA surveyors assessing a resident's nutritional status. First, the surveyor determines whether the resident has been assessed comprehensively, adequately, and accurately. If the assessment found that the resident was at risk for nutritional problems, then the facility must determine the interventions necessary to prevent the problems. The surveyor next assesses how the facility implemented the interventions. If the interventions do not work, the facility must show that it has re-evaluated the interventions and reassessed the resident to determine why the interventions failed. The facility must demonstrate that it has looked at all relevant factors, including intake of food and supplements and the resident's underlying medical condition. This re-evaluation and reassessment should lead to revisions in the interventions. The essential allegation under Tag F325 was that Healthpark failed to make a nutritional reassessment after finding that R-17 experienced a significant weight loss over a period of four weeks. Ms. Donohue's testimony at the hearing essentially confirmed her observation on the Form 2567, quoted above. R-17 was weighed weekly, and his weight record confirmed that between September 11, 2001 and October 9, 2001, R-17's weight dropped from 175 to 158 pounds. Lori Riddle, AHCA's expert in dietetics and nutrition, was also involved in the decision to cite R-17's treatment as a deficiency. Her review of the records led her to conclude that Healthpark was aware of R-17's weight loss and put in place approaches to counter that weight loss, but that these approaches were not well planned. Healthpark did not adequately monitor R-17's nutritional intake, such that the record indicated amount of food that was offered but not how much R-17 actually consumed. Ms. Riddle found that Healthpark's approaches were "fairly generic." Healthpark added snacks and nutritional supplements to R-17's diet, but did not indicate in its written care plan whether or how these would meet R-17's nutritional needs. After the initial nutritional assessment on September 10, Healthpark did not formally reassess R-17's caloric needs, even after he began losing weight. Ms. Riddle saw indications in the record that Healthpark recognized the weight loss and stated a goal of maintaining R-17's weight, but saw no recalculation of how many calories would be needed to maintain his weight. Alexandria Antoni was the registered dietician at Healthpark and an expert in the field of nutrition. Ms. Antoni performed the initial nutritional assessment of R-17 and monitored his status throughout the relevant period. She testified as to her relationship with R-17 and her efforts to maintain his food intake. R-17 was very alert and oriented, but had adjustment problems because he had always been an independent, relatively healthy person and had never been in a facility like Healthpark. As a result, R-17 was not receptive to staff's offering food. He did not want to be in the facility at all and resented being bothered by staff. Ms. Antoni noted that R-17 was in much pain and had a hard time dealing with it. The pain affected his ability to sit up or be mobile, and he was on many medications for his pain and infection, any or all of which could have affected his appetite. On her initial visit, Ms. Antoni brought R-17 a copy of the Healthpark menu and reviewed it with him and his family. Ms. Antoni credibly testified that R-17 stated no ethnic food preferences at this initial meeting, though he did tell her that he liked soup at lunch, prune juice in the morning, and a banana on his breakfast tray. Ms. Antoni's initial strategy was to increase R-17's intake by offering foods he liked to eat. His family was there with him every day, and she encouraged them to bring in foods that R-17 liked. Ms. Antoni saw R-17 daily. He would wait for her in the hallway and ask her to come in and tell him what was on the menu. R-17 would often directly phone the kitchen staff to discuss his meal preferences. Ms. Antoni disagreed that R-17's caloric needs were not properly documented. In her initial nutritional assessment, she calculated his caloric needs, based on his height, weight and medical condition, at 1,900 to 2,300 calories per day. She relied on the nursing admission assessment, which listed R-17's weight at 185 pounds, rather than his accurate weight of 175 pounds. Thus, Ms. Antoni's calculation resulted in R-17's getting more calories than his actual weight would have indicated. In her later approaches to R-17's situation, Ms. Antoni kept in mind that R-17 was already being offered more calories than his weight required. She opined that if R-17 had consumed what she calculated, his nutritional needs would have been met and he should not have lost weight. Ms. Antoni could not say why R-17 was losing weight. For the most part, he was eating 75 percent of his meals, which provided between 1,800 and 2,000 calories per day. The TwoCal supplement and the snacks ordered by the physician provided an additional 1,000 calories per day, providing a total well in excess of the 1,900 to 2,300 calorie range calculated by Ms. Antoni. Healthpark staff, including Ms. Antoni and R-17's physician, held meetings every week to discuss the residents' weight status. At each of these weight meetings, Ms. Antoni brought up the subject of R-17's weight loss with his doctor. Ms. Antoni disagreed with AHCA's conclusion that no reassessment was performed. She contended that reassessment occurred at the weekly weight meetings. She followed R-17's caloric intake daily. She could think of nothing else she could have done to increase R-17's weight. Any further action, such as ordering further laboratory tests or a feeding tube, would have required a physician's order. Carol Morris, an RN, was Medicare clinical coordinator at Healthpark and an expert in geriatric nursing. She concurred that the diet ordered for R-17 was adequate to meet his needs. He was cognitively aware, responsive, and could not be forced to eat. Ms. Morris confirmed that Healthpark staff tried to encourage R-17 to eat. The staff gave nutritional advice to R-17's family members so that they could assist in offering him foods that might help his appetite. Ms. Morris noted that pain can be a factor in weight loss. She also observed that the edema would have added to his weight on admission, and its resolution would naturally cause some weight loss. Resolution of his constipation also could have affected his weight. Healthpark staff considered all these factors in care planning to deal with R-17's weight loss. Staff communicated with R-17's physician and with his family on a daily basis. The nursing staff was following doctor's orders, and expected to see R-17's weight stabilize at some point. Ms. Morris testified that Healthpark's assessment of R-17's weight loss took into account his edema, constipation, adjustment to the facility, disease process, and the amount he was eating. She did not think there was anything else Healthpark could have done, given that R-17's physician was also perplexed as to why he was losing weight. Ms. Morris attributed the AHCA citation for failure to document R-17's caloric intake to a simple failure to understand Healthpark's method of charting. The nurses did not explicitly note the amount eaten by R-17 at every meal or snack. The nurse's initials indicated that R-17 ate 100 percent of the meal or snack. An amount was noted only when R-17 ate less than 100 percent of the food offered. If R-17 declined a meal or snack, it was noted and his physician was informed. Ms. Morris testified that R-17's preference for Italian food came up in a conversation with his family, after the nutritional assessment was done. When Healthpark staff saw that R-17 was losing weight, they to the family about what he might like to eat. Viewing the evidence in its entirety, it is found that AHCA failed to prove the elements of Tag F325 by a preponderance of the evidence. It is unquestioned that R-17 lost a significant amount of weight during the four weeks from September 11, 2001, to October 9, 2001. However, the evidence does not demonstrate that R-17's weight loss was caused by Healthpark's failure to provide adequate nutrition. To the contrary, the record indicates that R-17 was provided more than enough calories through meals to maintain his weight, and that supplements were ordered by his physician when he began to lose weight. While R-17's appetite was diminished, he continued to consume 75 percent of his meals on average and to take the snacks and TwoCal supplement. Healthpark's staff and R-17's physician were perplexed as to the reasons for his weight loss, with the physician ultimately ordering R-17 admitted to a hospital for further testing as to both his persistent pain and his weight loss. AHCA correctly noted that Healthpark failed to perform a nutritional reassessment of R-17, but the evidence indicates that such a reassessment would merely have constituted a written rendition of the actions the facility was taking. Healthpark was fully aware of R-17's weight loss and reacted in a reasonable manner. Staff encouraged R-17 to eat by offering him dietary options and enlisting the aid of his family. AHCA criticized Healthpark for failure to perform follow-up laboratory tests or to consider a feeding tube for R-17. However, only R-17's physician could have ordered laboratory tests or a feeding tube. The record makes it apparent the physician was concerned with the weight loss, but that his primary concern was R-17's multiple infections and his unexplained and intractable pain. R-17's edema subsided during his stay at Healthpark, which could account for some weight loss. His constipation was resolved to some extent, which could also have had some effect on his weight. R-17 was taking multiple medications, including powerful antibiotics and analgesics, that could affect his appetite. R-17 was having emotional difficulty adjusting to the facility and to his physical condition. Finally, R-17 was cognitively alert and within his rights simply to refuse to eat. Aside from the weight loss itself, R-17 showed no indications of a lack of proper nutrition. Healthpark took all these factors into account in its treatment of R-17. A formal nutritional reassessment would have had no substantive effect on R-17's treatment. At most, Healthpark failed adequately to document the steps it took in caring for R-17 and addressing his weight loss.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 02-1788, and rescinding the notice of intent to assign conditional licensure status to Healthpark Care Center in Doah Case No. 02-0033 and reinstating the facility's standard licensure status. DONE AND ENTERED this 6th day of September, 2002, in Tallahassee, Leon County, Florida. LAWRENCE P. STEVENSON 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 September, 2002. COPIES FURNISHED: Lealand McCharen, Agency Clerk Agency for Health care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Karen L. Goldsmith, Esquire Goldsmith, Grout & Lewis, P.A. 2180 North Park Avenue, Suite 100 Post Office Box 2011 Winter Park, Florida 32790-2011 Jodie C. Page, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Station 3 Tallahassee, Florida 32308
The Issue The issue is whether Respondent failed to maintain the nutritional status of two residents, as required by 42 Code of Federal Regulations Section 482.25(i), so as to justify the imposition of a conditional license rating upon Respondent's skilled nursing facility, pursuant to Section 400.23(7)(b), Florida Statutes, and an administrative fine of $2500, pursuant to Section 400.23(1)(b), Florida Statutes.
