Findings Of Fact Respondent is licensed to operate an adult congregate living facility known as People's Palace, which is located at 85 Carib Drive, Merritt Island, Florida. On October 8, 1986, James L. Haas, Human Services Program Analyst for Respondent, conducted an inspection of Respondent's facility. As a result of this inspection, Mr. Haas reported numerous violations, including 11 Class III violations. He re- inspected the facility on February 2, 1987, and reported that three Class III violations remained uncorrected. The relevant Class III violations were: a new live-in staff member had not had a first-aid course and the same employee did not have a medical statement certifying that she was free of any communicable diseases. Mr. Haas discussed the violations with Respondent at the time of the October 8 inspection. They agreed that she would have until November 8, 1986, to correct the violations that were the subject of the Administrative Complaint. The position in question was that of a live-in housekeeper who was the only caretaker of the adult residents, except when Respondent took her place on days off. The housekeeper at the time of the October 8 inspection quit shortly thereafter. Respondent employed approximately three other persons as housekeeper between October 10, 1986, and February 2, 1987. At the time of the February 2 re-inspection, the housekeeper was Betty Casper, who had started working at the facility one day earlier. Like the housekeeper present on October 8, 1986, Ms. Casper lacked certification in first aid and documentation that she was free of any communicable diseases. Respondent was unaware whether the other housekeepers in the interim had had these certifications, but admitted that the housekeeper on October 8, 1986, lacked them. Noting that the two Class III violations had not been timely corrected, Mr. Hess initiated the procedure that resulted in a Recommendation for Sanction on March 16, 1987. In the Recommendation for Sanction, Mr. Haas described the serious impact of these deficiencies. The absence of a staff member with qualification in first aid could result in a resident receiving improper or no treatment in the event of an emergency. A staff member having a communicable disease exposed residents to the possibility of contracting a disease from the employee. Respondent testified that there was considerable turnover of housekeepers. She testified that the eight-hour first-aid course necessary for first aid certification was infrequently available. Ms. Casper was ill when the course was offered in March, 1987, and was only able to attend the course on September 1, 1987, at which time she was certified. On February 24, 1987, Ms. Casper obtained certification that she was free of communicable diseases.
Findings Of Fact Lori Ann Williams has been licensed as a practical nurse in the State of Florida since December 9, 1985. Her licensure is current. In December of 1987, Ms. Williams was employed by the Palmetto Extended Care Center in Miami, Florida, a nursing home which served an elderly population. The home had an eighty-seven bed capacity and was full. The average age of the patients was 84 years old. The facility had a single floor with two nurses stations, staffed by two licensed practical nurses and at least two nurses aides. Ms. Williams was employed on the 11:90 p.m. to 7:00 a.m. shift on the night of December 27-28, 1987 along with another licensed practical nurse, and at least two nurses aides. The Administrator of the facility, Ruby Ruth Brown, is a licensed practical nurse. She had received reports from the nurses aides that Ms. Williams was in the habit of leaving the facility during her shift, but returning shortly before the shift ended at 7:00 a.m. During the 11:00 p.m. to 7:00 a.m. shift on the night of December 28-29, 1987, Ms. Brown came into the home at approximately 4:45 a.m. She found the other licensed practical nurse and the nurses aides on duty, but after searching the nurses' stations, all patient rooms, closets and bathrooms, she was unable to locate Ms. Williams. By checking the timecards, Ms. Brown found that Ms. Williams had arrived late for her 11:00 pm. shift (at 11:13 p.m.), but had not