The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race in connection with the terms and conditions of employment of Petitioner.
Findings Of Fact Respondent is Cumbie Concrete Construction Company. B. T. Cumbie has been Respondent's president since the company's inception in 1978. Prior to economic difficulties which caused Respondent to cease most business activities in September of 1991, Respondent employed as many as 150 persons, had a fleet of approximately 129 vehicles and construction equipment valued in excess of two million dollars. Respondent was significantly affected by the economic recession in 1990 and 1991. In the latter part of 1990, Respondent was experiencing a major slowdown in work and began cutting back work crews and slowly going out of business. At the beginning of September, 1991, Respondent effectively ceased all operations, dismissed all employees and sold all equipment. The business was then started again, doing just basic concrete work as opposed to previous large-scale projects. This renewal of Respondent's business activities began approximately in May of 1992, although some small finishing up of prior jobs had been done prior to that time. Personal principles of Respondent's president led to this direction of the company, as opposed to the filing of bankruptcy by the company. Petitioner could have had no reasonable expectation of employment after September 6, 1991, when all other employees, inclusive of corporate officers, were dismissed. Respondent has employed hundreds of employees since its inception. At any given time, 50 percent of the employees have been black. Employees have routinely been assigned to multiracial crews based upon skills of employees and needs of the particular work crew. Respondent has never had a charge of discrimination levied against it. Petitioner, Henry L. Thomas is black. He was employed by Respondent as a concrete finisher at a rate of $7.00 per hour from May 4, 1989, until his discharge on January 9, 1991. Considered an apprentice finisher in terms of skill level, he never applied for the position of supervisor or foreman with Respondent. Petitioner has never felt any instance of discrimination during his 20 months of employment, other than the incident which forms the basis of this proceeding. No other concrete finishers were hired by Respondent from the time of Petitioner's dismissal and the September, 1991 cessation of business. On January 9, 1991, Alex Smith was the project manager for Respondent's project at a mushroom plant in Gadsden County, Florida. Smith learned from the representative for the overall project's general contractor, Johan Bult, that two of Respondent's employees were allegedly selling drugs at the job site and that the general contractor wanted those employees removed from the premises or the sheriff would be called. The two employees in question were Petitioner and a white individual known as Donald "Chip" Hines. Hines was employed by Respondent on June 8, 1990, as a laborer at the rate of $5.00 per hour. Prior to January 9, 1991, Hines' work record reflects no documented incidences of tardiness and only three absences, all of which were excused. He was not the subject of complaints by any past or present foreman employed by Respondent. By way of contrast with Hines' work record, Petitioner was absent 19 times in the space of 20 months employment with Respondent. Petitioner was on probation in the state of Georgia from his conviction as an habitual offender at the time he began his employment. Petitioner's assertion that all of his absences were related to his need to report to his probation officer in Georgia is not credited in view of the multiple absences reflected in work attendance records for some months and virtually no absences in other months. Petitioner also asserts that he never failed to come to work without first calling by telephone and checking in with Respondent's offices. However, the work records list two absences, October 21, 1989, and May 29, 1990, as having occurred without permission and without Petitioner having checked in with his employer. Two absentee reports note that Petitioner was also absent on two occasions due to car trouble, contrary to Petitioner's assertion that he was never absent for these reasons. Petitioner was frequently provided transportation to and from job sites in the course of his employment by foremen and others employed by Respondent. Only one absentee report reflects Petitioner's absence from work for matters connected with the judicial system. With regard to Petitioner's judicial probationary status, Respondent provided a letter to Petitioner's probationary officer on January 13, 1990, certifying Petitioner's employment. Smith checked with Respondent's office regarding Bult's complaint and was told to lay the two employees off. Smith spoke with Petitioner and told him about the complaint and the directive to lay the men off. Smith instructed the foreman at the site to call Hines, who had taken the day off, and inform him. Smith then provided Petitioner with a ride back to Respondent's office where Petitioner's car was located. Enroute, Petitioner denied that he had sold any drugs at the Quincy Farms site. While Petitioner now contends that Hines was selling drugs and that he personally observed him selling drugs, he did not provide that information to Respondent's supervisory personnel at the time of the two men's dismissal from employment. Respondent's president specifically made the decision to terminate the two men's employment since they could not be returned to that job site. In conjunction with that termination action, he also attempted placement of both men with other work crews. He did not force their employment on any foreman who was reticent to cooperate since to do so would, in his opinion, destroy the team function of a crew and create even bigger problems for Respondent. While in Respondent's employment, Petitioner worked for a foreman named Lloyd Cruce who, Petitioner maintained at final hearing, never made any comments about his absenteeism, tardiness or his "mouth". Petitioner's testimony on this point is not credited in view of the direct and candid testimony of Cruce, who no longer works for Cumbie Concrete, to the effect that he had repeated problems with Petitioner's absenteeism and attitude, noting that for the period March 6 to May 1, 1990, Petitioner was absent eight separate times. As a consequence, Cruce submitted papers to Respondent's president requesting the firing of Petitioner for his absenteeism and attitude. Respondent's president elected at that time to place Petitioner with another crew. After the employment termination of Hines and Petitioner, Smith assisted the efforts of Respondent's president to place the two men with Respondent work crews on other jobs by also checking with foremen regarding possible placement. Smith spoke with Tommy Simkins, Randy Langston and may have talked with Bill Chason. Randy Langston advised Smith that since he had a forming crew which involved skilled carpenters, he was not interested in taking Donald Hines because he was a laborer and lacked necessary skills for his crew. Langston did not want Petitioner on his crew because Petitioner's lack of necessary skills, his inability to get along with people and his use of inappropriate language would cause problems for his crew. As noted by Langston, Petitioner was quite vocal and it was a "hassle" to get Petitioner to do anything. Langston was familiar with both Donald Hines and Petitioner as his crew has previously supplemented their crew for a time at Quincy Farms. Tommy Simpkins accepted Donald Hines on his crew. Two other laborers, David Martinez, an Hispanic, was transferred to the Quincy Farms crew and Lonzo Murray, a black or African-American, was temporarily transferred to that crew. Simpkins had more workers on his crew than he needed and did not need a concrete finisher on his crew. He also noted past problems with Petitioner being late to work and having difficulty with obtaining transportation to the job site. Even though Simpkins had made him a lead worker on occasion in the past, Petitioner had a hard time getting along with other people. Following an argument between Petitioner and a Respondent project manager, Steve Griffin, a job site on May 31, 1990, Petitioner was sent home because of the noticeable smell of alcohol on his breath. Petitioner had been late reporting to work on that day, not showing up until approximately 10:00 a.m., and then was sent home at 12:30 p.m., following the argument with Griffin. Petitioner's assertion that he went home sick that day after working all morning is not credited in view of alcohol smell observed on his breath by Tommy