Findings Of Fact At all times pertinent to the issue of abandonment in these proceedings, the Petitioner was a Career Service employee. On January 13, 1988, while on leave from employment due to a work related injury, the Petitioner met with her new rehabilitation counselor, Irene Brzozowski. During the meeting, the Petitioner informed Ms. Brzozowski that she had an appointment scheduled with her physician at 5:00 p.m. on the following day. The purpose of the visit was to obtain a medical evaluation so that the Petitioner could return to work in a light duty capacity. The Petitioner incorrectly used the word "discharged" for the planned appointment. The counselor asserted that a "discharge" meant that the Petitioner had to return to work on Friday, January 15, 1988. The Petitioner said that her work shift began on Wednesday and that she would rather return to work on that day. The two women had different views over a decision which was a medical decision which neither woman was in a position to make. The discussion resulted from the Petitioner's misuse of a term that was accepted as a fact by the counselor. At the close of this meeting, the counselor said she would call D.H.R.S. to tell them that the Petitioner would be "discharged." The counselor went beyond what she told the Petitioner she was planning to do. On January 14, 1988, even before the medical appointment took place, the counselor misrepresented to Shirley Eaton, the administrative secretary at D.H.R.S., the following matters: That Ms. Brzozowski had seen a doctor's statement that the `Petitioner would be released on January 14, 1988. That Petitioner preferred to return to work on Wednesday, January 20, 1988, but based on the discharge, the counselor had instructed her to return to work on Wednesday, January 15, 1988. Based upon the counselor's misrepresentations, which appeared to Ms. Eaton to be predicated upon a doctor's written discharge and the Petitioner's personal knowledge that she had to return to work January 15, 1988, the Petitioner was placed on the work schedule for the following day. No one informed the Petitioner that she was scheduled for work on January 15, 1988, even before her doctor had rendered his opinion about her ability to return to work. On January 14, 1988, the Petitioner kept her doctor's appointment. During the examination, she told the doctor her work week began on Wednesday. As a result, the doctor told her he would give her a return to work date of January 20, 1988, for light duty activities. The return to work slip was partially prepared by Karen Nalewaik, a licensed practical nurse. She does not recall why she did not complete the note or why she put down the date of January 18, 1988, on the slip. The slip was signed by the doctor after it was completed by his staff and given to the Petitioner. January 15, 16, and 17 passed without the Petitioner's receiving notification that she had been scheduled to work those dates. Sometime after the Petitioner read the doctor's slip and before Monday, January 18, 1988, she noticed the return date was different from the one orally represented to her by her doctor. She did not inform her employer of the mistaken date. Instead, she returned to the doctor's office on Monday, January 18, to obtain a revised slip which accurately reflected his decision. Upon leaving the doctor's office, the Petitioner advised her employer of her return date. She was told she was unable to return because she had abandoned her position when she did not appear for work on January 15, 16 and A copy of her separation letter was given to the Petitioner on this date. The Petitioner did not abandon her employment. She had not been informed that she was to return to work without a medical evaluation. Her actions on January 18, 1988, manifest a clear intent to continue with her work duties for her employer. Her conduct between January 13, 1988, and January 18, 1988, was consistent in all respects with her testimony at hearing and her desire to remain a Career Service employee for the Respondent. The Respondent mistakenly relied on the new rehabilitation counselor who speculated, surmised, and erroneously substituted her own judgment for that of the attending physician who had been treating the Petitioner for related injuries for over three years. The doctor decided his patient could return to light duty work the following work week on January 18 or January 20 because that was when her work week began. His records show that she was not discharged and was still experiencing medical problems on January 14, 1988. Unfortunately, when the Petitioner tried to straighten this out with her employer after she was separated from her position, the counselor continued to be involved. The counselor had a new medical slip manufactured by a member of the doctor's staff on February 3, 1988, and presented it to the Respondent. The slip, which was never signed by the doctor, tended to support her prior misrepresentations that the Petitioner could return to work on January 15, 1988. Interestingly enough, the doctor's notes do not reflect the information placed on this third slip. It is also contrary to every other piece of credible evidence presented at hearing. Even during the statements under oath presented by the Respondent as the physician's deposition, the counselor was present. She interrupted the questioning at different times, educating the doctor on her version of the facts. Her slanting of the situation, as well as the endorsement of her version by Ms. Orser, a D.H.R.S. worker who also spoke during the deposition, make the doctor's deposition of April 22, 1988, unreliable. It is rejected by the Hearing Officer as incompetent and unreliable testimony due to the constant interjections of the two women with presumed facts and misinformation. The major mistake which kept reoccurring in this series of events was that various parties relied on everyone else but the attending physician to timely determine when the Petitioner could return to work. The doctor's first slip which was undated but was signed on January 14, 1988, is given great weight by the Hearing Officer. The second slip, dated only four days later, is given the greatest weight because it is consistent with all of the credible testimony presented as to why the Petitioner would be given a second note. As a result, abandonment could not have taken place on January 15, 16 and 17, 1988.
The Issue Whether Respondent committed an unlawful employment practice by discriminating against Petitioner on the basis of her race, in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a 28-year-old black female. She is married and has four children. On February 13, 2003, Petitioner was hired by Sacred Hearth Health Systems, Inc. (Sacred Heart), as a laboratory technician assistant. She was hired by Kevin Guy, the phlebotomy supervisor, for a clerical position in accessions. At the time of her hire, Petitioner was not current on her hepatitis shots. Petitioner was assigned to accessions, a term for the clerical receiving of data, entering and performing tests on specimens or referring specimens to the right department for testing. Petitioner occasionally would perform phlebotomy services (drawing blood). This usually occurred when the lab was short-staffed. There were laboratory technicians whose primary duties consisted of phlebotomy services. In September 2003, Petitioner took a medical leave of absence from Sacred Heart because of kidney stones. While being treated for kidney stones, it was learned that Petitioner was approximately six weeks pregnant. Petitioner was off work from September 2003, until January 19, 2004. Petitioner returned to work on January 19, 2004, to her same position in accessions. On January 20, 2004, Petitioner was asked by Craig Wright, the daytime supervisor of the Core Lab, to take over Erin Curet's duties. Ms. Curet was a white female. Ms. Curet's duties required her to go out to nursing homes and to the Pensacola Development Center, a facility for patients with developmental disabilities. Ms. Curet had a back problem which was not a work-related injury, and had asked for a reassignment of duties. Petitioner told Wright and Richmond that she did not mind helping out; however, she told Craig Wright that she was having a little nausea and there may be days that she could not go. Craig Wright told Petitioner that it would not be a permanent change in Petitioner's duties. He had interviewed people for Ms. Curet's position and Petitioner would not have to help out very long. Petitioner agreed to help out until someone could be hired for the position. Petitioner and Erin Curet switched duties. Petitioner took Erin Curet's position collecting labs in nursing homes and Erin Curet took Petitioner's position in accessions. On January 29, 2004, Petitioner and Paige Richmond were drawing labs at a nursing home. One of the patients became combative and knocked Petitioner over. Petitioner fell into a wheelchair and hit her back. Petitioner began having lower abdominal pains and felt she had pulled something in her back. Petitioner reported the incident to Craig Wright, the supervisor on duty, and also completed an Incident Report. Mr. Wright spoke with Jana Armentrout the Associate Health Coordinator, and it was decided that Petitioner should be referred to Labor and Delivery. Petitioner was sent to Labor and Delivery for assessment of a workers' compensation injury, because of her abdominal pains. Petitioner told Labor and Delivery that she had fallen in a nursing home and pulled something in her back. She also told them her stomach was hurting. Labor and Delivery put monitor strips on Petitioner, but they did not examine her back. Dr. Bennett the Labor and Delivery physician told Petitioner to go home drink fluids and take Tylenol. There are handwritten notations on the bottom of the Employee Incident Report that state "Per employee 1/29/04 - no further care required." The note was written by Jana Armentrout. Petitioner states that she did not tell Ms. Armentrout or anyone else that "no further care was required." Petitioner returned to work at her same duties within a very short while at Sacred Heart. Employee Health Department did not receive a medical report from Labor and Delivery. It was standard protocol for Employee Health to receive a medical report on an injured employee from their workers' compensation doctor. After Petitioner returned to work in the nursing homes, she told Craig Wright that her back was still hurting. Petitioner ultimately requested that she be returned back to her normal clerical position in accessions because of back pain. Mr. Wright told Petitioner that he could not pull her off her nursing home duties, but that he was trying to hire someone. Mr. Wright told Petitioner that he could not take her off nursing homes unless he has something in writing from her doctor. Petitioner requested Dr. Todd Stainaker, her OB/GYN physician to write a letter to be given to Craig Wright. Dr. Stainaker prepared a