Findings Of Fact On October 28, 1985 Petitioner was employed by the City of Miami Fire Department. He began attending fire college. In November 1985 Respondent received Petitioner's application for certification as a firefighter. Petitioner's application and those of his classmates were transmitted in a group to Respondent by the City of Miami. On January 22, 1986 Respondent wrote a letter to the Chief of Training for the City of Miami Fire Department advising him that Petitioner needed his vision re-checked. There is no evidence that that letter was ever received by the City of Miami, and the evidence is uncontroverted that Petitioner was never advised of its contents. Respondent's file copy of that letter admitted in evidence reflects a "received" date stamp of June 16, 1988. Petitioner graduated from fire college and took the state licensure examination. He passed the examination on February 12, 1986, receiving a score of 82 on the written portion and a score of 93 on the practical portion. By letter dated July 27, 1988, Respondent advised Petitioner that his application for certification as a firefighter filed with Respondent in November of 1985 was denied due to Petitioner's failure to meet the visual acuity standard. That letter from Respondent was the first communication from Respondent to Petitioner regarding his application for certification. Pursuant to instructions from Respondent, the City of Miami Fire Department removed Petitioner from combat status although he had successfully performed his duties in combat status for approximately two and one half years. Petitioner is still employed by the City of Miami Fire Department. Petitioner's uncorrected vision is 20/67 in his right eye and 20/50 in his left eye. His corrected vision with glasses is 20/29 in his right eye and 20/20 in his left eye. On June 28, 1988 the Chief of Training for the City of Miami Fire Department wrote to Respondent (most probably in response to the City's receipt of Respondent's January 22, 1986 letter on June 16, 1988) regarding the status of the three individuals, including Petitioner, inquired about in Respondent's January 22, 1986 letter. The Chief of Training advised Respondent that Petitioner would be undergoing corrective surgery. Although Petitioner has pursued through several medical examinations the possibility of corrective surgery to his eyes, the doctors have declined to operate on Petitioner's eyes because his visual deficiencies are so minimal that they cannot justify the risk of surgery or the possibility of the surgery worsening Petitioner's visual acuity. The City of Miami is not the applicant for certification as a firefighter. It is simply the entity which mailed the applications of Petitioner and his classmates to Respondent.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered certifying Petitioner as a firefighter effective February of 1986. DONE AND ORDERED this 28th day of February, 1989 in Tallahassee, Leon County, Florida. LINDA M. RIGOT 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 28th day of February, 1989. APPENDIX TO RECOMMENDED ORDER DOAH CASE NO. 88-4090 Each of the unnumbered paragraphs contained in Petitioner's Proposed Recommended Order has been rejected as not constituting a finding of fact. Respondent's proposed findings of fact numbered 5 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 6 has been rejected as not constituting a finding of fact. COPIES FURNISHED: Dwight K. Nobley 652 N.W. 46th Street Miami, Florida 33127 Lisa Santucci, Esquire Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 Honorable Tom Gallagher State Treasurer and Insurance Commissioner Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300 Don Dowdell, General Counsel Department of Insurance and Treasurer 413-B Larson Building Tallahassee, Florida 32399-0300
The Issue The issues are whether Respondent subjected Petitioner to unlawful employment practices by discriminating against her based on her age, sex, and/or disability contrary to Section 760.10(1), Florida Statutes (2003), and by retaliating against her contrary to Section 760.07, Florida Statutes (2003).
Findings Of Fact On or about February 17, 1992, Petitioner began working for Respondent in the College of Pharmacy and Pharmaceutical Sciences as an Other Personnel Services (OPS) Secretary. On or about January 11, 1993, Petitioner became a Program Assistant in the University and Support Personnel System. In late 1999 or early 2000, Petitioner began working as an Administrative Assistant for Dr. Folakemi Odedina, a Professor and Director of the Economic, Social, and Administrative Pharmacy Division (ESAP). Initially, Petitioner enjoyed working for Dr. Odedina in an office located in the Frederick S. Humphries Science and Research Center (Science and Research Center). However, in time Petitioner's professional relationship with Dr. Odedina began to deteriorate, along with the expanding responsibilities of the job.1 In January 2001, Petitioner fell while she was carrying some documents from one of Respondent's buildings to another. The fall injured Petitioner's ankle, hip, and lower back. Petitioner was pregnant at the time of her fall in January 2001. She filed a workers' compensation claim as a result of the accident and subsequently returned to work with medical limitations as to activities involving lifting and walking. In a memorandum dated May 16, 2001, Petitioner advised Dr. Odedina and the ESAP faculty that she soon would be going on three to four months of parental leave. She also advised them that she had removed her personal belongings and other items belonging to other departments that had been on loan to her. In June 2001, Petitioner fell again while she was at work. She was in her ninth month of pregnancy at the time of the second accident. She decided not to return to work until after the birth of her baby. In a memorandum dated June 14, 2001, Dr. Odedina acknowledged that Petitioner would be out on sick leave, followed by parental leave until October 2001. Dr. Odedina wanted Petitioner to turn in her office keys and provide information about the office voicemail password so that the office would continue to function efficiently during Petitioner's absence. Apparently, Petitioner had not removed her personal belongings from her office as stated in her May 16, 2001, memorandum. On June 14, 2001, Petitioner and Melvin Jones, an investigator for Respondent's Police Department went to the office after 5:00 p.m. to remove Petitioner's personal belongings. During the moving process, Mr. Jones took a typewriter and a chair, both of which were university property on loan to Petitioner from another university office, to the library on the fourth floor of the Science Research Center. Petitioner intended to leave the chair and the typewriter there until someone could return them to the office in the department to which they were officially assigned. Additionally, in packing her personal items, Petitioner or Mr. Jones inadvertently packed and removed a black office telephone from the premises. On June 15, 2001, Dr. Odedina noticed that the typewriter and telephone were missing from Petitioner's office. After making an unsuccessful effort to contact Petitioner, Dr. Odedina reported to Respondent's Police Department that the typewriter and telephone were missing from Petitioner's office. Respondent's Police Department immediately initiated an investigation of unauthorized removal of state property with Petitioner as the suspect. On June 15, 2001, Petitioner realized that she had mistakenly packed the black telephone with her personal belongings. She returned it to Respondent that same day. Thereafter, Respondent's Police Department closed its investigation after verifying that Petitioner never removed the typewriter from the Science Research Center and that she returned the telephone on June 15, 2001. On June 25, 2001, Petitioner delivered her baby. Subsequently, Petitioner received medical treatment for physical problems that were the result of her on-the-job falls. Between parental leave and workers' compensation leave, Petitioner was out of work for approximately eighteen months. During Petitioner's absence from work, Dr. Odedina hired an OPS employee to temporarily fill Petitioner's position. At some point in time, Petitioner contacted FCHR to make an inquiry concerning discrimination. In a letter dated August 28, 2002, relative to FCHR Case No. 2202827, FCHR advised Petitioner as follows: "Based on the information you provided, we are unable to pursue this matter further." FCHR then cited Section 760.11(1), Florida Statutes (2002), for the proposition that a complaint must be filed within 365 days of the alleged discriminatory act. From 1994 to 2004, and at all times relevant here, Dr. Henry Lewis was the Dean of the College of Pharmacy and Pharmaceutical Sciences. From January 2002 through July 2002, Dr. Lewis also served as Respondent's interim president. Since 2004, Dr. Robert Thomas has served as Dean of the College of Pharmacy and Pharmaceutical Sciences. At all times relevant here, Dr. Thomas served as Associate Dean of the College of Pharmacy and Pharmaceutical Sciences. In a letter dated October 9, 2002, Dr. Lewis advised Petitioner that he had received documentation from Ruth Beck, Petitioner's Rehabilitation Consultant, regarding accommodations for Petitioner's return to work with medical restrictions. Dr. Lewis requested that Petitioner meet with Respondent's Equal Opportunity Programs Office to determine what accommodation are to be provided upon Petitioner's return to work. The recommended accommodations included an ergonomic chair and a desk equipped with a keyboard tray and mouse extension. It was also suggested that Respondent provide Petitioner with a flat screen monitor and a utility cart because Petitioner's permanent office in the Science and Research Center was small and too cramped to accommodate Petitioner's physical limitations. Petitioner needed a more spacious work area, with adequate storage space in close proximity, than was available in her office at the Science and Research Center. Even with the new furniture and equipment, Petitioner's needs could not be met in her old office. Accordingly, it was mutually agreed that, upon her return to work, Respondent would assign Petitioner to work temporarily in the Division