Simpkins and the fact that he was paid for only two and one-half hours of work on May 31, 1990, contrary to his claim of being paid for one-half day. Petitioner's assertion that Simpkins, following Petitioner's dismissal from employment, denied writing Petitioner up for having alcohol on his breath is not credited in view Simpkins' testimony that he did, in fact, write Petitioner up for that incident and that he had smelled the alcohol on his breath. Simpkins, in a confrontation with Petitioner after the employment termination action, did tell Petitioner he couldn't recall the incident. Simpkins explained that he did this because Petitioner was in a highly agitated state at the time, hollering at him in the garage area of Respondent's facility about the incident and that he, Simpkins, did not understand what Petitioner was talking about. The record of the incident, the absentee report, unquestionably bears Simpkins' signature which he has never denied affixing to the report. In view of the demeanor and candor of the two men while testifying, Simpkins' version of the incident is clearly more creditable and consistent with the evidence. Respondent's president spoke with both Bill Chason and Steve Griffin, whose crews used finishers and laborers, relative to placing Donald Hines and Petitioner. He learned that both Chason and Griffin had had prior problems with Petitioner and did not want him on their crews. The testimony of Chason, a Respondent foreman, establishes that Petitioner created trouble and started arguments between crew members when those crews needed to operate as a team. Petitioner had a specific disagreement with Chason concerning Petitioner's refusal to run a vibrator machine at a McDonald's job site. Chason talked with Petitioner on several occasions about his attitude. When asked by both Alex Smith and Respondent's president about putting Petitioner on his crew, Chason stated he didn't want Petitioner because his attitude caused too much trouble. Chason's testimony was reiterated in similar form by others who had observed Petitioner at work. Smith observed Petitioner while working at Quincy Farms and questioned his demeanor, noting he would get angry and agitated quite easily. Langston similarly testified as did Simpkins who noted that Petitioner always had difficulty getting along with other crew members. Lloyd Cruce noted that Petitioner had an attitude problem at work. Past and present foremen employed by Respondent noted that they never observed any discrimination being practiced nor race entering into employment or employee decisions. As previously noted, even Petitioner acknowledged that with the exception of the specific incident which is the subject of these proceedings, he had never experienced any discrimination while working for Respondent nor felt he was treated badly. Petitioner presented the testimony of his friend and former roommate, John Randle, who worked as a laborer for Respondent from August of 1989 to November of 1990, for the proposition that Bill Chason had once stated that he wanted Petitioner to work for him on his crew. Randle asserted that he worked with Petitioner, by virtue of temporary assignment to the crew on which Petitioner worked, three or four times a month for approximately seven months. Chason, however, noted that Mr. Randle worked on his crew on a permanent basis the entire time he was employed by Respondent and was not temporarily assigned to a crew three or four times a month for seven months. Chason further denied Randle's averment that he, Chason, had stated at the Quincy Farms site that he wanted Petitioner on his crew. The testimony of Randle is not credited in view of his demeanor while testifying and the inconsistency of that testimony with testimony of Chason, Simpkins and other individuals. Respondent did not have a sophisticated personnel office with persons assigned the job of creating and keeping records. Further, the nature of the work performed by Respondent's crews is such that foremen are often at a specific location of activity at the job site, away from their company vehicles where their paperwork would be kept. As a consequence, they often do not write up infractions such as tardiness. In Petitioner's situation, for example, he was absent without permission on October 21, 1989, a fact noted on his time sheet, but the required absentee report was never filled out by the foreman. Petitioner conceded to being late to work on occasion. In the Tallahassee area there is a significant problem with obtaining workers. Replacing a worker is difficult, particularly in light of the delay occasioned by finding a qualified replacement worker. Construction projects all have built-in dollar penalties for failure to complete a job on time. A construction company is better served by keeping someone if there is any way of doing it, rather than simply dismissing an employee. As a result, the requirement of Respondent's employee manual specifying dismissal after three absences was not enforced during Petitioner's tenure. Respondent's dismissal of Petitioner has not evolved over time. As established by the proof presented at hearing, Petitioner and Donald Hines were let go on January 9, 1991, because the company which employed Respondent to do work at the Quincy Farms mushroom plant effectively barred Petitioner and Donald Hines from that job site with the allegation of illicit activity by the two men and the threat to call the sheriff if they reappeared there. Further, the complaint against the two men came at a time when Respondent, already experiencing a critical cessation of project activity, could not afford to jeopardize retention of a vitally important project. The level of concern evidenced by Johan Bult's company is amply demonstrated by the fact that after the alleged drug selling incident, all construction workers were barred from the Quincy Farms employee lunch counter area. Respondent, with no specific proof that any drug transactions actually occurred at Quincy Farms, sought to place both persons on other crews. Respondent, throughout the process that ultimately resulted in the instant hearing, set forth the basic work record of Petitioner, including his absences, the May 31, 1990 incident and, contrary to Petitioner's assertion, the problems with his attitude. In a May 10, 1991, letter to the Florida Commission on Human Relations, Respondent clearly noted that Quincy Farms stated that Petitioner and Hines had been observed selling drugs on the job site, would not be able to work on their project and that both men were told to leave the job site and go home. Subsequently, the employment of each individual was reviewed and Petitioner's file revealed he had missed work on numerous occasions and had been reprimanded for coming to work with alcohol on his breath, while Hines' file revealed he had missed only three days in seven months of employment. The letter further notes that it was determined that it would be best that Petitioner not be placed with another crew "due to prior problems." Petitioner was not similarly situated to Donald Hines relative to position and work history. Hines commenced work for Respondent on or about June 8, 1990, and, prior to January 9, 1991, he had no incidences of tardiness, of alcohol being noted on his breath at work, of failure to report without permission, and no evident adverse work habits or problems on the job. Petitioner seeks damages of $13,000.75, an amount equal to his wages for calendar year 1990. Petitioner's employment with Respondent ended on January 9, 1991, and he concedes that everyone in Respondent's employ was dismissed in the beginning of September 1991. He drew unemployment compensation charged to Respondent from January 1991, to August of 1991, in quarterly amounts of $1,016.00, $1,524.00, and $762.00. Thereafter, Petitioner worked throughout all of August, 1991, to February, 1992, at $7.50 an hour for another employer. Then, from February of 1992, until a month prior to the final hearing, he drew unemployment compensation charged to that employer. He also conceded that shortly after February of 1992, he worked full time for a construction business for approximately six months at the rate of $8.00 per hour which was paid to him in cash, while he was drawing unemployment compensation.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of March, 1993, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 23rd day of March, 1993. APPENDIX The following constitutes my specific rulings, in accordance with Section 120.59, Florida Statutes, on proposed findings of fact submitted by the parties. Petitioner's Proposed Findings 1.-4. Accepted. 5. Rejected, not supported by weight of the evidence. 6.-8. Rejected, subordinate to HO findings. 