Findings Of Fact Petitioner, Harold Mayo, was employed by Respondent in March, 1987, through December 1, 1987. He has difficulty in controlling his emotions. He experiences rapid changes in mood. He has been diagnosed as suffering from a variety of mental disorders all of which have depression and rapid mood changes as part of their symptomatology. He often feels threatened by stressful situations, and sometimes responds to such situations by losing control of himself and crying as well as sometimes withdrawing from human contact. The Respondent, Advocacy Center for Persons With Disabilities, Inc., ("Center") is a private, non-profit organization which receives federal funds in order to provide advocacy for persons with disabilities. The Center has existed in its present, private status since October 1, 1988. Prior to October 1, 1988, the Center was a public agency within the Governor's office known as the Governor's Commission on Advocacy for Persons With Disabilities ("Commission"). The Commission was established in 1977, by executive order of the Governor. Since its creation, the Executive Director of the Commission (now the Center) has been Mr. Jon Rossman. Mr. Rossman is an attorney. Prior to becoming Executive Director of the Commission, Mr. Rossman worked as a staff attorney for the Association of Retarded Persons. The Center provides legal assistance to handicapped individuals, to ensure that they receive appropriate treatment and services by agencies designed to serve them. Specifically, the Center provides representation and advocacy under three programs: one program is designed to represent individuals with certain developmental disabilities defined by Congress. A second program is designed to represent individuals who are recipients of, or applicants for, vocational rehabilitation services from the state. A third program, the Mental Illness Protection and Advocacy ("MIP&A") program, is constituted to provide representation for mentally ill persons. The Center employs between 20 and 30 individuals. Each of the three programs administered by the Center is headed by a program director. The Center employs approximately six or seven attorneys, and several non-lawyer client "advocates." These jobs are supported by secretarial and clerical staff. Mr. Mayo had previously identified himself to Mr. Rossman as a former mental patient at a mental hospital, and therefore, as a "consumer" of mental health services. Mr. Mayo had indicated that he was interested in employment with the Center and in March 1987, Mr. Rossman offered employment in an OPS position to Mr. Mayo at the Commission. Prior to his employment Mr. Mayo had sought the Commission's assistance in dealing with the Division of Vocational Rehabilitation of HRS. At the time Mr. Rossman offered employment to Mr. Mayo, Mr. Rossman was aware that the Division of Vocational Rehabilitation had determined that Mr. Mayo was "not employable." Nevertheless, aware of this determination and of Mr. Mayo's status as a mental health consumer, Mr. Rossman offered Mr. Mayo employment and created an OPS position for him at the Commission. Mr. Mayo began his OPS employment with the Center on March 30, 1987. Mr. Rossman employed Mr. Mayo to assist the Center on two specific projects: a. to review applications which had been received by the Center for membership on an advisory committee; and b. to assist in organizing a conference to be sponsored by the Florida Mental Health Advocates Network. He was not hired to be a client-advocate and his OPS position did not include those duties. Mr. Mayo was assigned a space in a library/conference room in which to work. Mr. Mayo was only required to work as long as he felt able and comfortable in so doing; and was allowed to leave the office any time he felt threatened, to go home if he wanted, to talk to other employees and Mr. Rossman, to go outside and walk around in the parking lot, and to take breaks as he felt necessary when he experienced stress. He would sometimes lie on the floor and cry prior to getting back to work. There were times when Mr. Mayo took days off after experiencing a particularly emotional workday. Mr. Rossman spent entire days and afternoons talking things out with Mr. Mayo, walking around the office complex, and discussing his employment with him. These sessions occurred both in Mr. Rossman's office and in Mr. Mayo's. In short Mr. Rossman and other Center employees made a genuine, wholehearted effort to work with Mr. Mayo and went out of their way to accommodate him. There was absolutely no intent to unlawfully discriminate against Respondent due to his mental illness. In fact, the opposite was shown by the evidence. Mr. Rossman had a genuine desire that Respondent succeed as an employee. On two separate occasions, Mr. Rossman called Mr. Mayo's wife, concerned due to Mr. Mayo's depression and behavior, and expressed his concern and worry about Mr. Mayo's welfare to Mr. Mayo's wife. The contact on Mr. Rossman's part was a simple gesture of human concern for not only an employee but for a person who Mr. Rossman was very interested in his well-being. Instead Mr. Mayo took great umbrage at Mr. Rossman contacting his wife. He assumed that such contact was an affront to him and was treating him as if he could not take care of himself. On more than one occasion, Mr. Mayo tendered his resignation to Mr. Rossman. Mr. Rossman refused to accept the resignations. On several occasions, Mr. Rossman asked Mr. Mayo if Mr. Mayo would mind Mr. Rossman's speaking to Mr. Mayo's psychiatrist, in an effort to get his psychiatrist's opinions and suggestions on what Mr. Rossman could do to make Mr. Mayo's employment experience successful. On these occasions, Mr. Mayo responded that he was insulted by the request, and did not wish Mr. Rossman to contact his psychiatrist. Again, Mr. Mayo's over- sensitivity to attempts to gain insight into his handicap interfered with his ability to perceive the true intent of his employer in making such a request. Mr. Rossman did not contact Respondent' s psychiatrist. 1/ During his employment, Mr. Mayo frequently overstepped his bounds and overstated his position. This included contacting and writing letters to various persons and agencies, writing letters to the editor of publications, contacting "Nightline," and commenting on news articles, either on Commission letterhead or while identifying himself as an employee of the Commission. Mr. Mayo spent Commission time engaged in advocacy of his personal views which was not within the duties of the OPS position for which he had been hired. In April 1987, Mr. Mayo advised Mr. Rossman of his desire to be the Director of the MIP&A program, and further advised Mr. Rossman of his view that it was very important that the Director's position "should be occupied by a consumer, client or survivor." Mr. Rossman began to consider another individual, Kathleen Regan, for the position of Director of the MIP&A program.2/ Mr. Rossman sought Mr. Mayo's views on the matter. Mr. Mayo expressed his opinion that he thought Ms. Regan was incompetent for the position since she was a mental health professional and a middle management employee at HRS, rather than a consumer. Mr. Mayo told Mr. Rossman of a series of concerns he had should there be "such an incompetent source" running the program. He predicted, "it would all be downhill from now on." Ms. Regan was hired as the MIP&A Program Director effective August 1, 1987. As MIP&A Program Director, Ms. Regan would be Mr. Mayo's direct supervisor. At the time, Ms. Regan began, Mr. Rossman communicated to Ms. Regan that he strongly desired to see Mr. Mayo succeed in his employment at the Commission. He asked for her assurance that she would cooperate in that effort. She gave such an assurance. As the first director of the MIP&A program, Ms. Regan was responsible for developing program priorities, and developing a structure for the MIP&A program. Ms. Regan found that she had a number of people who had input into the development of such priorities and structure, including the Commission's Board of Directors, the Executive Director, the 24 members of the advisory committee, and Mr. Mayo. Ms. Regan attempted to integrate all that input into decisions on the direction and structure of the program. Ms. Regan found it difficult to integrate Mr. Mayo's own strong personal convictions about priorities and structure, but attempted to do so. Mr. Mayo and Ms. Regan had an extremely difficult time in their working relationship. As an example of the problems between Mr. Mayo and Ms. Regan, after it was agreed that they would meet for one-half hour, twice each week, to discuss Mr. Mayo's work, Mr. Mayo submitted a nine-item agenda for the first meeting. Ms. Regan, feeling that one-half hour was insufficient time to discuss so many items, asked Mr. Mayo if he would select two of the items for discussion. Mr. Mayo refused. The following day, Mr. Mayo again attempted to address the entire agenda, refused to select two items for discussion, and told Ms. Regan that he would not "play by her rules." These and subsequent meetings deteriorated,3/ and communications between Mr. Mayo and Ms. Regan broke down. Mr. Mayo told Ms. Regan that he did not consider her to be an advocate, but a "badvocate." Mr. Mayo would undertake work activities not assigned to him without first discussing them with Ms. Regan. On a number of occasions, Mr. Mayo would engage in some such activity, embarrassing Ms. Regan when she would get a call or