of Pharmacy Practice, under the supervision of Dr. Otis Kirksey. Dr. Kirksey's office was located off-campus at 565 East Tennessee Street, Tallahassee, Florida, in a building with a ramp and without stairs that Petitioner would have to climb. Petitioner's assignment to work in Dr. Kirksey's office was temporary. Dr. Odedina and the ESAP faculty and staff planned to move to the new Dyson Pharmacy Building as soon as it was completed. The new facility would have sufficient space, furniture, and equipment to accommodate Petitioner's needs in her position as Administrative Assistant to Dr. Odedina. In November 2002, Petitioner learned that her doctor would not sign a form stating that Petitioner had a permanent disability. Instead, he agreed that she needed a disabled parking permit for a temporary period, for three months through February 5, 2003. On December 2, 2002, Petitioner began to work for Dr. Kirksey as an Administrative Assistant/Receptionist. She agreed to begin working in that capacity even though all the accommodations she needed were not immediately available. Petitioner was eager to return to work. By February 18, 2003, Respondent had provided Petitioner with all necessary accommodations. She had the ergonomic chair and a desk equipped with a keyboard tray and mouse extension. Given her more specious work area, a flat screen monitor and/or utility cart was not required to accommodate her physical limitations. Petitioner did not want to return to work for Dr. Odedina under any circumstances. She was aware that Dr. Kirksey was going to hire a new employee for a Program Assistant position. However, Petitioner never applied for the new Program Assistant position because she believed that Dr. Kirksey had already made up his mind to hire another person for the job. There is no evidence that Dr. Kirksey ever intended to deprive Petitioner of the opportunity to apply for the Program Assistant position or that he would not have considered her application if she had filed one. On October 6, 2003, Petitioner had a meeting with Dr. Lewis about her work assignment. During the meeting, Petitioner and Dr. Lewis discussed another position that was available. The position involved keeping track of student volunteer hours. After the meeting, Petitioner mistakenly believed that Dr. Lewis had offered her the new position, which would not have been under Dr. Odedina's supervision. During the October 6, 2003, meeting, Dr. Lewis asked Petitioner how things were going in her private life, i.e. whether she had anyone special in her life. Petitioner replied that she did not have such a relationship and that with all the drama she was experiencing in her personal life, she did not need to be involved with anyone. There is no indication that Petitioner was offended by Dr. Lewis's personal expressions of concern for Petitioner's well being. On October 8, 2003, Petitioner met with Drs. Lewis and Thomas. During the meeting, Petitioner adamantly refused to return to work for Dr. Odedina. Petitioner made the following statement: "I do not want to see FAMU facing a wrongful death lawsuit for an employee killing a supervisor." Drs. Lewis and Thomas were concerned about the statement, which they understood to be a threat against Dr. Odedina. However, they believed they would be able to handle any problem that might arise when Dr. Odedina joined the prescheduled meeting. Petitioner was agitated during the meeting with Dr. Lewis and Dr. Thomas. She became more agitated when Dr. Odedina joined the meeting. Dr. Odedina went to the meeting expecting to discuss Petitioner's office space and accommodations when she moved into the Dyson Pharmacy Building with the rest of the ESAP faculty and staff. She was not aware that Petitioner had made a threatening comment. Initially, Dr. Odedina was obviously pleased that Petitioner would be returning to work for her. However, as the October 8, 2003, meeting proceeded, Dr. Odedina felt that Petitioner's demeanor was hostile. Dr. Odedina got the impression that Petitioner was resisting the idea of returning to work for Dr. Odedina. At that point, Dr. Odedina insisted that Petitioner return to work for ESAP or, if Petitioner continued to work for Dr. Kirksey, his office should be responsible for paying Petitioner's salary. At one point during the October 8, 2003, meeting Petitioner complained that she suffered from migraine headaches and depression. She showed Drs. Lewis, Thomas, and Odedina prescriptions for Imatrex and Prozac. Before Petitioner left the meeting on October 8 2003, Dr. Lewis told Petitioner that she should write a letter stating that she refused to return to work in the ESAP office under Dr. Odedina's supervision. Petitioner subsequently wrote a letter, describing it as a "notice of transfer," but clearly indicating that she chose not to return to work for Dr. Odedina. After Petitioner and Dr. Odedina left the October 8, 2003, meeting, Drs. Lewis and Thomas discussed Petitioner's threatening statement against Dr. Odedina. They decided to report it as a serious threat of bodily harm to Respondent's Director of Personnel, Vice President for Academic Affairs, and Provost, first by telephone, and later in writing. Dr. Lewis also contacted Dr. Odedina by telephone, advising her of the threat and directing her not to report to work on October 9, 2003. Finally, Dr. Lewis informed Respondent's Police Department about the threatening statement. Respondent's Provost, Larry Robinson, drafted a letter dated October 9, 2003. According to the letter, Petitioner was on administrative leave with pay, effective upon receipt of the notice. The letter advised Petitioner of a pending investigation of an employment matter and directed her to return all university-owned property. The letter advised Petitioner to refrain from reporting to work or visiting the campus, until further notice. The only exception was that Petitioner could continue to transport one of her sons to Respondent's Developmental Research School. On October 10, 2003, Respondent's Police Department initiated a formal investigation about Petitioner's threatening statement based on the written statements of Drs. Lewis and Thomas. On that date, Respondent's investigator, James Rose, filled out an incident report, indicating that he had interviewed Dr. Odedina and that Respondent's Director of Personnel had requested him to deliver the October 9, 2003, letter to Petitioner. Officer Rose was not able to deliver the October 9, 2003, letter to Petitioner until October 11, 2003. After Officer Rose gave Petitioner the letter placing her on administrative leave with pay, Petitioner stated that she only made the comment about Dr. Odedina because the department was about to transfer her back to Dr. Odedina's office. Petitioner told Officer Rose that she never intended to harm Dr. Odedina. On October 13, 2003, Petitioner returned her office key to Respondent. She left the key at Respondent's Police Department's communications office. On October 14, 2003, Petitioner filed her first Employment Charge of Discrimination with FCHR. In that initial complaint, identified hereinafter as DOAH Case No. 04-2003, Petitioner alleged as follows: (a) Respondent discriminated against Petitioner based on her disability by failing to accommodate her back impairment; (b) Respondent discriminated against Petitioner based on her age because Respondent did not give Petitioner an opportunity to apply for a position ultimately given to a younger, less senior employee; and (c) Respondent placed Petitioner on administrative leave with pay. In a letter dated October 31, 2003, Respondent advised Petitioner that Respondent intended to terminate her employment for threatening and/or abusive language and conduct unbecoming to a public employee. In an undated letter, Petitioner requested a conference in order to make an oral or written statement to refute or explain the charges against her. On or about November 3, 2003, Petitioner requested information about the return of her personal property located in Dr. Kirksey's office. Officer Rose approved Petitioner's request to retrieve her property. Sometime after November 3, 2003, Officer Rose concluded that Petitioner had made a threatening statement. However, Officer Rose found no indication that Petitioner intended to carry out the threat against Dr. Odedina. Accordingly, Respondent's Police Department suspended its investigation. In a letter dated November 17, 2003, Respondent advised Petitioner that it had scheduled a predetermination conference on November 24, 2003. By letter dated December 8, 2003, Petitioner informed Respondent that she received the November 17, 2003, letter on December 5, 2003. She asserted that she did not receive timely notice of the predetermination conference. In a letter dated December 11, 2003, Respondent advised Petitioner that it was proceeding with the employment action. According to the letter, Petitioner's dismissal from employment would be effective on December 19, 2003. However, Petitioner had an opportunity to request arbitration. On December 19, 2003, Petitioner reminded Respondent that she did not receive timely notification of the predetermination conference. She requested Respondent to schedule another conference. In a letter dated January 9, 2004, Respondent advised Petitioner that it had scheduled a predetermination conference for January 13, 2004. However, a subsequent letter dated January 13, 2004, rescheduled the conference for February 18, 2004. In a letter dated March 3, 2004, Respondent advised Petitioner that her dismissal from employment was effective March 11, 2004. On February 2, 2005, Petitioner filed a Consented Motion for Abatement or Alternatively, Notice of Voluntary Dismissal without Prejudice in DOAH Case No. 04-2003. On February 8, 2005, Administrative Law Judge Diane Cleavinger entered an Order Closing File in DOAH Case No. 04-2003. Judge Cleavinger's order is silent as to any prejudice that might have resulted from closure of the file in DOAH Case No. 04-2003. However, the parties agreed during the hearing in the instant case that FCHR never entered a final order in the prior case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing Petitioner's Petition for Relief. DONE AND ENTERED this 30th day of December, 2005, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of December, 2005.
