The Issue The issues are whether Respondent is guilty of caring for a resident beyond the scope of Respondent's license and whether Respondent failed to ensure that an employee timely obtained a tuberculosis test.
Findings Of Fact Respondent owns and operates a licensed assisted living facility (ALF) known as Harborview Acres in Port Charlotte. Respondent's ALF license does not include an extended congregate care license or a limited nursing service license--both of which authorize an ALF to provide additional services to its residents. Petitioner conducted an biennial survey of Respondent's facility on August 24, 1998. As a result of findings made during the survey, Petitioner cited Respondent for two deficiencies that are at issue in this case. The first cited deficiency is Tag A 006, which asserts that Respondent's license does not authorize the type of care that it was providing to one resident, who is identified as Resident 3. Petitioner's surveyors saw one meal during which Resident 3 refused to feed herself. She ate while a staffperson helped her eat, but, as soon as the staffperson walked away, Resident 3 began to spill food onto herself. Resident 3 was confined to a wheelchair and required assistance in transfers from and to her wheelchair. She required assistance in various activities of daily living, such as dressing herself, combing her hair, and bathing. However, unknown to the surveyor and staff, Resident 3 was ill with a urinary tract infection. A few days previously, she had been walking with a walker, but otherwise without assistance, and had been feeding herself. The record does not permit a finding that the condition of Resident 3 was such as to require services beyond the scope of Respondent's license. During the survey, one surveyor reviewed staff files and found that the documentation for Staff 3, who had been hired on July 12, 1996, revealed no tuberculosis test since August 17, 1997. Zia Butt, the administrator, admitted that the employee's test was overdue. As Ms. Butt explained, the employee had gone to the County Public Health Office for a tuberculosis test, but the office had been unable to conduct the test and told her to return in a week. Petitioner properly classified this deficiency as a Class III deficiency. The failure of a caregiver to obtain annual tuberculosis tests indirectly or potentially threatens the physical or emotional health, safety, or security of the residents of the facility. The surveyor gave Respondent until September 21, 1998, for Staff 3 to obtain a tuberculosis test. The record does not establish that Respondent failed to correct this deficiency within the time permitted. Likewise, the record does not establish the factual basis for the allegation that this is a repeated offense.
Recommendation It is RECOMMENDED that the Agency for Health Care Administration dismiss the Administrative Complaint against Respondent. DONE AND ENTERED this 4th day of June, 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 4th day of June, 1999. COPIES FURNISHED: Karel L. Baarslag Senior Attorney Agency for Health Care Administration Post Office Box 60127 Fort Myers, Florida 33906-0127 Zia Butt Administrator Harborview Acres, Inc. 4950 Pocatella Drive North Port, Florida 34287 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
Findings Of Fact Petitioner was employed by Respondent as a cabinet maker from September 20, 1982 until May 11, 1984. He has had epilepsy for twenty years, and disclosed this on his application for employment. There is no dispute that Respondent was aware of Petitioner's epilepsy while he was their employee. Respondent is a corporation engaged in the manufacture of mobile homes. In early 1984 Petitioner began having problems with his medication, and several adjustments in dosage and types of medication were made by his physician. As a result of these adjustments, Petitioner had reactions which included dizziness, drowsiness and extreme irritability. He experienced great difficulty getting up in the morning and began being tardy for work. He had not had a tardiness problem previously, and had been a good worker. On March 16, 1984 Petitioner received a written reprimand for tardiness which indicates he was tardy seven times in ten weeks. Shortly thereafter, Petitioner brought his supervisor a note from his doctor which confirms that he was having trouble adjusting to his medication. It is Respondent's policy to counsel and reprimand, if necessary, employees who are repeatedly tardy. Respondent agreed to allow Petitioner to take extra breaks and have time to relax when needed while his medication problems were being resolved. In fact, from March 16, 1984 until May 8, 1984 Petitioner took extra breaks and rest periods during which he used the telephone and drank soft drinks. As a result, other employees had to help him get his daily work done on time. His tardiness also continued after March 16, 1984. On May 8, 1984 Petitioner was called into his supervisor's office and presented with another written reprimand, which he refused to sign. The reprimand was for not working up to his ability, slowing down in productivity, moving slowly on the job and not "working smart." By "working smart" his supervisor meant organizing his work and his work area to allow him to work on more than one cabinet at a time. It was the normal procedure for cabinet makers to assemble up to five cabinets at one time, but Petitioner was not able to do this routinely and, as a result, his productivity was lower than expected. Respondent had no intention of suspending or terminating Petitioner. Petitioner became agitated in the May 8, 1984 meeting with his supervisor, refused to sign the reprimand, and walked out saying, "Well, terminate me." He then got his hand tools from his work area, punched out, and left the plant. About two hours later, Petitioner called Respondent's general manager and asked to be allowed to come back to work. Petitioner was told that the situation would be looked into, and when Petitioner called back on May 11, 1984 he was informed by Respondent's general manager that he would not be allowed to return to work since his investigation had shown that Petitioner had punched out without informing his supervisor or seeking his permission, and further because of the agitated manner in which he had dealt with his supervisor on May 8. There is no evidence that Respondent has allowed other employees, who left the plant without permission after becoming agitated with their supervisor, to return to work. The evidence establishes that Petitioner was given special considerations due to his medical condition and the Respondent attempted to work with Petitioner for almost two months by making special allowances for extra breaks, phone calls and rest periods. Petitioner's work production was less than could reasonably be expected, and others had to help him get his work done on time. Petitioner was not allowed to return to work due solely to his actions on May 8, 1984, and not because of his epilepsy or medical problems related thereto.