communication from persons outside the Commission inquiring about Mr. Mayo's conduct, and she would be entirely unaware of his activities. Mr. Mayo and Ms. Regan experienced difficulties when Mr. Mayo sent out personal correspondence advocating personal views on Advocacy Center letterhead. This included correspondence sent by Mr. Mayo to Mr. Allen Tedder, Executive Director of the Mental Health Association of Florida. At least one such letter was sent on Commission letterhead even though Ms. Regan had specifically instructed Mr. Mayo to have the letter redrafted on non-Commission letterhead. Mr. Mayo and Ms. Regan had difficulties when Mr. Mayo refused to acknowledge that Ms. Regan had any right to approve or disapprove his travel requests. Part of Ms. Regan's supervisory duties was to review such travel requests. On another occasion, Mr. Mayo refused to submit his time sheets to Ms. Regan for approval. Again, part of Ms. Regan's supervisory duties was to review and approve employee time sheets. Likewise, when Ms. Regan told Mr. Mayo that he needed to route certain documents through her for signature, Mr. Mayo made an obscene gesture to Ms. Regan three times in the course of the morning. Ms. Regan told Mr. Mayo that his conduct constituted insubordination. His response was, "Fuck you." A frequent issue between Mr. Mayo and Ms. Regan was the issue of "partnership." Mr. Mayo asserted that he wanted to be viewed as an equal. Whenever Ms. Regan made a decision he didn't agree with, Mr. Mayo complained that she was violating her commitment to work with him, and was excluding him from the decision-making process. Ms. Regan received complaints from members of the advisory committee about Mr. Mayo. She also received verbal complaints from Martha Larson, Administrator of the hospital program at HRS. Ms. Regan heard from at least one outsider that Mr. Mayo was advocating against her as the program director. Ms. Regan reported these problems to Mr. Rossman. They met frequently in an effort to determine how best to resolve these difficulties. During his employment, people with whom Mr. Mayo had contact, outside the Center, complained directly to Mr. Rossman about Mr. Mayo's behavior and conduct. Many of these complaints were discounted by Mr. Rossman, who frequently defended Mr. Mayo against accusations being made about him. Inside the office, Mr. Rossman also received complaints about Mr. Mayo. There were complaints from other employees about difficulties working with Mr. Mayo, about shouting matches, about Mr. Mayo going through mail, about telephone calls he was making, and about representations made by Mr. Mayo outside of the office, regarding office policy. Mr. Mayo went directly to Mr. Rossman with his own complaints about Ms. Regan. At first, Mr. Rossman told Mr. Mayo that he did not want to get involved, and that Mr. Mayo and Ms. Regan should attempt to work the problems out themselves. However, the problems between Ms. Regan and Mr. Mayo worsened. Mr. Mayo repeatedly asked Mr. Rossman to take him out from under Ms. Regan's supervision. On September 9, Mr. Mayo submitted a written resignation in which he stated that he didn't feel his presence would serve any purpose "without direct involvement in policy matters." Mr. Rossman refused to accept Mr. Mayo's resignation. Instead, however, he agreed to Mr. Mayo's request that he (Mayo) not work under Ms. Regan's supervision. Once again, Mr. Mayo reported directly to Mr. Rossman. By September 9, the Governor had ordered that the Commission would become a private not-for-profit corporation effective October 1. Mr. Rossman was extremely busy making preparations for this transition and did not have the time to give Mr. Mayo as much individual attention as he had previously. The Commission's offices at that point were on two floors, Ms. Regan's office was on the first floor, and Mr. Rossman's office was on the second floor. This period was one of transition, and eventually, all the Center's offices were consolidated on the second floor. During the transition period, the office was very crowded. Mr. Rossman shared a corner of his office with his administrative assistant. Two lawyers shared the conference table at which Mr. Mayo had previously worked. Mr. Mayo was moved to a work location in an alcove outside Mr. Rossman's office on the second floor. When Mr. Mayo expressed concern about his ability to make the move, everyone in the office encouraged him, telling him that he was capable of making the move. Mr. Mayo made an attempt to change office locations. The new location did not work very well because Mr. Mayo felt exposed to other human beings. After September 9, Mr. Mayo continued to report to work each day, and was paid for a full eight hours. During this time Mr. Mayo invented work to do since Mr. Rossman did not have enough work to keep him busy. Following Mr. Mayo's being removed from Ms. Regan's supervision, Mr. Mayo continued to respond to matters that would be properly directed to Ms. Regan. He made calls about the MIP&A program around the state, criticizing the program and Ms. Regan, and again asserting his beliefs that the Center made a bad decision in employing her. As one example, Mr. Mayo, without authorization, contacted people to attend a consumer conference and invited a number of people to come on scholarship. Scholarship means that the Advocacy Center would pay that individual's expenses. No one at the Center (other than Mr. Mayo) had authorized the reimbursement for their expenses. A number of such people arrived without the registrar having any advance notice that they would attend. On another occasion, Mr. Mayo wanted certain individuals to be invited to attend a meeting between some of the staff and some of the members of the Board. Mr. Rossman advised Mr. Mayo that those individuals did not need to be involved. Nevertheless, Mr. Mayo insisted that the meeting was covered by the Sunshine Act, and that 11 members of the public were entitled to attend the meeting. On that basis, without asking permission, Mr. Mayo telephoned members of the advisory committee and invited them to this meeting. Since Mr. Mayo had been unable to work directly for the MIP&A program director, Mr. Rossman asked Mr. Mayo to prepare a job description for his position.4/ Mr. Rossman asked Mr. Mayo to advise him on how Mr. Mayo felt that he could be of use to the Advocacy Center. Mr. Mayo responded by typing out Respondent's Exhibit No. 6, asserting that he should be able "to advocate as a Consumer Consultant in whatever direction I choose (emphasis added)," and "as a Consumer Consultant to be kept up to date on all the workings of the MIP&A and to be involved as a consultant in that work." Following September 9, Mr. Rossman assigned Mr. Mayo the task of rewriting a report or contract which had been prepared by Ms. Regan. Mr. Mayo refused the assignment because of his view that it was "grossly unethical" to rework another person's work product. Although he refused to work on it, Mr. Mayo objected that Mr. Rossman "had refused to allow consumers any part in writing the contract and I could not speak for all consumers . . ." Shortly before October 8, 1987, Mr. Rossman was contacted by Allen Tedder, Executive Director of the Florida Mental Health Association, with a complaint about Mr. Mayo. Mr. Rossman replied to Mr. Tedder by letter dated October 8, 1987 stating that, as a mental health consumer, Mr. Mayo "apparently has less control over his personal feelings than might otherwise be expected," and further, that Mr. Mayo had undoubtedly "let his strong beliefs get ahead of him at times, overstating his position." Mr. Mayo was offended by Mr. Rossman's October 8th letter because of his view that while he had the right to identify himself to others as a person with difficulty controlling his emotions, Mr. Rossman, as a professional, had no such right. Mr. Mayo felt so "demeaned" by the letter that he cried uncontrollably, left the office, and spent the rest of the afternoon crying on the floor at his doctor's office. On October 21, Mr. Mayo left a copy of a memorandum from him to Dr. Schuchts, his psychiatrist, on the desks of both Mr. Rossman and Ms. Regan. In this memorandum, Mr. Mayo complained that he, as a consumer of mental health services, was being excluded from decision-making at the Center, and criticized advocates "who maintain [they] can speak for us." Outlining his opinions in his October 21 memorandum to Dr. Schuchts, Mr. Mayo listed as one of them: "To continue to disobey Jon and act upon my conscience. To attend meetings for which he refuses to "empower consumers and to openly submit reports from those meetings to him." Shortly before October 28, Mr. Gene Padgett, a close friend of Mr. Mayo's and a personal advisor to him, met Mr. Rossman for lunch. At lunch, they discussed Mr. Mayo's status, and Mr. Padgett encouraged Mr. Rossman to give Mr. Mayo a very definite set of guidelines within which to operate. On October 29, Mr. Rossman issued to Mr. Mayo a memorandum dated the previous day. The memorandum of October 28 began with a statement of the problems which had occurred and which Mr. Rossman felt required the setting forth of specific guidelines and limitations for Mr. Mayo's subsequent work activities. The memorandum then set forth specific assignments and guidelines for continued employment. The conditions were reasonable and nondiscriminatory. Mr. Rossman advised Mr. Mayo that he was expected to agree to the conditions if he was going to