clocked out. A nurses aide had last seen her at 2:00 a.m. In checking the patients, Ms. Brown found that none of the nursing duties Ms. Williams should have performed for her 43 patients since 12:00 midnight had been carried out. Ms. Brown found conditions injurious to the well-being of two patients under Ms. Williams' care. One patient's naso-gastric feeding bag was empty, and should have been refilled at 2:00 a.m., but had not been refilled at the time Ms. Brown had arrived at the home. Another patient had pulled a Foley catheter out, which should have been brought to the attention of the attending physician [Some attending physicians direct that the catheter be immediately reinserted, while other physicians are of the view that the catheter should not be reinserted for a period of time due to possible injury sustained when the catheter was pulled out.] Under the work rules of the Palmetto Extended Care Facility, if Ms. Williams needed to leave during her shift, she should have notified the Director of Nurses, Ms. Virginia Carpenter, or the administrator of the home, Ms. Brown. They would have made arrangements to obtain another nurse to finish the shift. When Ms. Williams left, she did not notify Ms. Carpenter, Ms. Brown, the other licensed practical nurse on duty, or any of the nurses aides. Ms. Brown confronted Ms. Williams about her disappearance the next day. Ms. Williams said that she had not notified anyone when she was leaving because she had diarrhea and had to leave suddenly. Later Ms. Williams stated that she had told a cleaning lady that she had to leave, but was unsure that the cleaning lady had understood her because the cleaning lady spoke Spanish. The janitorial personnel work from 7:00 a.m. to 7:00 p.m. at the facility, so it would not have been possible for Ms. Williams to have notified janitorial personnel that she was leaving. In any event, it would have been improper for her to have only informed janitorial personnel that she would no longer be on duty. By leaving her shift without informing other persons responsible for patient care that she would no longer be on the floor, Ms. Williams placed the 43 patients under her care in danger, especially the patient who did not received the naso- gastric feeding and the patient who had removed the Foley catheter. Leaving a nursing shift without notifying an appropriate person that the nurse is leaving, and making arrangements for the protection of patients' welfare, is unprofessional conduct. Ms. Williams is guilty of unprofessional conduct.
Recommendation It is recommended that a Final order be entered finding Lori A. Williams guilty of unprofessional conduct, and suspending her licensure for a period of one year. DONE and ENTERED this 27 day of March, 1989 in Tallahassee, Leon County, Florida. WILLIAM DORSEY 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 27 day of March, 1989. COPIES FURNISHED: Lisa M. Bassett, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750 Lori A. Williams 9360 S.W. 185 Street Miami, FL 331567 Judie Ritter Executive Director Board of Nursing 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32201 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, FL 32399-0750
The Issue The issues in this case are those fashioned by the administrative complaint brought by the Petitioner against the Respondent, claiming certain improprieties in his conduct while participating as a member of a response team pertaining to an injured worker. In particular, Respondent is accused of improperly strapping a patient to a backboard and refusing to change the strapping when told that the technique of strapping was wrong. Further, Respondent is accused of acting inappropriately by, among other conduct, yelling and screaming obscenities at co-workers, attempting to eject a co-worker from the emergency vehicle they were working from and assaulting a co- worker. These events are said to be violative of Section 464.018(1)(f), Florida Statutes, which prohibits unprofessional conduct, of a sort which departs from or fails to conform to minimal standards of acceptable and prevailing nursing practice. Out of these events, Petitioner seeks to discipline Respondent's nursing license.