letter, dated February 20, 2004, which Petitioner gave to Mr. Wright. Dr. Stainaker's letter states in part, "I believe at this time that she [Petitioner] should not be traveling out to different areas due to her problems and should just be at clerical work if possible." The letter continued, "If there are any questions, please do not hesitate to contact me." Craig Wright told Petitioner to take the Dr.'s letter to Gail Ewing in Human Resources. Ms. Ewing is the Director of Associate Health and Wellness. She oversees short-term and long-term disability, family medical leave, general wellness and workers' compensation. Petitioner delivered Dr. Stainaker's letter to Gail Ewing as instructed. Ms. Ewing subsequently told Petitioner that she had called Wright and that Wright and Joyce Trawicki, the Laboratory Director, told her that they could not accommodate Petitioner's request at this time. Petitioner was able to do light duty work to include drawing blood. Ms. Ewing testified that the note that Petitioner provided by Dr. Stainaker was vague and needed to be clarified as to whether she could return to work because of the restrictions placed on her by her obstetrician. Ms. Ewing referred Petitioner to Kathy Reynolds. Petitioner was sent home on February 24, 2004. On that date she completed a Leave Request Form that requested maternity leave. Kathy Reynolds, the Disability Coordinator in the Human Resources Office, told Petitioner what information to put on the form. At the time that Petitioner completed the Leave Request Form, she was only having problems with her back. Petitioner told Craig Wright that she did not know how much longer she could do nursing homes because her back was hurting her when she leaned over to take blood from patients who were on lowered, floor level beds. Kathy Reynolds also told Petitioner that she could go out on long-term disability. Petitioner did not request disability. She told Kathy Reynolds that she was not having problems with her pregnancy and that it was not fair that she was being sent home. Petitioner asked Kathy Reynolds why her case could not be handled as workers' compensation. Reynolds said it was because she had problems with her pregnancy and that she was having complications. Petitioner was never approved for long-term disability benefits. Sedwick, the hospital's benefits coordinator, denied Petitioner's claim because there was nothing in her medical records to indicate a problem with her pregnancy. From January 29, 2004 through June 9, 2004, Petitioner received no treatment for her back, because the diagnostic tests could not be performed because of her pregnancy. This was communicated by Dr. Stalmaker to Petitioner when she initially complained. HR39 is the hospital's policy for managing work- related incidents. The policy provides that for all work- related incidents an incident report must be completed, the incident must be reported to a manager or supervisor and to Employee Health, initial care is to be provided by either the Sacred Heart Medical Group or the hospital's emergency department. All of the required actions were taken by Petitioner and Respondent. As long as an incident report is completed, the employee is still referred, even if initially the employee does not want treatment. If the employee wants treatment at a later time, his or her supervisor would send the employee to Employee Health. Petitioner knew she could not receive treatment because the doctor could not take X-rays of her back for diagnosis. If the employee's treating physician does not know whether the injury is work related or not, Gail Ewing, the Director of Associate Health and Wellness would confer with the doctor to clarify. According to Ewing, if the doctor does not know if it's work related, the incident would probably be covered under workers' compensation. If an injured employee is pregnant and has problems after being seen by her Ob/Gyn, the Employee Health Office would refer the employee to the hospital workers' compensation doctors for further evaluation. That was not done for Petitioner. Joyce Trawicki testified that phlebotomy is an essential function of the laboratory technical assistant's job. To support her contention, Ms. Trawicki relies upon the hospital's Job Description/Performance Assessment Form for Technical Assistants. Despite Ms. Trawicki's contention that phlebotomy was an essential function of Petitioner's job, the lab hired two employees, Lisa Kuhn and Brett Wiehold, who did not have phlebotomy skills when they were hired. Petitioner did not tell anyone at the hospital that she could not do phlebotomy services. Her doctor did not say she could not do phlebotomy. She could do phlebotomy as long as it did not involve leaning over as she had to do in nursing homes. She could have drawn blood in other areas of the hospital. Ms. Trawicki never asked Petitioner if she could do something other than clerical work. The hospital routinely accommodated employees with workers' compensation injuries. The hospital accommodated two laboratory technical assistants, both white females. Paige Richmond was a Laboratory Technical Assistant who covered nursing homes. She began having problems with her back. She was sent to the workers' compensation doctor. Joyce Trawicki and Craig Wright accommodated Ms. Richmond by putting her in a position that did not require her to go out to nursing homes to collect samples. She was placed in a doctor's office. Erin Curt was a laboratory technical assistant who also collected samples from nursing homes. She began having back problems. Her physician provided a note asking that she not be required to collect blood specimens from demented or combative patients. Ms. Curet was given Petitioner's job in accessions and Petitioner took her job collecting from nursing homes. Joyce Trawicki, the lab director, talked to Ms. Curet about her accommodation. She did not talk to Petitioner. Trawicki did not talk to Petitioner about her leave request. Petitioner took her doctor's letter to Ewing and Ewing contacted Wright and then Joyce Trawicki. Wright and Trawicki told Ewing that Petitioner's request for a change in assignments could not be accommodated at that time. Petitioner was able to perform clerical duties and to perform phlebotomy duties under conditions in which she did not have to bend down to take blood. She presented the same complaint and limitation that Curet had previously presented when Curet was assigned Petitioner's duties, only Curet's limitation was not the result of an on-the-job injury. It was clear that the Respondent did not treat Petitioner's case as workmans' compensation related. The Respondent's explanation was that Petitioner did not present it as a workmans' compensation issue; however, I conclude that Petitioner did present the issue as a workmans' compensation issue, and that Respondent failed to recognize it as such. The most likely reason for this failure was the unclear line of supervision and authority in the laboratory and failure in communication between administrators at the facility. Ewing referred Petitioner to Kathy Reynolds, the disability coordinator, to handle Petitioner's case as a disability related to Petitioner's pregnancy. This path was apparently selected because of a belief that Petitioner's disability insurance would cover her because of her having previously been out of work because of her pregnancy. Petitioner did not want to go on disability leave, and told Reynolds she did not want to go home and thought it was unfair. Reynolds advised Petitioner that her case was being handled the way it was because it was related to her pregnancy. Ultimately, Petitioner's disability insurer did not approve her disability request because there was nothing in her medical records to substantiate a problem with her pregnancy. Petitioner's OB/GYN, Dr. Stalnaker, could not diagnose or treat Petitioner's back condition because radiological studies could not be done while she was pregnant. Therefore, it was only after her baby was born that Petitioner's back injury could be assessed. Dr. Stalnaker communicated this to Petitioner soon after she raised the matter of her back pain with him, shortly after her on-the-job injury. Respondent's handling of Petitioner's case was contrary to its policies on workmans' compensation injuries. Respondent routinely accommodates employees with light duty in workmans' compensation cases. Paige Richmond was accommodated by taking her off of collecting blood at the nursing homes, and putting her in a doctor's office. Respondent accommodated Curet, whose case was not workman's compensation related. Respondent treated Petitioner disparately. Respondent's contention is that phlebotomy was part of Petitioner's duties and she could not perform them. The evidence does not support either of Respondent's conclusions. Notwithstanding its protestations to the contrary, evidence was received that there were persons hired who did not perform phlebotomy routinely, to include Petitioner, when she was first hired. Further, Dr. Stalnaker's medical letter stated that she could not go to the nursing facilities, and suggested that she do clerical work. Neither the doctor nor the Petitioner said that Petitioner could not do phlebotomy. Further, the doctor invited the recipient(s) of the letter to inquire if they had questions. This was not done. On May 5, 2004, Petitioner was terminated from her job. Before Petitioner was sent home she earned $8.50 per hour, plus a $1.00 per hour shift differential. After her termination, Petitioner called the hospital and scheduled and exit interview. An appointment was scheduled with Pat Brown, the hospital's Director of Human Resources. Petitioner complained about her treatment. After Petitioner was terminated, she was unemployed from May 2004 to December 2004. In December 2004, Petitioner began working for United Way. She worked there until May 2005. Her rate of pay was $9.25 per hour. Petitioner was employed for three weeks in July 2005 at American Fidelity Insurance company. Petitioner was unemployed from July 2005, until August 2, 2005, when she was hired by AmSouth Corporation Center. She works approximately 20 your per week. Her rate of pay is $10.50 per hour.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the FCHR enter its final order directing Respondent to cease the discriminatory conduct complained of by Petitioner; directing Respondent to hire Petitioner upon Petitioner's application for employment; awarding such damages as the Commission determines is appropriate based upon the facts above and awarding Petitioner reasonable attorney's fees; and to that end, the Commission should permit the parties to stipulate to the amount of the attorney's fees within 45 days of the entry of its order or failing to stipulate, refer the matter to the Division for further proceedings to determine the award of attorney's fees. DONE AND ENTERED this 17th day of January, 2006, in Tallahassee, Leon County, Florida. S __ STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of January, 2006. 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 R. John Westberry, Esquire Holt & Westberry, P.L. 1108-A North 12th Avenue Pensacola, Florida 32501 Eric M. Drlicka, Esquire Emmanuel, Sheppard & Condon 30 South Spring Street Pensacola, Florida 32501