Findings Of Fact At all material times, Respondent has owned and operated a skilled nursing facility located at 7300 Del Prado South in Boca Raton. On August 2, 2001, Petitioner completed a survey of the facility. The surveyors cited Respondent for Tag 325, which they classified as a class II (state) or Level G (federal) deficiency. Tag 325 concerns two residents: Resident #9 and Resident #18. The following four paragraphs restate the stipulation into which the parties entered at the hearing. Resident #9 was admitted to the facility on May 22, 2000, with the following diagnoses: stroke, pneumonia, stage III pressure sore at the coccyx, hypothyroidism, urosepsis diabetes, tracheotomy, respiratory dependency on a ventilator, and nutritional dependency on a percutaneous endoscopic gastronomy (PEG) feeding tube. At all times, Resident #9 was wholly dependent on internal feeding for 100 percent of his nutritional needs. At the time of the survey, Resident #9 required Glucerna at one-half strength at the rate of 60 cc hourly plus a supplemental protein powder. At the time of the survey, the coccyx of Resident #9 had a stage III wound, measuring 0.16 inches by 0.08 inches by 0.08 inches. A dietary note states that the amount of feeding for Resident #9 was below his estimated needs. However, the management of Resident #9's feeding was problematic due to his gastrointestinal problems. Resident #18 was admitted to the facility with the following diagnoses: pneumonia, dehydration, fever, atrial fibrillation, and nutritional dependence on PEG tube feeding. A dietary assessment dated July 17, 2001, did not address Resident #18's alleged seven-pound weight loss. Nothing in the clinical records for Resident #18 indicates that the alleged seven-pound weight loss was planned. Resident #18 was admitted to the facility on January 19, 2001 at 78 years of age. At that time, Respondent's staff completed a Nutrition Risk Assessment. The Nutrition Risk Assessment determined that Resident #18's desirable weight range was 128-156 pounds. At admission, Resident #18 weighed 121.5 pounds. According to Respondent's weight log for Resident #18, he weighed the following on the indicated dates in 2001: January 24--121 pounds; January 30--122.2 pounds; February 7--121 pounds; February 14--123 pounds; February 21--119 pounds; February 28--119.4 pounds; March 4--119 pounds; April 4--120 pounds; April 11--122 pounds; May 4--128 pounds; June 6--129 pounds; and July 4--122 pounds. Resident #18's weight decreased by 5.4 percent from June 6, 2001, to July 4, 2001. However, the record does not suggest that this weight loss evidenced any nutritional problems. To the contrary, for 2001, Resident #18's normal weight approximated 122 pounds. As noted in the guidelines to 42 Code of Federal Regulation Section 483.25(i), the desirable weight range stated for Resident #18 is approximate because "ideal body weight charts have not been validated for the institutionalized elderly." Thus, the guidelines warn that "weight loss (or gain) is a guide in determining nutritional status. An analysis of weight loss or gain should be examined in light of the individual's former life style as well as current diagnosis." The guidelines offer "[s]uggested parameters for evaluating significance of unplanned and undesired weight loss": five percent over one month is "significant loss" and over five percent over one month is "severe loss." Over a five-month period, Resident #18 gained one pound. Petitioner implicitly places considerable emphasis upon the 128-pound minimum desirable weight range for Resident #18, even though the guidelines suggest caution in establishing ideal weights for the institutionalized elderly. Reliance upon this minimum desirable weight allows Petitioner to ascribe significance to the loss between June 6 and July 4 of the weight gained between April 11 and May 4. However, the record fails to suggest that Resident #18 suffered any nutritional problems for the first two and one-half months of his residency at the facility, when he consistently weighed 119-122 pounds. The record likewise fails to suggest that Resident #18's gain and loss of seven pounds over a three- month period was indicative of any nutritional problems. This short-term change in Resident #18's weight appears either to have been a harmless anomaly or, as Respondent suggests, a measurement error. Evidence supportive of a measurement error is found by comparison of the weight log entry for May 4, which marked the first time Resident #18 weighed as much as 128 pounds, with the Dietary Enteral Assessment for May 2, which showed that Resident #18 weighed only 123.6 pounds two days earlier. Although the latter source documented a weight of 129 pounds on June 6, which corresponds exactly with the data from the weight log, the unlikelihood that Resident #18 gained 4.4 pounds over two days suggests measurement error, such as by using different scales. Resident #9 presents a more complicated case. She was 69 years of age at the time of admission, but suffered from complex medical problems, including serious gastrointestinal difficulties that interfered with her nutrition. At admission, Resident #9, a quadriplegic, was five feet, four inches, tall and weighed 185.4 pounds, according to her Nutrition Risk Assessment, or 191.5 pounds, according to her weight log. According to her Nutrition Risk Assessment, Resident #9's desirable weight range was from 108-132 pounds. Notwithstanding any uncertainty concerning the ideal body weights for the institutionalized elderly, Resident #9 was obese and remained so during the period at issue. Resident #9's Nutrition Risk Assessment deletes the portion of the printed form stating that Resident #9 would suffer "moderate risk" to her nutritional status if she were to lose less than 5 percent of total body weight within one month, less than 7.5 percent of total body weight within 90 days, or less than 10 percent of total body weight within six months. An updated Nutrition Risk Assessment dated June 1, 2000, notes that Resident #9 had gained six pounds, but does not delete the "moderate risk" parameters concerning rates of weight loss. Resident #9 experienced several significant weight losses while a resident at the facility. According to her weight logs, Resident #9 weighed 206-208 pounds from June 7 through August 9, 2000. On August 20, 2000, she weighed 217 pounds, and she gained two more pounds through September 13, 2000. Between September 13 and 27, Resident #9 lost 13 pounds. From September 27 to October 5, Resident #9 regained four pounds to 210 pounds. She weighed within four pounds of 210 through October 25, at which time she weighed 207.4 pounds. Petitioner contends that the first significant weight loss was from 214 pounds on October 18, 2000, to 191.0 pounds on November 14 and 15, 2000, which is a loss of ten percent of body weight within one month. It is also a loss of ten percent of body weight within three months, and the loss of merely one-half pound within six months. Although no one would opine that Resident #9 were healthier at 200+ pounds than at 191 pounds and her weight, over six months, did not change, Respondent must maintain Resident #9's nutrition at all times within the six months in question. However, the improved health at a lower weight and absence of change from admission weight are factors that must inform the determination whether Respondent maintained Resident #9's nutritional status. Petitioner contends that the next two significant weight losses occurred in December 2000 and January 2001. According to the weight log, Resident #9 weighed 184 pounds on December 6, 187 pounds on December 15, 185.4 pounds on December 20, and 186 pounds on December 28. Resident #9 thus lost seven percent of her body weight between November 8 and December 6. Resident #9 continued to lose weight in January 2001. She weighed 181.8 pounds on January 3, 175 pounds on January 10, 178 pounds on January 17, 177.6 pounds on January 24, and 176 pounds on January 30. Between the end of December and end of January, Resident #9 lost 5.4 percent of her body weight. Between December 15 and January 10, she lost 6.4 percent of her body weight. For the three months ending at the end of January, Resident #9 lost 15.1 percent of her body weight, and for the six months ending at the end of January, Resident #9 lost 15.4 percent of her body weight. On February 14, Resident #9 weighed 171.8 pounds, and on March 28 she weighed 172.4 pounds; in between, she weighed more, but never over 179 pounds. On April 4, Resident #9 weighed 167 pounds, but on April 18 and 25, she weighed, respectively, 173 and 174 pounds. Petitioner contends that the next significant weight loss was in April 2000 when she lost 6.2 percent of her body weight between March 7 and April 4. From May 2 through June 13, Resident #9 weighed from 174-178 pounds. On July 3 and July 18, she weighed 167.4 pounds and 165 pounds, respectively, but, on July 11, she weighed only 137.6 pounds. The sudden loss of 30 pounds over eight days followed by the gain of 28 pounds over the next seven days-- given a significant history of much more modest weight changes-- suggests again measurement error. This time, Petitioner seems to concede the point as in its proposed recommended order it contends only that Resident #9 suffered a six percent weight loss in July, which is the weight loss from June 6 to July 3. Despite her obesity, none of Resident #9's weight loss was planned. Among her many gastrointestinal conditions was gastroparesis, which is the impaired ability of the stomach to transport food as part of the normal digestive process, and paralytic ileus, which is the impaired ability of the intestinal tract to transport food as part of the normal digestive process. These serious digestive disorders, as exacerbated by the effect of Resident #9's diabetes on her digestive capabilities, contributed to vomiting, constipation, diarrhea, and, on at least one occasion, the aspiration of feces, which necessitated the suctioning of feces from Resident #9's mouth. At all times, Respondent's staff also had to manage the abdominal distention caused by these digestive disorders so that Resident #9's ventilator-dependent respiration was not compromised; sometimes, maintaining respiratory function required the reduction of nutrition. At other times, Resident #9's veins, already weakened by various