Findings Of Fact Facts found based upon stipulation of counsel Petitioner, Department of Professional Regulation, is the state agency charged with regulating the practice of nursing pursuant to Section 20.30, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 464, Florida Statutes. Respondent is, and has been at all times material hereto, a nurse in the state of Florida, having been issued license number 11991162. Respondent's last known address is 11668 Cape Horn Avenue., Jacksonville, Florida 32216. At all times material hereto Respondent was employed by Central Technical Services, St. Johns River Power Plant (CTS), Jacksonville, Florida. Facts found based upon evidence presented at the final hearing In addition to the Respondent, Lanta Craig, emergency medical technician; Mary Roberts, paramedic; and Arthur Punsky were employed on June 24, 1985, at the St. Johns River Power Plant. Craig and Roberts were working for CTS and Arthur Punsky was a safety engineer for Foster Wheeler Energy Corporation, a company doing work at the plant site. Respondent's specific duties on June 24, 1985, were as a registered nurse. In the early afternoon of June 24, 1985, Craig, Roberts and the Respondent were at the first aid station at the job site. At that point, an emergency call was made to the aid station to have the employees of CTS respond to an injury suffered by a worker at the construction site. Craig, Roberts and Respondent left the first aid station and went to the site where the worker had suffered his injury. The three individuals took the emergency response vehicle or ambulance as transportation. At the scene of the accident, Respondent and Roberts went to an elevator where the injured man was being brought down from his work site. Craig remained with the emergency response vehicle. Respondent and Roberts were informed that the injured worker had suffered a back injury. This information was provided before the patient arrived on the elevator. Upon the arrival, Roberts went back to the ambulance and retrieved a backboard to use in moving the injured worker. The backboard is a device employed in immobilizing patients with possible back injuries and neck injuries. The injured worker, when he got off the elevator, was ambulatory. Respondent placed the backboard on the ground, and with the assistance of another emergency worker, assisted the injured employee by lowering that individual onto the backboard, holding the injured employee's arms in this process. In the course of strapping the injured worker to the backboard, Respondent improperly applied the strap to the hand space and not to the hole which the strap should be passed through in securing the individual to the backboard. The effect of this was to cause the backboard straps to cross over the injured worker's neck, as opposed to the area of his shoulders and chest. A conversation ensued between Respondent and Roberts, in which Roberts told the Respondent that he had improperly set the straps. Respondent did not attempt to correct the problem before placing the patient in the ambulance. After the patient was placed in the ambulance, he was transported to the first aid station. When on board the ambulance, the Respondent took a cervical collar and placed it on the neck of the injured worker. This collar caused the improperly placed strapping to press against the patient's neck beneath the cervical collar. Roberts was concerned that this arrangement was one which possibly would cause an occlusion of the airway of the injured worker. In the course of the transport of the worker back to the first aid station, Roberts removed the cervical collar, believing that the problem with the improper strapping was choking the patient. It is not clear that the strapping did in fact cause a problem for the patient. Respondent took umbrage at Roberts' gesture and began screaming profanity at Roberts, and in the course of this situation, yanked the straps on the backboard. The worker was conscious and was aware of this exchange between Roberts and the Respondent. Roberts put her hands on the straps and told the Respondent to leave the patient alone. Respondent grabbed Roberts by her right wrist and jerked her up. At the first aid station, Craig got out of the ambulance and Roberts and Respondent remained in the ambulance and continued to argue as they had during the transport. Eventually Craig came to the side door of the ambulance and having stepped up into the ambulance, Respondent began to shout obscenities at Craig and physically forced her out of the ambulance. As she came to the ground, she knocked over Punsky. Marjorie Lander Smith, at times relevant to the inquiry, was licensed in Florida as a registered nurse, emergency medical technical and paramedic. Smith was received as an expert in emergency nursing, emergency medical technician and paramedic skills and standards of conduct. Her testimony established that Respondent departed from the normal standards of acceptable and prevailing nursing practice, to the following extent: Yelling and screaming of profanity and the use of verbal abuse toward other workers in the ambulance while in the presence of a conscious patient is unacceptable behavior for a nurse. This is true because the patient is dependent upon the ambulance personnel for a sense of security and must be provided a calm, supportive environment. Physically removing the fellow worker from the ambulance is unacceptable behavior on the part of a nurse, in that a nurse should only use violence to protect or defend herself or himself. In this instance, in the face of Smith's opinion, and the facts presented at the hearing, Respondent is not found to have been entitled to physically eject Craig from the ambulance in some effort at self defense. There was some controversy among Craig, Roberts and the Respondent on the subject of who was in charge of the ambulance response team when they were dealing with the call pertaining to the injured worker. It is unclear exactly what the lines of authority were in this organization related to that subject. Nonetheless, based upon the remarks of the witness, Smith and her opinion of appropriate standards of acceptable and prevailing nursing practice, Respondent screamed obscenities at co-workers and physically forced Craig out of the ambulance, all conduct which is improper regardless of who might have been in charge of the ambulance in this setting. Respondent also inappropriately accosted Roberts when he grabbed her wrist and jerked her up. Notwithstanding any general hard feelings between the members of the crew, the above-described actions of the Respondent were not justified.
The Issue The issue is whether Petitioner properly reduced the rating of Respondent's nursing home from Standard to Conditional.