The Issue The issue in this case is whether Petitioner has been subjected to an unlawful employment practice.
Findings Of Fact Chipola is a college located in Marianna, Florida, and offers two-year and four-year degrees. In August 2005, Ms. Tucker contacted personnel at Chipola inquiring about a faculty position. She sent an e-mail to Karan Davis (Ms. Davis), Chipola’s associate vice president of Human Resources and included a brief résumé. No positions were available at that time. On or about May 18, 2006, Ms. Tucker submitted an application for employment at Chipola as an adjunct instructor. An adjunct instructor position is a temporary position on an as- needed basis to instruct a specific course. Health benefits are not provided for adjunct instructors. The employment application which Ms. Tucker submitted requested that applicants complete a section on educational employment and a section on non-educational employment. In each section, the application provided space for the listing of three present or former employers. The application stated, “If you wish to further describe your work experience, please attach a resume to this application.” Ms. Tucker did not attach a résumé to the application. In the section for educational employment, Ms. Tucker listed employment as a substitute teacher for two school districts and one private school. In the section for non- educational employment, Ms. Tucker listed employment in 2006 at Florida State University, employment from 1979 to 1988 with the United States Postal Service, and a position as a legal secretary from 1975 to 1977. The application asked, “Have you ever been discharged or forced to resign from a previous position?” to which Ms. Tucker replied, “No.” The application contains an applicant certification, which states: I am aware that any omissions, falsifications, misstatement or misrepresentations may disqualify me for employment consideration, and if I am hired, may be grounds for termination at a later date. Ms. Tucker signed the applicant’s certification. Wendy Pippen (Ms. Pippen) is employed by Chipola as the human resources coordinator. She is responsible for coordination of the daily activities and tasks in the Human Resources Department, including review of employment applications and résumés. She did not receive a résumé from Ms. Tucker at any point during the hiring process. Ms. Tucker was interviewed for the position as adjunct instructor. During a conversation with Ms. Pippen following Ms. Tucker’s interview, Ms. Tucker mentioned that she had worked at the University of South Florida. Ms. Pippen did not recall seeing the University of South Florida listed as an employer on Ms. Tucker’s application. She checked Ms. Tucker’s application and confirmed that the University of South Florida was not listed on the application. Ms. Pippen immediately advised her supervisor, Ms. Davis, of the omission. Ms. Tucker told Ms. Pippen that she had omitted her employment with the University of South Florida because an employment agency had advised her to do so due to the potential for a negative reference. Ms. Tucker vehemently testified at the final hearing that the reason she did not list employment with the University of South Florida was that she was terminated for medical reasons, and it was “no one’s business.” However, she also testified that the University of South Florida gave “bad references.” She had told others that she was concerned that the University of South Florida would give her a bad reference. It was her opinion that the University of South Florida was not ethical in giving references on former employees. Having judged the demeanor of the witnesses, Ms. Pippen’s testimony is credited that Ms. Tucker told her the reason that she did not put the University of South Florida on her application was that she felt the University of South Florida would not give her a good reference. Upon being informed by Ms. Pippen that Ms. Tucker had worked at the University of South Florida, Ms. Davis contacted the University of South Florida to check Ms. Tucker’s past employment. Ms. Davis was advised that Ms. Tucker had been employed by the University of South Florida and that she had been terminated for medical reasons. Ms. Davis did not inquire why Ms. Tucker was terminated. That information was volunteered by personnel at the University of South Florida. Ms. Davis did not ask for an explanation of the medical reasons, and no explanation was volunteered. Ms. Davis did not inquire whether Ms. Tucker had a disability, and no one from the University of South Florida told Ms. Davis that Ms. Tucker had a disability. The decision was made not to hire Ms. Tucker as an adjunct instructor because she had failed to include the University of South Florida on her application and had stated in her application that she had not been discharged or forced to resign from a previous position. Ms. Davis perceived that the omission of the University of South Florida from the application and the failure to indicate that she had been discharged from previous employment amounted to falsification of the application, which was a reason for disqualification from employment as clearly stated in the application form. Ms. Tucker contends that Ms. Davis was aware that she had been employed by the University of South Florida because she had included the employment on the résumé that she sent to Ms. Davis in 2005. Ms. Davis did not recall seeing the résumé and given that there was a lapse of seven months from the time that Ms. Tucker sent her résumé in 2005 until she submitted an application in May 2006 without a résumé, it is reasonable that Ms. Davis would not recall seeing the résumé or was not aware that Ms. Tucker had listed the University of South Florida on a résumé. After Ms. Tucker was advised that she would not be hired as an adjunct instructor, she wrote Dr. Spires at Chipola, stating that she had not put the University of South Florida on her employment application because she had been advised by an employment agency to omit the University of South Florida because it had a long history of illegal employment practices. Ms. Tucker does not contend that she has a particular disability which served as the basis for Chipola’s failing to hire her, and she did not inform staff at Chipola that she has a disability or identify any medical condition she has. Her claim is that she was not hired because of a history of medical problems. The evidence overwhelmingly established that Ms. Tucker was not hired because she had made misrepresentations on her application and not because of any history of medical problems. It is clear that Ms. Tucker did not include the University of South Florida on her application and did not inform Chipola that she had been discharged because she was afraid that the University of South Florida would give her a bad reference.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entering finding that Chipola College did not discriminate against Ms. Tucker and dismissing the Petition for Relief. DONE AND ENTERED this 2nd day of November, 2007, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 2nd day of November, 2007.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: Respondent Charley O. Young & Sons Trucking, Inc. (Company) is engaged in the business of hauling United States Mail between various United States Postal Service's post offices in the State of Florida, and is an employer as that term is defined in Section 760.10(7), Florida Statutes. Charley O. Young (Young), president of the Company, has been involved in the business of hauling United States mail for over 35 years. The mail which the Company hauls from post office to post office comes from places throughout the United States and the world. Such mail is considered to be in a continuous flow in interstate commerce from the moment it is mailed until it reaches its ultimate destination. Petitioner Dennis Bonville has been employed by the Company from time to time as an employee and as a subcontractor. Petitioner's last employment with the Company was as an employee driving a truck hauling mail from Tampa, Florida to Ruskin, Florida. The Company hired Petitioner with the full knowledge and understanding that Petitioner had a handicap known as monocular vision (vision capacity in one eye). Notwithstanding his handicap, Petitioner had been granted medical certification and was qualified to operate a commercial motor vehicle in the State of Florida in intrastate commerce in accordance with Section 316.302(2)(j), Florida Statutes. The position held by Petitioner was created as a result of the Company being awarded an emergency mail hauling contract between Tampa, Florida and Ruskin, Florida by the U. S. Postal Service beginning February 10, 1990, for an indefinite period. At the time Petitioner was hired, he understood that his employment with the Company was indefinite since the contract for the Tampa to Ruskin run with the U. S. Postal Service was for an indefinite period. On or about April 27, 1991, the Company was audited by the United States Department of Transportation, Office of Motor Carrier Safety, Florida Division (USDOT). The USDOT agent reviewed, among other things, the personnel and medical files of all the Company's drivers. During the audit, the agent discovered that Petitioner had monocular vision. The contract for the Tampa to Ruskin mail run required the Company to comply with all state and federal regulations, including those promulgated