diseases, precluded intravenous feeding. In December 2000, Resident #9 suffered a cardiac event; Resident #9's husband, who held a health-care power of attorney for his incapacitated wife, declined the suggestion of outside health care providers that Resident #9 be admitted to a hospital. Respondent's staff tried dozens of interventions, including different nutritional formulas and feeding regimes, to deal with the ever-changing digestive problems that Resident #9 presented. Unable to tolerate bolus feedings, Resident #9 received small frequent feedings, which were easier for her to digest. Unable to tolerate the prescribed caloric intake, staff reduced nutritional levels to the maximum that Resident #9 could tolerate. When Resident #9 became unable to tolerate an intravenous port, staff decided to resort to a PIC line, which penetrates less deeply into the vasculature. However, Resident #9's poor vascular condition and her husband's ongoing preference to avoid more invasive treatment options limited the utility of this option. A registered nurse practitioner working under the supervision of Resident #9's treating physician saw Resident #9 at least as often as every one to two weeks from September 2000 through the August 2001 survey. At times, under the nurse's supervision, the only relief available for Resident #9's intractable gastrointestinal problems was to allow the gut to rest by reducing foods and fluids. The nurse and physician also addressed Resident #9's hypothyroidism, which contributed to a sluggishness. Thus, while managing direct gastrointestinal problems, they were also trying to convert Resident #9 to a new, more active thyroid state--a process that explains some of the weight loss. Overall, Resident #9's weight loss, though unplanned, was not unexpected. Her health care providers properly accepted the weight loss as a secondary, unavoidable issue, as they struggled to reestablish crucial cardiopulmonary, gastrointestinal, and endocrinal functions. Respondent's staff and outside health care providers always monitored all reductions in nutritional levels, as they pursued other, more crucial treatments. Her new weight range ultimately contributed to her health. Petitioner has failed to prove by a preponderance of the evidence that Respondent at anytime failed to maintain acceptable levels of nutritional status for Resident #9 or Resident #18.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration enter a final order dismissing the Administrative Complaint in DOAH Case No. 01-4331 and the Administrative Complaint in DOAH Case No. 02-0674. DONE AND ENTERED this 3rd day of July, 2002, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 3rd day of July, 2002. COPIES FURNISHED: William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 Nelson E. Rodney Assistant General Counsel Agency for Health Care Administration 8355 Northwest 53rd Street, First Floor Miami, Florida 33166 Karen L. Goldsmith Alex Finch Goldsmith, Grout & Lewis, P.A. Post Office Box 2011 Winter Park, Florida 32790
The Issue Whether respondents are guilty of an unlawful employment practice as alleged by petitioner.
Findings Of Fact Based upon the entire record, including the pleadings and argument of counsel, the following findings of fact are determined: Petitioner, Carolyn E. Simmons, is a black female. In 1990, she began employment as a cook with respondent, Inverness Inn (Inn), an employer allegedly subject to the Florida Human Rights Act, as amended. At that time, the Inn was owned by respondent, Cvetko Blazevski. On March 25, 1992, petitioner filed a charge of discrimination with the Commission on Human Relations (Commission) alleging that she was "harassed and subjected to racial terms by Mr. Cretko (sic) Blazevski, Owner, from the beginning of (her) employment until the present time." For the purpose of ruling on this motion only, the undersigned has accepted this allegation as being true. The charge of discrimination, and the petition for relief subsequently filed, did not specify the relief being sought. In April 1992, Blazevski's ownership in the Inn was terminated by a court, and the Inn later closed and went out of business. Petitioner continued to work in her position as a cook after Blazevski left the Inn and until it closed. According to petitioner's counsel, Simmons seeks only compensatory damages against respondents for their conduct.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order dismissing with prejudice the petition for relief. DONE AND ENTERED this 27th day of October, 1993, in Tallahassee, Florida. DONALD R. ALEXANDER 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 27th day of October, 1993. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana C. Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Kenneth S. Stepp, Esquire 305 North Apopka Avenue Inverness, Florida 34450 David L. Wilcox, Esquire 452 Pleasant Grove Road Inverness, Florida 34452
The Issue Whether the Respondent committed the violations alleged in the Administrative Complaint dated October 22, 2001, and, if so, the penalty that should be imposed.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency responsible for the investigation and prosecution of complaints involving physicians licensed to practice medicine in Florida. See Section 455.225, Florida Statutes. The Board of Medicine is the entity responsible for regulating the practice of medicine in Florida and for imposing penalties on physicians found to have violated the provisions of Section 458.331(1), Florida Statutes. See Section 458.331(2), Florida Statutes. Dr. Pliskow is, and was at the times material to this proceeding, a physician licensed to practice medicine in Florida, having been issued license number ME 0054211, and he is Board-certified in Obstetrics, Gynecology, and Forensic Medicine. At the times material to this proceeding, Dr. Pliskow practiced obstetrics and gynecology with three other physicians, Dr. Ackerman, Dr. Herbst, and Dr. Aqua, under the name "Advanced Women's Healthcare." In 1996, Dr. Pliskow, Dr. Ackerman, and Dr. Herbst established the Comprehensive Weight Loss & Nutrition Center ("Center") as a separate corporation. Kimberly Payne, an A.R.N.P., was the administrative director of the Center, and, in addition to administrative duties, her job responsibilities included supervision of the nursing staff working in the Center, direct patient care, and staff training. The four physicians practicing at Advanced Women's Healthcare were the designated supervising physicians for staff of the Center. Bariatrics is the subspecialty dealing with the medical treatment of obesity, and the four physicians supervising the Center, as well as Nurse Payne, were members of the American Society of Bariatric Physicians. As members of this organization, the physicians and Nurse Payne received two monthly journals, a biweekly newsletter, a monthly magazine, and faxes and e-mails containing updates on standard-of-care issues, medication changes, updates from the Federal Drug Administration, and suggested treatment changes and recommendations. The organization also provided educational programs and training opportunities for its members. In accordance with the recommendations of the American Society of Bariatric Physicians, the Center's weight loss program included a behavior modification program; a diet providing between 1200 and 1400 kilocalories per day; and an exercise program designed for each of its patients. In addition, if the patient was an appropriate candidate, the Center prescribed anorectic medications, including the combination of the drugs Phentermine and Fenfluramine commonly known as "Phen/Fen." Weight Loss Protocol At the times material to this proceeding, A.R.N.P.s were allowed under Florida law to practice independently under the general supervision of a physician who was accessible to them if they needed a consultation or evaluation of a patient. See Sections 464.003(3)(c) and 464.012(3), Florida Statutes (1995); Rule 64B8-35.002, Florida Administrative Code. Among other things, A.R.N.P.s were allowed to perform physical examinations of patients, to take medical histories, to initiate treatment programs, to prescribe certain types of drugs, and to evaluate patients for signs and symptoms of side effects associated with medications. A.R.N.P.s could not, however, prescribe drugs that were classified as controlled substances. Nurse Payne, and another A.R.N.P. subsequently hired to work at the Center, practiced under the general supervision of Dr. Pliskow, Dr. Ackerman, Dr. Herbst, and Dr. Aqua and in accordance with a protocol setting forth the respective duties of the A.R.N.P.s and of the physicians in the various areas of practice at Advanced Women's Healthcare. The protocol was filed with the appropriate state agency. Section Four of the protocol dealt with weight loss. Pursuant to the general guidelines, the A.R.N.P.s working at the Center were "responsible for the assessment and management of overweight individuals in a comprehensive weight reduction program including nutritional counseling, exercise management, and use of anorectic medications when appropriate." Patient selection criteria were as follows: Any individual who is over their ideal body weight may participate in the nutrition and exercise portions of the program. In order to qualify to participate in the medication portion of the program, the individual must meet the following criteria: Between the ages of 18 and 65 (any person between the ages of 61 and 65 must have medical clearance from their PCP [primary care physician]). Minimum of 20% over ideal body weight. No present history of heart disease, uncontrolled hypertension, cardiac arrhythmia, glaucoma, uncontrolled diabetes, hyperthyroidism, psychotic illness, drug or alcohol abuse, pregnancy, breastfeeding, or impending surgery requiring general anesthesia. Any deviation from these criteria requires collaboration with physician. The following was the General Condition of the weight loss protocol: The A.R.N.P. should consult with the physician on all patients exhibiting abnormal findings which might affect their weight loss management and refer for physician evaluation as needed. Patient C.B. Patient C.B. learned of the Center's weight loss program from her daughter, who had participated in the program and taken weight loss medication. C.B. had an initial consultation at the Center