Findings Of Fact Respondent owns and operates a nursing home in Naples. Petitioner conducts periodic surveys of the nursing home to determine whether the licensee should receive a Superior, Standard, or Conditional license rating. Following a periodic survey, Petitioner determined that three Class II deficiencies existed. A Class II deficiency poses "an immediate threat to the health, safety or security of the residents." Consequently, effective May 13, 1998, Petitioner issued a Conditional license. Immediately preceding this license, Respondent had a Standard license. Effective July 13, 1998, Petitioner issued Respondent a Standard license. This case involves only whether Petitioner properly reduced Respondent's license to Conditional for the two-month period starting May 13, 1998. The survey that started May 13, 1998, extended over three days. There is no charging document in this case. There is a revised survey report, which contains 17 findings under four tags. In its opening statement, Petitioner announced that it was proceeding under three tags: F 224, F 225, and F 353. During the hearing, Petitioner announced that it would offer no evidence under findings 2, 3, and 4 of Tag F 224. Petitioner did not present evidence under findings 1, 2, and 4 of Tag F 225, and Petitioner did not present any evidence under Tag F 353 that was not also under another tag. The tags may refer to citations in a manual of Petitioner. Under each tag noted in the survey report, Petitioner cites the relevant legal provision, a summary of the reasons why the legal requirement is unmet, and detailed findings in numbered paragraphs. Next to each finding, Respondent includes a correction plan. Citing "[42 Code of Federal Regulations Section] 483.13(c)(1)(i)," Tag F 224 in the survey report states: The facility must develop and implement written policies and procedures that prohibit mistreatment, neglect, and abuse of residents and misappropriation of resident property. The facility must not use verbal, mental, sexual, or physical abuse, corporal punishment, or involuntary seclusion. Tag F 224 in the survey report alleges that "this requirement" is not met because "the facility did not ensure that each resident received the care and services to prevent neglect for 2 (Residents #1 and #3) of 21 sampled residents and 3 residents interviewed." Paragraph 1 of the findings under Tag F 224 in the survey report alleges that staff were not ambulating Resident Number 1; her care plan and records omitted the recommendation of the physical therapist that staff ambulate Resident Number 1 to meals; and staff failed to timely assist her in requested transfers and thus left her with no choice but to urinate in her bed or chair. Resident Number 1 had undergone surgery for a hip fracture and received physical therapy to improve her balance, transfers, and gait. The physical therapist had discharged Resident Number 1 on April 30, 1998, with instructions to the nursing staff to walk her from her room to the dining room for each of her meals. The physical therapist trained the nursing staff, who were Certified Nursing Assistants, regarding ways to help Resident Number 1 ambulate safely. On two days, a volunteer took Resident Number 1 in a wheelchair from an activity on the second floor to the first- floor dining room for lunch. However, volunteers did not attempt to ambulate residents who had difficulty walking. One or more Certified Nursing Assistants walked Resident Number 1 on the days in question the distance between her room and the dining room. On at least one of the observed days, the Certified Nursing Assistant walked Resident Number 1 from the dining room, where the volunteer had left her, to her room, and then back to the dining room for lunch. Petitioner's nurse surveyor testified that the issue in Tag F 224 is whether Respondent implemented its policies prohibiting the neglect of residents. There is no credible evidence that Respondent neglected Resident Number 1, or that the care provided by staff following her hip surgery in any way contributed to a decline in the health or ability to ambulate of Resident Number 1. To the contrary, although Resident Number 1 could never regain her ability to walk without assistance, she did increase the distance that she could walk with assistance in the six weeks following the survey. There is no evidence of a failure of staff to respond promptly to requests by Resident Number 1 for assistance in toileting. Petitioner has failed to prove that, as to Resident Number 1, Respondent failed to implement its policies prohibiting neglect. Paragraph 2 of the findings under Tag F 224 in the survey report alleges that Resident Number 3 was admitted on March 25, 1998, and was coughing up formula on March 26 at 1:00 a.m. During the afternoon of March 27, Resident Number 3 allegedly had a temperature of 100.8 degrees. The next day, the temperature was allegedly 100.7 degrees. On the afternoon of March 29, Resident Number 3 had a moist, productive