Findings Of Fact Respondent, Michael J. Osborn, has been employed by the City of Clearwater for 9 years, first as a Service Worker I and then a Service Worker II for the Water Division. He began work with the city on December 5, 1983. He was so employed at all times pertinent to the matters at issue herein. Before coming to work for the city he was employed as a construction worker and has an 8th grade education. His general duties with the Water Division ran the gamut of physical stress and included digging, jack hammering and other tasks of a like nature. Respondent admits that over the years, he has reported a number of injuries to his back. Records of the city reflect 11 reports of incidents involving such injuries. The first took place in March, 1986 and the most recent is the one in issue here. He claims the most serious of his injuries resulted from an automobile accident he had on duty in 1988 when he was rear- ended by a vehicle traveling at a speed of more than 40 miles per hour while he was driving a city truck. As a result of that injury, he was out of work for 3 or 4 days and while he underwent no surgery as a result thereof, he was given treatment and medications for it. When released by the physician, he returned to his regular duties but has complained of continuing soreness in his lower back. After that accident, Respondent complained to his supervisors about his back problems on 3 or 4 occasions and was given intermittent time off. He was also placed on light duty up to December, 1992. This included painting fire hydrants and line spotting, neither of which gave him any trouble unless it involved physical digging. However, he was also assigned to painting lockers and other areas which did cause him pain when it was necessary for him to stretch or bend to reach areas to be covered. He claims never to have been totally free of back pain and discomfort since the 1988 accident. However, he persisted in doing his work because it was his job to do and he claims he didn't want to complain. This latter assertion, however, is contradicted by the testimony of his coworker, Mr. Baxter, who related Respondent was always complaining about something. In any case, Respondent never sought lighter work and no one ever suggested it. On the morning of January 4, 1993, Respondent reported to work as usual. Though his associate, Mr. Baxter, was the one who usually filled the water cooler on their truck, on this morning Respondent did so. He took the cooler, which was about 2 - 3 feet tall, off the truck, dumped out the old water, and refilled it with ice and fresh water. When he thereafter stooped with bended knee to pick it up and carry it back to the truck, he experienced a shooting pain down his left leg. This had happened before, but on this occasion the pain was unusually bad. He immediately told Mr. Baxter what had happened and suggested the incident be reported. When he saw the supervisor, he was told to fill out the required paperwork and then see the nurse, which he did. When Respondent told the nurse what had happened, she questioned him about the incident and then sent him to the walk-in clinic to whom all mobile injured employees are sent. She did not offer him transportation so Mr. Baxter took him there in a city truck. The doctor at the clinic, after examining him, told him there was nothing they could do for him there and referred him to Dr. Sena, an orthopedic surgeon. Respondent's request to see a chiropractor was refused. When the clinic doctor released Respondent, Mr. Baxter drove him back to the city nurse's office where he picked up the paperwork to take to Dr. Sena's office when he met his January 7, 1993 appointment. In the interim, between January 4 and January 7, Respondent stayed at home and took it easy, taking the medications which had been prescribed for him. On January 7, 1993, Respondent drove himself to Dr. Sena's office, even though he had been told not to drive, because he had no other way of getting there. Usually, he did not see Dr. Sena but saw Dr. Rehme, Sena's associate, and also a qualified orthopedic surgeon, instead. After the examination on January 7, 1993, Respondent was given a duty excuse until January 13, 1993, reflecting a total disability. He took that document back to the city nurse's office and went home. The physician's notes of that first examination reflect a diagnosis of acute back strain and spondyolesythesis. He was placed on bed rest and given a duty excuse for one week along with appropriate medications. While Dr. Sena indicated in his testimony that he considered bed rest to mean staying in bed except for meals, toilet, and personal hygiene, Respondent claims he did not understand the doctor's instructions to mean staying in bed for longer than one night. He also asserts the doctor did not tell him what activities he might perform. In any case, he was scheduled to begin physical therapy after his next visit scheduled for January 13, 1993. On that visit, the physical therapy appointment was set up, and he commenced that regimen right away. The doctor's notes concerning the January 13 visit again reflect the Respondent was not to return to work. Dr. Sena indicated that the diagnoses rendered and course of treatment prescribed by either him or Dr. Rheme were based on the representations made as to his condition by the Respondent. Respondent was referred to Ms. Pearson, the physical therapist who first saw him and conducted an initial evaluation and assessment of his condition at her facility on January 27, 1993. At that time, Respondent showed an increased pulling in his lower back muscles, and he was complaining of back pain and pain down his left leg. He said he could not lift or work at that time. As a result, she prescribed very gentle exercises for him and scheduled him for a return visit on January 29, 1993. When she saw him that date, he claimed he had increased pain after exercise and soreness in his buttocks and legs. She repeated the previously prescribed exercises and added some new ones and started him on the treadmill to strengthen his muscles. On his next visit to Ms. Pearson on February 1, 1993, Respondent continued to complain of mid to low back pain and on that date and again on his February 3, 1993 visit, she continued the course of treatment. On the latter date, however, Respondent complained of pain in his left hip when standing or walking but he indicated his leg weakness was decreasing and his back felt stronger. During his visit on February 5, 1993, Respondent reported his back was still painful. He said he had seen the doctor that morning and was given a work excuse for an additional 3 weeks. During their conversation, Respondent said he was worried he would hurt himself more if he went back to work. When he came in on February 8, 1993, Respondent complained he had had pain all weekend and that walking was painful. On February 10 and February 12 Respondent cancelled his appointments due to a head cold and Ms. Pearson did not see him again until February 15, 1993 when he indicated his back was stiff and sore but his leg was "OK." On that date, Ms. Pearson observed him limping on his left leg. On his February 17 visit to the physical therapist, Respondent complained of continued back stiffness and soreness but claimed his leg pain was less. On the 19th he complained of a lot of back pain and spasm. Ms. Pearson verified the spasm through palpation of the muscles but his pain reports are based on his comments. Nonetheless, on February 22, Respondent reported being somewhat better. Ms. Pearson continued the exercises she had prescribed. On February 24, when he came in, he said his back pain was a lot less severe. He related he had been working around the house and on his trailer and reported he thought he'd been videotaped while doing so. At that point, Ms. Pearson advised Respondent that if he had been working on his trailer, he could go back to work and he agreed he could do light duty. He also claims that at one point, on or before February 15, 1993, before he knew he had been video taped, he advised Ms. Pearson he was starting to work on his trailer and she allegedly said it was a good idea. Nonetheless, he failed to show up for his scheduled February 26, 1993 appointment or thereafter. Ms. Pearson's prescribed treatment exercises contained neither lifting nor more than very light exercising. There was nothing she prescribed that was comparable to lifting a small child, pushing down on a seesaw, or unloading or lifting full sheets of plywood. None of those activities would be consistent with what Respondent reported of his condition or what she observed regarding him. For example, muscle spasm is not something that can be faked. If she palpated and felt spasm or no spasm, she would note as appropriate. Her records of Respondent's treatment show a fairly consistent hardness of muscle, more or less, most of the time she observed him. Respondent indicates, however, that he was usually supervised, during his therapy, by Pearson's assistant since Pearson was not there all the time. When he spoke with her, their conversation was casual. Her testimony as to continuing spasm is not particularly persuasive, therefor, and in any case, muscle spasm alone does not necessarily preclude all activity. During the course of his physical therapy, Respondent continued to be seen by the orthopedists. On January 22, the doctor noted he was improving nicely and noted the possibility he could return to work in 2 weeks. On February 5, the doctor continued the prescription for physical therapy and bed rest. Between that visit and the Respondent's next scheduled appointment on March 1, 1993, Dr. Sena was furnished the video tape of Respondent's activities which had been taken between January 13, and February 23, 1993 by a private investigator hired by the city to conduct a surveillance on the Respondent. When Mr. Osborn came in for the scheduled visit, the doctor noted that his lumbar strain was resolved and he could return to full time regular duty. Osborn indicates that when, toward the end of his series of visits, the doctor suggested he might go back to light duty, he, Respondent, said there was no such thing, and the doctor agreed to keep him off work for a few more weeks. This was the only time either doctor suggested he go back to work, however, prior to the termination of his duty excuse. In that regard, Respondent claims he had been placed on light duty after previous injuries and ended up in more pain than before. He claims he was required, as a part of his "light" duties, to bend and stretch, during painting, all of which, he contends, aggravated his condition. Respondent also admits to having been asked to give his testimony by