Recommendation Based upon the foregoing, it is recommended that a Final Order be issued dismissing Petitioner's charge of discrimination against Respondent. DONE AND ENTERED this 5th day of December 1986 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of December, 1986. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 86-3011 Rulings on Petitioner's Proposed Findings of Fact: 1-2 Adopted in Finding of Fact 1. 3-4 Rejected as irrelevant and unnecessary. 5-7 Adopted in Finding of Fact 1. 8-13 Adopted in part in Finding of Fact 2, but otherwise rejected as unnecessary and cumulative. 14 Adopted in Finding of Fact 3. 15-17 Adopted in part in Finding of Fact 4, but otherwise rejected as irrelevant and unnecessary. 18-19 Adopted in Finding of Fact 5. Rejected as irrelevant and unnecessary. Adopted in Finding of Fact 4. 22-23 Adopted in Finding of Fact 6. Adopted in Finding of Fact 2. Adopted in Finding of Fact 7. Adopted and rejected in part in Finding of Fact 7. Adopted in Finding of Fact 7. Rejected in Finding of Fact 8. Rulings on Respondent's Proposed Findings of Fact: 1-4 Adopted in Finding of Fact 1. 5-7 Rejected as irrelevant and unnecessary. 8-9 Adopted in Finding of Fact 1. 10-12 Rejected as irrelevant and unnecessary. 13-14 Adopted in Finding of Fact 2. 15-17 Adopted in Finding of Fact 3. 18-19 Adopted in Finding of Fact 3,4,9. Adopted in Finding of Fact 4. Rejected as irrelevant and unnecessary. 22-23 Adopted in Finding of Fact 4,5,9. Rejected as unnecessary and cumculative. Adopted in Finding of Fact 5. 26-27 Adopted in Finding of Fact 4,9. 28-29 Rejected as irrelevant and unnecessary. 30-31 Adopted in Finding of Fact 5. 32 Rejected as irrelevant and unnecessary. 33-35 Adopted in Finding of Fact 6. 36-41 Adopted in part in Finding of Fact 7, but otherwise rejected as unnecessary and cumculative. 42-51 Adopted in part in Finding of Fact 8, but otherwise rejected as unnecessary and cumculative. 52-54 Adopted in Finding of Fact 7,9,10. 55-57 Adopted in Finding of Fact 8. 58 Adopted in Finding of Fact 10. COPIES FURNISHED: Howard L. Dimming, II, Esquire 1849 North Crystal Lake Drive Lakeland, FL 33801 Mark E. Edwards, Esquire 600 Peachtree at the Circle Building 1275 Peachtree Street, NE Atlanta, Ga 30309 Donald A. Griffin Executive Director 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Dana Baird, Esquire General Counsel 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303 Betsy Howard, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303
Findings Of Fact Respondent's adult congregate living facility (ACLF) has been licensed since 1989. Respondent was organized by 10 families with chronically mentally ill persons who needed placement. The ACLF provides personalized care to each of its residents. On April 9 and 16 and May 2, 1990, Petitioner conducted a periodic survey of Respondent's ACLF. The resident population at the time was 10 persons. The survey notes the following deficiencies relevant to this proceeding: the personnel files of staffmembers contained no evidence that the staff were free of communicable diseases, which is a Class III violation of Rule 10A-5.019(5)(a)1, (b), (c), (e), (f), and (g) if not corrected by May 30, 1990; therapeutic menus had not been prepared and served as ordered by physicians and no menu patterns were on file, which is a Class III violation of Rule 10A- 5.020(1)(e) if not corrected by June 10, 1990; each resident had not been examined by a physician or licensed nurse practitioner within 60 days before admission, or within 30 days after admission, because one assessment was undated, one resident was admitted January 20, 1990, and still had no assessment, and one resident was admitted August 21, 1989, and had an assessment dated May 26, 1989, which is a Class III violation of Rule 10A-5.01818(1) if not corrected by June 15, 1990; certain residents lacked a health assessment showing the suitability of the ACLF placement because one assessment was undated, an assessment dated August 19, 1989, failed to show if the resident could walk, and eight of ten files failed to document if the residents required help from staff to evacuate the building in the event of emergency, which is a Class III violation of Rule 10A-5.0181(2)(a)1., 2., 3., 4., a., b., c., d., e., and f. if not corrected by June 2, 1990; and the resident's medical records failed to justify the admission and continued residence in the ACLF, which is a Class III violation of Rules 10A-5.0181(3)(a)1.a., b.c., d., e., ., and h.