cough and a temperature of 102 degrees. A nurse administered Tylenol. Seven hours later, that evening, Resident Number 3 had a temperature of 103.8 degrees, which, after another administration of Tylenol, dropped to 101.9 degrees one hour later and then 99.1 degrees, although he was having trouble breathing. At 1:00 a.m. on March 30, Resident Number 3 allegedly suffered from uneven breathing, at times labored, and, by 6 a.m., his temperature was 101 degrees. Paragraph 2 alleges that staff did not notify the physician of Resident Number 3 of these temperatures and symptoms until 3:00 p.m. on March 30, at which time the physician of Resident Number 3 arrived and examined Resident Number 3; a chest x-ray revealed pneumonia. The facts are as alleged, except that the physician visited Resident Number 3 on the morning of March 30. There is no credible evidence that Respondent's staff cared for Resident Number 3 improperly or should have contacted his physician at an earlier point than the morning of March 30. Petitioner has failed to prove that, as to Resident Number 3, Respondent failed to implement its policies prohibiting neglect. Citing "[42 Code of Federal Regulations Section] 483.13(c)(1)(ii)," Tag F 225 in the survey report states: The facility must not employ individuals who have been found guilty of abusing, neglecting, or mistreating residents by a court of law; or have had a finding entered into the State nurse aide registry concerning abuse, neglect, mistreatment of residents or misappropriation of their property; and [must] report any knowledge it has of actions by a court of law against an employee, which would indicate unfitness for service as a nurse aide or other facility staff to the State nurse aide registry of licensing authorities. The facility must ensure that all alleged violations involving mistreatment, neglect, or abuse, including injuries of unknown source and misappropriation of resident property[,] are reported immediately to the administrator of the facility and to other officials in accordance with State law through established procedures (including to the State survey and certification agency). The facility must have evidence that all alleged violations are thoroughly investigated, and must prevent further potential abuse while the investigation is in progress. The results of all investigations must be reported to the administrator or his designated representative and to other officials in accordance with State law (including to the State survey and certification agency) within 5 working days of the incident, and if the alleged violation is verified appropriate corrective action must be taken. Tag F 225 in the survey report alleges that "this requirement" is not met because the facility "did not thoroughly investigate injuries of unknown origin for 1 (Resident #14) of 21 residents sampled, 3 residents from group interview, 1 resident observed and 1 resident based on family interview." Paragraph 3 of the findings under Tag F 225 in the survey report alleges that the nurses' notes on Resident Number 14 revealed skin tears of unknown origin on November 17, 1997, and January 19, May 5, and May 10, 1998, and a bruised and swollen great and fourth toes of the right foot on February 11, 1998. The staff allegedly failed to investigate these incidents. Nurses' notes document four skin tears, as alleged, but not the bruised and swollen toes, to which Petitioner produced no admissible evidence. Respondent's policy is for anyone who sees an incident or injury to report it to a nurse, who documents the report, and forwards the information to the Director of Nursing, who is a Registered Nurse. The Director of Nursing investigates the matter and reports her findings to Respondent's Executive Director. The Director of Nursing investigated each incident of a tear of the skin of Resident Number 14. She determined that Resident Number 14 had fragile skin, and her wheelchair sometimes injured her feet. She reasonably concluded each time that there was no indication of abuse or neglect. Petitioner has failed to prove that Respondent did not investigate possible incidents of abuse or neglect concerning Resident Number 14. Citing "[42 Code of Federal Regulations Section] 483.30(a)(1) and (2)," Tag F 353 in the survey report states: The facility must have sufficient nursing staff to provide nursing and related services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care. The facility must provide services by sufficient numbers of each of the following types of personnel on a 24-hour basis to provide nursing care to all residents in accordance with resident care plans: Except when waived under paragraph (c) of this section, licensed nurses; and other nursing personnel. Except when waived under paragraph (c) of this section, the facility must designate a licensed nurse to serve as a charge nurse on each tour of duty. Tag F 353 alleges that "this requirement" is not met because the facility did not provide sufficient nursing staff