deposition with regard to another litigation to which he is a party. Though his counsel in that action claims Respondent refused to attend the deposition because he was on bed rest, Respondent denies having given that reason. He claims he refused to be deposed because he felt that to do so might create a conflict in the lawsuit. The counsel's testimony, and that of her paralegal who also spoke with Respondent and recalls much the same as counsel, is considered the better evidence on that issue and it is so found. Respondent admits to having worked on his trailer but claims that at that time, when he was taped, he was recovered and felt he could return to full duty after he saw the doctor on his next scheduled visit. Because of this, he was trying to get himself into shape to go back to work. By that time, he claims he had no further physical problems and felt he was cured. With regard to the trailer work, however, Respondent claims someone else took the old paneling off and he was putting new paneling on. The trailer was parked in his front yard and he was making no effort to conceal what he was doing. As to the other matters appearing on the video tape, Respondent denies having pushed the child up and down on the seesaw. Though someone may have been assisting on the child's end, the tape clearly shows Respondent to be bending down and up repeatedly with his hands on the end of the seesaw. This tape, recorded on several different days over the period January 13, through February 23, 1993 shows Respondent walking without any evidence of a limp or of pain, even on the earliest date recorded. He is shown to bend over from the waist, and to squat to place a tag on his auto license plate. On February 15th he is seen carrying 2 filled large trash containers out to the curb, one in each hand and to bend over at the waist to pick up the newspaper. About the same time, he is seen reaching above his head with both arms to affix something to his trailer. Around the same time, he is shown lifting his young granddaughter from the ground, using his arms, and is observed repeatedly climbing up to the top of a slide to help her slide down. He used his arms and his back to push the child up and down on a seesaw, but in all fairness, it must be said he appeared to have been helped in that effort by someone else on the other end. On February 23, 1993, while at the city dump, he is shown to climb into the bed of his pickup truck and pull trash and scrap lumber, including what appear to be numerous 4 by 8 foot sheets of plywood, out of the truck by himself and toss them into the pit. Later that same day, he was observed working on the reconstruction of his trailer, carrying full sheets of plywood and affixing them to the trailer's frame without assistance. He used hand and power tools in his work and repeatedly sat, squatted, got down on his hands and knees, twisted his back and waist and did other things apparently inconsistent with his claimed condition, all without apparent pain or discomfort. His activity was not consistent with his continued limping and claims of pain to Ms. Pearson as she reported it. Dr. Sena opined, from his review of the video tapes referred to above, that if Respondent could do the things he was observed to be doing on the tapes, he would be capable of performing his regular duties and was not temporarily totally disabled from the first day shown on the tapes, January 13, 1993. The functions which Respondent could perform, consistent with his initially reported condition and the instructions as to bed rest given him by the doctor, would include driving to and from the doctor's office and light physical interaction with his grandchild. If Respondent could do those things other than driving to the office visits, however, in the doctor's opinion, he could do light duty. On the other hand, however, he should not be able to work on his trailer if that work included lifting and placing heavy sheets of plywood. If Respondent could accomplish the letter acts, he would most likely suffer no disability and could work at his regular job. It should be noted that none of the notes prepared be either doctor who saw Respondent, Rheme or Sena, specifically indicated what Respondent represented or portrayed his physical condition to be to them or the office staff. The notes are not detailed and reflect only diagnosis, and prescribed treatment. In light of Dr. Sena's comments that the physicians' notes are based, in great part, on what the patient relates to them, it must be found that Respondent made representations consistent with their diagnosis of continued pain and disability. These representations would appear, at least from February 15, 1993 on, to have been less than accurate. On January 4, 1993, Respondent filled out a notice of injury for Josephine Dixon, Water Distribution Operations Supervisor for the city, and a superior in Respondent's chain of supervision. She has observed Respondent come to the work place during his recuperation period driving his pickup truck with his lawn maintenance equipment in tow. He admits he operates a limited lawn maintenance service for four clients in his off-duty time, but denies having engaged in any lawn maintenance activities during the period in question however and there is no evidence he did. Ms. Dixon reiterates Respondent's long series of back injuries and indicates that in the year prior to the instant injury it was sometimes difficult to find a partner for him because of his reputation for not carrying his share of the workload. The only coworker to testify at the hearing was Mr. Baxter who related nothing either to confirm or contradict this allegation. The performance report rendered on Respondent just prior to the injury in question, however, reflects an overall rating of I. (Improvement Needed). Mr. Hackett, Respondent's overall supervisor, discussed his performance with Respondent's immediate supervisor. The general opinion is that while Respondent is technically very capable, he has a history of being somewhat lazy, and many employees did not want to work with him because he did not carry his share of the load. Mr. Hackett has no knowledge of any specific representations Respondent made to his doctor. However, when considering the Respondent's history of repeated back injuries; his apparent lack of disability shown in the tapes recorded by the private investigator, and the indications by coworkers that Respondent did not pull his share of the load, Hackett and other responsible city officials concluded that Respondent's claim was without merit. At this juncture he admits perhaps Respondent should have been counselled on his ability to do his job earlier on, but this was not done. In deciding to initiate the termination action, he coordinated with and secured the concurrence of the city's risk management staff. This action was approved by Richmond Smith, the city's Assistant Director of Public Works who saw Respondent on several occasions when he would come into the building to pick up his check. At no time did Respondent appear to him to show any major evidence of injury. It was Mr. Smith's decision to terminate the Respondent from his city employment for falsifying city records and for making a false claim. His decision was based in large part on his review of the video tapes previously discussed. He asserts, however, that if Respondent had come in with a supported determination that because of this injury he could not do his job, city personnel could and would have made an accommodation and given him alternative work. The initiative for this option rests with the employee, however, and Respondent at no time sought it.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent herein, Michael J. Osborn, be terminated from employment with the City of Clearwater for cause, as outlined in the Record of Personnel Action dated March 18, 1993, effective March 26, 1993. RECOMMENDED this 27th day of October, 1993, in Tallahassee, Florida. ARNOLD H. POLLOCK 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 28th day of October, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2819 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on all of the Proposed Findings of Fact submitted by the parties to this case. FOR THE PETITIONER: Petitioner's counsel submitted a Proposed Order which contains Proposed Findings of Fact which are not numerically identified. For the purpose of reference herein, they have been numbered in sequence from 1 to 42 as they appear. Upon review of each individual proposal, they have been accepted and, as appropriate, have been incorporated herein. FOR THE RESPONDENT: Accepted and incorporated herein. First sentence rejected. Balance accepted. First sentence accepted. Second and third sentences rejected. Fourth and fifth sentences accepted. Sixth sentence modified. Doctor's notes show Respondent to be improving nicely Respondent to be "improving nicely." Doctor's comments from notes accepted. Balance accepted. First through third sentences accepted. Fourth sentence rejected in part as it asserts the tapes serve as foundations of the city's charges. This is not totally accurate. They serve as evidence of Respondent's condition which appears inconsistent with the information given by his to his physicians. Balance accepted. First through fourth sentences are a restatement of testimony, not proper finding of fact. Fifth and sixth sentences are a comment on the evidence. Balance, through second next to last sentence, is a restatement of the testimony. Next to last and last sentences are comments on specific testimony. Paragraph is no more than a restatement of evidence. Rejected as contra to the better weight of the evidence. Rejected. COPIES FURNISHED: Deborah S. Crumbley, Esquire Thompson, Sizemore & Gonzalez Post Office Box 639 Tampa, Florida 33601 Barry M. Salzman, Esquire Chambers, Salzman & Brannon Post Office Box 1191 St. Petersburg, Florida 33731-1191 Michael J. Wright City Manager City of Clearwater Post Office Box 4748 Clearwater, Florida 34618-4748 Gary Fernald, Esquire 501 South Ft. Harrison Clearwater, Florida 34616