on October 23, 1996. At the time, as recorded on the Center's Weight Reduction Intake Form, C.B. was 62 years of age, her weight was 165 pounds, her height was five feet and four inches, she had a medium frame, her blood pressure was 138/82, and her pulse was 72 beats per minute. The intake form also included her body measurements as of October 23, 1996. As part of the initial consultation, C.B. completed the Center's Weight Reduction Program Questionnaire, in which she stated that she considered her ideal weight to be 135 pounds, that her biggest obstacle to losing weight was staying on a diet, and that she was interested in using medication in her weight loss program. C.B. indicated that she had no limitations on exercise and played tennis regularly. She disclosed her current medications, and she indicated that she did not then, nor had she ever, had the following conditions: heart disease, irregular heartbeat, high blood pressure, glaucoma, diabetes, psychotic illness, or alcohol or drug abuse. Nurse Payne reviewed the Weight Reduction Program Questionnaire with C.B. and completed the intake form. She noted on the intake form that C.B.'s ideal weight was between 120 and 135 pounds, that her weight goal was 135 pounds, and that her body mass index ("BMI") was 28.1 Nurse Payne reviewed with C.B. the information C.B. provided on the questionnaire, including her medical history, current medications, and drug allergies, and Nurse Payne noted on the intake form that C.B. reported arthritis as her only significant medical history. Nurse Payne and C.B. discussed the 1200-calorie exchange diet that was part of the program, and Nurse Payne developed an exercise plan for C.B. that included walking in the pool twice each week and incorporated C.B.'s usual routine of playing tennis three times each week. Nurse Payne noted on the intake form that Dr. Ira Fine was C.B.'s primary care physician. Nurse Payne also discussed medication options with C.B., including the benefits and risks of medications. The intake form included a printed section on medications, in which the first entry was "Pondimin2 20 mg. po bid and Phentermine 37.5 mg. po qd" and the second entry was "Other." Nurse Payne indicated on the intake form that C.B. would be started on "Phen/Fen pending medical clearance [by] Dr. Fine & EKG." Nurse Payne also advised C.B. that she would need to obtain medical clearance from Dr. Fine before medication would be prescribed. During the initial consultation on October 23, 1996, Nurse Payne provided C.B. with a Consent for Diet Program form and discussed with C.B. in detail the information in the consent form. The consent form contained descriptions of both Phentermine and Fenfluramine, together with the contraindications to their use, and Nurse Payne provided C.B. with an excerpt from the Physician's Desk Reference for Phentermine and the packet insert for Pondimin.3 C.B. signed the consent form on October 23, 1996. A blood specimen was drawn from C.B. on October 23, 1996, and Nurse Payne scheduled C.B. for an EKG on October 26, 1996. Nurse Payne telephoned Dr. Fine's office on October 25, 1996, and spoke with "Betty" about medical clearance for C.B. to participate in the weight loss program; she specifically told Dr. Fine's office the program would include the use of Phen/Fen. Nurse Payne was later advised by Dr. Fine's office that Dr. Fine had medically cleared C.B. to participate in the Center's weight loss program.4 Once medical clearance was obtained for a patient and the results of the blood work and EKG were received, the standard procedure at the Center was for the A.R.N.P. to present the patient's chart to one of the supervising physicians.5 The physician would review the test results and the patient's medical history and determine whether it was appropriate to prescribe medications for the patient. If so, the physician wrote the prescriptions, which were then given to the patient. Neither Dr. Pliskow nor Nurse Payne can recall specifically that this procedure was followed in C.B.'s case, but there is nothing in the record to indicate a deviation from this procedure with respect to C.B. C.B. was cleared for participation in the weight loss program and for the use of Phen/Fen based the results of her blood work and her EKG and on the criteria set out in the weight loss protocol: Her primary care physician had given medical clearance; her weight was 20 percent above her ideal body weight; and she had reported no present history of the conditions identified in paragraph II.B.3 of the protocol. Her blood pressure and pulse were normal. The results of her EKG showed no significant abnormality, and there was nothing in the results of the blood work done on October 23, 1996, that would prevent C.B. from participating in the weight loss program or from taking Phen/Fen. C.B.'s initial prescriptions for Phen/Fen were written on October 28, 1996 and, as noted in her chart, were for Pondimin in the dosage of "20 mg. [milligrams] po [orally] bid [twice daily]" and for Phentermine in the dosage of "37.5 mg. [milligrams] po [orally] qd [daily]."6 The medications and dosage prescribed for C.B. remained the same throughout the time she participated in the Center's weight loss program, and no further notations regarding dosage was included in her chart. C.B. initially visited the Center each week; in late November 1996, the frequency of her visits was decreased to once every two weeks, and then, in early February 1997, to once every four weeks. At each visit, a member of the nursing staff at the Center would note C.B.'s blood pressure, pulse, and weight on the progress forms in her chart, together with the amount of weight lost since her last visit. The chart also contained the notes of Nurse Payne or the other A.R.N.P. working at the Center reporting on C.B.'s success in staying on the diet and exercise plans; noting that her medication was "P/F"; and summarizing C.B.'s general progress, anything unusual she reported, and the plan she would follow until the next visit. C.B. also completed at each visit a Follow-Up Questionnaire in which she was asked to report whether, since her last visit, she had experienced chest pain, shortness of breath, dizziness, light-headedness, visual problems, palpitations, abdominal pain, bowel changes, fatigue, difficulty sleeping, depression, irritability, difficulty concentrating, memory loss, tremors, or increased appetite. The Center's standard procedure was for the A.R.N.P. meeting with the patient to discuss the answers in the questionnaire with the patient and to question the patient regarding any problems he or she might be having with the program. Once the A.R.N.P. had examined the patient and completed the patient's progress report, the A.R.N.P. would take the chart to the supervising physician, who would review the chart and write the prescriptions for Phen/Fen. None of the prescriptions for Phen/Fen dispensed at the Center were pre-signed. Patients in the weight loss program received new prescriptions for Phen/Fen at each visit to the Center. Because Phentermine and Fenfluramine are controlled substances, there could be no refills on a prescription, so the prescriptions were written for a sufficient number of pills to last until the patient's next visit to the Center. Although the prescriptions were written and signed by one of the supervising physicians, the physicians did not sign the patient's chart. After the supervising physician wrote the prescriptions, the A.R.N.P. would take the prescriptions to the patient, who could have them filled at the pharmacy in the offices of Advanced Women's Healthcare or at a pharmacy elsewhere. There is nothing in the record to indicate that this practice was not followed with respect to the prescriptions issued to C.B.7 On November 4, 1996, her first visit after beginning the program, C.B. reported one episode of light-headedness. Otherwise, C.B. reported none of the symptoms identified in the questionnaire and reported no problems with the program. Had C.B. reported experiencing anything abnormal, Nurse Payne would have called in one of the physicians supervising the Center for a consultation. C.B. participated in the Center's weight loss program through April 7, 1997, which was the date of her last visit. C.B. lost weight on the Center's program at a slow but steady rate, usually between one and four pounds between visits, until, on April 7, 1997, she weighed 141 pounds. C.B.'s treatment with Phen/Fen ended before May 1997, when the Florida Board of Medicine published stricter limitations on the use of these medications.8 Although Dr. Pliskow was not present in the office on October 28, 1996, when C.B.'s first prescriptions for Phen/Fen were written, he was present in the office during four of C.B.'s ten visits to the Center. Because at least one other physician was also present in the office during these four visits, Dr. Pliskow may or may not have reviewed C.B.'s chart and written her prescriptions.9 Summary The evidence presented by the Department is not sufficient to support a finding that Dr. Pliskow practiced medicine below the level of care considered acceptable by a reasonably prudent physician under similar circumstances or to support a finding that Dr. Pliskow failed to document in C.B.'s medical records justification for the course of her treatment in the weight loss program and the dosage of the medications prescribed for her. The evidence is not sufficient to establish clearly and convincingly that the prevailing standard of care required the physician supervising the Center's A.R.N.P.s personally to perform a physical examination of C.B. prior to her being cleared for receiving medication as part of her weight loss program or personally to obtain C.B.'s medical history. Rather, it was appropriate for Nurse Payne and the other A.R.N.P. working at the Center to perform physical examinations and to take medical histories of persons seeking to participate in the Center's weight loss program. In addition, the evidence is not sufficient to establish clearly and convincingly that it was inconsistent with the prevailing standard of care for the Center's supervising physicians to rely on C.B.'s primary care physician to provide medical clearance for her to participate in the weight loss program. Dr. Fine was familiar with C.B.'s overall medical condition as a result of his examination of her on September 