continue working for the Advocacy Center. Mr. Rossman's purpose in giving Mr. Mayo the memorandum of October 28 was an attempt to salvage Mr. Mayo's employment. By that time, Mr. Rossman had become convinced that excess independence and insufficient direction might be contributing to the problems with Mr. Mayo's employment. He believed that setting forth strict assignments and guidelines, as suggested by Mr. Padgett, might result in a productive work experience for Mr. Mayo. On October 29, Mr. Mayo was given the memorandum and told he must agree to its terms. Mr. Rossman had arranged for two other employees to witness the events of the meeting. Mr. Mayo asked if he could have a copy of the memorandum and if he could have until November 3 to take the document to his attorney. Mr. Rossman agreed to the request. Mr. Mayo left the office and did not return to work. Nothing in the meeting demonstrates any discriminatory purpose or intent on the part of the Center or Mr. Rossman. Mr. Mayo's claim that the presence of the two other employees was intimidating and therefore discriminatory is simply not born out by later events and Mr. Mayo's own actions. On November 10, Mr. Rossman received a letter from Mr. Richard Powers, a Tallahassee attorney, on behalf of Mr. Mayo. Mr. Power's letter indicated no willingness on Mr. Mayo's part to accept the conditions set out in the October 28 memorandum. The letter suggested a meeting to discuss the subject. On November 18, Mr. Rossman, Mr. Mayo, Mr. Parker Thompson (Board Member), and Mr. Powers met at Mr. Power's office. Mr. Mayo and his attorney insisted that Mr. Mayo be allowed to return to work without conditions. Mr. Mayo's return without conditions addressing the problems in the performance of his job was not acceptable to the center. On November 25, 1987, Mr. Rossman wrote to Mr. Powers, confirming Mr. Rossman's understanding that Mr. Mayo was insisting on a "return to work without any conditions," and reiterating Mr. Rossman's own position that Mr. Mayo could return to work "under conditions designed to address problems in his performance." Mr. Rossman agreed in the letter to hold Mr. Mayo's position open until December 1, 1987. Mr. Rossman did not hear further from Mr. Mayo or his attorney prior to, or following December 1, 1987. The only conclusion that can be drawn from Mr. Mayo's action or inaction is that he quit his employment with the Center when he determined that he was not going to be allowed to do as he pleased in his employment. In January 1988, following Mr. Mayo's departure, the Advocacy Center hired an individual, to fill the position of client advocate for the MIP&A program. The individual hired has a history of mental illness -- specifically, bipolar depression. Other than Mr. Mayo, the Commission/Center has employed a number of individuals with a variety of handicaps. The former Program Director for the Developmentally Disabled Program was a person with cerebral palsy who chose not to continue in employment with the Commission when it converted to private status. The Center's CAP Program Director is a wheelchair user, due to childhood polio. She has her desk up on blocks, high enough to accommodate her wheelchair. One of the Center's attorneys has epilepsy. A CAP client advocate for the Center is blind. Another Center employee has a hearing impairment. During his employment, Mr. Mayo was not able to accept supervision and was unable to work in the structured environment at the Center. There was no substantial evidence presented which establishes a nexus between Mr. Mayo's shortcomings and his mental illness. Without such evidence it is difficult to say what role Mr. Mayo's handicap played in his demise. A handicap does not entitle the individual to accommodation in areas unrelated to that handicap. Therefore, the evidence did not demonstrate any discrimination by the Center due to that handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's Petition be dismissed. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 6th day of December, 1989.
The Issue Whether Respondent discriminated against Petitioner on the basis of physical handicap.
Findings Of Fact Brettell was hired by Morse in January 1998 as a licensed practical nurse. Sometime after she began working for Morse, she sustained a work-related injury. No evidence was presented to establish exactly what the injury was. Brettell claims that she was discriminated against based on a handicap, but very little evidence was presented concerning any handicap that she may have. She presented two Notices of Action/Change forms issued by the Florida Department of Labor and Employment Security, Division of Workers' Compensation, related to Brettell and issued on February 18 and April 4, 1999. The Notice of Action/Change issued on February 18, 1999, stated: Employee was placed at maximum medical improvement with a 6% permanent impairment rate effective 01/16/99. Impairment income benefits of $192.80 per week for 18 weeks, effective 01/016/99. The April 4, 1999, Notice of Action/Change, stated, "Stopping impairment income benefits. Claimant was put on temporary partial disability as of 3/15/99." Neither Notice of Action/Change indicated the nature of the impairment. At the final hearing in response to Morse's Motion to Dismiss, Brettell made the following statement: [I]t does limit me on a daily basis. I have been complaining since Day 1 almost that I am losing feeling in my hands and my arms and my fingers. I'm having problems with my knee, making it difficult for me to walk. I have cervical spine problems. Brettell did not establish that she had a disability or a handicap. On April 23, 1999, Brettell was to work as a Medication Treatment Nurse. The job duties of a Medication Treatment Nurse include pushing a medication cart and dispensing medications to the residents. When Brettell learned that she was to push the medications cart and give medications on April 23, 1999, she spoke to Leonie Whorms (Whorms), who supervised Brettell at various times, and told Whorms that it was her understanding that she had been placed on light duty and was not supposed to push the medications cart. Whorms told Brettell that she had a doctor's statement dated February 19, 1999, from Dr. Russo, one of Brettell's treating physicians, stating that Brettell could push the medications cart and pass out medications. Brettell asked for a copy of the doctor's statement, which Ms. Whorms provided. Brettell agreed the statement indicated that she could push the medication cart and dispense medications. Brettell told Whorms that she had discharged Dr. Russo within the last month and that she had a new physician, Dr. Linder. Whorms informed Brettell that she would need a notification from Dr. Linder regarding any limitations that Brettell may have. Brettell contacted Dr. Linder's office and had a report sent by facsimile transmission to Morse. Based on Whorms' understanding of the report from Dr. Linder, Brettell was not supposed to push the medication cart. After Dr. Linder's report was sent to Morse on April 23, 1999, Brettell was not required to push the medications cart. No evidence was presented to establish that between the time that Morse received the report from Dr. Russo and April 23, 1999, when the report from Dr. Linder was sent to Morse, that anyone at Morse knew Brettell had changed doctors and a new report had been issued. Brettell stated that Whorms was the only person who harrassed her on April 23, 1999. Whorms was not aware that a new doctor's report had been issued until she received Dr. Linder's report on April 23, 1999. Brettell testified that Whorms told her on April 23, 1999, that if Brettell wanted to do nothing that Morse could find her a job doing nothing. Whorms denies making the statement. Having judged the credibility of the witnesses, I find that Whorms did not make the alleged statement. Brettell claims that in November 1998, Whorms told her that if she was in so much pain that she should go on disability or retirement. Whorms claims that she told Brettell that if Brettell was in so much pain that Brettell should go to the nursing office and then clock off and go home. Having judged the credibility of the witnesses, I find that Whorms did not tell Brettell that she should go on disability or retirement. On May 5, 1999, Penny Martin (Martin), a Nursing Unit Coordinator at Morse, asked Brettell to participate in wound rounds, and Brettell agreed to do so. Wound rounds involve a medical team assessing wounds and determining treatment. The wound team, scheduled to arrive at 9:30 a.m., was late. Because the wound team was late, Brettell elected to take her break. Brettell left for her break at 9:40 a.m. While Brettell was on break, the wound team arrived to do rounds. Approximately five to ten minutes after 10:00 a.m., Brettell's supervisor, Terri Nichols (Nichols) asked where Brettell was since she was supposed to be on wound rounds. Martin told Nichols that Brettell had left for break at 9:40 a.m. and had not returned. Nichols had Brettell paged but got no response. Nichols went to look for Brettell and found her in the rose garden, where the page could not be heard. Nichols told Brettell that she was needed for wound rounds and that she was late coming back from her break. Brettell responded that she did not leave for break until 9:50 a.m. Nichols told Brettell that she was still late whether she left at 9:40 or 9:50 a.m. because she had exceeded her alloted 15-minute break. Brettell returned