The Issue The issue for consideration in this case is whether Respondent’s license to operate a nursing home should be disciplined because of the matters alleged in the Administrative Complaint filed herein, and whether the license issued to Respondent on October 1, 1995 should be conditional or standard.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration, (Agency), was the governmental agency responsible for licensing and regulating the operation of nursing homes in Florida. Respondent operated a licensed nursing home known as Manhattan Convalescent Center, in Tampa. Consistent with its responsibility to conduct surveys (inspections) of nursing homes in this state, on June 16, 1995, the Agency conducted a complaint survey of the Respondent’s facility during which it noted a deficiency in staffing. This related to the surveyor’s determination that on May 22, 27, and 28, and on June 2, 3 and 6, 1995, there was “an underage of the state minimum CNA staffing requirements”. No citation was given for any violation of a state rule in this regard, nor was there any reference to a violation of state regulation. In addition, the matter was not noted as a “class” deficiency for state purposes under the provisions of Section 400.23, Florida Statutes. CNA’s, Certified Nursing Assistants, are answerable to nurses. Registered nurses, (RN’s), licensed practical nurses, (LPNs), and CNAs together constitute the nursing staff, which is responsible for direct resident care in a facility such as operated here by Respondent. All members of the nursing staff, regardless of classification, are responsible for hands-on resident care, such as bathing and feeding, and these duties are a part of the job description of not only CNAs but LPNs and RNs as well. The difference is that LPNs and RNs, depending on certification, are trained and authorized to provide additional, skilled care which a CNA is neither trained nor authorized to do. In other words, though a CNA can perform those functions which she or he is trained and licensed to do, a nurse, LPN or RN, can do and does those things within her or his training and certification which includes those things done by nurses lower on the scale. Nurses, either RNs or LPNs, employed at Manhattan are advised and understand that they are to perform CNA duties and cover for CNAs if a CNA does not come to work. If a nurse refuses or resists doing CNA work for any reason, the nurse is asked to leave the building. The Agency by rule has set a minimum level of CNAs per patient in nursing homes. The total number of CNAs required is figured by using a formula which multiplies the patient census for the day times 1.7 and divides the result by 7.5, the number of hours per shift worked by a CNA at Manhattan. The result is the number of CNAs required to be on duty on any given day. On July 31 and August 1, 1995, Elke Johnson, an RN specialist surveyor for the Agency, visited Manhattan for the purpose of following up on the complaint survey conducted in June, 1995. One of the allegations in the complaint was that patients were not being cared for. Ms. Johnson found this allegation to be unconfirmed. Nevertheless, as a part of the inspection, Ms. Johnson looked at the personnel records regarding CNA staffing for the two week period from June 16 through June 29, 1995 and did the calculation according to the cited formula for four days out of the 14. On all four days, she noted a shortage of CNAs. On July 15, 1995, there were 32 CNAs versus 38 required by patient census; 35 versus 38 on July 17, 1995; 35 versus 37 on July 22, 1995; and 25 versus 36 on July 23, 1995. When Ms. Johnson spoke about this finding with Manhattan’s director of nursing or assistant director of nursing, she was told that Manhattan was using licensed nurses, RNs or LPNs, to fill in for CNAs. The Agency claims that the director of nursing, Ms. Buble, stated that if licensed nurses were scheduled to do CNA work, that individual would be listed on the daily assignment sheet as a CNA so that the licensed nurse could receive assignments as a CNA. According to Ms. Johnson, however, even with the substitutions, there was still a shortage which Ms. Johnson classified as a deficiency. The Agency’s rule does not specifically provide for the use of RNs or LPNs in place of CNAs, but Ms. Johnson considered such a substitution to be appropriate. Accepting that, however, as was noted previously, Ms. Johnson still noted a deficiency in numbers. Though Ms. Johnson did not participate in the December 1995 follow-up inspection, on her visit to the facility in April 1996, she found the staffing deficiency had been cleared and no violations existed at that time. Two complaints involving staffing in September and November 1995 caused a reinspection of the facility by Susanne Emond of the Agency on December 5, 1995. Ms. Emond worked with the director of nursing, Ms. Buble, the entire day and went over the patient census sheets with her as well as the assignment sheets. At that time the documents provided by Manhattan reflected that it was required to have 37 CNAs on duty each day between September 12 through September 16, 1995, but in reality had only 32.5 CNAs on duty on September 12; 32 on September 13; 32 on September 14; 34 on September 15 and 32 on September 16, 1995. In addition, Manhattan was required to have more than 35 CNAs on duty each day between November 9 through 12, 1995 but had only 27.5, 28, 30 and 32.5 on November 9, 10, 11 and 12, 1995, respectively. As was previously stated, the determination of a CNA shortage was based upon a consideration of numbers generated by the surveyor in consultation with the then director of nursing, Ms. Buble. The compilation by Ms. Buble was made utilizing only the assignment sheets, and did not consider any extra hours which were worked by on-duty personnel which was reflected on the sign- in sheets, rather than the assignment sheets. Respondent claims, therefore, that the documentation provided to the surveyor by Ms. Buble was not accurate. Gary Janovsky is a RN specialist with the Agency who inspected Manhattan on June 16, 1995. During the course of his visit he checked the staffing levels relating to CNAs for May 22,27 and 28, and June 2,3 and 6, 1995, and using the appropriate formula as applied to the sign-in sheets provided by the Respondent, concluded there was a shortage on all six days whether one considered an 8 hour shift or a 7.5 hours shift. Jerry Alfieri has been the director of nursing at Manhattan since March 23, 1996 and was in place there during the follow-up inspections. He has worked as a director of nursing in a nursing home for 4 years. Before he got to Manhattan it was Respondent’s policy to heavily overstaff with licensed nurses to make up for shortages of CNAs, of which there is a shortage in the area. When he took over as director of nursing, he reviewed all staffing records from January 1995 up to date and found an adequate number of CNAs were hired and assigned, but from time to time, there was an attendance problem with that category of employee. It got so bad that at times, up to 10 CNAs per day would call in to be absent, and when this would happen, he would assign LPNs or RNs to CNA duties. He contends this was not made clear to the surveyors. Mr. Alfieri believes this is now clear to the Agency and his office is following the same procedure now, without problem, and was being followed at the time of the surveys which resulted in the filing of deficiencies. Mr. Alfieri reviews his staffing figures on a daily basis looking at hours worked, not bodies. When that procedure is followed, one sees that on May 22, 1995, Manhattan was 139.1 hours over requirement and, he believes, a review of every day in issue but one, July 23, 1995, will show an overage of hours for the facility. On that day, Manhattan was 21 hours low, a shortage of 3%. Mr. Alfieri takes the position not that the number of CNAs on duty was up to the Agency’s standard, but that adequate nursing hours were provided to meet the requirement, and there was no complaint sustained regarding a lack of patient care. In September 1995, for example a listing by date of nursing hours over standard shows: 9/12 103 9/13 36 9/14 77 9/15 15 11/9 93 11/10 201 11/11 4.7 11/12 27.92 It should be noted that on November 11, 1996, though 6 CNAs called in absent, Manhattan still had 4.7 hours of nursing care over standard. According to Mr. Alfieri, licensed nurses at Manhattan are assigned a certain set of patients and they are to insure that those patients get whatever care is necessary. If a CNA can do a procedure, its done by a CNA, or by a licensed nurse if a CNA is not available. That statement is confirmed by Robin Grab, nurse manager of station 1 (the Medicare unit of 42 beds) at Manhattan for 6 years. She has been an LPN for more than 19 years. According to Ms. Grab, from time to time CNAs call in absent, and when this happens, the licensed nurses do rounds and assist in doing whatever is needed to provide patient care. It is a part of their job duties and if a licensed nurse refuses to do anything asked, that individual is asked to leave. As a result, RNs and LPNs regularly assist and are involved in activities of daily living, (ADL), and answering call lights. If a licensed nurse has to do CNA work, the nurse is so told. When a shortage of CNAs appears imminent, an attempt is made to call in more CNAs, but, if necessary, RNs and LPNs are called in to fill vacancies of CNAs. When William Scheller, Manhattan’s administrator, first came to the facility he was made aware of the inadequate number of CNAs. To correct this, he started the practice of using licensed nurses to make up the shortage. He also hired additional licensed staff to make up for call-outs, paid bonuses and recruited staff from other facilities. Manhattan pays its nurses and CNAs competitive wages. At no time has it ever intentionally understaffed with CNAs. To do so does not make sense because it costs more for licensed nurses than for CNAs. He insures that licensed personnel perform CNA duties when required by personal checks by him and his staff. Unit managers are responsible to insure that patients get adequate care and if staff is insufficient, they try to bring in additional people. The documentation used to record nursing staffing was changed in early 1996 to conform to Agency direction as to how it should be done. These documentation changes did not change coverage practices, however, as those practices were, he contends, up to standard all along.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Agency for Health Care Administration enter a final order finding that Respondent did not fail to meet staffing requirements sufficient to ensure each resident maintained his or her highest practicable level of well- being, but that it did fail to have an average of 1.7 hours of certified nursing assistant time for each resident during at least eight 24 hour periods, and assessing an administrative fine of $250.00. It is further recommended that the Agency correct its records to reflect Respondent’s entitlement to a standard license rating effective October 1, 1995. DONE and ENTERED this 12th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Donna H. Stinson, Esquire Broad and Cassel 215 S. Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue Whether Respondent Employer committed an unlawful employment practice by discrimination on the basis of age and/or retaliation1/ against Petitioner, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Deanna L. Eftoda, was born on August 26, 1949. Respondent, HealthSouth Rehabilitation Hospital of Tallahassee (HealthSouth), is a healthcare facility providing both in-patient and out-patient rehabilitation services in Tallahassee, Florida. As such, it employs personnel designated as "exempt" and "non-exempt," pursuant to the federal Fair Labor Standards Act. Generally speaking, "exempt" employees are salaried employees, in managerial posts, who do not receive over-time pay by the hour, and "non-exempt" employees are regular, non- managerial employees, who are paid a set amount per hour up to 40 hours per week and time and a-half per hour for every hour above 40 hours that they work in the same 40-hour week. There are some exceptions to this federal compensation scheme which are immaterial to this case. At all times material, a “Nursing House Supervisor” or “RN House Supervisor” were interchangeable job titles. Petitioner was initially hired by Respondent on January 26, 2004, as an "RN-Baylor Nurse." The RN-Baylor position was a non-exempt position, and in that position, Petitioner's hourly pay rate was $28.00. Petitioner's hourly rate of $28.00, was very high for an RN-Baylor Nurse, but Petitioner's credentials are exceptional. Within days of her hire, Petitioner was asked whether she would take an RN House Supervisor position. Petitioner accepted the RN House Supervisor position, and a corrected personnel action form reflecting this change was prepared on January 30, 2004. Petitioner signed an acknowledgement of her acceptance of the House Supervisor position on February 22, 2004. Every House Supervisor employed by Respondent during Petitioner's period of employment was an exempt employee. The RN House Supervisor position that Petitioner accepted was an exempt position. Nursing House Supervisors traditionally worked the evening and night shifts, when there was no member of the hospital administration on duty. Without a member of the hospital administration on duty, the Nursing House Supervisor was the highest ranking management employee at the facility. While Petitioner was employed with Respondent as an RN/Nursing House Supervisor, Respondent simultaneously employed “Charge Nurses.” The duties of a Charge Nurse were similar to the duties of a Nursing House Supervisor. However, unlike Nursing House Supervisors, Charge Nurses traditionally worked the day shift, during which higher-ranking members of the facility’s administration were simultaneously on duty. In 2004, Respondent also employed a Charge Nurse on the weekend day shift(s) when at least one administrator was present for several hours. (This anomaly seems to be at least one element which confused Petitioner and led to this case.) Even so, unlike RN House Supervisors, all Charge Nurses were classified by Respondent Employer as filling non-exempt positions. Every Charge Nurse employed by Respondent during Petitioner's employment was classified as a non-exempt employee, eligible to earn time-and-a-half for overtime. Petitioner’s salary was not increased when she accepted the RN House Supervisor position, because her base salary (calculated at $28.00 per hour) was commensurate with the salary of other RN House Supervisors already being paid as managerial employees at straight salary. On the other hand, because Petitioner worked as an RN/Nursing House Supervisor on a “Baylor,” or weekend, shift, Respondent paid Petitioner a special compensation for being scheduled to work every weekend, with no weekends “off.” This special compensation took the form of Respondent’s paying Petitioner as if she had worked 36 hours per week, even though she was only scheduled for 32 actual hours of work per week. Petitioner believes that she worked a minimum of four additional hours per week, because it was her practice to come on shift an hour early and leave an hour late to set up and wind down the area and staff under her supervision as Nursing House Supervisor. She “guessed” there were some weeks when, between this practice and meetings she was required to attend, she worked 32 hours above the usual 40 hours per week. Her “best guess” was that she was working “two (additional) hours per eight-hour shift,” plus attending meetings which were not held during her shift(s), beyond her scheduled 32 hours, but Petitioner never worked straight eight-hour shifts. (See Findings of Fact 12-15, and 25.) A Nursing House Supervisor working the Baylor shift, or an RN-Baylor Nurse, normally worked two twelve-hour shifts on the weekend and one eight-hour shift during the week. When Petitioner was hired by Respondent in January 2004, she was completing a second doctoral degree. In order to accommodate Petitioner's work on her dissertation, Respondent had offered Petitioner an irregular shift pattern consisting of two sixteen- hour shifts on the weekends. Petitioner had accepted this scheduling accommodation. As RN House Supervisor, Petitioner was required to attend occasional mandatory meetings for Nursing Supervisors and other nursing staff. These meetings were held during the week, and usually, but not always, between 5:00 and 6:00 p.m. This meeting time was more convenient for employees regularly working the weekday shift immediately before 5:00 p.m. or coming on shift immediately after 6:00 p.m., than for staff on other shifts, but no age or retaliation component existed with regard to Petitioner or anyone else on other shifts. Petitioner also was required once or twice to attend several hours of computer classes in a single day and other training, but so was everyone else on staff. Because the meetings were not on the weekends during the hours Petitioner would normally work, Petitioner’s attendance at the mandatory weekday meetings upset Petitioner's personal plans for study, research, and writing her doctoral dissertation, but there is no evidence she was singled out for this inconvenience. Petitioner claimed herein that she was entitled to be paid overtime for coming to "work" for meetings and classes. Because her Nursing House Supervisor position was an exempt position, Petitioner was not paid overtime for attending these mandatory meetings and classes, but no other exempt employees were paid overtime for attending these meetings and classes outside of their normal working hours, either. Respondent's policy does provide that if a Nursing House Supervisor works an additional shift as a "floor nurse," separate and apart from his/her regularly scheduled shifts as a House Supervisor, then that Nursing House Supervisor can be granted additional pay for that additional shift during which he/she works as a floor nurse, even though the House Supervisor position is that of an exempt employee. In order to be granted this additional pay, the Nursing House Supervisor must fill out an "Additional Pay for Exempt Employees" request form and submit the form to management for prior approval. The mandatory weekly meetings that Petitioner was required to attend as a part of her Nursing House Supervisor duties did not qualify as a full additional shift, for any employee. Petitioner received a memorandum dated April 12, 2004, explaining this. In fact, When Petitioner filled out the correct form for work as a floor nurse, she was paid at the $27.50 per hour rate for a floor nurse. She was not paid when she filled out such a form for mandatory staff meetings, classes, and training sessions. Petitioner represented that throughout her employment by Respondent, she repetitively and persistently inquired about how her pay was being calculated and why the Employer did not calculate it the way she thought it should. She also claims to have repeatedly requested a different calculation of her pay and leave accruals on the basis of her beliefs and desires, but at the time she made no formal claim or discrimination complaint related to these inquiries and requests. In her testimony, even Petitioner described what she was doing as “negotiating” her salary. Throughout her employment by Respondent, Petitioner was cited by management for performance problems, including but not limited to difficulty in dealing with staff; poor management style; poor judgment in dealing with her supervisors and subordinates; creating confusion and chaos for staff on her scheduled shift by her confrontational manner; failing to properly address performance concerns with staff on her scheduled shift; and failure to take responsibility for her own actions. Giving Petitioner the benefit of the doubt, some of her friction with management and staff may have arisen because of her complaining that evaluators did not observe her for an entire shift; because she mis-read management’s instructions on how to code her timesheets as a requirement to falsify them; because she perceived that Respondent’s staffing levels occasionally fell below matrix, and she then created turmoil by calling in extra staff, whereas her superiors did not share her interpretation of the matrix requirements or the staffing events themselves; because she blamed the preceding shift for cleanliness issues; because she perceived herself undervalued for her extensive nursing experience; because she perceived herself personally opposed and ridiculed by a nurse of lesser or equal rank (Mandar); and because she did not believe that her superiors backed her up sufficiently and/or did not afford her the appropriate discretion in her interactions with subordinates. Petitioner objected to Respondent’s chain of command, which had her reporting to Ms. Roberts, Nurse Manager. Petitioner felt she should report directly to the Director of Nursing, her “two-up” supervisor. However, none of these disputes rose to the level of a protected activity under Chapter 760.10(7), Florida Statutes (see Finding of Fact 35), or related to Petitioner's age in any way. From Respondent's perspective, its administration received a myriad of complaints from Petitioner's supervisors, peers, and subordinates, regarding Petitioner's management style and performance. Some of Respondent's employees threatened to quit if they were forced to continue to work under Petitioner's supervision. Petitioner testified that in July 2004, she had polled her subordinates and asked them to indicate that they had “no problems” with her management style. Then she presented the list of subordinates to her superiors. This could have legitimately been viewed by Respondent’s management as Petitioner’s insubordination to them and/or intimidation of the polled subordinates by Petitioner. Respondent’s Nurse Manager and Petitioner’s direct supervisor, Barbara Roberts, felt that she was being required to spend an inordinate amount of her time dealing with Petitioner's problems. As a result of these problems, Petitioner was placed on probation on September 10, 2004. Petitioner challenged this probation, and a review was conducted by Respondent's management. Despite the fact that the complaints concerning Petitioner's management style and performance came from various sources, Petitioner complained that Ms. Roberts was unfairly disciplining and harassing her. Respondent's management concluded that the attention Petitioner had received from Ms. Roberts was not improperly motivated, but was a result of personality conflicts between Petitioner and other employees. Some of the allegations against Petitioner were substantiated, but investigation into an allegation that Petitioner had