12, 1996, and he was, therefore, competent to assess the overall risks of her participation in a weight loss program incorporating the use of anorectic medications. Furthermore, the evidence fails to establish that it was inconsistent with the prevailing standard of care to rely on the verbal medical clearance conveyed to Nurse Payne through Dr. Fine's office; rather, the persuasive evidence suggests that it was the normal practice for clearance to be given in this manner.10 And, significantly, Dr. Fine's medical clearance was not the only basis for C.B.'s clearance to take anorectic medications: C.B.'s vital signs were recorded on the intake form by the Center's nursing staff, and Nurse Payne compiled C.B.'s medical history from C.B.'s answers to questions on the Weight Loss Program Questionnaire and from discussions with C.B; an EKG and extensive blood work were ordered for C.B., and a physician reviewed C.B.'s chart and the results of these tests before writing C.B. prescriptions for anorectic medications.11 The evidence is not sufficient to establish that the physicians practicing at Advanced Women's Healthcare failed to provide the appropriate level of supervision to the A.R.N.P.s who worked in the Center. A.R.N.P.s are independent practitioners, and they are subject only to the general supervision of a physician. The evidence failed to establish that the prevailing standard of care for physicians supervising A.R.N.P.s required anything more than that the physician be available for consultation. At least one physician was available in the Advanced Women's Healthcare offices at all times for consultation and/or patient evaluation if an A.R.N.P. working at the Center determined that a patient was experiencing any complications or if a patient reported any unusual symptoms. The evidence is not sufficient to establish clearly and convincingly that the type and scope of information collected during C.B.'s regular visits to the Center and the on-going care provided to C.B. were not appropriate under the prevailing standard of care for monitoring patients on weight loss programs such as C.B.'s. The prescriptions for C.B.'s weight loss medications were written by a physician at each of C.B.'s visits, but only after the physician reviewed her chart, which included the A.R.N.P.'s progress notes and C.B.'s answers on the Follow-Up Questionnaires she completed at each visit, to determine whether it was appropriate to continue C.B. on anorectic medications.12 The evidence also fails to establish that the prevailing standard of care required a supervising physician to sign a chart prepared by an A.R.N.P. to indicate that it had been reviewed.13 The evidence is not sufficient to establish that C.B. was not an appropriate candidate for a weight loss program using Phen/Fen under the prevailing standard of care in 1996 and early 1997.14 Adequate justification for the treatment of C.B. with anorectic medications was included in C.B.'s medical records: She was considered obese by 1996 standards because her weight of 165 pounds was more than 20 percent higher than her ideal body weight of 120-to-135 pounds and because her BMI was 28 and she wanted to lose weight. In addition, nothing in the medical history C.B. provided to Nurse Payne or in her tests results indicated that she would be an inappropriate candidate for anorectic medications, and she reported no complications during her follow-up visits.15 The evidence is not sufficient to establish clearly and convincingly that the dosages of Phen/Fen prescribed for C.B. were inappropriate or excessive under the prevailing standard of care in 1996 and early 1997. Rather, the dosages prescribed for C.B. were in the lower range of dosages recommended at the time by the American Society of Bariatric Physicians and in the medical literature in general for the use of Phentermine and Fenfluramine in combination.16 The dosage of both medications was printed on the intake form completed during C.B.'s initial visit to the Center, and the dosages did not change during the time C.B. participated in the Center's weight loss program; in accordance with normal practice, no further notations were made regarding dosages in C.B.'s chart. New prescriptions were written each time C.B. visited the Center, and no refills were permitted, which is also in accordance with the standard practice in dispensing controlled substances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Medicine enter a final order dismissing in its entirety the Administrative Complaint against Steven Pliskow, M.D. DONE AND ENTERED this 30th day of April, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO 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 April, 2002.
The Issue The issues in this case are whether Respondent committed an unlawful employment practice in violation of section 70-53, Pinellas County Code, by terminating Petitioner's employment allegedly because of her disability; and, if so, what is the appropriate remedy.
Findings Of Fact Admitted Facts Per Joint Pre-hearing Stipulation Sure-Tek is an employer as defined by section 70-51, Pinellas County Code. Ms. Turner was employed by Sure-Tek on January 18, 2010. Her employment was terminated by Sure-Tek on February 22, 2010. Prior to her employment, Ms. Turner was diagnosed with diabetes insipidus. Ms. Turner's diabetes did not prevent her from performing the essential functions of her job, with reasonable accommodations. Lewis "Mitch" Currie is the owner of Sure-Tek, and he was Ms. Turner's direct supervisor. Mr. Currie made the decision to terminate Ms. Turner's employment. Additional Findings of Fact Based on the credibility and demeanor of the witnesses and the greater weight of the competent substantial evidence presented at the final hearing, the following additional facts are found. Diabetes Insipidus Ms. Turner developed diabetes insipidus four years ago as a result of brain surgery to remove a tumor on her pituitary gland. She described the condition as a very rare form of diabetes that is a sodium/electrolyte disorder, instead of the more common forms of diabetes that are insulin/blood sugar disorders. She testified that her understanding of her condition is that it is essentially permanent--the underlying cause of her condition will never go away, and she will eventually need brain surgery again. Ms. Turner's condition requires constant monitoring, but instead of measuring blood sugar via blood tests, Ms. Turner's condition involves monitoring and maintaining a balance of hydration, electrolytes, and output (urination), while taking prescription medication to protect against extreme imbalance that could result in her urinating herself to death. The line where the balance should be drawn at any given point is variable and difficult to predict, so the monitoring and adjustment process is a matter of trial and error, to some degree. The balance that Ms. Turner's condition requires is thrown off by temperature extremes, so she cannot work or spend much recreational time outside when it is hot or cold. She can work in an indoor office setting, provided that she takes extra steps to regulate the temperature, such as using space heaters to warm up a cool space. Ms. Turner must also be permitted to have ready access to plenty of drinking water at all times, and she has gotten used to bringing bottled water with her to ensure an appropriate supply. Her condition can cause her to urinate frequently, and so she also must have ready access to a restroom. Ms. Turner also testified that her condition requires her to maintain a strict diet, because many foods and drinks will throw off the balance she must maintain. For example, Ms. Turner must avoid sodium, butter and certain other fats, meats, and other ingredients. Since some of the ingredients she must avoid, such as sodium, are difficult to control and monitor when eating out, she does not often go out to eat in restaurants and no longer goes out to dinner with friends. Ms. Turner has gotten very sick when she has unknowingly ingested too much sodium or when the ingredients she must avoid have secretly been in her food. Ms. Turner has learned the hard way about some of the things she cannot tolerate. For example, she learned that she cannot drink alcohol when, after the onset of her diabetes insipidus, she collapsed after drinking a small amount of alcohol at a party and had to be hospitalized. By sticking to a careful regimen of monitoring and adjustment, by adhering to all of the hydration and dietary restrictions she has learned are necessary from her experience, limiting her social activities (rarely eating out, limiting outdoor activities), controlling the temperature of her settings and ensuring constant access to water and bathrooms, Ms. Turner has been able to deal with her condition. In a lay person's sense, Ms. Turner does not really consider herself to be disabled, although she tends to think in comparative terms, noting that there are persons with severe debilitating conditions that are much worse off than she is. Ms. Turner testified that her diabetes disorder also has impaired her immunity system, making her more prone to sickness. No medical testimony was offered to verify this opinion. Somewhat inconsistently, Ms. Turner later testified that when she got sick with a cold, which evolved into bronchitis, that episode of sickness was unrelated to her diabetes condition. Indeed, Ms. Turner's opinion that her sickness was not related to her diabetes condition was confirmed by her testimony that she has gotten colds that turned into bronchitis every winter for many years, pre-dating the onset of her diabetes insipidus. Employment at Sure-Tek Sure-Tek is in the business of powder coating, which is an anti-corrosive industrial coating applied to metal and other objects. The building in which Sure-Tek carries out its business has two main areas: administrative office space and warehouse space. The powder coating is done in the warehouse part of the building, in a room with two ovens that operate at 400+ degrees. The room with the ovens is very hot, often 120 degrees or more. Ms. Turner was hired as a bookkeeper/receptionist/ office assistant, beginning on January 18, 2010. She was the only administrative/office worker at Sure-Tek. The other approximately 10 employees worked in the warehouse, carrying out the powder-coating business. Mr. Currie, the