9.-10. Adopted, though not verbatim. 11.-12. Rejected, not supported by weight of the evidence. 13.-18. Accepted. 19.-24. Rejected, subordinate to HO findings. 25.-37. Rejected, relevancy. 38.-39. Rejected, not supported weight of the evidence. 40. Accepted. 41.-47. Rejected, relevancy. 48.-59. Accepted. Rejected, argumentative. Accepted. 62.-66. Rejected, subordinate to HO findings. 67.-68. Rejected, not supported by weight of the evidence. 69.-72. Rejected, relevancy. 73. Accepted. 74.-78. Rejected, subordinate to HO findings. 79.-81. Accepted. 82.-88. Rejected, relevancy. 89.-91. Accepted. 92. Rejected, not supported by weight of the evidence. 93.-94. Accepted. Rejected, not supported by weight of the evidence. Accepted. Rejected, relevancy. 98.-102. Accepted, but not verbatim. Rejected, credibility. Rejected, subordinate to HO findings. 105.- 107. Rejected, credibility. 108.-109. Rejected, relevance. 110.-111. Rejected, credibility. 112.-113. Accepted. 114. Accepted. 115. Rejected, credibility. 116. Accepted. 117. Accepted. 118. Rejected, not supported by weight of the evidence. 119. Rejected, unnecessary. 120.-121. Accepted. 122.-125. Rejected, subordinate to HO findings. Respondent's Proposed Findings 1.-5. Accepted. 6. Rejected, relevancy. 7.-9. Accepted. 10.-11. Rejected, unnecessary. 12. Subordinate to Hearing Officer's findings on this point. 13.-35. Accepted, but not verbatim. COPIES FURNISHED: Mary C. O'Rourke, Esquire West College Avenue Tallahassee, Florida 32301 Harold F. X. Purnell, Esquire Post Office Box 551 Tallahassee, Florida 32302-0551 Margaret Jones Clerk Florida Commission On Human Relations John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925 Dana Baird, Esq. General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240 / Building F Tallahassee, FL 32399-1925
The Issue Whether Respondent discriminated against Petitioners based on their race in violation of Chapter 760, Florida Statutes (2006) ("Florida Civil Rights Act").
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following Findings of Fact are made: All Petitioners are African-American males; all were employed by Respondent. Petitioners Alexander, Daniels and West were discharged on September 20, 2006. Petitioner Cole was laid off on August 25, 2006. Respondent, Solid Wall Systems, Inc., is an employer as defined by the Florida Civil Rights Act; it constructs cast-in- place solid concrete wall structures for the production home industry. This construction methodology is typically employed in large residential developments, and the construction "critical path" requires timely completion of each construction progression. For example, if walls are not timely completed, roof truss installation will be delayed, erection equipment will be idle, follow-up subcontractors are delayed, and money is lost. Petitioner, Ralph Alexander, was employed by Respondent in July 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $14.00 per hour. Petitioner, Stevie Daniels, was employed by Respondent in March 2004, as a laborer, being paid $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, he was a leadman being paid $13.00 per hour. Petitioner, Ernest West, Jr., was employed by Respondent in October 2004, as a laborer and paid $9.00 per hour. He received pay raises during the next several years. At his discharge, he was being paid $11.00 per hour. Petitioner, Carlos Cole, was hired in September 2003, as a yard helper with Space Coast Truss, a subsidiary of Respondent's corporate owner, being paid $6.50 per hour. In October 2003, he was transferred to Respondent and received $9.00 per hour. He received pay raises and a promotion to leadman during the next several years. At his discharge, on August 25, 2006, he had been promoted to leadman and was being paid $15.00 per hour, but was working as a laborer. On September 11, 15 and 19, 2006, Petitioners Alexander, Daniels and West were "written-up." That is, they were disciplined for failing to follow the specific instructions of supervisors. On September 11, 2006, Petitioners Alexander, Daniels and West were on a "stripping" crew working at Wedgefield in East Orange County. Alexander was advised that the job had to be completed that day, because trusses were scheduled to be installed the following day. Notwithstanding direction to the contrary, the crew left the job without completing the stripping. The time cards of Petitioners Alexander, Daniels and West indicate that these Petitioners "clocked-out" at between 5:24 p.m. and 5:30 p.m. It is between 30 and 45 minutes from the job site and Respondent's yard. Petitioners would have spent several additional minutes cleaning up before "clocking- out." Not only did Petitioners fail to complete the job, they left the job site early. Petitioner Ernest West, Jr., had a part-time job working for Space Coast Cleaning, a janitorial service, from 6:00 p.m. to 9:00 p.m., Monday, Wednesday and Friday. The job was located in Viera approximately 15 to 20 minutes from Respondent's yard. September 11, 2006, was a Monday and a work day for West's part-time job. Petitioner West told Respondent's operations manager that they left the job site so that he could get to his part-time job on time. On September 15, 2006, Petitioners Alexander, Daniels and West were assigned to strip a multi-unit job site in Titusville. The crew was told to complete the stripping before they left the job site. Time cards indicate that Petitioners "clocked-out" between 3:30 p.m. and 4:00 p.m. Petitioners left the job unfinished, because they thought they would be unable to complete the job that day. On September 19, 2006, Petitioners Alexander, Daniels and West were assigned to strip a building at Viera High School. After a building is stripped, crews have standing orders not to leave any "cap" forms on the job site. This is a particular type of form that crews are specifically instructed to return to the main yard immediately after use and re-stock in bins for use on subsequent projects. On this day, Petitioner Alexander called Roy Brock, a field manager, and inquired regarding the "cap" forms. He was instructed to bring all forms to the yard. Brock visited the Viera High School job site after the stripping crew had returned to the yard and found several caps that had been left at the site. He loaded them on his truck and returned them to the yard. As a result of these three incidents, which were deemed acts of insubordination, Petitioners Alexander, Daniels and West were terminated on September 20, 2006. In May, June, and July 2006, the housing construction market suffered a significant decline. This was reflected by Respondent having a profit of $10,000 in May, a profit of $2,000 to $3,000 in June, and a $60,000 loss in July. In August, there was literally "no work." Respondent's employees were being sent home every day because there was no work. As a result of the decline in construction, Vince Heuser, Respondent's operations manager, was directed to lay off employees. Petitioner Cole was among five employees laid off on August 25, 2006. Of the five, three were African-American, one was Caucasian, and one was Hispanic. Seven Hispanic laborers were hired on July 5 and 6, 2006. Respondent had taken over the cast-in-place wall construction portion of two large projects from a subcontractor named "JR." The general contractor/developer, Welch Construction, requested that these seven Hispanic individuals, who had been "JR" employees, and had done all the stripping on these two Welch Construction jobs, be hired to complete the jobs. Hiring these seven individuals to continue to work on the jobs was part of the take-over agreement. In September 2006, three Hispanic laborers were hired. Two were hired to work on "amenity walls" which require a totally different forming process than does the standard solid- wall construction. The third was hired to work on the Welch jobs as he had worked with the "JR" crew previously.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter final orders dismissing the Petitions for Relief for Petitioners Ralph Alexander, Stevie Daniels, Ernest West, Jr., and Carlos Cole. DONE AND ENTERED this 31st day of January, 2008, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 31st day of January, 2008. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Adrienne E. Trent, Esquire Enrique, Smith and Trent, P.L. 836 Executive Lane, Suite 120 Rockledge, Florida 32955 Chelsie J. Roberts, Esquire Ford & Harrison, LLP 300 South Orange Avenue, Suite 1300 Orlando, Florida 32801
The Issue By this petition, Horace R. Morgan, Jr., M. T. seeds a review of the Division of Health's denial of Mr. Morgan's application for licensure as a clinical laboratory supervisor.