by the USDOT. Under USDOT rules, monocular vision disqualified Petitioner from driving a commercial motor vehicle in interstate commerce. The agent demanded that Young immediately remove Petitioner from the Tampa to Ruskin run since it involved operating a commercial motor vehicle in interstate commerce. However, since Young had no qualified driver to relieve Petitioner, the agent agreed to allow Petitioner to complete the run for the day with the understanding that the Petitioner would be relieved upon his return. The agent then advised Young that he would return the next day to complete the audit, and if the Petitioner had not been relieved, he had the authority to, and would, put a padlock on the door and shut down the Company's business. It was the agent's position that the Company was engaged in interstate commerce due to its hauling mail that was in interstate commerce, notwithstanding that the Company's vehicles never left the State of Florida. Therefore, the Petitioner's monocular vision rendered him unqualified to drive a commercial motor vehicle operating in interstate commerce under the USDOT rules which governed drivers under mail contracts. When the Petitioner returned that night to the Company's office, Young informed the Petitioner that due to the agent's position and his threat to shut down the Company's business if Petitioner continued to make the Tampa to Ruskin run, he had no alternative but to relieve the Petitioner of the Tampa to Ruskin run. When the agent returned to complete the audit the next day, the Petitioner had a heated discussion with the agent concerning the agent's position and its effect on the Petitioner's employment. The agent maintained his position that Petitioner was not qualified to drive the vehicle being used in the Tampa to Ruskin mail run which was considered to be in interstate commerce. At the conclusion of the audit, the Company was issued, among others, citations for violating 49 C.F.R. 391.11(b)(6), using a physically unqualified driver, and was fined $6,000. At this time, the Company had no other positions which it could offer the Petitioner that would accommodate his handicap. Therefore, as a result of the audit and the agent's threat to "shut down the business", the Petitioner was terminated by the Company effective April 27, 1991. At the time Petitioner was terminated he was earning $11.19 per hour and working 40 hours per week. Petitioner's job performance was not an issue in the Petitioner's termination. The Company's bid for the renewal of the Tampa, Florida to Ruskin, Florida contract was unsuccessful, and on April 30, 1991, the Company's contract for the Tampa to Ruskin mail run expired. Petitioner was replaced by a Company employee who was qualified under the USDOT rules to operate the vehicle used on the Tampa to Ruskin run for the three days remaining on the contract. After Petitioner's termination, sometime around October, 1991, the Petitioner was offered employment with the Company driving a van, which Petitioner was qualified to drive, delivering special delivery mail. However, this employment offered less money than Petitioner's previous employment with the Company and was turned down by the Petitioner.
Recommendation Based upon 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 filed by the Petitioner. RECOMMENDED this day 29th of August, 1994, at Tallahassee, Florida. WILLIAM R. CAVE 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 29th day of August, 1994.
The Issue Whether Honda of Bay County/Volkswagen of Panama City (Respondent), violated the Florida Civil Rights Act of 1992, sections 760.01-760.11, Florida Statutes,1 by discriminating against Maurice Hargrove (Petitioner) because of his disability and race.
Findings Of Fact Petitioner, Maurice Hargrove, is an individual of African-American descent, who resides in Chipley, Florida. Respondent, Honda of Bay County and Volkswagen of Panama City are automobile dealerships located in Panama City, Florida. Petitioner alleges that he was not hired by Respondent because of his race and because of a disability. Petitioner’s alleged disability relates to his wearing a supportive brace on one of his legs at the time he applied for the job position with Respondent. Petitioner first made contact with Respondent’s business after seeing a “now hiring” sign in front of Respondent’s facility in Panama City. According to Petitioner, after seeing the sign, he walked into the building and filled out a job application. Petitioner could not recall when this occurred, but he believed it was sometime prior to Hurricane Michael, which struck the Panama City area in October 2018. Exact time frames and sequence of events as to what happened after Petitioner initially filled out the application are less than clear because Petitioner repeatedly changed his testimony during the final hearing. Nevertheless, the findings set forth below, derived from the combined testimonies of Petitioner and Respondent’s manager, Mr. Boatwright, detail the pertinent facts. Petitioner initially inquired about a job as a service technician working on vehicles at the dealership. When Petitioner met with Respondent’s manager, however, Mr. Boatwright told Petitioner that he did not need a service technician at the time. Further, Petitioner had no prior experience working on vehicles. Mr. Boatwright further informed Petitioner that, although he did not need a service technician, he needed a shuttle driver for the dealership. According to Petitioner, because of his conversation with Mr. Boatwright, he marked through “service tech” on the job application and wrote in “driver.” Mr. Boatwright’s testimony, and sometimes Petitioner’s testimony, was that when Mr. Boatwright first met Petitioner, Mr. Boatwright noticed a brace on Petitioner’s leg and asked Petitioner what was the situation with the brace. Petitioner told Mr. Boatwright that he had injured his leg in a workplace fall for which he received workers’ compensation, but that he was no longer on workers’ compensation. 2 Mr. Boatwright asked Petitioner to obtain a note from a doctor clearing Petitioner to work, to which Petitioner agreed. At some point, Petitioner returned to Respondent’s dealership with a doctor’s note clearing him to work with no restrictions. Mr. Boatwright interviewed Petitioner for the driver position and said he would contact 2 Petitioner’s statements regarding his leg brace were inconsistent. Petitioner testified that he wears a brace on one of his legs for support after surgery for a broken leg. Petitioner also testified that he broke his leg “just walking one day in the neighborhood, and I turned, and it just gave out on me.” According to Mr. Boatwright, Petitioner told him when he was applying for the job that Petitioner had fallen off a ladder when working as a painter and received workers’ compensation for a leg injury. Petitioner did not take issue with this version of the events during his questioning of Mr. Boatwright. Petitioner further testified that he did not remember the year he broke his leg, when he had surgery on his leg, or when his doctor advised him to wear the brace. Regardless of the origin of the leg condition, Petitioner testified that the leg did not restrict him in any way. Petitioner about the job later. Both Petitioner and Mr. Boatwright believed that the interview went well. After interviewing ten candidates for the driver position, Mr. Boatwright believed that, based upon Petitioner’s maturity level as compared to other applicants, Petitioner was the best candidate. After Petitioner was interviewed, Mr. Boatwright’s bosses decided not to fill the driver position, but, instead, decided to have the driving duties shared amongst existing employees. At the final hearing, Mr. Boatwright recalled communicating this to Petitioner, but that if he did not, he offered his apologies. Petitioner first testified that Mr. Boatwright contacted him and told him that he would not be hired, describing a conversation with Mr. Boatwright in which Petitioner expressed his sadness with Mr. Boatwright about not getting the job. Later in the hearing, Petitioner said he did not ever hear back from Mr. Boatwright, and that it was Respondent’s attorney who advised him that Respondent had decided not to fill the driver position. Regardless of when and how Petitioner was informed that the job position was not being filled, Respondent chose not to fill the shuttle driver position. As of the date of the final hearing, well over a year after Petitioner applied for the job, Respondent had still not filled the driver position, opting instead to share driving duties amongst the existing employees. Petitioner presented no evidence that his race played any part in the decision not to hire him. His sole offering on this point was the fact of his race. Petitioner’s disability discrimination claim was based on the facts that Mr. Boatwright noticed the brace on his leg and asked him to get a doctor’s note clearing him to work. Although Petitioner testified late in the hearing that Mr. Boatwright said something to him about not feeling like he would be able to do the job, Petitioner’s statement was made after several accounts of conversations with Mr. Boatwright in which Petitioner never made this allegation. When asked about this new allegation on cross-examination, Petitioner could provide no details, quickly trailed off topic, and asked “Say what?” There was no allegation in his Charge of Discrimination or his Petition for Relief with the Division of Administrative Hearings that alleges that Mr. Boatwright suggested that Petitioner could not do the driver job. Considering these factors, as well as the inconsistency with Petitioner’s prior recollection that his interview with Mr. Boatwright went well, it is found that Petitioner’s late-asserted allegation that Mr. Boatwright said something to him about feeling that Petitioner could not do the job is untimely and is otherwise not credited. Further, Petitioner testified that his leg did not restrict him in any way, and failed to present evidence that he had a medical condition that substantially impaired any life activity.3