coerced or threatened employees into working, only produced limited supporting documentation. In the absence of additional documentation, Lynn Streetman, Hospital Administrator, concluded that probation was not the correct level of discipline for Petitioner. (P-22) Ms. Streetman recommended that Petitioner's supervisor, Ms. Roberts, chalk the problems up to differences in management style and downgrade Petitioner’s probation citation to a "written warning." On September 30, 2004, the probation citation was replaced with a written warning citation. Also on September 30, 2004, six months after Petitioner’s initial hire and approximately five and a-half months after she accepted the exempt Nursing House Supervisor position, Ms. Roberts sent Petitioner a memorandum informing her that it was no longer operationally feasible to continue the irregular pattern of two sixteen-hour shifts on the weekend (R- 3).2/ Respondent's reason for this change was that for four hours of each day that Petitioner was scheduled to work, there was an overlapping period when two supervisors were on duty, and this duplication of supervisory personnel resulted in an unnecessary expense for Respondent. Ms. Roberts' memorandum informed Petitioner that it was operationally necessary for Petitioner to begin working the traditional Baylor-RN's two twelve-hour weekend shifts and one eight-hour shift during the week, beginning with the October 16-17, 2004, weekend. This managerial decision obviously inconvenienced Petitioner for purposes of completing her doctoral dissertation, and she contends the decision was “retaliatory.” However, the change had been in discussion with management before September 30, 2004. Immediately after her probation was down-graded to a written warning, Petitioner asked for a weekend off, which was granted. Because she took a weekend off at that time, Petitioner had one less weekend to use later in December 2004. (See Finding of Fact 36.) Approximately October 17-18, 2004, when her new shift arrangement was beginning, Petitioner's supervisors again sought to put her on probation, due to a series of complaints by staff similar to the previous ones. Ms. Roberts and other superiors believed Petitioner distorted common conversations and created chaos on her shift by misinterpreting in her conversations with her subordinates the instructions her superiors had given her. In accord with its policy, Respondent launched a second investigation into Petitioner's alleged misconduct. On December 11, 2004, prior to conclusion of the second investigation, Petitioner sent an e-mail to Ms. Roberts and to Respondent's Human Resources Director, Jackie Chaires, requesting that her status be changed from full-time Nursing House Supervisor to "PRN," or "as needed," status. Petitioner's e-mail stated, I believe I have 'too many irons in the fire.' With my dissertation and numerous meetings outside my 32 hours, I find myself run down. To remedy this situation I am willing to wait until January 17, 2005 for this transition to begin. Please advise as to the salary changes. Petitioner believed that by giving four weeks’ notice before the date she wanted to “go PRN” she would be entitled to a payout of “personal time off” (PTO). However, due to subsequent events, she was not entitled to an "in cash" payout of PTO. (See Findings of Fact 59-60.) Respondent's policy provided that at any time an employee moved to a new position, he/she was placed on a 90-day mandatory probation to assess his/her performance in that new position. Because Petitioner was to be placed on a mandatory 90-day probation at the time that her status changed to PRN, there was no need to also place Petitioner on probation due to the conclusions of the second investigation into her alleged misconduct. However, Ms. Streetman instructed Ms. Chaires and Ms. Roberts to meet with Petitioner to go over the various performance problems that Petitioner was experiencing, and to inform Petitioner that continued poor performance in these areas during her PRN probationary period could result in disciplinary action up to, and including, termination. This meeting took place on December 15, 2004, and led to a rebuttal by Petitioner on December 29, 2004. (See Finding of Fact 34.) Petitioner previously considered moving to PRN status during February 2004. Petitioner also claimed that in March or April 2004, she had requested to be moved back to an RN-Baylor Nurse position, and that Ann McElreath, Director of Patient Care Services/Director of Nursing, told her that she could not make such a move without suffering a 45-percent decrease in compensation. Ms. McElreath testified that she did not remember any such request from Petitioner, and that she never told Petitioner that Petitioner would suffer a 45 percent decrease in pay if she moved back to a Baylor-RN position. Ms. McElreath further testified that she would have no reason to make such a statement to Petitioner, because she was not involved in any way in setting salaries. In light of the differential between part-time and full-time pay schedules, as discussed hereafter (see Findings of Fact 38 and 58), and the complexity of Respondent Employer’s other pay categories, coupled with the complexity of Baylor status, one can see how Petitioner misunderstood her situation, but her testimony evidences a clear misunderstanding of how Respondent calculated salaries, as well as a misunderstanding of the effect of designating exempt and non-exempt positions. On December 29, 2004, Petitioner sent a memorandum to Ms. Roberts, Ms. Chaires, Ms. Streetman, and Ms. McElreath, requesting to rescind her request to move to PRN status and requesting to finish another six months as House Nursing Supervisor; complaining about “harassment” by Ms. Roberts due to Ms. Roberts’ telephone calls reminding Petitioner to attend meetings and Ms. Roberts’ “insulting” Petitioner’s professional abilities by not seeing/taking Petitioner’s side of many issues with staff. Petitioner requested to begin “dispute resolution.” At no point in this memorandum did Petitioner mention anything about alleged discrimination on the basis of age. At no point during any investigation, nor at any other time, did Petitioner allege that she was being discriminated against based on her age. She did allege harassment by her immediate supervisor, Ms. Roberts, but this was in the nature of challenging Respondent’s basic chain-of-command decisions; Ms. Roberts' not permitting her sufficient discretion; and Petitioner’s belief that only Petitioner could interpret Center for Disease Control (CDC) requirements regarding cleanliness and restrictions on the employment of coughing personnel and Occupational Safety and Health Act (OSHA) staffing requirements with regard to scheduling additional staff and instructing staff concerning these issues. Yet, Petitioner has never posed any complaint directly alleging violations of any federal or state regulation besides her “exempt” versus overtime issues, which she raised for the first time, herein. Petitioner wanted to take off December 31, 2004, and January 1, 2005 (New Year’s Eve and New Year’s Day), and she had been authorized in advance to do so. However, that authorization was rescinded when management discovered that she had already used the three weekend leaves to which she was entitled and that there might be staffing problems for the weekend period requested. (See Findings of Fact 26 and 54-57.) Petitioner had already made arrangements for her personal activities, and badgered management by e-mail to give her one or the other day off. Management ultimately let her have one of the days off, despite its “only three weekends” policy. Due to Petitioner’s on-going performance problems; management’s continuing concerns about her ability to effectively function as Nursing House Supervisor raised in the second misconduct investigation; and the patient safety concerns raised by her admission that she felt she had too many demands on her time, Respondent's management declined to allow Petitioner to rescind her request to move to PRN status. On January 5, 2005, Ms. Chaires told Petitioner, and on January 10, 2005, Ms. Chaires sent Petitioner a formal acknowledgement, of Respondent's acceptance of Petitioner's request to move to PRN status, effective January 17, 2005. On January 12, 2005, Ms. Chaires sent Petitioner an e- mail communication outlining the Respondent Employer’s pay rates for PRN status/service. Because Petitioner would be moving from a full-time House Nursing Supervisor position to a part-time PRN position, Ms. Chaires informed Petitioner that there would be a reduction in her salary from $28.00 per hour to $21.00 per hour. Ms. Chaires testified that it was customary for an employee moving from a full-time House Supervisor position to a PRN position to experience a reduction in pay. Petitioner claimed she was discriminated against because she received no merit increase at the end of 2004. She believes the lack of merit increase constituted retaliation for her obtaining the rescission of probation on September 30, 2004. Actually, Respondent’s employees undergo performance evaluations approximately every October. According to Respondent's policy, if an employee is on probation at any time during the third- quarter (July, August, September) of the calendar year, that employee is not eligible for a merit increase in connection with that year's October performance review. Respondent considered Petitioner ineligible for a merit raise at the end of 2004, because she had been on probation in September 2004; because there was a second investigation into Petitioner's performance and alleged misconduct that continued at least until December 15, 2004; and because Petitioner had requested to change her status to PRN. Because Petitioner’s probation was rescinded on the last day of September 2004, she technically was not barred from a merit increase due to being on probation in the third quarter, but she continued to be in the turmoil of some sort of disciplinary investigation until at least December 15, 2004. Respondent may have not followed the letter of its policy, but it maintained that policy’s spirit and purpose in not rewarding with a merit increase an employee who was subject to discipline at any moment. Petitioner also has not demonstrated that she was eligible for a merit increase based on meeting or exceeding performance standards. There is no credible evidence that the lack of an evaluation, the contents of an evaluation, or the lack of a 2004 merit increase in pay for Petitioner, constituted discrimination against her on the basis of her age or in retaliation for any protected activity. On January 14, 2005, a Friday, Petitioner had a friend phone Ms. Roberts on her behalf. The friend informed Ms. Roberts that Petitioner had undergone surgery that same day and would not be able to work as scheduled on the upcoming weekend. When Ms. Roberts inquired as to what kind of surgery Petitioner had undergone, the speaker would not give that