owner/president, spent about half of his time in his office and the other half in the warehouse. Ms. Turner had an office with a door that she often kept closed because of her sensitivity to hot and cold temperatures; it was easier to regulate the temperature of her office space if the door was closed. Ms. Turner found her office to be very cold, so she kept two space heaters going. She brought her own space heater to use at the office to accommodate her need to modify the temperature of her space. Brandon Bean, another employee at Sure-Tek, did not like having to go into Ms. Turner's office, finding it unpleasantly warm--he described it as quite "toasty." When Ms. Turner was hired, Mr. Bean had been working at Sure-Tek for about five months. Mr. Bean had been in jail before he was hired by Sure-Tek, having served a sentence for a felony conviction related to firearms. During the time that Ms. Turner was an employee at Sure-Tek, Mr. Bean's position was referred to as floor supervisor or warehouse foreman. Mr. Bean testified that he was promoted to general manager one year ago, which would have been a few months after Ms. Turner was fired, while the Pinellas OHR was conducting its investigation of Ms. Turner's discrimination complaint. Ms. Turner was expected to work 40 hours per week, and she testified that she did so, not missing a day of work. No evidence was presented that Ms. Turner did not work the hours she was expected to work each day and week of her employment (with the exception of leaving sick two hours early on the last Friday of her employment, discussed below). She rarely took lunch. She was expected to be available during business hours to answer the phones and was expected to take a portable phone with her when she stepped away from her desk, even when she went to the bathroom. When she went to the bathroom with a portable phone, she was expected to answer the phone, even then, if a call came in. At her interview, Ms. Turner told Mr. Currie that she had substantial bookkeeping experience and knew how to use QuickBooks software. No credible evidence was presented to prove that her representations were not true. When Ms. Turner began working for Sure-Tek, she received no training or orientation from someone who knew the office systems, protocols, or electronic files. Mr. Currie told Ms. Turner verbally what her duties were and how things were done, but he did not actually train her. For him, it was good enough that she said she knew QuickBooks. Besides, as he admitted at the hearing, he really did not know the computer systems himself; he "doesn't use the computer much." Ms. Turner discovered that there were two QuickBook systems, which were password-protected. Ms. Turner said that it took two days for her to track down the passwords. Then, she had quite the time sorting out the accounts set up in the two different systems--she described the state of the computer accounting as "a mess" when she started. She asked Mr. Currie if she could merge the two systems, and he told her to go ahead. At the hearing, Mr. Currie acknowledged that there were two QuickBook systems, an older version and a new 2010 version. He testified that his only office help after getting the updated QuickBooks software consisted of a series of three different temporary employees sent over by a "temp" agency. He said that these temporary employees were awful; nonetheless, he tasked them with setting up the new system with information brought over from the old system. It should come as no surprise, then, that Ms. Turner found many problems and errors, such as entries of very recent information in the old system that should have been in the new system. Ms. Turner testified that she discovered quite a few late and unpaid bills when she started. She would bring these items to Mr. Currie's attention, and he would tell her whether the bills could be paid or not. Mr. Currie's permission was required before Ms. Turner could pay any bills, and sometimes Mr. Currie would refuse to authorize payment for bills that were due or past due. Mr. Currie confirmed this at hearing; he testified that he "absolutely" had to refuse permission to pay bills at times, because there was not always enough money to pay all of the bills. At other times, he would tell Ms. Turner to just pay part of a bill that was due. Mr. Currie testified that for the first two weeks of Ms. Turner's employment at Sure-Tek, she seemed to be on track and was trying very hard. Ms. Turner noted that Mr. Currie praised her work during those first two weeks, and he did not deny this. However, according to Mr. Currie, after about two weeks, Ms. Turner's performance went "downhill." Mr. Currie did not present any credible evidence to prove this demarcation point. However, the evidence did establish that the two-week point was significant for a different reason. Mr. Currie had lunch with Ms. Turner after her first two weeks. In their lunchtime conversation, Mr. Currie told Ms. Turner that his wife suffered from a thyroid problem, which he said sometimes made her off-balance. Ms. Turner responded by telling Mr. Currie that she had diabetes insipidus. Mr. Currie had no apparent immediate reaction to this disclosure. However, at some point thereafter, Mr. Currie told Ms. Turner that he never would have hired her if he had known she had diabetes.1/ When Ms. Turner had a cold throughout the week of February 15, 2010, the two had an awkward encounter on Friday afternoon, February 19, 2010. As Ms. Turner described it, by mid-afternoon on Friday, after sticking it out at work all week while not feeling well, she asked Mr. Currie if she could go home two hours early, because she had finished her Friday task of getting the information in to the payroll service and thought it would be all right if she left for the day. Mr. Currie got very angry and said that her diabetes was always making her sick. She tried to tell him that she had a cold and was on antibiotics (to stop the apparent evolution of her cold to bronchitis), and it was unrelated to her diabetes. But Mr. Currie just waved his hands and yelled at her to "just go!" She thought he meant that she should go home as she had asked, although she knew he was not happy about it. So she left. Mr. Currie told a very different version of Friday, February 19, 2010. Mr. Currie denied making any statements about Ms. Turner's diabetes, then or ever. Mr. Currie also denied having any conversation with Ms. Turner that afternoon about whether Ms. Turner could go home two hours early because she had a cold. However, Mr. Currie testified that he noticed that Ms. Turner was sub-par that day. As Mr. Currie put it, that day Ms. Turner "seemed a little sicker than she appeared to be normally." Mr. Currie then testified that Mr. Bean was looking for Ms. Turner in the middle of the afternoon that Friday, February 19, 2010. He asked Mr. Currie where she was, and Mr. Currie said he did not know. Then, according to Mr. Currie, after they spent about 45 minutes looking for Ms. Turner, Mr. Currie decided that Ms. Turner must have quit, leaving without telling anyone, never to return. At that point, Mr. Currie instructed Mr. Bean to place an ad on Craigslist for a replacement for Ms. Turner. Mr. Currie's version of the events on Friday, February 19, 2010, is not credible, particularly when coupled with Mr. Currie's inconsistent version of the events on Monday, February 22, 2010; Ms. Turner's version is accepted as the more credible account of events. On Monday, February 22, 2010, Ms. Turner went to work that morning, only to find a number of telephone messages from applicants for the Craigslist ad and resumes submitted by individuals requesting an interview for the bookkeeper position. By mid-morning, Mr. Currie called Ms. Turner into his office. According to Ms. Turner, Mr. Currie said that it was not working out with her diabetes. When Ms. Turner tried again to tell him that her two-hour break Friday afternoon was because of a cold, and not diabetes, Mr. Currie then added that that was not the only reason he was letting her go--that she had bankrupted his company.2/ Then, according to Ms. Turner, Mr. Currie asked her to stay to train her replacement, which she refused to do. Mr. Currie does not deny that he told Ms. Turner she was terminated, but he denies any reference to her diabetes, claiming it was all because of her performance. Mr. Currie did not attempt to reconcile this version in which he admittedly intended to fire Ms. Turner, with his inconsistent description of the previous Friday, when he claimed that the only reason he placed the Craigslist ad was because he believed that Ms. Turner had voluntarily quit, and he had no choice but to start looking for a replacement. In an effort to show that he was thoughtful and accommodating of Ms. Turner's health condition and needs, Mr. Currie testified that a few days before Ms. Turner was fired, she had told him that she would be needing another surgery. His response was that he would hire a temporary employee to cover for her so she could have the time off for her surgery. But this testimony tends to underscore that as of just a few days before Ms. Turner was fired, Mr. Currie gave no signs to Ms. Turner that there were any performance-related issues that would put her job in jeopardy. Twisting back toward the different version of events that suggested there were mounting problems with Ms. Turner's performance, Mr. Currie claimed to have talked with Ms. Turner on several different occasions throughout her employment about her performance problems. As noted above, Ms. Turner testified, credibly, that for the first few weeks, Mr. Currie said she was doing a good job. After that, Ms. Turner acknowledged a single comment by Mr. Currie that she did not know how to run reports right. Ms. Turner also acknowledged that Mr. Bean called one meeting with Mr. Currie and Ms. Turner to complain that Ms. Turner was unfriendly to him and did not respond quickly enough to a request he made for information. Ms. Turner explained her run-in with Mr. Bean, stating that she was on the phone when he walked into her office and started talking to her as if she was not on the phone. She said that he got quite huffy when she asked him to wait a minute while she finished the call. Mr. Currie claimed that after the first few weeks, he started noticing that bills were going unpaid, and he talked to