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 Petitioner's Complaint of Discrimination and Petition for Relief consistent with the terms of this Recommended Order. DONE AND ENTERED this 17th day of March, 2020, in Tallahassee, Leon County, Florida. S James H. Peterson, III 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 17th day of March, 2020. COPIES FURNISHED: Maurice Hargrove 1672 Sunny Hills Boulevard Chipley, Florida 32428 Russell F. Van Sickle, Esquire Beggs & Lane Post Office Box 12950 Pensacola, Florida 32591 (eServed) Tammy Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue presented for decision herein is whether or not Respondent engaged in the conduct set forth in the preceeding paragraphs, and, if so, what, if any, disciplinary action is appropriate.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, and the entire record compiled herein, I make the following relevant factual findings. Petitioner is the state agency charged with regulating the practice of optometry pursuant to chapters 455, 463, and 20, Florida Statutes. The Respondent is licensed to practice optometry in the state of Florida, having been issued license number OP-0001674. Respondent shares office space with Robert's Optical Center at 23 East Prospect Road in Fort Lauderdale. On or about January 8, 1986, Respondent performed an examination of visual analysis upon DPR's investigator Allison Lichtenstein. Lichtenstein used the alias, Allison Smith. During the course of the examination of Allison Lichtenstein Respondent failed to perform visual field testing. In addition to Respondent's failure to conduct a visual field test of Lichtenstein, Respondent also failed to perform the following minimum procedures: Pupillary examination, biomicroscopy and extra-ocular muscle balance assessment. At Lichtenstein's request, Respondent did not perform tonometry. After the Respondent's examination of Lichtenstein, she paid the examination fee to Robert Mann, an optician with Robert's Optical Center, Inc. Mann provided Lichtenstein with a copy of her prescription written on the Respondent's prescription form. (Petitioner's Exhibit 3). Mann is not a salaried employee of Respondent. Prior to Respondent's examination of Lichtenstein, Respondent was aware that Mann was writing prescriptions on his prescription pad. Despite this knowledge, Respondent allowed Mann to continue this practice and Respondent continues to allow Mann to collect fees and dispense receipts on his behalf. On or about January 8, 1986, Respondent performed an examination for visual analysis upon Petitioner's investigator, Mary Pfab. Pfab used the alias, Mary Parker. Dr. Mary Pfab is licensed to practice optometry in Florida, Tennessee, Virginia and North Carolina. She is currently engaged in the practice of optometry in Virginia. Pfab is familiar with the minimum procedures for vision analysis as required by rule 21Q-3.007, Florida Administrative Code. She was tendered and accepted as an expert witness in the practice of optometry. At the time of the examination, Pfab was wearing rigid contact lenses. Pfab told Respondent that she was then 28 years old and was taking the medication Ibruprofen. During Respondent's examination of Pfab, the following minimum procedures for vision analysis were not performed: pupillary examination and visual field testing. At Pfab's request, tonometry was not performed on her by Respondent. At the conclusion of Respondent's examination of Pfab, Pfab paid Robert Mann the examination fee. Respondent gave Pfab a copy of her prescription and Mann provided Pfab with a receipt on Respondent's prescription pad. Mann wrote Pfab's prescription on his pad. (Petitioner's Exhibit 2b). On or about April 2, 1986, Petitioner's investigator, Allison Lichtenstein revisited Respondent's office and conducted an investigation. She found that Respondent did not have a tangent screen, which is necessary to perform visual field testing. Corrective action has subsequently been taken by Respondent, and Respondent has now purchased a tangent screen. Respondent now includes visual field testing in routine eye examinations. Dr. David Chambers, a Florida licensed optometrist who has been engaged in the practice of Optometry in Florida since 1974, was accepted as an expert witness in the practice of optometry in Florida. Chambers testified as to the consequences which could result to a patient when an optometrist fails to perform the various required minimum procedures. A pupillary examination detects neurological problems produced by tumors, aneurysms or other diseases, particularly neurosyphilis. An optometrist who does not perform the pupillary examination could miss these problems and patients accordingly will not be referred to a neurologist as they should be. Visual field testing indicates the integrity of the eye's retina and detects a large family of diseases including glaucoma, pigmentation degeneration, diabetes and cataracts. Failure to performs visual field testing could result in the optometrist's missing these types of diseases which affect the visual system and the controlling nerve systems. Visual field testing and tonometry are two of the three procedures which detect glaucoma. The importance of performing visual field testing is increased when tonometry is not performed at the patient's request. Biomicroscopy detects lid and corneal diseases including allergic conjunctivitis, bacterial conjunctivitis, herpes, chlazions and aureola. These lid and corneal diseases could not be detected, diagnosed and/or referred for treatment by an optometrist who fails to perform biomicroscopy. The extraocular muscle balance assessment determines how well the two eyes work together. By failing to perform the extraocular muscle balance assessment, an optometrist could fail to diagnose a phoria or tropia problem. A phoria problem is a tendency for the eye to turn and a tropia problem is an actual turning of the eye. Failure to detect and treat these problems could result in the patient having headaches, seeing double, or using only one eye. John C. Danner is a real estate appraiser engaged in appraising commercial real estate property since 1975. Danner was received as an expert appraiser in commercial real estate. He is familiar with market rental values of commercial property in the Fort Lauderdale/Broward County area. Surveys conducted by Danner to determine the market rent for space near the Respondent's office reveal that the market rent for similar space is between $90 to $100 per month. Additionally, it would cost an optometrist between $300 to $400 per month to lease the type of equipment which has been provided by Robert's Optical to Respondent. Robert's Optical provides Respondent with both his office space and equipment for $50 per month. By the inducement of paying only nominal rent for office space and equipment, Respondent has engaged in the practice of optometry with Robert's Optical Center, Inc. Respondent does not maintain full and total responsibility and control of all files and records relating to patients. Rather, an optician with Robert's Optical Center provides patients with prescriptions written on the Respondent's prescription forms, and Respondent's patients pay their examination fees to an optician affiliated with Robert's Optical. Respondent charged Lichtenstein $25 for an "eye exam" (Petitioner's Exhibit 3) and charged Pfab $35 for a "contact lens exam" (Petitioner's Exhibit 2b). These examinations were not complete in that a number of the required minimum procedures were omitted.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: Respondent's license to practice optometry be suspended for three (3) months, and upon the conclusion of the suspension Respondent be placed on probation for a period of twelve (12) months under such terms and conditions as required by the Board of Optometry. An administrative fine be imposed upon Respondent in the amount of twenty-five hundred dollars ($2,500) payable to Petitioner within thirty (30) days after the entry of the Petitioner's Final Order. DONE and ORDERED this 4th day of November, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 4th day of November, 1987. COPIES FURNISHED: Robert Newell, Jr., Esquire Phillip B. Miller, Esquire 102 South Monroe Street Tallahassee, Florida 32301 Edward Paul Kreiling, Esquire Parkway Professional Building 6151 Miramar Parkway Miramar Florida 33023 Tom Gallagher, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 William O'Neil General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mildred Gardner Executive Director Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750
The Issue The issue is whether the City of Orlando (City) engaged in an unlawful employment practice by terminating Petitioner because of his age, national origin, and disability.