Findings Of Fact The facts herein involved are largely undisputed. Mr. Morgan acknowledges that the experience computations made by the Respondent from the attachment to his application for licensure, Exhibit 3 herein, are correct; and that, as computed, the total experience of Mr. Morgan comprises seven years and four months. Mr. Morgan, however, contends that the practice of the Respondent in allowing credit only for months inn which an applicant is employed in a laboratory and requiring twelve months of such employment for one year's credit is not correct. The Petitioner's position appears to be that he should be given credit from the time he was initially employed as a laboratory technician through the intervening years he has been employed without regard to periods in which he was not so engaged. Petitioner's second point of contention is that, as acknowledged by the Respondent, he has a total of 70 credit hours in academic training, and therefore his experience requirements should be reduced accordingly. Rule 10D- 41.04, F.A.C. Laboratory Personnel Qualifications Supervisor, provides the minimum qualifications of a supervisor. These include successful completion of three years of academic study (a minimum of 90 semester hours or equivalent) in an accredited college or university, and at least seven years of experience in a clinical laboratory; or successful completion of two years of academic study ( a minimum of 60 semester hours or equivalent) in an accredited college or university and at least ten years of experience in a clinical laboratory. Petitioner contends that 70 hours of academic study should result in a lessening of the amount of practical experience required. Petitioner's basic contention is that the additional ten hours of academic study should be equivalent to one year of of experience, inasmuch as 60 hours of academic study requires ten years experience to qualify for supervisor, whereas with 90 hours academic study, only seven years experience is required to qualify as supervisor. On the other hand, Respondent's witness, who is in charge of reviewing all applications such as Morgan's, testified that the Division has interpreted the regulations to require a successful completion of three years of academic study and seven years experience, or successful completion of two years academic study and ten years experience in order to qualify as a laboratory supervisor. No interpolations have been allowed between these two requirements, and this interpretation of the rule has been followed since the rule was promulgated some seven or eight years ago. She further testified that she had credited Morgan with his experience periods in the manner that has been used to credit all other applicants since the rules were adopted. Under this long standing interpretation of the regulations, Morgan has seven years and four months experience as indicated on his application, and he also has 70 hours credit for academic study. Accordingly, even had Morgan been credited with nine years experience as he would have if given credit for every year he has been licensed, he still would not meet the minimum requirements to qualify as a supervisor.
Findings Of Fact Petitioner has 13 semester hours of science credits in college. She is also certified with the American Society of Clinical Pathologists. Petitioner's sole contention is that her certification is the equivalent of the seven remaining semester hours of academic instruction she needs to reach the 20 hours of science courses required for licensure by Rule 10D-49.68, Florida Administrative Code.
Findings Of Fact On April 30, 1985, Petitioner filed an application for employment as a clinical laboratory technician with Indian River County, Florida and in support of that application presented a temporary license from Respondent authorizing Petitioner to work in the capacity of a clinical laboratory technician until the receipt of the April 27, 1985examination results but no later than December, 1985. The license provided that failure to appear to take the April 27, 1985 examination invalidated the temporary license. On April 30, 1985, Petitioner filed an application with Respondent for licensure as a clinical laboratory-technician. Prior to April 30, 1985, Petitioner had not filed an application for licensure as a clinical laboratory technician with Respondent. He did not take the April 27, 1985 examination. On May 2, 1985, Doris E. Roy, an employee of Indian River County, mailed a copy of the temporary license presented by Petitioner to the Respondent as a result of a telephone conversation with Nancy Chapman, an employee of Respondent. Prior to making application for employment with Indian River County, Petitioner had worked as a clinical laboratory technician with Insta Med Clinic, Inc. from June, 1984 to April, 1985 and had taken laboratory training as a clinical laboratory technician at University Community Hospital, Tamarac, Florida from September, 1982 until May, 1983. The temporary license presented by Petitioner to Indian River County had been altered to show Petitioner as the temporary licensee but the evidence was insufficient to prove that Petitioner had in any way altered the temporary license. Petitioner's testimony that he received the temporary license through the corporate office of his previous employee, Insta Med Clinic, Inc. is believable, but his testimony that he had no knowledge of, or any reason to believe that, the temporary license was anything other than genuine prior to presenting it to Indian River County on April 30, 1985 is not credible. This is based on the following considerations: Particularly when you consider: (a) Petitioner's completion of required laboratory training wherein individuals are trained to meet the requirements for licensure as a clinical laboratory technician in Florida; (b) Petitioner's knowledge of the language in the temporary license indicating that Petitioner's application had been reviewed when, in fact, Petitioner had never submitted an application: (c) the statutory language requiring the application to be under oath which puts Petitioner on notice that he must fill out the application personally and not rely on someone else to file his application; and, (d) Petitioner's failure to take the April 27, 1985 examination.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Respondent, Department of Health and Rehabilitative Services enter a final order DENYING Petitioner's application for licensure as a clinical laboratory technician. Respectfully submitted and entered this 1st of November, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 1st day of November, 1985. COPIES FURNISHED: K. C. Collette, Esq. HRS District Nine Legal Counsel 111 Georgia Avenue, 3rd Floor West Palm Beach, FL 33401 Mr. Richard J. Strang 8775 20th Street, No. 157 Vero Beach, FL 32960 David Pingree, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32301 ================================================================ =
Findings Of Fact The Petitioner holds a Bachelor of Science degree in microbiology from Gujarat University in India. He has also worked in a master's program in medical microbiology as well as taken courses in zoology at Maharashtra University in Bombay, India. Since then he worked from 1970 through 1974 in various laboratory technologist capacities at a medical laboratory as well as at several hospitals in India. Since coming to the United States he has worked at Doctors Hospital in Hollywood, Florida, apparently working in all his presently attained specialties. While in India, the Petitioner worked not only as a medical technologist, but as a supervisor and director of medical technologists as well during the years above-mentioned and up through the early portion of 1980. He began working in that capacity at Doctors Hospital in Hollywood in May of 1980. The Petitioner filed his application for licensure in the field of cytology on February 3, 1981. After review, the Respondent denied the application by letter of February 6, 1981, indicating that, as described above, the required educational requirements for licensure had not been met. The Respondent timely requested a hearing, and at the hearing he presented evidence as outlined above of his experience in the various fields of medical technology. He has a keen interest in pursuing a career in cancer research based upon his family history involving a number of family members who were cancer victims, as well as the fact that medicine is his family's traditional profession. He has set a goal of acquiring specialties in all the fields of medical technology with a view toward working in the area of cancer research and research in extending the human life span. The Petitioner presented evidence, with the stipulation of the Respondent, in the form of a letter from the General Secretary of the Indian Red Cross Society attesting to his position as supervisor of a blood bank in India, as well as one from an Indian blood bank attesting to his ability in the area of hematology. There is no question, however, and the Petitioner ultimately conceded, that he does no have the required educational course work approved by the Council on Medical Education of the American Medical Association, th required internship, nor has he taken the US Public Health Service proficiency examination, all of which are prerequisites to licensure as a medical technologist in the specialty of cytology. The Petitioner's testimony establishes that although hi past experience and education entitled him to licensure in the areas of specialty described above, he was unaware when he applied that these requirements had to be met before he could be licensed in cytology, especially in view of the fact that he had worked in that field extensively during his experience in India. The Petitioner expressed a willingness to immediately enroll in an internship program apparently offered at Jackson Memorial Hospital in Dade County in the field of cytology, and there has been shown to be no legal impediment to his licensure in this field once he completes the educational requirements embodied in the above rule.