Ms. Turner about it. Ms. Turner's version, as noted above, was that there were overdue bills when she started, and she called them to Mr. Currie's attention; however, as Mr. Currie admitted, he sometimes refused permission to pay those bills and sometimes told her to just pay part of the bills, because he did not have enough money. No credible evidence was presented that Ms. Turner was to blame for bills going unpaid, or only partially paid, during her time of employment. Instead, the evidence showed that before, during, and after Ms. Turner's employment, bills sometimes went unpaid or only partially paid, admittedly, at Mr. Currie's direction. While Mr. Currie denied that it made a difference to him when Ms. Turner told him about her diabetes at that two-week lunch, the more credible evidence is that Mr. Currie's attitude towards Ms. Turner as an employee changed at that two-week mark. The more credible evidence established that Mr. Currie had a knee-jerk reaction upon learning that Ms. Turner had "diabetes" to jump to the conclusion that she had a disability that rendered her substantially and significantly impaired in the major life activity of working. He decided, without any real basis, that she was incapable of working in the one type of job where she thought she would be able to function with the accommodations she herself supplied. The credible evidence establishes that Mr. Currie fired Ms. Turner because of his perception of her disability. Mr. Currie's testimony included the occasional revealing slips that were much more telling than his steadfast (but not credible) denial of any discrimination. As noted, Mr. Currie testified that he found Ms. Turner to be a good employee who was trying very hard for the first two weeks, but that her work slipped and went downhill after the first two weeks. Yet he presented no evidence to prove what he observed that showed such a downhill slip in her performance after two weeks. Instead, the evidence and testimony, considering the credibility and demeanor of the witnesses, painted the picture that it was Ms. Turner's disclosure of having diabetes, and that alone, caused Ms. Turner's downhill plummet in Mr. Currie's eyes. That Mr. Currie perceived Petitioner to be disabled and perceived Petitioner's disability to substantially affect her ability to do her job, was evident from Mr. Currie's slip that on her last Friday of work, Petitioner seemed "sub-par," which he characterized as "a little sicker than she appeared to be normally." Thus, Mr. Currie perceived Petitioner as "normally" sick. That perception came despite the unrebutted testimony by Petitioner that she did not miss any work time based on illness or complication from her diabetes until she asked to leave two hours early on Friday, February 19, 2010. Ms. Turner's testimony regarding Mr. Currie's discriminatory comments was corroborated by the testimony of Tanya Rodriguez, who was hired in response to the Craigslist ad to replace Ms. Turner. Ms. Rodriguez did not know Ms. Turner until she met her, when Ms. Turner came in to Sure-Tek to pick up her last paycheck after she had been fired. Ms. Rodriguez provided information to the Pinellas OHR in its investigation of Ms. Turner's complaint when Ms. Rodriguez was still employed by SureTek. Ms. Rodriguez was then fired, allegedly for performance problems.3/ Ms. Rodriguez convincingly testified at the final hearing that when she was interviewed by Mr. Currie to replace Ms. Turner, Mr. Currie asked her, point-blank, whether she had diabetes. He told her that the last person he hired with diabetes was a good for nothing S.O.B; that he never would have hired her if he knew she had diabetes, because she was always sick; and that he would never hire another person with diabetes. Ms. Rodriguez told Mr. Currie that she did not have diabetes, even though she actually was diabetic.4/ After Mr. Currie asked his question about diabetes, he proceeded to ask Ms. Rodriguez whether she had thyroid problems (like his wife, whom he told Ms. Turner was sometimes off-balance as a result). Ms. Rodriguez also confirmed Ms. Turner's testimony that there were deep-seated problems remaining in the dual QuickBook systems. Although Respondent attempted to characterize this testimony as evidence of Ms. Turner's poor performance, Ms. Rodriguez made it very clear that the problems imbedded in the dual systems were from a much longer time span--up to one year--and could not have been the result of errors made in the one month preceding Ms. Rodriguez' employment at Sure-Tek. Instead, Ms. Rodriguez saw signs of efforts to merge the two systems, but noted that there would not have been enough time in one month to completely merge the systems and fix all of the imbedded problems. She testified that she also tried her best to make progress, but she was only at Sure-Tek for a few short weeks. Ms. Rodriguez' testimony was credible and is accepted.5/ Her testimony strongly corroborates Ms. Turner's testimony of Mr. Currie's direct discriminatory statements, including the first words out of his mouth when he fired her--that it was not going to work out, with her diabetes. At hearing, Respondent presented evidence offered in an attempt to demonstrate that Ms. Turner's job performance was not good and was the legitimate reason for her termination. Mr. Currie testified that a Progress Energy bill due on February 18, 2010, went unpaid. Mr. Currie blamed this on Ms. Turner forgetting to pay the bill, but that was not established. Ms. Turner and her successor, Ms. Rodriguez, both testified that as bookkeepers for Respondent, they did not have the authority to pay bills. Instead, they were required to review the bills with Mr. Currie, and each week he would tell them which bills could be paid, which bills should be partially paid, and which bills should be ignored. Mr. Currie corroborated this testimony, admitting that he "absolutely" had to refuse permission to pay bills sometimes. The short billing history Respondent put in evidence for Progress Energy showed, for example, that the month's charges due on June 18, 2009, went unpaid until the following month and that was well before Petitioner began her employment. Regardless of whether the Progress Energy bill due on February 18, 2010, was unpaid because of Ms. Turner's fault or Mr. Currie's instruction, the notification of this unpaid bill was first mailed out to Mr. Currie on Thursday, February 18, 2010. Thus, this could not have been an example of one of the bills allegedly going unpaid that Mr. Currie claimed to have begun noticing after Ms. Turner had been working at Sure-Tek for two weeks. Indeed, there is no evidence that Mr. Currie was even aware of this late notice, mailed on Thursday, by the next afternoon when he had an ad placed for Ms. Turner's replacement or by the following Monday morning, when he fired Ms. Turner. Mr. Currie also testified that Ms. Turner was to blame for an increase in his Progress Energy utility deposit from $800 to $2,500.00, but no evidence was presented to prove that there was an increase in SureTek's required utility deposit at all, or, if so, when any such increase occurred. To the contrary, the Progress Energy statement for February 2010, covering the billing period of January 27, 2010, through February 24, 2010 (very close to the time span of Ms. Turner's employment), shows that the deposit amount already being held for that account at that time was $2,680. Further, the Progress Energy billing history summary shows that the prior month's bill, due on January 21, 2010, had been paid. Thus, the evidence refutes Mr. Currie's suggestion that there was an increase in the deposit requirement because of Ms. Turner's failure to pay the bills. Instead, it appears that if the deposit requirement had been increased, the increase occurred before January 2010, based on billing history that predated Ms. Turner's employment. A similar story was told with respect to the City of Pinellas Park water bills. Mr. Currie blamed Ms. Turner for not paying a bill from January 15, 2010, even though that bill was transmitted online before Ms. Turner was hired. Both before and after Ms. Turner was employed, there was a billing history for the water bills that showed occasional missed payments and occasional partial payments of the total amount due, as well as the imposition of a penalty charge for late payment. The January 15, 2010, bill that was not paid when due on February 10, 2010, resulted in a $34.10 penalty charge, which may have been Ms. Turner's fault. However, given Mr. Currie's admission that he controlled payment of bills and sometimes refused permission to pay bills when due, the evidence is insufficient to show that Ms. Turner was to blame for the bill not being paid while she was employed at Sure-Tek or for the late charge. Mr. Currie also presented evidence regarding PESCO gas bills. A summary of PESCO charges and payments was presented with a January charge highlighted. Next to the January charge was a handwritten note, "DID NOT PAY PESCO BILL." The only problem with this evidence is that the summary is for charges and payments in 2009, not 2010. Thus, whoever did not pay the PESCO bill in January 2009, it could not have been Ms. Turner. Mr. Currie also presented a separate PESCO invoice dated March 4, 2010, which showed that the balance due as of the prior month's bill, February 4, 2010, was $4,609.13. This balance was reduced by a $1,791.73 payment made February 10, 2010, presumably by Ms. Turner during her time of employment. Mr. Currie admitted at the final hearing that PESCO accepted partial payments at that time, and he admitted that he probably instructed Ms. Turner to pay only part of the February bill. It was not shown that there were any billing or payment problems with this account or that Ms. Turner's performance can be faulted at all. Next came the TECO People's Gas bill. On a statement dated February 12, 2010, a "previous balance" of $1,589.88 was carried forward from the prior month's bill. Sometime between the prior statement issued in mid-January 2010, and the February 12, 2010, statement, a partial payment was made and credited in the amount of $497.68, leaving $1,092.20 still due from the January bill. Because the remaining balance was considered "past due" on February 7, 2010, a late payment fee of $16.38 was added to the February statement. Mr. Currie acknowledged that the