Findings Of Fact Petitioner is a 42-year-old male of Puerto Rican origin. After working as a paramedic in the Chicago area for several years, Petitioner began employment with the City as a police officer on May 11, 2003. He continued in that capacity until May 9, 2013, when he was terminated for violating three Police Department (Department) regulations. This was two days short of the ten-year vesting period for retirement purposes. Petitioner suffered an on-duty injury to his right foot on December 7, 2007, while attempting to apprehend the driver of a stolen vehicle. On January 2, 2008, the injury was initially diagnosed by Dr. Funk, a podiatric surgeon, as a Lisfranc (midfoot) fracture with minor dislocation and a possible compression injury or bone contusion to the naviculo-cuneiform joint in the right foot.2/ Based on the results of an MRI, and further review of his records, Dr. Funk concluded Petitioner had suffered a Lisfranc sprain, rather than a fracture. At Petitioner's request, he was temporarily reassigned to alternative duty but returned to regular duty without limitation on March 19, 2008. He was assigned to the gang unit and performed all functions required of a police officer. Petitioner returned to see Dr. Funk in January and December 2009 after feeling pain in his right foot while running. There were no changes in his maximum medical improvement during either visit and Petitioner was released to work with no restrictions. On September 12, 2010, while chasing on foot a suspect who had burglarized his patrol car parked at his home, Petitioner reinjured his right foot. He was diagnosed with an aggravation of a pre-existing injury, restricted to light duty for one week, and instructed to return to full duty thereafter.3/ On March 9, 2011, Petitioner was treated by Dr. Funk who added an additional diagnosis of probable mild to moderate degenerative joint disease (DJD), also known as osteoarthritis, which had formed a few centimeters away from the midfoot sprain in his right foot. Two weeks later, Dr. Funk noted that Petitioner "may" be a candidate for fusion of the arthritic area if "pain exceeds his tolerance and conservative measures fail." On April 13, 2011, the City placed Petitioner on alternative duty status/relieved of duty as a result of his arrest on criminal charges (battery and false imprisonment) and his participation in a trial on the charges. While relieved of duty, on August 17, 2011, Petitioner returned to Dr. Funk complaining of continued pain in his mid- right foot. He was again diagnosed with a Lisfranc injury and DJD. At that point, however, Dr. Funk testified that the Lisfranc diagnosis "could easily fall off" leaving only DJD of the naviculo-cuneiform joint. At Petitioner's request, his work status remained "no limitations." Visits to Dr. Funk in January and February 2012 did not change his work status. On April 27, 2012, Petitioner was found not guilty of the criminal charges and returned to active duty as a police officer. He was initially assigned to a day patrol shift. On May 4, 2012, Petitioner was examined by Dr. Funk after complaining of radiating pain to his right foot and leg. Dr. Funk diagnosed this as possible tarsal tunnel syndrome and placed him on restrictions of no running or climbing. On May 7, 2012, Petitioner submitted a memorandum through the chain of command to the Chief of Police requesting that he be placed on light duty due to his foot injury sustained in December 2007. The memorandum, accompanied by a medical report, stated that Dr. Funk had "placed [him] on light duty until further notice with the restriction of no running or climbing of any kind." Petitioner requested that he remain in his current assignment in Property and Evidence, one that did not require any running or climbing. To reasonably accommodate his injury, the request for light duty was approved, but Petitioner was reassigned to the Innovative Response to Improve Safety (IRIS) unit. IRIS is a video surveillance network in the City designed to deter crime. During a typical shift, no more than four officers sit at two terminals, which display video from cameras located throughout the City. Because there are no physical demands associated with IRIS, officers on restricted duty are normally assigned to the IRIS unit. The IRIS unit has a day and night shift. Officers cannot make their own schedule, as this depends on the availability of manpower. However, relying on his nine-year seniority, Petitioner requested four ten-hour days per week on the IRIS day shift, which was approved by his supervisor, Sgt. Andrew Brennan. On August 2, 2012, Petitioner sent an email to his supervisor complaining that one of his fellow officers on IRIS duty was "wasting resources" and not doing anything. Six days later, Petitioner was reassigned to the night shift. Although Petitioner says this change was in retaliation for complaining about an officer who was a good friend of Deputy Chief O'Dell, there is insufficient credible evidence to support this claim. Petitioner was displeased with the night shift for several reasons. First, he testified that it disrupted the medication he was taking for his foot. He also stated that it prevented him from adequately caring for his three children and his wife, a former City police officer on a disability pension, who at that time was afflicted with Meniere's Disease. Although Petitioner made at least two requests to change to the day shift, they were not approved. Department protocol requires that officers on restricted duty submit medical updates every 30 days, along with physician reports. In accordance with that requirement, Petitioner timely submitted updates in June, July, and August 2012. They essentially stated that his condition was unchanged and that Dr. Funk was keeping him on light duty with restrictions of no running or climbing. On September 14, 2012, Petitioner visited an urgent care facility complaining of numbness, pain, burning, and loss of motor function in his right foot. He was treated by the on- duty physician, Dr. Carlos, who gave him temporary restrictions of no driving any vehicle, no walking, no standing, and no performing any safety related duties until he saw his treating orthopedist. On the same day, Petitioner submitted a medical update to the Department stating in part that a work status change was necessary in light of "the deteriorating condition of my injured right foot." In the memorandum, he complained of occasional "numbness" in his right foot that spread up to his calf and knee. He also stated that Dr. Carlos had examined him and "restricted me from doing the following: I am not to stand, walk, drive any vehicle, or perform any safety sensitive duties until I am seen by an orthopedic physician." He added: "I am to stay at home until I have been examined by a new physician." A copy of Dr. Carlos' medical report was attached to the update. Petitioner returned to Dr. Funk on September 24, 2012, and stated that he did not feel safe to drive given the pain in his right foot. Based on Petitioner's subjective complaints, rather than objective medical evidence, Dr. Funk placed him on restrictions of no driving, sit 90 percent of the time, and wear a shoe of choice. Dr. Funk listed the diagnosis as "injury." Notably, Dr. Funk testified that by then he had some concern that Petitioner "was coming in often and it was something -- seemed to be something new every time" and that the different diagnoses "ultimately came back as negative." He added that there was not "a tremendous amount of objective pathology present" even though Petitioner complained of significant discomfort in a "multiplicity of locations." Although he had recommended approval of Petitioner's requests for light duty each month, beginning in May 2012 Deputy Chief O'Dell had doubts that the 2007 foot injury justified continued light duty, especially since Petitioner had been on alternative duty during the entire time he was charged with a crime, and he had never raised the injury issue with the Department. Deputy Chief O'Dell construed the new medical assessment in the September 14, 2012, memorandum as meaning that Petitioner was unable to report to work. His skepticism of the injury increased as this new restriction coincided with Petitioner's displeasure with being reassigned to the IRIS night shift. Because of his skepticism, and with the Chief of Police's approval, Deputy Chief O'Dell requested that the Metropolitan Bureau of Investigation (MBI), a multi-agency task force, conduct surveillance on Petitioner to confirm whether or not his putative injury was real. Beginning on October 4, 2012, and continuing until November 30, 2012, MBI agents conducted periodic surveillance of Petitioner's home to determine Petitioner's level of activity. During this same time period, Petitioner remained at home on