from her break at 10:17 a.m., taking a 37-minute break. After lunch on May 5, 1999, Nichols asked Brettell to come to Nichols' office to discuss the lengthy morning break. Brettell told Nichols that she would not go into Nichols' office alone to which Nichols replied that Whorms would also be in the office. Brettell sought to have a subordinate employee come into the office with her, and Nichols told Brettell that a subordinate employee could not accompany Brettell into the office for the conference. Brettell still would not enter the office and called a security guard. The security guard arrived. Nichols contacted Suzanne Richardson (Richardson), Vice President of Nursing Services at Morse, and Vicky Porter (Porter), Vice President of Human Resources at Morse. Richardson and Porter were in a meeting together when Richardson received the call. Nichols advised Richardson that she was having difficulty in having a conference with Brettell, because Brettell was refusing to come into her office. Nichols was advised to go to the Human Resources Department. Brettell, Nichols, and the security officer went to the Human Resources Department, where Porter asked Brettell to come into Porter's office to discuss why Brettell did not want to go into Nichols' office for a conference. Brettell refused to go into Porter's office unless the security guard accompanied her. Richardson and Porter told Brettell that the conference was not a security issue and the security officer would not be allowed in the conference. Porter explained that the Human Resources Department was supposed to be neutral ground where employees could voice their concerns and that the security officer needed to return to his assigned duties. Porter again asked Brettell to come into her office, but Brettell refused, stating that she would not go into an office in the Human Resources Department without a security guard. Having a security guard present was not an available option. Brettell asked for a few minutes to think about whether she was going to go into the office. Everyone agreed to give Brettell a few minutes to think about the situation. Brettell left the Human Resources Department and went to a nursing unit in the Edwards Building to call her attorney. Her attorney was on the telephone with another client, so Brettell had to hold the line and wait for her lawyer to become available to speak with her. Approximately 30 minutes passed, and Brettell had not returned to the Human Resources Department or notified either Richardson or Porter of her decision. Nichols went to look for Brettell and found her in the Edwards Building using the company telephone to call her attorney. Nichols told Brettell to come back to the Human Resources Department, but Nichols refused, stating that she was on the telephone holding for her lawyer. Nichols called Richardson and told her that Brettell was refusing to hang up the telephone and come back to the Human Resources Department. Richardson and Porter came to the Edwards Building. Richardson asked Brettell if she was on a break and whether the call was for company business or personal. Brettell responded that she was not on break and that the call to her attorney was personal. Richardson told Brettell to get off the telephone, because Brettell was not authorized to use the telephone at the nursing unit for personal calls when she was not on a break. Brettell did not hang up the telephone. Richardson went to Porter and told her that Brettell was still on the telephone. Porter went to Brettell and told her that is was inappropriate for her to be using the telephone and that she was to clock out and go home. Richardson recommended that Brettell be terminated for violation of the company's policies. Brettell was terminated for insubordination and using the company telephone for personal business when not on a break, and not because of any handicap or disability.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered dismissing Joyce Brittell's charge of discrimination. DONE AND ENTERED this 7th day of December, 2000, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 7th day of December, 2000. COPIES FURNISHED: Joyce Brettell 3743-4 Silver Lace Lane Boynton Beach, Florida 33436 Lynn G. Hawkins, Esquire Fitzgerald, Hawkins, Mayans & Cook, P.A. 515 North Flagler Drive, Suite 900 West Palm Beach, Florida 33401 Dana A. Baird, General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Sharon Moultry, Agency Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue Whether the Petitioner is eligible to enroll in the Developmental Disabilities Program administered by the Respondent.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes (2001). The program developed by the Department is known as the Developmental Disabilities Program. Mr. Fernandez is 31 years of age and a resident of Miami, Florida. Mr. Fernandez submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual under the categories of retardation and autism. The Department evaluated Mr. Fernandez's application and determined that he was not eligible to receive services through the Developmental Disabilities Program under either category. In making this determination, the Department considered a Psychological Evaluation Report dated June 26, 2001, that was prepared by Hilda M. Lopez, Ph.D., a licensed clinical psychologist to whom Mr. Fernandez was referred by the Department.2 To assess Mr. Fernandez's intellectual functioning and cognitive abilities, Dr. Lopez administered the Wechsler Adult Intelligence Scale-Third Edition ("WAIS"). According to her report, Mr. Fernandez attained a Verbal I.Q. score of 80 points, a Performance I.Q. score of 80 points, and a Full Scale I.Q. score of 78 points. These scores place Mr. Fernandez in the Borderline range of intellectual functioning. The Department considers persons who score 70 points or less on the WAIS to be mentally retarded. The mean score on the WAIS is 100 points, and the standard deviation is 15 points. To assess Mr. Fernandez's adaptive behavior, Dr. Lopez administered the Vineland Adaptive Behavior Scales ("Vineland"). Mr. Fernandez attained an Adaptive Behavior Composite score of 66, which indicates that his adaptive behavior is in the low range. His scores reveal deficits in the domains of Living Skills, Communication, and Socialization. Dr. Lopez also tested Mr. Fernandez for autism using the Childhood Autism Rating Scale. In the report, Dr. Lopez noted that Mr. Fernandez was rated by his father and by Dr. Lopez after observing, interacting, and interviewing Mr. Fernandez. Dr. Lopez reported that Mr. Fernandez's score was 26.5 points, which places him within the non-autistic range. Dr. Lopez observed in the report, however, that Mr. Fernandez "showed the following behavior problems: inappropriate emotional reactions, mildly abnormal fear and nervousness, resistance with [sic] changes in routine, mildly abnormal adaptation to change, and restlessness." A score of 30 points or more on the Childhood Autism Rating Scale is indicative of autism disorder. When Mr. Fernandez was a child of four or five years old, he was apparently diagnosed with autism, and he and his family took part in a behavior modification program in Boston, Massachusetts. As a result of the work done by Mr. Fernandez and his parents in this program, Mr. Fernandez learned to talk, although long after his peers, and improved his social skills. Based on her psychological evaluation of Mr. Fernandez, Dr. Lopez recommended the following: Mr. Fernandez will greatly benefit from a program geared at providing him with help to enhance his functional skills. Facilitation of social services to provide needed support and monitoring. Stimulation program oriented to develop his cognitive skills, to improve attention, memory, verbal communication and problem solving in order to achieve optimal capability. He will benefit from supported employment and referral to Vocational Rehabilitation Services for proper counseling and training. Mr. Fernandez was unable to produce any documents relating to his early diagnoses and treatment or his special education placements because these documents were destroyed in a fire that destroyed the Fernandez home. According to his father, Mr. Fernandez makes friends easily and communicates verbally very effectively. He worked for a while in a family business where his limitations were tolerated, and he flourished in this job. On the other hand, Mr. Fernandez is easily frustrated and confused, and he has difficulty following directions in simple matters. His father is seeking services on Mr. Fernandez's behalf that will teach him to live on his own and to become a productive citizen. The uncontroverted evidence presented by Mr. Fernandez establishes that he is in need of several of the services available through the Department's Developmental Disabilities Program. The evidence presented by Mr. Fernandez is not, however, sufficient to establish that he is eligible to participate in the Developmental Disabilities Program under the eligibility criteria established by the legislature for developmental disabilities.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application of Mikael Fernandez for enrollment in the Developmental Disabilities Program. DONE AND ENTERED this 28th day of June, 2002, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2002.
The Issue Whether Respondent unlawfully discriminated against Petitioner on the basis of her alleged disability in violation of the Florida Civil Rights Act.