January 2010 bill was partially paid while Ms. Turner was employed at Sure-Tek. Once again, Mr. Currie admitted that it was "entirely possible" that he was the one who instructed Ms. Turner to pay what Respondent could afford to pay--the partial payment of $497.68--because he did not have the money to pay the entire bill. Mr. Currie's own testimony and the bill itself refute his claim that Ms. Turner overlooked or forgot to pay the January bill. In addition, Mr. Currie's testimony corroborated the testimony of Ms. Turner and Ms. Rodriguez regarding the tight control Mr. Currie kept on which bills were paid or partially paid. This evidence does not establish that Ms. Turner's performance can be faulted for the partial payment of the January TECO People's Gas bill or the late fee charged on the remainder that was not paid when due. TECO People's Gas also sent a "final notice" on February 11, 2010, informing Sure-Tek that it had to pay the remaining past due balance of $1,092.20 right away, or else its service would be terminated on February 19, 2010. A copy of the final notice in evidence has handwriting on it, indicating "pay" in one handwriting style and "paid" in a different handwriting style. Mr. Currie did not testify that his TECO People's Gas service was terminated. Thus, the reasonable inference is that Mr. Currie authorized Ms. Turner to pay the rest of the January balance upon receipt of the final notice, and she did so before February 19, 2010. Mr. Currie's final piece of documentary evidence to support his claim of mounting performance problems was a notice from the Florida Department of State, Division of Corporations, dated February 17, 2010 (the Wednesday of Ms. Turner's last week of employment). This notice informed Sure-Tek that its corporate annual report was due and should be filed with the filing fee by May 1, 2010, to avoid a late fee. A second notice dated June 16, 2010, imposed the late fee and notified Sure-Tek that the annual report, filing fee, and late fee had to be submitted by September 17, 2010, to avoid administrative dissolution. Despite the fact that Ms. Turner was fired a few days after the first notice and a late fee could have been avoided if the report and filing fee were submitted at any time in the approximately 70 days remaining after Ms. Turner was fired, Mr. Currie blamed the failure to meet the May 1, 2010, deadline on Ms. Turner. That attempted blame is not warranted and, instead, tends to suggest that Mr. Currie was looking to find things to blame on Ms. Turner after she was fired. Mr. Currie testified that he believed Ms. Turner did not know how to use QuickBooks, and, as a result, did not follow his instructions to enter bills into QuickBooks as soon as they were received. However, Mr. Currie offered no credible, competent evidence of this. Mr. Currie admitted that he had no personal knowledge regarding what was or was not entered into QuickBooks by Ms. Turner or how Ms. Turner performed using QuickBooks, and no other evidence was offered to prove Mr. Currie's unsubstantiated claim. Mr. Bean participated in the Pinellas OHR investigation and testified at the final hearing in support of Mr. Currie's position that Ms. Turner was fired because of her performance problems. Mr. Bean testified that Ms. Turner was fired because of a "lack of ability to do the job," and he referred to her not paying bills. Mr. Bean's testimony lacked credibility and probative value. He admitted that he had no personal knowledge of unpaid bills, no personal knowledge of Ms. Turner's interaction with vendors, and no personal knowledge of her QuickBooks work. Mr. Bean provided no competent, credible evidence of any problems with Ms. Turner's performance. The only testimony he provided that was based on personal knowledge was that he found her to be "unfriendly" to him. While Ms. Turner was employed at SureTek, Mr. Bean was not her supervisor; at the time, he supervised only the warehouse employees. Mr. Bean testified that he was promoted to general manager in early July 2010 (one year before the final hearing), having "worked [his] way up." This was a few months after Ms. Turner was fired, after Ms. Rodriguez was fired, and after Mr. Bean had provided support to Mr. Currie's position in the Pinellas OHR investigation. The credible evidence fails to support Mr. Currie's suggestion that Ms. Turner was not performing acceptably in her brief tenure and was fired for that legitimate reason. Instead, it appears that Mr. Currie went on an after-the-fact hunt for things he could blame on Ms. Turner that could not reasonably be blamed on her, nor were they shown to be reasons why Mr. Currie made the decision on February 19, 2011, to terminate Ms. Turner and advertise for her replacement. Indeed, Mr. Currie's own testimony shows the inconsistencies in his attempt to develop a legitimate rationale for letting Ms. Turner go. When Mr. Currie was explaining his recollection of the events of February 19, 2011, he testified that after just 45 minutes of looking for Ms. Turner, who he described as looking sub-par and sicker than she normally looked that day, he decided that she must have quit, and he instructed Mr. Bean to place an ad on Craigslist because Ms. Turner had apparently decided to quit. That is quite a bit different than coming to the studied view over a multi-week period of time and following several counseling sessions that Ms. Turner's job performance was unacceptable and that she should be fired for poor performance. Instead, the suggestion was that Mr. Currie would have been happy to keep Ms. Turner--even willing to get a temporary employee to accommodate Ms. Turner's need for another surgery in the future--but she was the one who chose to leave. Mr. Currie never attempted to reconcile these two very clearly different explanations of how Ms. Turner's employment at Sure-Tek ended. These inconsistencies undermine the credibility of his attempt to legitimize her termination. Appropriate Remedy Petitioner testified that she is seeking back pay only, through the date of the final hearing, as damages. Petitioner quantified her back pay damages as 71.5 weeks of unemployment since her termination. She testified that her income at Sure-Tek was $540.00 per week ($13.50 per hour, times 40 hours per week). This evidence was not challenged by Respondent. Therefore, the total amount of back pay damages claimed before offsetting reductions is $38,610.00 Petitioner testified to her substantial efforts to obtain a job after she was fired by Respondent, and her testimony was corroborated by a tremendous amount of electronic mail inquiries and applications she submitted to follow up on job postings on Craigslist and other online job listings. Petitioner was hired shortly after she was let go by Mr. Currie at a company called Clear Tech, Inc. That job did not last long, however, because Ms. Turner was hired to work for the part of the company that was in the business of new pool construction and that part of the business was shut down soon after she started, due to the economic slow-down. Petitioner proved the amount of wages earned at Clear Tech: $1,632.00. In addition, Petitioner proved that she earned an additional $1,612.00 in unemployment compensation after she was fired from Sure-Tek. These two categories reduce the total amount of damages sought to $35,366.00. Petitioner testified that since she stopped working for Clear Tech, she has not earned wages. However, she testified that she has been helping out at Apple Homes, the company owned by her grandfather and father and has worked about ten hours per week. She is not on the payroll, because business is not good enough for her to be paid. However, both her grandfather and father help her out financially, helping to pay her rent and her bills. Although Ms. Turner testified that she plans to eventually pay back her father and grandfather for their financial help, she did not produce any evidence to substantiate that claim, such as an accounting maintained by her to tally the amounts of their assistance so she would know how much to repay them. Thus, it is reasonable to assume that her ten hours per week of work to "help" the company is being compensated by this indirect "help" to assist with her rent and bills. The undersigned finds that Petitioner has mitigated her damages to the extent of having similar work for which she is compensated for ten hours per week. Petitioner testified that she began working at Clear Tech in March 2010 and that she worked there for approximately 30 days. Therefore, the undersigned will assume that Petitioner worked at Clear Tech for the month of March 2010, and, thereafter, she worked at Apple Homes for ten hours a week. That equates to approximately 66 weeks, or 660 hours. In the absence of any other evidence showing how much Petitioner received as indirect compensation, it is reasonable to assume that her compensation would have approximated the hourly rate she earned from Respondent. Therefore, the undersigned will deduct $8,910 from the total back pay damages, representing estimated compensation of the value of her services of ten hours per week at Apple Homes for 66 weeks. The undersigned finds that Petitioner has incurred actual damages due to lost wages from her date of termination by Respondent through the date of the final hearing, reduced/offset by the items described above, of $26,456.00. Petitioner established her reasonable efforts to mitigate her damages, and she, in fact, mitigated her actual damages which have been reduced/offset as described above by a total of $12,154.00. Petitioner has hired an attorney who has represented her at the final hearing, in pre-hearing preparation, and in post-hearing proceedings. Petitioner has also incurred costs in connection with this litigation.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered: Finding that Respondent, Sure-Tek Powker Coating, Inc., violated section 70-53, Pinellas County Code; Ordering Respondent to pay Petitioner, Rebecca Turner, the sum of $26,456.00 and interest at the prevailing statutory rate; and Ordering Respondent to pay Ms. Turner reasonable costs and attorney's fees. Jurisdiction is retained to determine the amount of costs and attorney's fees, if the parties are unable to agree to the amount. DONE AND ENTERED this 22nd day of September, 2011, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2011.