Recommendation Having considered the evidence in the record, the candor and demeanor of the witnesses and the arguments of the parties, it is therefore RECOMMENDED: That the application of Kiran Kumar M. Upadhyaya for licensure as a clinical laboratory technologist in the specialty of cytotechnology be denied without prejudice to the Petitioner's renewing his application for licensure when he has complied with the requirements of Rule 10D-41.25(11)(a) and (b) Florida Administrative Code. DONE AND ENTERED at Tallahassee, Florida, this 7th day of August, 1981. P. MICHAEL RUFF, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 7th day of August, 1981. COPIES FURNISHED: Kiran Kumar M. Upadhyaya 7610 Sterling Road Apartment C-106 Hollywood, Florida 33034 Harold L. Braynon, Esquire District Ten Legal Counsel Department of HRS 800 West Oakland Park Blvd. Ft. Lauderdale, Florida 33311
Findings Of Fact On March 17, 1977, the Petitioner, Rosa M. Richardson, made application with the State of Florida, Department of Health and Rehabilitative Services, to become a licensed clinical laboratory technologist. After reviewing the application of the Petitioner, the application was rejected by the Respondent. The rejection was made in the form of a letter addressed to the Petitioner, that letter being dated April 12, 1977, and appearing in the record as Joint Exhibit #2 by the parties. Basis for the denial of the license application was the allegation by the Respondent that the Petitioner had failed to have 60 semester hours of academic study as required by Section 10D-41.25(9), Florida Administrative Code. Subsequently, by a pleading entitled Amendment to Notice of Denial of License, the Respondent indicated that it recommended the rejection of the license application on the additional ground that the Petitioner failed to have four years of pertinent experience in an approved laboratory, again under the provisions of Section 10D-41.25(9), Florida Administrative Code. The Petitioner disagreed with the opinion of the Respondent concerning the issue of her qualifications to become a licensed laboratory technologist, and by correspondence of May 9, 1977, requested a formal hearing. The case was then forwarded to the Division of Administrative Hearings for consideration. On the initial date of hearing of August 18, 1977, the Petitioner gave testimony concerning her work experience. Some of that experience pertained to a job which she held in May, 1972 through July, 1975, this employment being with the Department of Business Regulation, Division of Pari-Mutual Wagering. The job there was working in the racing laboratory doing routine urinalysis of the horses who were running on the race program. An additional function was to do blood tests for the presence of drugs in certain prisoners who were incarcerated by the law enforcement officials in Dade County. Mrs. Richardson also worked six months at a regional laboratory as a laboratory technician I. This employment was during the year 1975. Those duties included DKU for new born babies, in other words testing for phenylhetonuria. In 1975 through 1977,to include the date of hearing, the Petitioner worked for the North American Biological Laboratory Inc. of Miami, Florida. This job was as a laboratory technician. Some of the duties included routine tests for hepatitis. Mrs. Richardson had also worked from July, 1968 through March, 1977 with the National Cardiac Childrens Hospital in Miami, Florida, as a laboratory assistant. All the work related experience stated above was in the position of a laboratory technician; that is to say that the work was in a position of a laboratory employee and under the supervision of a person qualified in laboratory work. Mrs. Richardson's educational background includes a high school diploma from the State of South Carolina; and two years of various courses at the Miami Dade Junior College to include courses in Math, Biology and Chemistry; however, the only courses in which the Petitioner received credit in this latter enrollment period was the credits for Math. The amount of total hours was three credit hours. This initial enrollment in the Miami Dade Junior College was in the years 1968 through 1970. Mrs. Richardson has also completed a course offered by Charron-Williams College, Paramedical Division. This course was offered in the City of Miami, Florida, and was completed by the Petitioner on August 2, 1974. Moreover, a diploma was given to Mrs. Richardson indicating that she had completed the prescribed course as a clinical laboratory technician. The Respondent concedes that the Petitioner is entitled to function as a laboratory technician and as a matter of fact the Petitioner is licensed by the Respondent in that capacity. As stated before, the opposition of the Respondent to the licensure of the Petitioner pertains to the attempt of the petitioner to be a licensed laboratory technologist. From the position taken at the hearing, the Respondent has abandoned its position in opposition to the licensure based upon the failure of the Petitioner to have completed at least four years of pertinent experience in an approved laboratory. This change in position by the Respondent has been made in view of the prior experience which the Petitioner has. On the second matter of opposition which pertains to the requirement of a minimum of 60 hours or equivalent in quarter or trimester hours in an accredited college or university with a chemical, physical or biological science as a major subject, the Respondent still asserts that the Petitioner has failed to meet those requirements. When this modified position was made known to the Petitioner in the course of the August 18, 1977 hearing, it was brought to the attention of the undersigned that the Petitioner was presently attending a college program which would lead to the completion of 60 semester hours or equivalent of work which would bring about an approval of her application to be a licensed laboratory technologist. By agreement of the parties, the hearing was recessed to allow the Petitioner to pursue that course study with the understanding that if the Petitioner decided that she was unable to achieve licensure through the completion of that course study, this knowledge could be made known to the undersigned and a recommended order would be drafted on the basis of the information which had been presented at the August 18, 1977 hearing. A period of time passed in which no one indicated their position on the question of requiring a recommended order to be made. This period of inactivity came to a close when the undersigned was made aware of the fact that the Petitioner wished to have a determination of the issue of her entitlement to a license as a laboratory technologist made before any completion of the current program in which she has enrolled. Therefore, on March 6, 1978 the hearing was reconvened. At that time it was offered into the record that 21 hours out of the needed 60 hours had been completed in the junior college program in which the Petitioner was now enrolled. Consequently, it left the hearing in the posture that any entitlement which the Petitioner would have to a license as a laboratory technologist must be conferred on the basis of the completion of the course with Charron-Williams College or some other alternative method expressed in Section 10D-41.25, Florida Administrative Code. This provision of the Florida Administrative Code pertains to the requirements for licensure as a laboratory technologist. A perusal of those requirements leads to the conclusion that the only possible basis for licensure which could be demonstrated, after an examination of that section, and in view of the testimony, would be the Section 10D-41.25(9), Florida Administrative Code, that provision states: 10D-41.25 Laboratory Personell -- Quali- fications, Technologist. A technologist shall meet one of the following requirements: * * * (9) Successful completion of two years of academic study (a minimum of 60 semester hours or equivalent in quarter or trimester hours) in an accredited college or university with a chemical, physical or biological science as a major subject, and at least four years of pertinent