Findings Of Fact Petitioner Danette Marshall ("Marshall") was employed by Respondent Sam's East, Inc. ("Sam's Club") from October 1, 2004 to March 31, 2005. She worked at a store in Tallahassee and, at all relevant times, held the position of "greeter." The essential functions of a greeter were, then as now, constantly to (a) greet members (shoppers) and check membership cards, (b) keep the entrance area clean and organized by picking up after members and providing them with carts, and (c) resolve member concerns. It was (and is) important to Sam's Club that greeters be mobile at all times. While working on February 9, 2005, Marshall experienced such pain and swelling in her feet that she asked to leave work early to seek medical treatment. With her supervisor's permission, Marshall went to the emergency room, where she was diagnosed with bilateral plantar fasciitis and referred to a podiatrist. Marshall saw a podiatrist later that month. The evidence adduced at hearing is insufficient to make findings concerning the prescribed treatment and Marshall's prognosis.2 It is undisputed, however, that her doctor suggested Marshall should stand only for brief periods while working. Following the doctor's advice, Marshall asked her employer to either provide her with a stool on which to sit or, alternatively, transfer her to another position that would not require constant standing. Sam's Club refused to let Marshall sit on a stool while on the job because, in its view, greeters are supposed to be constantly moving about their work stations, keeping busy attending to shoppers and performing other duties. Sam's Club could not give Marshall a sedentary job because it did not have such a position available for her. Marshall's supervisor did, however, informally accommodate Marshall by letting her take an extra five-minute break most every hour, conditions permitting. Despite that, after February 21, 2005, Marshall effectively stopped coming to work, claiming inability to perform.3 In consequence of Marshall's repeated failures to report for work, Sam's Club informed her that she needed either to resume working immediately or take a medical leave of absence——and failing that, her employment would be terminated. Marshall was given a Leave of Absence form to complete and submit for approval if she were to opt for taking time off. To be eligible for a medical leave, a Sam's Club employee must obtain a certification from his or her doctor (or other health care provider) specifying, among other things, the dates during which the employee needs to be away from work. Marshall brought the Leave of Absence form to her podiatrist, who signed the document but failed fully to complete the certification, putting "X"s on the lines where the "begin leave" and "return date" information should have been inscribed. In early March 2005, Marshall submitted her Leave of Absence form. Sam's Club subsequently notified Marshall that the form was not in order because the doctor's certification was incomplete; it reminded her that leave could not be authorized unless she submitted a properly completed request. Thereafter, Marshall returned to her podiatrist and asked him to complete the required certification, but he refused to do so.4 Effective March 31, 2005, Sam's Club terminated Marshall's employment due to her chronic absenteeism and professed inability to perform the job of greeter without a stool on which to sit and rest from time to time.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR enter a final order finding Sam's Club not liable to Marshall for disability discrimination. DONE AND ENTERED this 3rd day of April, 2006, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of April, 2006.
The Issue Whether or not Petitioner's application for certification as an Independent Waiver Support Coordinator should be approved.
Findings Of Fact Respondent is the state agency that implements programs and services for persons who are developmentally disabled. In this capacity, Respondent certifies and enrolls qualified individuals, private businesses, not-for-profit organizations, and units of local government to provide services to developmentally disabled persons under the Developmental Disabilities Program Developmental Services Home and Community- based Services waiver program. In so doing, Respondent must ensure that all federal requirements are met and that the health and welfare of developmentally disabled persons are protected. Respondent has established reasonable academic, training and experience criteria for individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators as a part of the Developmental Disabilities Program Developmental Services Home and Community-based Services waiver program. For example, these minimum qualifications include a bachelor's degree and three years of professional experience in developmental disabilities, special education, or related fields. In addition to the academic, training and experience criteria, Respondent conducts background screening in an attempt to assess the suitability of individuals seeking to be enrolled and certified as Independent Waiver Support Coordinators. Part of the background screening involves a review of the work product, performance appraisals, and achieved outcomes of any applicant who has rendered services to individuals receiving developmental disabilities services. Respondent may deny certification to an applicant if it receives evidence of an adverse history with Respondent or the Agency for Health Care Administration as a result of background screening. Prior to Petitioner's application to be certified as an Independent Waiver Support Coordinator, she was employed by an institutional services provider which provided services to individuals with developmental disabilities; her job with the institutional services provider had essentially the same responsibilities as she would have if she became an Independent Waiver Support Coordinator. Respondent solicited and received an evaluation of Petitioner's work performance with the independent services provider. Petitioner's supervisor indicated that Petitioner's work was not satisfactory and that she would not rehire her. Respondent determined this negative evaluation as evidence of an adverse history sufficient to disqualify Petitioner and deny her certification.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's application for certification as an Independent Waiver Support Coordinator. DONE AND ENTERED this 12th day of September, 2002, in Tallahassee, Leon County, Florida. JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of September, 2002. COPIES FURNISHED: Joseph K. Birch 34 East Pine Street Orlando, Florida 32802 Chelsea Predue-Washington Post Office Box 1117 Clarcona, Florida 32710-1117 Beryl Thompson-McClary, Esquire Department of Children and Family Services 400 West Robinson Street, Suite S-1106 Orlando, Florida 32801 Paul F. Flounlacker, Jr., Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether Petitioner, Robert D. Taylor, is eligible for the services offered by Respondent's Developmental Services Program.
Findings Of Fact Petitioner, Robert D. Taylor (Petitioner), filed an application with Respondent, the Department of Children and Family Services (Department), to receive services of the Department's Developmental Services Program. Based on information provided by Mrs. Tye, the suspected developmental disability/medical conditions which were the basis for Petitioner's potential eligibility were mild mental retardation and behavior problems. Following submittal of Petitioner's application, his eligibility for the Development Services Program was reviewed and determined by Dr. Bruce Crowell, a licensed psychologist employed by the Department. In order to determine Petitioner's eligibility, Dr. Crowell reviewed Petitioner's school psychological evaluations, all of which were completed prior to Petitioner's eighteenth birthday. According to Petitioner's school psychological evaluations, the Wechsler Intelligence Scale for Children, Third Edition, was administered to Petitioner in January 1993. Petitioner obtained a verbal Intelligence Quotient (IQ) of 80, a performance IQ of 82, and a full scale IQ of 79. Petitioner was also evaluated by Dr. Ruth Nentwig, a licensed psychologist, in June 16, 1999. As part of her evaluation, Dr. Nentwig administered the WAIS-III, an instrument that measures an individual's overall intellectual functioning. On the WAIS-III, Petitioner obtained a verbal IQ of 86, a performance IQ of 80, and a full scale IQ of 82. This evaluation was completed prior to Petitioner's eighteenth birthday. Based upon the statutory criteria, Petitioner is not eligible for services provided by the Department's Developmental Services Program. The IQ scores obtained by Petitioner place him in the low average to borderline intellectual functioning level and are not indicative of significant cognitive or intellectual functioning impairment reflective of retardation. Petitioner would have to obtain a full scale IQ score of 69 or lower to be considered retarded and eligible for the Department's Developmental Services Program. Moreover, manifestation of such impairment would have to be documented prior to age 18 in order to demonstrate eligibility for the program.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that Respondent, the Department of Children and Family Services, enter an order denying Petitioner's application for services through the Developmental Services Program. DONE AND ENTERED this 21st day of April, 2000, in Tallahassee, Leon County, Florida. CAROLYN S. HOLIFIELD 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 21st day of April, 2000. COPIES FURNISHED: Robert D. Taylor c/o Sarah Tye 1455 Winston Road Fort Myers, Florida 33917 Eugenie Rehak, Esquire Department of Children and Family Services Post Office Box 60085 Fort Myers, Florida 33906-0085 Virginia Daire, Agency Clerk Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204B 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue Whether Petitioner is eligible for services offered by Respondent pursuant to the "Developmental Disabilities Prevention and Community Services Act", Chapter 393, Florida Statutes. The resolution of that issue requires a determination as to whether Petitioner's condition meets the definition of "retardation" found in Section 393.063(41), Florida Statutes.