(I), (II), i(I)(II), j. and 10A-5.022(1)m. if not corrected by June 2, 1990. By receipt signed May 23, 1990, Peter Lee indicated that he had received a copy of the survey. On July 17, 1990, Petitioner conducted a resurvey of Respondent's ACLF to see if the deficiencies had been eliminated. The resurvey states that three staffmembers had provided no evidence that they were free of communicable diseases; the deficiencies regarding the therapeutic diets had not been eliminated because a recent order for one resident changed his diet but his menu had not been adjusted and another diet order "had been changed" and required clarification; the health assessment were still missing for the resident admitted August 27, 1989, and the assessment was still undated for the resident admitted January 20, 1990; and the medical records continued to fail to justify the admission and continued residency because a contract remained undated, the health assessment for a resident admitted on August 19, 1989, had not been corrected, and three of ten assessments still failed to indicate if the resident was able to evacuate himself. Another follow-up survey was completed by November 5, 1990. This survey reflects that the noted violations had been corrected. The three communicable diseases statements had been sent to Petitioner on August 2, 1990. The alleged violation involving therapeutic diets was eliminated on October 8, 1990, when Respondent supplied Petitioner information that all the diets were changed to regular diets. The alleged violations involving physical examinations and assessments, as well as medical justification for admission and continued residency, were eliminated on October 8, 1990, when Respondent submitted the necessary documents to Petitioner.
The Issue Did Respondent discriminate against Petitioner because of his alleged handicap of dyslexia?
Findings Of Fact Bruce A. Kress is a white male approximately 33 years of age. Wenco, Inc., is a Florida corporation operating several Wendy's fast food restaurants in Panama City, Florida. Petitioner was employed by Wenco, Inc., for several months during 1992, as a member of the restaurant staff or "crew." He voluntarily quit his job in or around October 1992. In December 1992, Petitioner spoke with Danny Strickland of Wenco, Inc., about becoming a manager trainee. In January of 1993, Petitioner was hired in their training store as a manager trainee. A manager trainee is assigned to perform all the duties in a crew to learn the procedures for running a store. Phillip Cady was the manager of the training store where Petitioner was employed as a manager trainee. When hired, Petitioner filled out an application and medical history statement or questionnaire. Neither the medical questionnaire nor application reveal Petitioner's alleged disability. Petitioner's supervisor denies knowledge of Petitioner's alleged disability. Petitioner's evidence in support of his alleged disability is a letter from David H. Winkle to Mrs. Allen Corless, Petitioner's parent or guardian, stating that Petitioner was obtaining educational help in a federally funded program. Neither the letter nor its attachment state a diagnosis, assuming the hearsay nature of the letter is overlooked. Phillip Cady testified. He was Petitioner's immediate supervisor while Petitioner was a manager trainee. Cady had cautioned Petitioner that he would have to rigidly adhere to the procedural manual for operating the store. Cady warned Petitioner that if Petitioner didn't follow the procedural manual that Petitioner would be terminated. After warning, Petitioner was discharged by Cady when Petitioner did not scoop ice into drink cups with the ice scoop and when Petitioner removed fries from the cooker before they were fully cooked. Petitioner introduced no evidence to show the reason offered by Respondent for discharging him was pretextual or discriminatory.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the agency find that Respondent did not discriminate against Petitioner. DONE AND ENTERED this 28th day of February, 1994, in Tallahassee, Florida. STEPHEN F. DEAN, 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 28th day of February, 1994. APPENDIX TO RECOMMENDED ORDER CASE NO. 93-3310 On February 3, 1994 Respondent filed a post hearing brief. The following states which of the findings proposed by Respondent were adopted, and which were rejected and why: 1-2 Irrelevant. 3-4 Adopted. 5 Irrelevant COPIES FURNISHED: Bruce A. Kress 2601 West 19th Street Panama City, Florida 32405 Danny R. Strickland Wenco of Panama City 2110 West 23rd Street Suite C Panama City, FL 32405 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
The Issue Whether Respondent committed the unlawful employment practice alleged in the Charge of Discrimination filed with the Florida Commission on Human Relations ("FCHR"), and if so, what relief should Petitioner be granted.