to meet the needs of the residents. There are three paragraphs of findings under Tag F 353 in the survey report. None identifies a resident by number. Paragraph 1 states that family members witnessed two Certified Nursing Assistants, and presumably no one else, serving 33 residents, whose unmet needs resulted in urination in incontinence for some. Paragraph 1 states that several residents complained that staff do not timely answer call lights due to short-staffing. Paragraph 2 alleges that one resident complained that staff replied to his requests for assistance in getting out of bed by saying that they would "do it when they have the time" and that they "can't be bothered." Paragraph 2 alleges that one resident was not ambulated three times daily to her meal. Paragraph 3 alleges that several residents complained of untimely assistance resulting in incontinence and "rough handling" due to untrained or insufficient staff. At all times, Respondent maintained the minimum required staff at the facility. If this tag is merely a reallegation of the ambulatory issue regarding Resident Number 1, Petitioner has failed to prove a deficiency in her care. If Petitioner intended to raise other issues with this tag, there is no evidence in support of such allegations. Petitioner has failed to prove that Respondent failed to maintain sufficient nursing or other staff.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration reissue the subject license as Standard. DONE AND ENTERED this 6th day of April, 1999, in Tallahassee, Leon County, Florida. ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of April, 1999. COPIES FURNISHED: Karel Baarslag, Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33901-0127 R. David Thomas, Jr. Qualified Representative Broad and Cassel Post Office Drawer 11300 Tallahassee, Florida 32302-1300 Ruben J. King-Shaw, Jr., Director Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Paul J. Martin, General Counsel Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229 Sam Power, Agency Clerk Agency for Health Care Administration Post Office Box 14229 Tallahassee, Florida 32317-4229
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was employed by the City of North Port Fire Department, City of North Port, Florida as a paramedic and journeyman with certification as both a Firefighter and an Emergency Medical Technician from the state of Florida. The Division's Bureau of Fire Standards and Training is the state agency in the state of Florida responsible for the management and certification of firefighters in the state of Florida, and is charged under Section 633.382, Florida Statutes, with the responsibility of determining the eligibility of firefighters who are to receive supplemental compensation under the Firefighters Supplemental Compensation Program (Program). On July 25, 1991, Petitioner applied to Respondent for supplemental compensation at the bachelor's degree level of the Program. On August 6, 1991 and again on August 14, 1991 the Division advised the Petitioner by letter that his application for supplemental compensation under the Program had been denied because he did not possess either a bachelor's or an associate's degree that contained a major study concentration area which was readily identifiable and applicable as a fire-related degree. The record is unclear as to why the August 14, 1991 letter was mailed by the Division. On June 2, 1979, the Petitioner received a Bachelor of Arts degree from Cedarville College, Cedarville, Ohio (Cedarville) with a major study concentration area in psychology/behavioral science. During the period that Petitioner attended Cedarville, it did not offer courses in fire science. Petitioner attended Edison Community College (Edison), Fort Myers, Florida during 1980-1982 but did not receive an associate degree from Edison. Petitioner attended Manatee Community College, Bradenton, Florida beginning September 1988 and is currently enrolled at Manatee. Petitioner has not received an associate degree from Manatee. The transcripts from both Manatee and Edison show that Petitioner has taken some course work in fire-related subjects. However, these courses were not part of his study for the bachelor's degree and Petitioner has not earned an associate degree from either Manatee or Edison. Petitioner has had no other degree, bachelor or associate, conferred other than the bachelor's degree conferred by Cederville. Petitioner is not a fire officer. Petitioner's job does not require that he possess any supervisory skills, nor does it require him to engage in debriefing of fellow employees. He takes instruction from a fire officer. Petitioner has taken classes which would help further his chances of becoming a fire officer. These classes do not offer college credits, and Petitioner did not attend those classes as part of the course-work required to earn his Bachelor's degree. Rather, these classes constitute an in-service training program. Petitioner is not employed by his fire department