Findings Of Fact Petitioner, Brian P. Dunaway, was born on January 22, 1975. At the time of the formal hearing, Brian resided in Homestead, Florida, with his parents, Joseph and Dotty Dunaway, and was a resident of the State of Florida. Brian's mother is a licensed mental health counselor who was, at the time of the formal hearing, employed as a counselor for emotionally handicapped children and was working to complete the dissertation necessary to earn her Ph.D. in psychology. Mrs. Dunaway is Brian's main caretaker. Brian's father is a pilot in the U. S. Air Force and spends as much time with Brian as he can. Both parents are very involved in Brian's care and are concerned as to his well- being. Neither parent is overly protective of Brian. Brian has a well documented history of psychological evaluations dating from age sixteen months. He has a complex history of mental disorders and learning disabilities. He has attention deficits and visual processing deficits that impair his ability to learn and to function. He has exhibited behavioral problems, including physical aggression, in the school setting. Brian was enrolled in Devereux Hospital and Children's Center of Florida, which is located in Melbourne, Florida, from May 17, 1990 (when he was 15 years old) until he attained his eighteenth birthday. His participation at Devereux was funded by the Dade County Public Schools as an exceptional education student placement. The school district contracted with Devereux because the district did not have an appropriate program in which to address the educational needs of Brian. Since his discharge from Devereux in 1993, Brian has lived in Homestead with his parents. At the time of the formal hearing, Brian was not participating in any program, despite the efforts by his parents to locate an appropriate program for him whether operated privately or by a public agency. Brian has a short term memory deficit that impairs his ability to maintain his activities of daily living and a severe learning disability in almost every major area of learning. His verbal skills are much better than his nonverbal skills. While he is able to take care of his basic hygiene, tasks that require visual/spatial skills, such as combing his hair or shaving, are difficult for him to accomplish. While his reading ability is only slightly below average, he has difficulty retaining what he reads and he can write only his name. He has an interest in airplanes and enjoys books about that subject. He also plays with his personal computer and is able to follow the basic instructions as to its use. He does not know his telephone number, is unable to tell time, and has no understanding of money. Brian has no capacity to live independently. Brian has never been formally diagnosed as being mentally retarded. There was evidence as to three formal diagnoses of the Brian. The first was by Dr. Josephine Perez, M.D., on March 3, 1989, as follows: Axis I 314.01 Attention Deficit Hyperactivity Disorder Axis II 315-90 Developmental Disorder N. O. S. Axis III 312-39 Trichotillimania The second was an admitting diagnosis at Devereux by Dr. Kenneth Moss, M.D. on May 18, 1990, as follows: Axis I 314.01 Attention Deficit Hyperactive Disorder. Rule out Affective Disorder. Axis II Rule out Pervasive Development Disorder. Rule out Specific Developmental Disorders. Axis III Neurological Impairment. Rule out Cerebral Palsy. The third, was by Bill Mosman, Ph.D., J.D., on September 10, 1993, as follows: Axis I 310.10 Organic personality disorder that has cyclic components of depression, anxiety, and impulse control difficulties. Axis II 315.80 Developmental expressive writing disorder by history. 315.10 Developmental arithmetic disorder by history. Axis III Documented history of organic anomalies. Section 393.063(41), Florida Statutes, contains the following definitions that are pertinent to this proceeding: (41) "Retardation" means significantly sub- average general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the period from conception to age 18. "Significantly subaverage general intellectual functioning", for the purpose of this definition, means performance which is two or more standard deviations from the mean score on a standardized intelligence test specified in the rules of the department. "Adaptive behavior" for the purpose of this definition, means the effective- ness or degree with which an individual meets the standards of personal independence and social responsibility expected of his age, cultural group, and community. The Wechsler Intelligence Scale for Children - Revised (WISC-R) is recognized in the profession as being a reliable intelligence test and has been accepted as such by Respondent's rules. The Vineland Adaptive Behavior Scales test (Vineland) is recognized in the profession and by Respondent as being a reliable measure of adaptive behaviors. There is a conflict in the evidence as to whether Brian's general intellectual functioning is "significantly subaverage " within the meaning of Section 393.063(41), Florida Statutes. Brian applied for eligibility for services under the "Developmental Disabilities Prevention and Community Services Act", Chapter 393, Florida Statutes, on March 22, 1993. On August 9, 1993, Brian was referred to Dr. Mosman for a comprehensive evaluation as part of the diagnostic and evaluation process. Dr. Mosman reviewed Brian's entire record and administered the Vineland test to assess Brian's adaptive behaviors. Dr. Mosman did not administer an IQ test to Brian. Among the records reviewed by Dr. Mosman, were the results of a WISC-R test that was administered to Brian at Devereux on October 16, 1990. 1/ This is the last intelligence test that was administered to Brian before his eighteenth birthday. 2/ The following scores are reflected on the WISC-R that was administered October 16, 1990: Verbal IQ was 77, Performance IQ was 55, and Full Scale IQ was 64. On the WISC-R, the mean score is 100 and one standard deviation is 15 points. Performance on the WISC-R which is two or more standard deviations from the mean score would be a Full Scale IQ of 70 or less. WISC-R tests were administered to Brian in April 1981 and in May 1982. Those tests reflect a Full Scale IQ of 78 and 81, respectively. Dr. Mosman discounted the full scale IQ results of the WISC-R test administered at Devereux because he believed the low results were caused by Brian's "visual processing organically derived deficits", including his weak computational facility and short term auditory memory processing problems. Dr. Mosman's testing of Brian verified that he has deficits in visual processing that are organically derived. The following excerpts from Dr. Mosman's report (found at tab A-3 of Joint Exhibit 1) summarize his opinions (see also page 69 of the amended transcript): Devereux Foundation psychological evaluation resulted in a WISC-R VIQ [Verbal IQ] of 77, PIQ [Performance IQ] of 55 and FSIQ [Full Scale IQ] of 64. It is noted that Brian's vocabulary, analytical skills, and ability to synthesize information was equivalent to an IQ of 90 to 110, page 3. Once again, Brian's Arithmetic and Digit Symbol scores of 1 and 2 significantly impacted Brian's verbal IQ. It was concluded that the extreme variation in Brian's subscale scores was related to weak computational facility and short term auditory memory processing problems. . . . (Dr. Mosman's report, page 4) * * * Vineland Adaptive Behavior Scales - Brian received a Communication Domain Standard Score of 64; a Daily Living Skills Domain Standard Score of 78; and a Socialization Domain Standard Score of 82. The average of these three scores is 74. Examining the scatter of the subdomains it is noteworthy that as is found during earlier WISC-R testing Brian's visual processing organically derived deficits produced a statistically low score reflective of learning disabilities in the written subdomain artificially lowering this particular score. In other words, the sole reason for the low Communication Domain Standard Score is because of deficits recorded during a portion of one of the three subdomains in that area. A 12 point increase on the Written subdomain results in a 36 point increase in Communication Domain standard Score raising the 64 to 100. Hence, as per manual instructions this score can be prorated. Brian's prorated Overall Adaptive Composite Score is 82. Thus, it is clear that Brian is not mentally retarded but does have learning disabilities which solely result in a lowered Communication score. This test will not tell where those disabilities come from; could be lack of motivation, could be organic problems . . . (Dr. Mosman's report, page 5) * * * Brian seems to have all the clinical criteria needed to be considered for the services from the Dual Diagnosis Committee and should be referred there for their determination and guidance. Brian has developmental disabilities as per PL 95-602 mental illness as per Fla. Stat. [Chapter] 394; impairments of his emotional process and his ability to exercise conscious control of his actions is substantially impaired and interferes with his daily living. The reasons for these manifestations and difficulties is because of an underlying organic problem. However, neither PL 95-602 or Fl. Stat. [Chapter] 394 exclude organic ideology (sic) from their service programs. In this context, I would request consideration be given to developing a broad base service plan including socialization experiences, recreational activities, vocational training through DVR, support services for independent living, etc. (Dr. Mosman's report, page 7) Dr. Mosman was of the opinion that Brian is not retarded and notes, correctly, that Brian has never been formally diagnosed as being "mentally retarded." Dr. Mosman found Brian to be a young man with very good analytical skills who is burdened by highly specific and discreet organic anomalies. (See Dr. Mosman's report at page 5 under the discussion of the Bender Gestalt test.) Dr. Phillip C. Boswell reviewed Brian's records, evaluated Brian, and also administered to him the Vineland test to evaluate his adaptive functioning. Dr. Boswell did not administer an IQ test to Brian. Dr. Boswell testified that the WISC-R intelligence test administered to Brian at Devereux should be accepted as an accurate measurement of Brian's IQ. Dr. Boswell also was of the opinion that the results of the IQ tests in 1981 and 1982 are not inconsistent with the results of the 1990 since Brian's relatively