full pay. He submitted medical updates on October 12 and 29 and November 6, 2012, stating that pursuant to physician orders, the following restrictions were put in place for Petitioner: "no driving, sitting 90% of time, and wear shoe of choice for comfort." During the November 6 visit, Dr. Funk told Petitioner that he had nothing else to offer him from a musculoskeletal standpoint and the only option was "good support in his shoe and kind of common sense majors." On November 7, 2012, Petitioner sent an email to the Department stating that he was willing to come back to work in the IRIS unit if the Department provided transportation, as it had for other officers on restricted duty. He also complained that the midnight shift "caused havoc with sleep and medications," suggesting that he could only work the day shift. On November 27, 2012, at a meeting convened by Deputy Chief O'Dell, Petitioner was asked when he could return to work. Petitioner responded that he was in constant pain, he could not drive, and he had lost motor function in his foot. On November 30, 2012, Petitioner was served at his home with a Return to Duty Notice and instructed to return to the IRIS night shift on December 2, 2012. Petitioner replied by email that he had loss of motor function in his right foot and was not able to drive any motor vehicle. Notably, that same day, he was observed by MBI agents driving his motor vehicle to and from his home. Petitioner also stated that if he sat for long periods of time his foot would go numb, even though one of his medical restrictions required him to sit 90 percent of the time. Petitioner warned the Department that unless it provided him with transportation to and from work, he would be forced to drive himself, and if an accident occurred, he would hold the City responsible for any damages. In response to his email, the Deputy Chief advised Petitioner that the Department was not directing him to drive anywhere, but it was his responsibility to get to work. He was told that he could use public or private transportation, but the Department did not have the responsibility of providing transportation. Petitioner lives approximately 18 miles from Department headquarters, and he concluded that neither option was practical. Petitioner testified that two officers, Shoemaker and Almeida, who were not called as witnesses, told him they had been provided transportation by the Department when on light duty. However, the Department's response was correct, as providing transportation for officers on restricted duty was contrary to Department policy. This was confirmed at hearing by the then Chief of Police. Sometime in October 2012, MBI agents placed a motion- activated surveillance camera in the yard of Petitioner's neighbor in order to monitor Petitioner's activities. The camera remained at the neighbor's house through the month of November. The surveillance video, as supplemented by visual observations by the MBI agents, shows Petitioner driving his daughter to a nearby school on multiple occasions, driving to a supermarket, walking two large dogs without a limp on a street near his home, rolling trash cans to the curb, using a gas- powered edger in his yard, rotating tires on his vehicle, walking to the gym to work out, and bending over to retrieve items on the ground. At hearing, Petitioner also acknowledged that during this same time period, he twice drove his wife to a hospital more than twenty miles from his home, as she was unable to drive. According to the physician's report, at least some of these were restricted activities. At the request of Deputy Chief O'Dell, an Internal Affairs investigation was initiated on December 7, 2012, regarding a possible violation by Petitioner of Department Regulation 1000-4, the so-called "truthfulness" regulation, for misrepresenting his medical condition. The regulation states that "[e]mployees are required to be truthful at all times whether under oath or not." Given the evidence produced by MBI, this was a reasonable course of action to take. After a lengthy investigation, Internal Affairs submitted a written report on April 29, 2013. The report concluded that besides violating the truthfulness regulation, Petitioner violated Regulation 300.23, Reporting Sick, which prohibits an officer feigning illness or injury, falsely reporting himself as injured, or otherwise attempting to deceive the Department as to his condition of health. The report also concluded that Petitioner violated Regulation 200-8, Obedience to Laws and Department Procedures, by fraudulently pursuing a workers' compensation claim under section 440.105(4)(b)(2). However, Petitioner was never criminally charged for this violation. The report recommended that Petitioner receive an oral reprimand for violating Regulation 300.23, a 240-hour suspension for violating Regulation 200-8, and termination for violating the truthfulness regulation. Although Petitioner questioned why two new charges were added by Internal Affairs, it is not unusual for new charges to be added or substituted during the course of an investigation. A Notice of Termination meeting was conducted on May 6, 2013, to allow Petitioner an opportunity to "present any new information or provide clarification that would lessen the degree of discipline presently recommended." By then, Deputy Chief O'Dell had retired. Petitioner and his union representative attended the meeting. On May 9, 2013, Petitioner was terminated for violating the three regulations. According to the Chief of Police, the evidence to support this decision was "overwhelming." The termination decision was agreed upon by every person in the chain of command, including the new Deputy Chief. It was not based on Petitioner's national origin, age, or disability; rather, it was based on the sustained charges in the lengthy Internal Affairs report. Every officer, including those of Hispanic origin, found guilty of violating the truthfulness regulation has been terminated by the Department. Petitioner does not dispute what the video shows. He testified that the driving activities were short trips of no more than a mile or so from his home that were necessary because his young daughter and sick wife were unable to drive. He admitted that while it was unsafe, he always drove with his left foot rather than with the injured right foot. Petitioner contends that none of the activities in the video were inconsistent with the doctor's restrictions, as he was always allowed to perform "routine functions around home." However, this explanation has not been accepted, as many of these activities are not consistent with his treatment plan. Petitioner admits that many of his difficulties at the Department were due to "running his mouth," which gained him no favors from his superiors and resulted in very little career advancement. He contended that other officers, especially those who played on the Department softball team with Deputy Chief O'Dell, were given more favorable treatment, but no credible evidence to support this contention was submitted. On May 7, 2013, or two days before he was terminated, Petitioner filed an application for a line-of-duty disability, which would allow him to retire because of a disability suffered in the line of duty. This application was denied by the Board of Trustees of the City of Orlando Pension Trust Fund on December 5, 2013, on the ground Petitioner never filed a completed application package, a mandatory requirement. However, his contested application for unemployment benefits was approved, and he continues to receive benefits under an open workers' compensation case. On June 30, 2014, Dr. Funk operated on Petitioner's right foot, fusing two joints, due to arthritic changes and his subjective complaints. The cost was covered by the City under Petitioner's open workers' compensation case. Petitioner is presently employed as a life guard at Disney World, not because of his 2007 injury, but because he says the City's action makes it impossible for him to find a job in law enforcement or even to work as a security guard. He expressed a desire to return to law enforcement work if he prevails in this matter.
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, with prejudice, the Petition for Relief. DONE AND ENTERED this 21st day of April, 2015, in Tallahassee, Leon County, Florida. S D. R. ALEXANDER 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 21st day of April, 2015.
The Issue Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?
Findings Of Fact At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction." Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated. There is no evidence that Petitioner's position was ever recreated or refilled. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby. DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of March, 1996.