experience in an approved laboratory, or There are insufficient credit hours in the current enrollment In the junior college to meet the 60 semester hours or equivalent demand. Likewise, an examination of the Composite Exhibit #2, by the Petitioner, which includes the diploma, would show that the course study with Charron-Williams College was for purposes of becoming a clinical laboratory technician and not for the purpose of becoming a laboratory technologist. Moreover, assuming for purposes of argument that the program was designed as a course for clinical laboratory technologists, the credit received from Charron-Williams would not qualify because Charron- Williams is not an accredited college or university within the meaning of the aforementioned section of the rule. That rule is Section 10D-41.25, Florida Administrative Code. This conclusion on the subject of accreditation has been reached by an examination of Section 483.051(11), Florida Statutes. That provision says that the Respondent may approve the curriculum in schools and colleges offering education and training leading toward the granting of a license. The Respondent has taken the opportunity to set the qualifications and by its Section 10D-41.22(11), Florida Administrative Code, has defined the term accredited. In that provision it states: 10D-41.22 Definitions. In addition to definitions set forth in Section 483.041, F.S., as used in this chapter, unless context indicates to the contrary, the following terms shall mean: (11) Accredited -- refers to educational accreditation by a nationally recognized accrediting agency or association as deter- mined by the U.S. Commissioner of Education, or the Florida Department of Education, or, on an equivalent basis by the Department of Health and Rehabilitative Services. In the course of the hearing proof was offered that the publication Higher Education-Education Directory (1974-75), published by the U.S. Department of Health, Education and Welfare, Education Division; is a directory which list the institutions accredited by agencies, which agencies are recognized by the U.S. Commissioner of Education as being an acceptable accrediting agency or association. That publication does not list Charron-Williams College as being an accredited institution for purposes of academic study, at the time that the Petitioner received her diploma from that college. Finally, the Charron-Williams College seems to recognize that it has not achieved sufficient status to even have its graduates licensed as clinical laboratory technicians, a lesser level of endeavor than that necessary to become a clinical laboratory technologist. This recognition is stated in the December 23, 1977 letter from the president of the Charron-Williams College, Miami, Florida, addressed to the Director of the Office of Laboratory Services within the State of Florida, Department of Health and Rehabilitative Services. This letter may be found as Respondent's Exhibit #1, entered into evidence. Through that correspondence, the president of the college is requesting of the Respondent those things necessary to have its students accepted for licensure. Upon the consideration of all the facts, the petitioner does not qualify for licensure as a laboratory technologist within the meaning of Chapter 483, Florida Statutes, and Section 10D-41.25, Florida Administrative Code.
Recommendation It is recommended that the license application made by the Petitioner, Rosa M. Richardson, to become a licensed laboratory technologist be denied. DONE AND ENTERED this 20th day of March, 1978, in Tallahassee, Florida. CHARLES C. ADAMS Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mrs. Rosa M. Richardson Leonard Helfand, Esquire 17935 Northwest 47th Place Department of Health and Carol City, Florida 33055 Rehabilitative Services 2445 West Flagler Miami Florida 33135
Findings Of Fact Based upon my observation of the witness and their demeanor while testifying, documentary evidence received, I make the following relevant factual findings: Petitioner was employed by Respondent in its utilities department for approximately 10 years and 10 months. Petitioner's initial employment commenced in 1974, where he was employed in the position of treatment supervisor and remained in that position for approximately 2 years. In 1975, Petitioner was promoted to treatment supervisor superintendent and worked in that position until July 30, 1984. Respondent admits, and it is undisputed, that Petitioner was a good employee. (TR 8). It is also undisputed that Petitioner was the oldest employee (70 years old) in Respondent's utilities department and he resigned from his duty after he was transferred to a plant designated as the 3 B water treatment plant (3B). On July 20, 1984, Henry J. Block, an employee at 3 B submitted his resignation. Respondent thereafter held a meeting on July 23, 1984, with its operations superintendent, John Hayes, its operations manager, Michael J. Scottie, and chief plant operator II, Ralph Piacente, to discuss its staffing requirements and its need to shift personnel to maintain operations at 3 B on an interim basis. Following that meeting, it was determined that based on Petitioner's qualifications and the duties that he was them performing, which primarily involved process control and the collection of statistical data for both water and wastewater treatment operations, Petitioner would best be able to fill the new position brought about by Block's resignation with the least disruption of staff. Petitioner was therefore advised, on July 27, 1984, that he was being transferred, on an interim-temporary basis to 3 B , effective July 30, 1984. Petitioner was advised that the transfer was temporary and that he would retain his existing pay and benefits while fulfilling his newly assigned temporary responsibilities at 3 B. Additionally, Petitioner was advised that when a permanent replacement was employed to fill the vacancy created by Block's resignation, Petitioner would return to his previous duties. Respondent's two available employees who were able to be temporarily assigned to 3 B, Petitioner's temporary assignment was least disruptive to the efficient and effective operation of Petitioner's operations inasmuch as the other available employee, Ralph Piacenti, was already employed as an operator, whereas Respondent was involved in routine daily gathering and analysis of data that could be compiled and analyzed at a later time. Age was not a factor in Respondent's deliberations and Petitioner was temporarily assigned to 3B based on his ability to step in and perform the duties of retiring employee (Block) with minimal disruption of Respondent's available staff. Respondent has, in the past, required temporary transfers of employees to fill positions vacated by employees who resign. These transfers have included employees of higher rank assigned to lower rank positions and once a replacement is found, the temporarily assigned employees are transferred to their former positions. (TR 125-126). The 3 B plant is situated in the extreme south end of Broward County. It is one of Respondent's older treatment plants and requires more mechanical operations, i.e. requires a greater degree of input by the treatment plant operators who must closely monitor the various functions that take place at the treatment plant such as backwashing filters, etc. Over the years, the plant has been modified and improvements have been made. The 3 B water treatment plant is safe, works properly, and is not obsolete. The working conditions at 3 B are not deplorable and while it does not have some of the automatic capabilities that are available at some of Respondent's more modern plants, this absence of features does not render the working conditions deplorable at 3B. (TR 135-138). Petitioner was provided office space at 3 B. The office was airconditioned with a telephone and had adequate clerical and other support staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Florida Commission on Human Relations enter a Final Order denying Petitioner's prayer for relief and dismiss the petition. RECOMMENDED this 25th day of March, 1987, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of March, 1987.