unimpaired verbal ability enabled him to achieve higher scores on the IQ tests at a younger age than he could be expected to score at age 15. Dr. Boswell's evaluation of Brian's testing history is discussed at page two of his report (Petitioner's Exhibit 1) and summarizes his opinions: . . . Brian has consistently shown intellectual functioning in the range of mental retardation on Wechsler series tests of Performance IQ. However, intellectual functions related to understanding spoken language were less severely affected, and Brian's Verbal IQ scores in his early years were generally near the average range. His language functioning had been, to a degree "spared" from the damage that affected his nonverbal IQ and his motor impairments. The test scores in these spared areas, however, declined over time. The Wechsler Intelligence Scale for Children - Revised administered 10/16/90 at the Devereux Foundation is the most current intellectual testing on Brian which meets statutory requirements for assessment of general intelligence. On that testing, Brian's Full Scale IQ, as well as his Performance IQ, had fallen into the mentally retarded range. It is not at all uncommon to see IQ scores drop in this fashion in the presence of a developmental functional impairment. IQ scores are calculated by comparing an individual's performance with that of his age peers who are normal. Even if the impaired individual is able to make some progress in learning, he will learn slower than his peers, and eventually hit a maximum plateau. His peers will continue to advance and the individual's IQ scores will drop, since they measure his relative standing compared to the peers. In resolving the conflicts in opinions expressed by Dr. Mosman's and Dr. Boswell, it is concluded that the WISC-R test administered to Brian at Devereux is a valid measurement of his IQ. While Dr. Mosman identified certain deficits that adversely impacted Brian's Full Scale IQ score, there was no evidence that those deficits can be discreetly treated or that Brian will ever overcome those deficits. The greater weight of the evidence established that Brian meets the definition of "subaverage general intellectual functioning" contained in Section 393.063(41), Florida Statutes, in that his Full Scale IQ as measured by the WISC-R administered October 16, 1990, was two or more standard deviations form the mean score on that generally accepted standardized intelligence test. The fact that Brian has never been formally diagnosed as being "mentally retarded" is not controlling since there is no requirement either in statute or rule that such a formal diagnosis be made as a condition of eligibility. There was also a conflict in the opinions of Dr. Mosman and the other witnesses as to the level at which Brian functions, specifically, whether Brian has deficits in adaptive behavior within the meaning of Section 393.063(41), Florida Statutes. The Vineland test administered by Dr. Mosman to evaluate Brian's level of functioning was based, in large part, on a joint interview with Brian and his mother. Ms. Dunaway was questioned as to Brian's abilities to function while Brian was present. Those responses by Mrs. Dunaway were used by Dr. Mosman as part of the evaluation test. Mrs. Dunaway testified that she was not as candid in her answers as she would have been had Brian not been present. Col. Dunaway testified that Dr. Mosman incorrectly evaluated Brian's functioning ability in several areas. Dr. Mosman adjusted the results of the Vineland upward (from a score of 74 to a score of 82) because he was of the opinion that "visual processing organically derived deficits produced a statistically low score reflective of learning disabilities in the written subdomain artificially lowering this particular score." Dr. Mosman concluded that Brian's intellectual and analytical capabilities have never been measured to reside in the mentally retarded range and that his adaptive level of behavior is not in the retarded range. Dr. Mosman was of the opinion that Brian functions above the mental retardation level and that he did not meet the "mental retardation" definition. Dr. Boswell administered to Brian the same diagnostic test (Vineland) that had been administered by Dr. Mosman. The results of the Vineland administered by Dr. Boswell were significantly lower than those from the test administered by Dr. Mosman. Dr. Boswell's results established that Brian is functioning at the bottom one percentile of the population in measures of adaptive functioning. This finding is consistent with Brian's records and the testimony from his parents and his counsellor. The opinions expressed by Dr. Boswell that Brian has significant deficits in adaptive behavior and that he functions in the one percentile of the population is more persuasive than the testimony of Dr. Mosman that Brian functions above the mental retardation level. It is concluded that Brian has deficits in adaptive behavior within the meaning of Section 393.063(41), Florida Statutes, which were first manifested as an infant and which continue. The record clearly established that Brian has been disabled throughout his life and that there is no reason to believe that he will not remain disabled. The greater weight of the evidence established that Brian meets the criteria for the classification of mental retardation as defined by Section 393.063(41), Florida Statutes, and that he is entitled to services pursuant to Chapter 393, Florida Statutes.3
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order that adopts the findings of facts and the conclusions of law contained herein and which orders that Petitioner is eligible to receive services under the "Developmental Disabilities Prevention and Community Services Act," Chapter 393, Florida Statutes. DONE AND ENTERED this 12th day of October, 1994, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 1994.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. Section 393.065, Florida Statutes. The program developed by the Department is known as the Developmental Disabilities Program. Mr. Davis is a resident of Miami, Florida, and is 20 years of age. Mr. Davis submitted an application to the Department requesting that it enroll him in its Developmental Disabilities Program and provide him services as a developmentally disabled individual. The Department evaluated Mr. Davis's application and determined that he was not eligible to receive services through the Developmental Disabilities Program. In making this determination, the Department considered a Psychiatric Evaluation Summary dated August 18, 1998, that was prepared by J.O. Pagan, M.D. Dr. Pagan stated in the summary that Mr. Davis was "diagnosed early in his life as a child with Autistic characteristics," and he noted that, throughout his life, Mr. Davis has "had symptoms associated to hyperactivity, Tics, and perseverance behaviors." According to Dr. Pagan, Mr. Davis "diagnostically belongs in the Autistic Spectrum and more specifically to the Asperger's Syndrome." In evaluating Mr. Davis's eligibility for enrollment in the Developmental Disabilities Program, the Department also considered a Multi-Disciplinary Team Report prepared by the Division of Student Services of the Miami-Dade County public school system. Mr. Davis was a student in the Miami-Dade County public school system's Exceptional Student Education program, which provides appropriate education for students with disabilities. The Multi-Disciplinary Team Report was part of a required re-evaluation performed by school personnel in order to determine Mr. Davis's psycho-educational status. The report is based on a re-evaluation of Mr. Davis conducted on March 25 and April 1, 1998, when he was 17 years of age and an 11th grade student at Coral Reef Senior High School. It is noted in the report that Mr. Davis "has been diagnosed with Aspergers Autism and Bipolar Disorder" and that he was first evaluated by the Dade County Public Schools in May 1987, at which time he had medical diagnoses "including Attention Deficit Disorder, Pervasive Developmental Disorder and Affective Disorder Bipolar Type." The Wechsler Adult Intelligence Scale - Third Edition was administered to Mr. Davis during the 1998 re-evaluation. Mr. Davis obtained a Full Scale IQ of 100 on the Wechsler Adult Intelligence Scale, with a Verbal IQ of 110 and a Performance IQ of 89. The evaluator also noted in the Multi-Disciplinary Team Report that Mr. Davis "is capable of completing at least grade level academic work, yet his lack of attention and concentration often impede his progress. At present, his social skills remain underdeveloped." During his last two years in high school, Mr. Davis was classified as having the exceptionality of autism,2 and he was placed in a classroom for students with varying exceptionalities. The school system provided Mr. Davis with extensive and intensive services designed to assist him in making the transition from school to independent living and employment. The school system provided Mr. Davis with a one-on- one aide to work with him on his behavioral problems, and the school system's transition team worked with Mr. Davis to help him develop independent living skills. Mr. Davis has received training in computers and took courses at the Robert Morgan Vocation School in high-level computer programming. He graduated from Coral Reef Senior High School in June 1999. Although Mr. Davis was very successful in the program developed by the school system's transition team, he is now exhibiting some behavioral problems that he did not exhibit when he finished high school. He needs individualized support in order to live independently because his autistic tendencies are very strong, especially in the area of his behavior. Mr. Davis also needs services in the area of vocational training because his level of functioning is not yet high enough to permit him to seek employment. Mr. Davis has the potential to live independently and to be a productive member of society. He is, however, in need of community services in order to meet this potential. Mr. Davis applied to the state for vocational rehabilitation services but was denied these services because his IQ is too low.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order denying the application of Jeffrey Davis for enrollment in the Developmental Disabilities Program. DONE AND ENTERED this 25th day of September, 2001, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 25th day of September, 2001.