information to Ms. Roberts. Ms. Roberts informed the caller that Petitioner should call Respondent to discuss her expected recovery time and her availability to return to work. Petitioner, who testified that she had listened to the foregoing conversation, described Ms. Roberts as “rude,” and the phone call may, indeed, have been acrimonious, in that the caller insisted on Petitioner’s right to medical privacy and Ms. Roberts wanted some detailed explanation why Petitioner was unable to report for work and why Petitioner was giving such short notice for her weekend shift(s), if she had not been in an accident and if she had elected the surgery in advance. At hearing, Petitioner’s explanation for her inability to work her last House Supervisor shift(s) covering January 14, 15, and 16, 2005, was that she had elected minor surgery with the intent to return to work her regular shift, but the procedure had turned out to be more debilitating than she had expected, so she could not return to work as scheduled. Also by date of January 14, 2005, Petitioner submitted an application for PRN employment with a different health care provider, Interim Healthcare. This date was a little more than a month after Petitioner had requested PRN status with Respondent; a little more than two weeks after Petitioner had sought to rescind that request; and two days after Respondent had declined in writing Petitioner's PRN rescission request. It was three days prior to Petitioner's scheduled move to PRN status with Respondent on January 17, 2005, pursuant to her accepted request. There was nothing to prohibit Petitioner from signing-up for PRN work with multiple health care providers. Because Petitioner did not show up for her last three scheduled shifts (two days) as Nursing House Supervisor, Respondent's policy required Petitioner to provide a doctor's note releasing her to return to work before Respondent would place her on PRN duty. Petitioner never provided Respondent with a doctor's note releasing her to return to work. Petitioner's testimony, that Ms. Chaires had told Petitioner on some previous occasion that as an "exempt" employee Petitioner did not need a doctor’s note for her absences, is not credible upon the record as a whole. It also is immaterial whether Petitioner's absence for her last three shifts/two days equate with "three consecutive days' absence," per Respondent’s policy on doctors’ notes, because more than three days passed without any word from Petitioner in response to Ms. Robert’s January 14, 2005, instructions by telephone. Respondent’s witnesses maintain that after January 14, 2005, Petitioner never initiated contact with Respondent in any way to discuss her availability for work, and that Ms. Streetman first phoned Petitioner in March 2005, to determine whether she was returning to work as a PRN. Petitioner claims that Respondent did not call her for any PRN work until May 2005, and therefore, in effect, Respondent constructively terminated Petitioner’s employment. There also is some divergence in testimony whether or not Respondent mailed Petitioner a package of materials with instructions that she must complete and return those materials before Respondent would call her for PRN duty, in March or at any other time. However, there is no dispute that during May 2005, Ms. Streetman, as acting interim Human Resources Director for Respondent, had telephone contact with Petitioner to coordinate Petitioner’s return to work as a PRN nurse. During this conversation, Petitioner informed Ms. Streetman that she would not return to work for Respondent as a PRN nurse under any circumstances. Petitioner stated that she would only work for Respondent if: Petitioner were returned to the position of full-time House Supervisor; Petitioner would only work a 16-hour shift on the weekends; and Ms. Streetman would set up a meeting with herself, Petitioner, Ms. Roberts, and a corporate representative of Respondent to discuss the resolution of various issues Petitioner wanted addressed. These issues were much as set out previously. (See Findings of Fact 17-19 and 35-39.) Age does not seem to have been one of Petitioner’s issues. Petitioner also indicated that she had not received the PRN packet of information that Respondent maintains it had sent her. Ms. Streetman immediately forwarded a copy of the PRN package to Petitioner. Although Petitioner provided a copy of a current CPR card to Respondent in May of 2005, she did not provide a doctor's note releasing her to return to work, her executed PRN paperwork acknowledging her duties and responsibilities as a PRN nurse, or an executed acknowledgement of Respondent's HIPPA policies and procedures, all of which Respondent required before putting Petitioner on its PRN status/phone list. On or about May 24, 2005, Ms. Streetman once again contacted Petitioner and informed her that she was unable to bring Petitioner back to work under the conditions that Petitioner had previously outlined, but Respondent was willing for Petitioner to work as a PRN nurse. Once again, Petitioner informed Ms. Streetman that she would not return to work as a PRN nurse under any circumstances. Accordingly, at that time, Ms. Streetman terminated Petitioner. During her employment with Respondent as a Nursing House Supervisor, Petitioner accrued PTO, in accordance with her position and length of service. As a Nursing House Supervisor, Petitioner should have accrued PTO at the rate of 7.69 hours of accrued PTO per two week pay period, which corresponds to the PTO accrual schedule for staff employees. However, due to a clerical error by Ms. Chaires, Petitioner actually had been allowed to accrue PTO at a rate of 9.54 hours of accrued PTO per two-week pay period, which corresponds to the PTO accrual schedule for department head employees, even though as Nursing House Supervisor, Petitioner was not a department head. Respondent's policy in 2004, permitted all Baylor, or weekend, employees of Respondent to expend PTO hours on no more than three weekends per year. Because Petitioner worked a Baylor, or weekend, schedule as Nursing House Supervisor, Petitioner was limited to using PTO for three weekends per year. Petitioner signed off on, and acknowledged, this three weekend limitation. Although this policy limited the weekend days on which Petitioner was entitled to use her accrued PTO, Petitioner was entitled to use her accrued PTO for any weekday shifts for which she was scheduled after September 30, 2004, when Ms. Roberts informed her that it was operationally necessary for her to work at least one eight-hour shift during each week. During 2004, Petitioner used 171 hours and 15 minutes of PTO, and all three of her allotted weekends off as a Baylor employee of Respondent. (See Findings of Fact 26 and 36.) Later in 2005, Respondent re-examined its PTO leave policy. In order to compete for staff with other local health care providers, Respondent changed the number of allowed weekend PTO days for its Baylor employees from three to four weekends. However, this increase in the number of weekend leaves permitted for Baylor employees did not affect Petitioner, because her request to move from full-time Nursing House Supervisor to PRN nurse had been granted, effective January 17, 2005, and the new leave policy was not retroactive. A PRN nurse occupies a part-time position. As a PRN nurse, Petitioner was not eligible to accrue or use PTO. On January 22, 2005, Petitioner’s PTO balance was 4.37 hours, meaning Petitioner had 4.37 hours of PTO available for use. The dollar value of Petitioner’s remaining PTO hours amounted to $83.09. According to Respondent's policy, an employee was eligible for a cash payout for his/her unused PTO hours upon voluntary resignation (including a voluntary employment status change) and/or involuntary lay-off if: (1) the employee had successfully completed his/her 90-day probationary period; (2) the employee provided Respondent with proper notice; and (3) the employee worked a minimum of four hours on his or her final scheduled day of work. Whether Petitioner successfully completed her probationary period as a Nursing House Supervisor is not at issue in this case. Sufficient notice of status change is not at issue in this case. (See Findings of Fact 29- 30.) Petitioner did not receive a cash payout for her 4.37 unused PTO hours on January 17, 2005, when she moved from a full-time Nursing House Supervisor position to a PRN nurse position, because she did not work the required four hours on her final scheduled day of work as a Nursing House Supervisor. Petitioner missed her final three scheduled shifts as a Nursing House Supervisor in January of 2004, and she did not work on the day that her employment with Respondent was terminated. whether one counts the status change date of January 17, 2004 or the final termination date in May 2005. (See Findings of Fact 45 and 52.) Therefore, Petitioner was not eligible for a PTO payout under Respondent Employer’s policy at the time her status changed to PRN nurse, January 17, 2005. Between January 14, 2005, and November 2005, Petitioner did not apply for any type of work so as to mitigate potential damages. After January 14, 2005, she had PRN status with Interim Healthcare, but she did not accept work from Interim until November 2005. During that period, she only attended classes and lived on her student loans. Petitioner had previously acquired at least a J.D. (law degree), two nursing degrees, and possibly another doctorate. With these credentials, she was certainly not “unemployable” during the interim of January-November 2005. Petitioner never complained to Ms. Roberts, her direct supervisor, that Petitioner believed that she was being discriminated against on the basis of her age. In 2004, Petitioner would have been 55, and Ms. Roberts would have been 51 years of age. Ms. Roberts never treated Petitioner any differently than any other Nursing House Supervisor. Ms. Roberts was not actively aware of Petitioner's age at any time during her employment. Petitioner never complained to Ms. McElreath, then- Director of Nursing and Petitioner's “two-up” supervisor, that Petitioner believed she was being discriminated against on the basis of her age. Ms. McElreath would have been 50 to Petitioner's 55 years of age at all times material. Petitioner never complained to Ms. Chaires, Director of Human Resources, that Petitioner believed she was being discriminated against on the basis of her age. No decision that Ms. Chaires made concerning Petitioner was motivated by Petitioner's age. Petitioner never complained to Ms. Streetman, Respondent's administrator, that Petitioner believed she was being discriminated against on the basis of her age. Ms. Streetman would have been 49 years of age, at all times material. No decision that Ms. Streetman made concerning Petitioner was motivated by Petitioner's age.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 22nd day of September, 2006, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2006.