Findings Of Fact Petitioner Angelo Rivers, a black male, was employed in the formulation/confirmation unit of Respondent's pesticide laboratory located in Tallahassee, Florida from May 25, 1990, through August 20, 1992. Marshall Gentry, a white male, provided overall supervision of the pesticide laboratory during Petitioner's employment. Petitioner's direct supervisor when he began work in the laboratory, however, was Wendy King, a female of oriental extraction. Subsequently, King was promoted and direct supervision of Petitioner was accomplished by Patty Lucas, a white female, who in turn was supervised by Wendy King. In the course of his employment with Respondent's pesticide laboratory, Petitioner exhibited a good attitude and received good performance ratings from Respondent. Included among these ratings was a special evaluation related to the conclusion of Petitioner's probationary period following his promotion from laboratory technician I to laboratory technician II. Two other laboratory technicians were employed in the pesticide laboratory. William Reeves, a black male, was employed as a laboratory technician IV in the formulation/confirmation unit of the laboratory. Elliott Healy, a white male, was employed as a laboratory technician III in the pesticide use monitoring unit of the laboratory. Both of these individuals were required to perform all the functions of a laboratory technician. The formulation/confirmation unit is the consumer protection component of the pesticide laboratory. The unit's field staff surveys the marketplace and collects samples of pesticides that are in channels of trade for distribution and sale. Those samples are then analyzed by the unit to assure that the contents of the package match the label guarantee, thereby providing reasonable assurances to consumers that the products which are sampled contain the represented contents. The pesticide use monitoring unit of the pesticide laboratory performs analyses associated with either groundwater sampling used to determine trace levels of pesticides or samples collected in association with determining misuse, property damage or human health damage connected with exposure to pesticides. Personnel in this unit are usually analyzing within the range of parts per billion, sometimes parts per million, and to prevent contamination the unit is separated from the formulation unit. The pesticide laboratory contains three permanent types of employees: Chemists (including supervisors), clerical and laboratory technicians. Each of these have their own duties and responsibilities. With regard to educational requirements, a chemist is required to have at least one college degree in the subject area of chemistry. Requirements for laboratory technicians are fairly minimal although a scientific education may play a part in initial assignment. In accordance with normal practices, training was provided to Petitioner commensurate with his position as a laboratory technician II, inclusive of some formal training but generally on the job training. William Reeves, the black laboratory technician IV, is presently in his junior year of undergraduate study in Entomology; Elliot Healy, the white laboratory technician III, received his degree in Entomology in 1979. Petitioner offered no evidence at final hearing regarding his education, except to state that he does not have a college degree. There is no laboratory technician position above the laboratory technician IV position. Neither Petitioner, Reaves or Healy meet requirements for promotion to the position of chemist since they do not possess the required chemistry degree. With regard to promotion within the laboratory technician family, no specific time periods are required to elapse before employees are granted a promotion. Such action depends upon other factors such as promotional opportunities. Duties within the laboratory are assigned on the basis of the position (e.g., chemist II, laboratory technician III, etc.) and the area where the individual is assigned. Race is not a consideration in making duty assignments. Twelve of Respondent's twenty-six laboratory technicians are white and fourteen are black. Laboratory technicians perform the duties required for their specific level without regard to the individual technician's race. The same is true of chemists in the laboratory. James Fort, a black chemist, performs the functions of a chemist. There are occasions or special events that occur from time to time when news media or officials tour the facility and all personnel are expected to help with cleaning the pesticide laboratory. The laboratory technicians, however, are responsible for the laboratory at large. This responsibility does not include the normal maintenance chores such as changing light bulbs, fixing water fountains and leaking sinks or similar functions since these duties are normally performed by a maintenance and grounds crew who also take care of the exterior grounds of the facility. The end product of the laboratory is the analytical result for which laboratory technicians and clerical staff provide support. Chemists or their supervisors perform the analytical chemistry work, quantitative analytical work and detailed analyses of samples, resulting in a laboratory report. Such work could require the use of nitrogen analyzers, gas chromatographs, high performance liquid chromatographs and other similar analytical instrumentation. Laboratory technicians perform the less technical tasks in the laboratory while clerical and support staff handle paperwork, correspondence and similar functions. Non-black employees, whether laboratory technicians or not, performed physical and other tasks of which Petitioner has complained. Such non-black employees include Marshall Gentry, Wendy King, Patty Lucas, David Bevis, Michael Bentley, Elliot Healy and David Goldston. Healy and Goldston are laboratory technicians in the pesticide laboratory. On January 22, 1992, Petitioner suffered a back injury in the course of assisting with the moving of a freezer at the laboratory. Numerous whites assisted in the moving the freezer, including Marshall Gentry, David Goldston, David Bevis, Michael Bentley, and three or four other unnamed white persons. None of the persons involved in moving the freezer had lifting belts. Laboratory services, a section within Respondent's Feed, Seed and Fertilizer Laboratory Bureau, functions as the receiver for all feed, seed and fertilizer samples for Respondent's laboratories. Marshall Gentry eventually discovered that assistance of laboratory services personnel would be required to move the freezer. After obtaining that assistance, Gentry withdrew from the effort of moving the freezer and went about other tasks. Gentry mistakenly thought that Petitioner had also returned to other duties. Petitioner did not report his injury to anyone on January 22, 1992, until after the movement of the freezer had been completed and disposal of packing materials accomplished. He was immediately taken to see a physician and an accident report was filed. Following his injury, supervisory staff made periodic inquires regarding Petitioner's physical condition and made good faith efforts to comply with the limited information flowing to them which placed physical restrictions on Petitioner. Petitioner received doctor's orders dictating that he not lift more than a certain amount of weight. Over the course of ensuing months, these orders varied the amount of weight that Petitioner could be expected to lift with weight limits ranging from as low as 10 pounds to as much as 20 or 40 pounds upon occasion. Eventually, Petitioner was given doctor's orders that prescribed "light work" for Petitioner. Petitioner did not elaborate on the doctor's orders to his superiors. Petitioner's supervisors determined that his disability would be accommodated through a practice whereby Petitioner would simply tell his supervisor if Petitioner felt unable to perform a particular task. There is no evidence that Petitioner's race was considered by his supervisors in the assignment of tasks to him. John Stupka, an Other Personal Services (OPS) employee with Respondent was assigned to the pesticide laboratory in