The Issue Whether the Respondent failed to make a reasonable accommodation in order to allow the Petitioner to perform his job functions and thereby committed an unlawful employment practice constituting discrimination that is prohibited by the Florida Civil Rights Act.
Findings Of Fact Miami-Dade County is a political subdivision of the State of Florida. The Respondent, Miami Dade County Consumer Service, is a department of Miami-Dade County. The Petitioner, Carlos A. Mangual, is an employee of Miami-Dade County, Florida (the County). He currently is employed as the security manager for the Port of Miami. The Petitioner has held his current position since April of 2001. Prior to his current position, the Petitioner was a Parks and Recreation Security Supervisor for the County. As a supervisor he was eligible to participate in seminars and training meetings that were geared toward making supervisors aware of personnel rules and regulations. During his employment with Parks and Recreation, the Petitioner attended a meeting regarding the Americans with Disabilities Act (ADA). Mr. Collins is the County's Employee Relations ADA specialist who was the guest instructor for the supervisor's certification program. Mr. Collins met the Petitioner at the ADA meeting and discussed with the Petitioner whether the Petitioner's weight (and size) would be considered a disability under the ADA provisions. Subsequently, while employed with the County, the Petitioner was involved in an automobile accident that resulted in a knee injury. The Petitioner has undergone two surgeries to correct the damaged knee. Because the knee has adversely affected the Petitioner's gait, he also suffers back pain from the incident. The knee injury, resultant back pain, and residual physical impairments have caused the Petitioner to receive a workers' compensation overall impairment rating of 8 percent. For purposes of this case, the Respondent does not challenge such impairment. Subsequent to the accident and knee injury, the Petitioner applied for a position with the Respondent. Such position, Consumer Protection Inspector/Officer, required the Petitioner to attend to office duties for approximately 1-2 hours per day and to "be on the road" the rest of the time. Consequently, while working as a Consumer Protection Inspector, the Petition logged anywhere from 100 to 200 miles per day in a County-owned vehicle. The Petitioner began his probationary status with the Respondent in January 2000. During the probationary period, the Petitioner received monthly job performance evaluations. After approximately 5 months and while still during his probationary status, the Petitioner was not retained as a Consumer Protection Inspector. Instead, he was returned to the Parks Department where he continued employment with the County until he began his current position with the Port. The Petitioner considered the return to Parks a "demotion" based upon his alleged disability. It is undisputed the Petitioner requested a larger vehicle during his tenure with the Respondent. The Petitioner maintained the mileage logged in small vehicles was damaging to his knee and uncomfortable. The Petitioner claims he was entitled to an accommodation under the ADA because of his alleged disability. During his time with the Respondent, the Petitioner did not make a formal request for an accommodation. In fact, the credible evidence supports a finding that the Petitioner obtained the form but did not file it with supporting medical documentation as advised by the County's ADA specialist. The Petitioner maintains that the small vehicle assigned for his use required him to frequently stop and stretch. Such stops were necessary because the interior of the vehicle did not allow for an extension of his leg. There is no evidence that the employer refused to allow the Petitioner to make such stops or that the Petitioner was adversely evaluated because of the stops. During the Petitioner's probationary period, the Respondent did not have a larger vehicle readily available to assign to the Petitioner. Vehicles that might have become available would have been assigned based upon seniority with the Respondent. The Petitioner went back to Parks prior to such vehicles becoming permanently available to the Respondent. The Petitioner's impairment rating has not affected his abilities to walk every day, to drive to and from his place of employment, to shop, to engage in leisure activities, or to go to a gym once a month for workouts. There is no evidence of any life activity that Petitioner cannot perform as a result of his knee impairment. The Petitioner was fully able to perform the functions of his job. The Petitioner performed his job with the Respondent even when using a small vehicle. The Respondent never refused a request for an accommodation from the Petitioner. The Petitioner's informal inquiry regarding how to seek an accommodation was never formally filed. The Petitioner's size as well as any knee impairment contributed to the uncomfortable nature of the small vehicle used by the Respondent. This was especially true when the Petitioner was required to share the vehicle with another employee.
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 Petitioner's complaint. DONE AND ENTERED this 30th day of May, 2002, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of May, 2002. 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 Carlos A. Mangual 1290 Northeast 135th Street North Miami, Florida 33161 Consumer Services Miami Dade County 140 West Flagler Street, Suite 901 Miami, Florida 33128 Eric A. Rodriquez, Esquire 111 Northwest 1st Street, Suite 2810 Miami, Florida 33128-1993 Ana M. Urrechaga, Esquire Urrechaga, P. A. 8603 South Dixie Highway, Suite 209 Miami, Florida 33143
The Issue Whether the Respondent has sufficient general revenue funds to provide the Petitioner with services under the Respondent's Developmental Disabilities Program.
Findings Of Fact The Department is the state agency charged with administering and determining eligibility for services to developmentally disabled individuals pursuant to Florida's Developmental Disabilities Prevention and Community Services Act, Chapter 393, Florida Statutes. As of August 23, 2002, Deneale is eligible for developmental services in the areas of support coordination; adult day training and transportation; non residential habilitation; residential placement; residential habilitation; adult dental; and behavioral services. The only lawful funding source from which these services could be provided to Deneale this year is the general revenue appropriation to DCFS. By letter dated September 25, 2002, DCFS advised Deneale that, with regard to those services for which he is eligible: [W]e regret to inform you, as a conclusion of law, that your request cannot be granted within the limits of the Department's appropriated general revenue funds, and Florida law prohibits the Department from spending or committing funds in excess of its appropriation. Please see Section 393.13(2)(c) and (d), F.S., and refer to the State Spending Plan as approved by the Legislature. Florida law does in fact prohibit the use of general revenue funds to provide developmental disability services to Deneale and to similarly situated clients when the general revenue budget is in a deficit condition. Section 216.311(1), Florida Statutes, provides in pertinent part as follows: No Agency or branch of state government shall contract to spend, or enter into an agreement to spend, any moneys in excess of the amount appropriated to such agency or branch, unless specifically authorized by law. . . . When the 2002-2003 fiscal year commenced on July 1, 2002, the general revenue budget was already in a $13 million deficit. The deficit had escalated to approximately $17 million by the time of the September 25, 2002, denial of services letter, and by the time of the final hearing had climbed to $23 million. The deficit exists because once clients begin receiving benefits, they may not lawfully be denied those benefits so long as they remain eligible for services. Moreover, once a client begins to receive services, federal law mandates that they be provided with any additional services for which they may become eligible, irrespective of whether or not general revenue funds are available. The cost of furnishing services to clients already being provided services for which they are eligibile has created a deficit which, in the absence of additional funding for DCFS's general revenue appropriation, will continue to grow. The deficit is also exacerbated by inflation, and by increases in the costs of services provided to individuals already receiving benefits. Deneale was placed on a wait list for Medicaid assistance for the services for which he is eligible, retroactive to his August 2002 eligibility date. As a practical matter, there is little hope that he will be reached in a timely manner. Caring for Deneale is a demanding task. He rises at 4:00 a.m. and requires constant attention from his mother and step-father, except for the hours he spends at an adult day care program for which his family pays from dwindling personal funds. The demands of caring for Deneale have taken a severe toll on his mother's health, as well as on her marriage of 27 years duration. Mr. Satter loves his family, but is seriously considering divorce because he can no longer cope with the burden of his stepson's care. Even at the cost of her marriage, Mrs. Satter is not willing to abandon her son, which she would have to do in order for the state to step in and relieve the family of the burden of providing Deneale with the full-time care and supervision he requires to survive.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a final order denying Deneale the developmental services for which he was determined eligible as of August 22, 2002. DONE AND ENTERED this 18th day of April, 2003, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Laurel Hopper, Esquire Department of Children and Family Services 337 North Fourth Street Fort Pierce, Florida 34950 FLORENCE SNYDER RIVAS 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 18th day of April, 2003. Jane and Edwin Satter 1774 Southwest Columbia Street Port St. Lucie, Florida 34987 Paul Flounlacker, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Jerry Regier, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