as a psychologist or as a counselor. To the extent that his job requires him to utilize basic psychological principles, it is because he chooses to use those principles in that facet of his life, and not because his job requires an expertise in psychology. Likewise, Petitioner's testimony that his degree helps him in his verbal skills fails to tie that degree uniquely to his position as a paramedic. Petitioner's job description as a paramedic and his explanation of the mostly physical activities which accompany that job does not correlate with his degree. Petitioner's transcript for his bachelor's degree does not reveal a sufficient number of course hours which are readily identifiable and applicable as fire-related. Although the transcript does reveal the titles of the courses taken by Petitioner in earning his bachelor's degree, it is not accompanied by any catalogue from the university which explains the contents of any of the courses taken by him. Accordingly, none of the courses taken by the Petitioner are readily identifiable and applicable as fire-related. Petitioner's job description does not require that he render assistance to persons in crisis.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is recommended that a Final Order be entered denying Petitioner's application for supplemental compensation pursuant to the Firefighters Supplemental Compensation Program. RECOMMENDED this 9th day of January, 1992, in Tallahassee, Florida. WILLIAM R. CAVE 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 9th day of January, 1992. APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5982 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 in the case. Rulings on Proposed Finding of Fact Submitted by the Petitioner 1. Petitioner did not submit any proposed findings of fact and conclusions of law. Rulings on Proposed Findings of Fact Submitted by the Respondent 1.-2. Adopted in substance as modified in Findings of Fact 1 and 2, respectively. 3. Adopted in substance as modified in Findings of Fact 3 and 4. 4.-5. Rejected as either being irrelevant to the issue involved herein or unnecessary for determination of the issue herein, but see Finding of Fact 9. Rejected as either being unnecessary to the issue herein or as a recitation of the testimony. Adopted in substance as modified in Findings of Fact 6 and 7. 8.-10. Adopted in substance as modified in Findings of Fact 10, 11 and 12, respectively. 11.-12. Adopted in substance as modified in Findings of Fact 12 and 14, respectively. COPIES FURNISHED: Dean L. Scott 18178 Petoskey Circle Port Charlotte, FL 33948 Andrew Kenneth Levine, Esquire Division of Legal Services 412 Larson Building Tallahassee, FL 32399-0300 Tom Gallagher, State Treasurer and Insurance Commissioner The Capitol, Plaza Level Tallahassee, FL 32399-0300 Bill O'Neil, Deputy General Counsel Department of Legal Affairs The Capitol, Plaza Level Tallahassee, FL 32399-0300
The Issue The issue is whether Respondent committed an unlawful employment practice by denying Petitioner a promotion.
Findings Of Fact Petitioner is an African-American female. From 1990 through October 1996, she worked in Respondent's Child Welfare Legal Service (CWLS) office as an administrative secretary. The CWLS office handles a heavy volume of child dependency cases in the juvenile courts of several counties. The cases require the filing of certain pleadings in a timely manner. Failure to comply with the filing deadlines could result in the return of a child to an abusive or neglectful home environment. At all times material to this proceeding, the CWLS office consisted of one managing attorney, two staff attorneys, one administrative secretary, and two paralegal specialists. During Petitioner's employment, another African-American female, Martha Johnson, occupied one of the paralegal specialist positions. Ms. Johnson performed her responsibilities to the complete satisfaction of her supervisor who was also the managing attorney, Martha Berrera. The CWLS office required paralegal specialists, such as Ms. Johnson, to go to formal and informal court hearings with the attorneys. After the hearings, the paralegal specialists had to use their notes and the attorneys' notes to draft pleadings. They would also draft proposed orders for the courts. Sometimes the attorneys were in court three or four days a week. On those occasions, the paralegal specialists had to perform their duties with a minimum of supervision. In August 1994, one of the paralegal specialist positions in the CWLS office became vacant. Ms. Barrera developed a set of objective criteria to review applications for the vacancy prior to receiving them. Ms. Berrera based the review criteria on the knowledge, skills and abilities (KSA) required for the position. Ms. Berrera considered KSAs in the following areas to be especially important: actual paralegal experience, maintaining the dockets, preparing cases, gathering information, drafting orders and pleadings for court, and assisting