Findings Of Fact Respondent is a hospital located in Fort Lauderdale, Florida. Petitioner was employed by Respondent as a registered dietician in the Nutrition Services Department from February 1991 until her termination on October 24, 2011. Petitioner was 50 years old when she was hired by Respondent. In January 1999, Mindy McClure (age 61 as of the date of the hearing) was hired by Respondent as the assistant director of Nutritional Services. From January 1999 until October 24, 2011, Ms. McClure supervised Petitioner. As a registered dietician, Petitioner's job duties required her to: (1) evaluate and assess hospital patients' nutritional needs; (2) formulate nutrition care plans according to nutritional assessments and standards of care; (3) assess the effects of nutrition intervention; (4) educate and counsel patients requiring nutrition intervention; (5) evaluate services and care provided to identify opportunities for improvement; and (6) communicate pertinent information to appropriate individuals. Petitioner's job performance was satisfactory during much of her employment with Respondent. However, in early 2011, Petitioner's job performance significantly deteriorated. Each patient's nutritional assessment is communicated to Respondent's health care team, which includes other dieticians, via the patient's chart. Providing complete and accurate information in a patient's chart and following a doctor's order is critical to the duties of a dietician and to formulating a proper nutritional care plan for the patient. On June 30, 2011, Petitioner received a Notice of Disciplinary Action in the form of an oral warning for failing to meet her job standards. This warning was given to Petitioner because she failed to provide complete information in a patient chart, and she failed to order any recommended tube feedings pursuant to a doctor's order. Petitioner was directed to complete assessments and make recommendations according to established protocols and procedures so that any dietician can easily discern a patient's needs. Petitioner was also warned that failure to do so will result in continued disciplinary action. On July 17, 2011, Petitioner received her annual performance evaluation. She received an overall rating of "Partially Meets Standards." Accordingly, Petitioner was placed on a three-month work improvement plan from July 25, 2011, to October 24, 2011. The improvement plan required Petitioner to improve her: (1) organizational skills; (2) timeliness when starting her shift; (3) promptness in clocking in and out of her shift; (4) tracking and communication with patients and patient information; and (5) computer skills. Petitioner was also required to keep a notebook where she maintained patient information. Petitioner and Ms. McClure met on a weekly or bi- weekly basis to monitor Petitioner's progress and ensure she was documenting patient information correctly. On August 2, 2011, Petitioner received a written warning because she lost patient information, specifically a tube feeding card and calorie count sheet. On August 24, 2011, Petitioner received a final written warning because she failed to monitor her e-mail messages and had continued inaccuracies in her patient charting. Because Petitioner's job performance did not significantly improve after she was given the work improvement plan, her employment with Respondent was terminated on October 24, 2011. Ms. McClure made the decision to terminate Petitioner. Dawn Outcalt, Respondent's executive director of Nutritional Services, and Rachel Thompson, Respondent's associate relations coordinator, also participated in the decision. Respondent has policies and procedures in place regarding complaints of discrimination. At no time prior to her termination did Petitioner complain to Respondent that she was discriminated against because of her age. Following Petitioner's termination, Respondent did not replace Petitioner.1/ The parties stipulated that: "Petitioner is not presently capable of recalling the events surrounding her termination from employment with Respondent nor providing testimony in this proceeding." The persuasive and credible evidence adduced at hearing demonstrates that Petitioner was terminated for legitimate, non- discriminatory reasons having nothing to do with her age. Petitioner's charge of age discrimination is based on speculation and conjecture, and Petitioner failed to prove that she was terminated because of her age.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 29th day of June, 2015, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 29th day of June, 2015.