April or May of 1991. He was not used, however, as a substitute for permanent laboratory technician employees although he did on occasion perform certain work that they would have performed if he had not been employed. He was never assigned to a position in any permanent employee class, including the laboratory technician class. Stupka was a white male premed student who was attending college in addition to his sporadic work with Respondent. He had no formal description of duties and was utilized as a temporary addition to the overall laboratory operation. Stupka's strong background in and interest in various chemical procedures permitted his utilization to a significant degree in this area, although he did not perform sophisticated chemical procedures. Generally, since his daily work schedule varied and lacked predictability as to when he would be present, the OPS employee was assigned long term duration projects such as cataloging information for a library of pesticide standards. On or about June 30, 1992, Petitioner felt concerned about what he perceived to be discriminatory treatment in the assignment of job tasks received by him and, unknown to any of his supervisors, filed a complaint with the Florida Human Relations Commission. The evidence of record fails to indicate the disposition of this complaint. 1/ At any rate, supervisory personnel were unaware of the complaint when Gentry, King and Lucas met with Petitioner on July 10, 1992, to discuss what activities could be undertaken by Petitioner. The meeting was precipitated by Petitioner's note to Patty Lucas on July 8, 1992, stating he could not comply with an assignment given to him by Lucas. Lucas excused him from the assignment. In the course of the meeting, his supervisors reiterated to Petitioner that he should perform only those tasks that he could perform and inform his supervisors of tasks that he could not perform. His supervisors anticipated that Petitioner would eventually recover and return to full duties. A functional capacity examination was not taken by Petitioner until August 25, 1992, due to cancellation of an earlier appointment. On August 20, 1992, Petitioner submitted his voluntary resignation stating that he was unable to perform the duties of the laboratory technician II position. When Marshall Gentry learned of the resignation letter on that date, he approached Petitioner to give him the opportunity to rescind the resignation. Petitioner responded that he recognized that the laboratory had a "big job to do" and that they "need somebody else to do it."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 14th day of July, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1994.
Findings Of Fact After the hearing was called to order in the above styled cause, the parties submitted the following stipulation: Sometime in December of 1978, the Petitioner, MARY KANNER applied tot he DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Clinical Laboratory Registra- tion and Licensure Program, for a Clinical Laboratory Technologist License. After reviewing the petitioner's application and supporting documents, the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES discovered that she did not have the sixty (60) semester hours required by Section 10D-41.25(9). MRS. KANNER was notified of her failure to qualify for the requested Technologist license by letter from the Department dated January 30, 1979. Subsequently, MRS. KANNER requested an Administrative hearing. Pursuant to her inquires, Mrs. Kanner received several communications from the Respondent Department. One letter dated January 30, 1979, from Nathan B. Schneider, Director of the Office of Laboratory Services, stated that it was the finding of the Respondent Department that Mrs. Kanner might be eligible for licensure as a clinical laboratory technician, and the letter authorized her to work in that capacity until the next scheduled examination, or no later than July 1, 1979. The letter stated that Mrs. Kanner would be notified in advance of the time and place of the examination. A second letter dated January 30, 1979, to Mrs. Kanner from Nathan B. Schneider, acknowledged the receipt of her application for licensure as a technologist but informed her that she was apparently ineligible because she did not have the required sixty (60) semester hours, but also advised her of her entitlement to an administrative hearing. Petitioner submitted letters as follows: a letter to Dr. Schneider from Alice Browner, Registrar of the Canadian Sociaety of Laboratory Technologist. The letter stated in pat that Petitioner had trained for a period of six (6) months, mainly September, 1966, to March of 1967, in a training program in the hematology department. The training was listed as follows: Bacteriology 1 evening a week February - May Biochemistry Sunday afternoons March - June Histology Saturday mornings March - Middle of May Blood Bank One evening a week January, February & March Hematology 6 months formal training Experience - 23 months (excluding formal training) (Resume in Hematology written previously) A letter dated March 29, 1979, to Dr. Schneider from Arthur Rosenberg, Chief of the Department of Hematology at the Sir Mortimer B. Davis - Jewish General Hospital, stated in part that Petitioner started her course in medical technology in 1966, and that in 1969, she wrote the hematology subject examination and received her Canadian registration. She worked as a hematology technologist until 1971, and as a department supervisor from 1971, to 1974. The letter stated that the preparation time prior to writing her examination subject would be the "equivalent of 60-plus semester hours of study." A letter was submitted to Counsel for the Respondent Department dated July 16, 1979, in which John V. Briscoe, Director of Hospital Services for the Sir Mortimer B. Davis - Jewish General Hospital, supplied a document which stated that the Jewish General Hospital is "an affiliated teaching hospital with McGill University, Montreal, Quebec, and is fully accredited by the Canadian Council on Hospital Accreditation, the date of the last accreditation survey being September 26, 1977." In answer to the statement by the Respondent Department that the Petitioner did not have documented evidence of the required sixty (60) semester hours direct from a university, Petitioner explained that in Montreal, Canada, in 1966, all English-speaking schools for nursing and technology took place in various accredited hospitals, using the same format as would be used at a university. In a separate section of the hospital was the school of nursing and the school of technology, but in recent years all of the schools were at the universities. Dr. Howard R. Rarick, Chief of the Clinical Laboratory Improvement Program for the Respondent Department, reviewed Petitioners application and supporting documents and did not find a transcript showing completion of sixty (60) hours credit or its equivalent as required by the State statute and rule promulgated thereunder. The Respondent Department does not evaluate the credits from foreign schools or institutions but forwards the credits to the International Education Research Foundation, which evaluates and determines the equivalent American credits that should be allowed. The Petitioner had no certified transcript from the hospital or university in which the foreign credits were earned and, therefore, was unable to send this to the Research Foundation to convert the foreign credits. The letters submitted by Petitioner are insufficient to substitute for a certified transcript for evaluation purposes. Both parties submitted a stipulation of facts, and the Respondent Department submitted a memorandum of law. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, the Hearing Officer recommends that the application of the Petitioner, Mary Kanner, to sit for examination as a technologist be denied. DONE and ORDERED this 30th day of August, 1979, in Tallahassee, Leon County, Florida. DELPHIAN C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold L. Braynon, Esquire Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mrs. Mary Kanner 1901 North 51st Avenue Hollywood, Florida 33021