attorneys in other case-related functions. Petitioner and a white male, Charles Atwell, applied for the vacant position along with 39 other applicants. Ms. Barrera reviewed all of the applications. She had every reason to expect that Mr. Atwell would perform well as a paralegal specialist. He had prior experience working as a temporary paralegal for a blind attorney at another state agency. Petitioner did not have prior experience working as a paralegal. She knew how to type pleadings and orders that the attorneys dictated. However, she was unable to draft these documents. Petitioner did not understand the distinctions in certain pleadings. Even though she had worked in the office since 1990, Petitioner did not understand the legal terminology used in court, i.e. review hearings, emergency hearings, and disposition hearings. The CWLS attorneys attempted to instruct Petitioner on how to prepare for these hearings without success. As an administrative secretary, Petitioner was in charge of filing. She let the filing pile up; consequently, attorneys had to search for documents to complete a file immediately before a court appearance. This was a considerable burden in an office that handled between 20 and 30 hearings per week. Petitioner never understood the meaning of "CC:" at the bottom of a letter. Ms. Berrera had to write notes telling Petitioner the names of people to receive copies. The CWLS attorneys attempted to teach Petitioner to prioritize her work. Petitioner followed their instructions for two weeks then reverted to her former less-efficient methods of organizing her work. The CWLS attorneys could not depend on her to help them meet certain case-related deadlines. Petitioner was not sufficiently motivated to learn a new job. She rebuffed the CWLS attorneys when they attempted to teach her how to perform the tasks of a paralegal. She complained that such tasks were not in her job description. In addition to the job-related problems referenced above, Petitioner spent as much as 20 percent of her time talking to her family on the telephone. At times she made lengthy chains out of paper clips. Ms. Barrera decided to hire Mr. Atwell. Petitioner received a letter dated August 18, 1994, informing her that she would not be hired for the position. Shortly after Mr. Atwell began working in the CWLS office, Ms. Barrera realized that his job performance did not meet the standards of the office. Ms. Barrera promptly fired Mr. Atwell. In September 1994, Petitioner requested training that would qualify her to become a paralegal specialist. Ms. Berrera responded that she would approve any training that the state provided. Ms. Berrera referred Petitioner to the personnel office for additional information regarding the training. There is no evidence that any paralegal training was available. The paralegal specialist position became available for the second time in March 1995. The following individuals were among the applicants: (a) Petitioner; (b) Brenda Parrish, a white female; and (c) Samuel Long, an African-American male. Ms. Berrera was a member of the committee that interviewed applicants in 1995. The committee initially offered the job to Mr. Long because of his experience as a temporary paralegal specialist in the CWLS office. Mr. Long declined the offer because he accepted other employment with a higher wage. The committee subsequently offered the paralegal specialist position to Ms. Parrish. Unlike Mr. Atwell, Ms. Parrish subsequently performed her duties very well. Petitioner was not qualified for the paralegal specialist position in March 1995. Moreover, she had not improved in her performance as an administrative secretary. The committee had no reason to believe that Petitioner would have been any more successful as a paralegal specialist. Ms. Berrera is a Cuban-American. She was born in Cuba and immigrated to the United States in 1961. She has multi- racial relatives. She did not harbor racial prejudice towards Petitioner or any of her minority subordinates. Ms. Berrera could be a difficult supervisor at times. Often she yelled at the personnel in the CWLS office. However, she never showed favoritism based on race. She yelled with equal intensity and fervor at males and females, whites and African- Americans. There is no evidence that Respondent discriminated against Petitioner based on her race by refusing to hire her as a paralegal specialist in August 1994 or March 1995.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. DONE AND ENTERED this 24th day of April, 1998, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 24th day of April, 1998. COPIES FURNISHED: John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street, Suite 252-A Tallahassee, Florida 32399-2949 Marc Taps, Esquire Legal Services for North Florida, Inc. 2119 Delta Boulevard Tallahassee, Florida 32303 Dana Baird, General Counsel Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Sharon Moultry, Clerk Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