Findings Of Fact The Petitioner is Elizabeth Nicolitz who has been actively licensed in Florida as an optician since May 1, 1985. The Respondents are the Board of Opticianry and the Department of Professional Regulation. The Petitioner sought her attorney's fees and costs from an administrative proceeding, DOAH Case No. 92-1477, which was initiated by the filing of an administrative complaint on October 23, 1991, seeking disciplinary action against the Petitioner. The First District Court of Appeal summarized the facts and law leading up to this attorney's fees and costs case in Nicolitz v. Board of Opticianry and Department of Professional Regulation, 609 So.2d 92 (Fla. 1st DCA 1993), as: Nicolitz was previously placed on probation and ordered to file quarterly reports. When two of those reports were late filed, an administrative complaint was filed against her. Through counsel she executed an "election of rights" form and disputed the allegations of fact and sought a formal hearing before a Division of Administrative Hearings (DOAH) hearing officer in accordance with Section 120.57(1), Florida Statutes. The matter was referred to DOAH, where counsel for the Depart- ment of Professional Regulation (Department) and counsel for Nicolitz entered into a prehearing stipulation. The Department construed this stipula- tion as demonstrating an absence of disputed issues of material fact and, in accordance with Florida Administrative Code Rule 22I-6.033, moved the hearing officer to relinquish jurisdiction. The DOAH hearing officer considered Nicolitz's response in opposition to the motion to relinquish jurisdiction, heard oral argument, and denied the motion. Several weeks later, and one day before the scheduled formal hearing, counsel for the Department filed an "notice of voluntary dismissal without prejudice." This pleading essentially tracked the earlier motion to relinquish jurisdiction in concluding that no material issues of fact were in dispute, and sought dismissal without prejudice to the Department's right to proceed before the Board of Opticianry (Board) in an informal hearing pursuant to Section 120.57(2), Florida Statutes. The hearing officer entered an order which "ratified" the voluntary dismissal and purported to dismiss the administrative complaint. See F.A.C. Rule 22I-6.037. When an informal hearing was scheduled before the Board, Nicolitz petitioned this court for a writ of prohibition and we issued an order to show cause. We have considered the petition, the responses of the Department and the Board, and petitioner's reply, and grant relief. . . . [The opposition] is based in part on an argument that [Ms. Nicolitz] has failed to acknowledge and comprehend the relationship between the Department and the Board in disciplinary proceedings. While we agree that relationship is key to proper resolution of this dispute, we find it is respondents [Department and Board] who miss the mark. The disciplinary proceeding essentially evolves in three stages, the first being an investigation by the Department and its report to the Board as to the existence of probable cause. See SS. 455.225(1), (2), and (3), Fla. Stat. (1991). The Board then may direct the Department to file an formal complaint and the Department shall "prosecute that complaint pursuant to the provisions of chapter 120." S. 455.225(4), Fla. Stat. The prosecution, second stage of the disciplinary proceeding, may or may not result in a referral to DOAH, but if it does, the relationship of the Board and the Department is altered. In the first stage, and during the third stage when jurisdiction returns to the Board and it enters a final order in accordance with section 455.225(6), the Board is a quasi-judicial body and the Department acts as an investigative and prosecuting authority. While jurisdiction lies with DOAH, however, that tribunal has jurisdiction and the Board is a party to the proceedings. S.120.57(1)(b)(3). During the DOAH proceedings, the Department acts as counsel of record for the Board and, we conclude, the Board must be bound by its counsel's actions. Those actions include voluntary dismissal of a complaint. Petitioner filed her attorney's fees and costs petition pursuant to Section 57.111 F.S. with the Division of Administrative Hearings on February 26, 1993, less than sixty days after the District Court's mandate issued. That is the case sub judice. She seeks attorney's fees and costs starting from October 29, 1991. The disciplinary litigation and administrative background between Ms. Nicolitz and Respondents could be described as a long and dreary "mini war," fought in sequential encounters. An abbreviated chronology of this epic struggle is essential to reach the material issues at bar, and illustrates that most of the time the right hand of the bureaucracy had no idea what its left hand was doing, even when the right hand directed the left hand to act. Ms. Nicolitz was licensed in Florida as a Dispensing Optician Lic. No. DO 0002492, and owned an optical establishment in Jacksonville known as "Specs and Company, Inc." During the summer of 1986, Ms. Nicolitz became the sponsor of an apprentice optician named Douglas H. Stewart. Chapter 484 F.S. permits licensed opticians to sponsor an apprentice optician for training purposes and allows the apprentice to perform a limited number of opticianry tasks, subject to the regulations contained in Rules 21P-16.001 through 21P-16.011 F.A.C. On June 30, 1986, while Ms. Nicolitz was away from the establishment, apprentice Stewart measured a patient's pupillary distance and segment height for assembling and fitting a pair of glasses in apparent violation of Rule 21P- 16.003 F.A.C. On December 12, 1986, the Department initiated disciplinary action against Ms. Nicolitz's license through the filing of a formal complaint styled DPR v. Elizabeth Nicolitz, Case No. 0072717. The case was subsequently resolved by stipulation of the parties, and Ms. Nicolitz signed the stipulation on March 23, 1987. The stipulation was then presented to the Board of Opticianry on April 10, 1987. A final order was filed May 12, 1987, ordering Ms. Nicolitz to pay an administrative fine of $250.00 within 30 days. Additionally, she would be placed on probation for one year and as a condition of probation, she was required to file quarterly reports, commencing the first of the month three months from the date of the filing of the final order. On May 12, 1987, Ms. Patricia B. Guilford, Executive Director of the Board of Opticianry wrote Ms. Nicolitz pointing out that the final order had been officially filed and as such, the terms of the March 23, 1987 stipulation must now be fulfilled. Ms. Guilford also pointed out that the administrative fine of $250.00 was due on or before June 12, 1987 and that Ms. Nicolitz's probation had begun, effective May 12, 1987, and would end June 12, 1988. The letter further specified that there were "specific terms and conditions" of probation that had to be met. As part of the letter, she included a copy of the filed final order. This package was sent by U.S. Certified Mail to Ms. Nicolitz and was signed for by her agent. Ms. Nicolitz paid the $250 fine on June 1, 1987. However, she did not thereafter file her quarterly reports with the Board in satisfaction of the other terms of her stipulation. On October 6, 1990, the Board of Opticianry filed a new administrative complaint, styled DPR v. Elizabeth Nicolitz, Case No. 0106310, alleging that Ms. Nicolitz had violated the previous final order by failing to submit the required quarterly reports in a timely fashion. Ms. Nicolitz responded to the Department by asserting that she had never received the final order, especially in reference to the probation requirement. On the advice of counsel, Ms. Nicolitz suggested that a new stipulation agreement be entered between her and the Department calling for new starting dates for her probation and quarterly reports. As agreed to, the new stipulation required Ms. Nicolitz to file quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990. In entering into the new stipulation agreement, the Department took into consideration allegations made by Ms. Nicolitz and her counsel that the final order may not have been properly served upon her, and agreed to dismiss pending complaint DPR v. Elizabeth Nicolitz, Case No. 0106310, filed October 6, 1990. That case was presented to the November 18, 1989 Probable Cause Panel for closure. The Panel heard the arguments and agreed to closure. During all of this period, agency personnel had harbored suspicions of Ms. Nicolitz because they felt she should have known what to do and when to do it because she had signed the stipulation and because of the agent's signature on the receipt for the final order. There were misinterpretations of the earlier closing order and attorneys for both parties fired off accusatory, and eventually explanatory and apologetic, letters. In any case, it was abundantly clear as of November 18, 1989 at the latest, that Ms. Nicolitz knew she must file her quarterly reports on March 31, 1990, June 30, 1990, September 30, 1990, and December 31, 1990. As per her agreement, Ms. Nicolitz submitted her first and second quarterly report on March 22, 1990 and June 1, 1990, respectively. However, she failed to submit the third quarterly report which was due September 30, 1990. The Board sent her a letter notifying her that she was delinquent. She then submitted the third report on October 16, 1990. She was again late with the filing of her last quarterly report due December 31, 1990. The Board once again notified her of the delinquency, and she submitted the last quarterly report on February 11, 1991. On October 23, 1991, a formal administrative complaint was filed. It charged Ms. Nicolitz with a violation of Section 484.014(1)(i) F.S., which provides for discipline of a licensee for: Violation of a lawful order of the board or department previously entered in a disciplinary hearing or failing to comply with a lawfully issued subpoena of the department. That administrative complaint became the underlying DOAH Case No. 92-1477, the procedural history of which is set out in Findings of Fact 3-4 supra. A more detailed factual history behind how the administrative complaint came to be filed is set out infra. There has never been any dispute that Ms. Nicolitz filed her first two of four required probation reports on time or that they were properly mailed directly to the Department of Professional Regulation instead of the Board. Since it was due on September 30, 1990, Ms. Nicolitz's third report, dated October 16, 1990, was 16 days late when she wrote it. Administrative Assistant Leah R. Hickel is an employee of the Board of Opticianry, whose paycheck is issued by the Department. In a letter dated October 17, 1990 Ms. Hickel advised Ms. Nicolitz that her quarterly report due September 30 had not been timely received and that she had thirty days from the date of Ms. Hickel's October 17, 1990 letter (i.e. November 16, 1990) to file the third quarterly report and comply with the terms of the final order. Ms. Nicolitz's October 16, 1990 report was stamped in as received by the Board on October 23, 1990. Ms. Hickel's letter and Ms. Nicolitz's third report must have crossed in the mail, but the third report was clearly timely received by the Board within the terms of Ms. Hickel's letter, and it may be reasonably inferred to have been received even earlier by the Department. Ms. Hickel sent a similar letter to Ms. Nicolitz on February 6, 1991 to the effect that Ms. Nicolitz's December 31, 1990 final quarterly report had not yet been received and that she must submit it within 30 days (i.e. March 8, 1991). The fourth report was filed with both Respondents within the time-frame provided in that letter. Contrary to the testimony of Susan J. Foster, the current Executive Director of the Board of Opticianry, and Manty Morse, a member of the Board and one of the members of the Probable Cause Panel which arrived at the new administrative complaint on September 16, 1991, the overwhelming record evidence is to the effect that Leah Hickel had apparent authority to extend the time for Ms. Nicolitz to file her third and fourth reports. Also, on the issue of whether or not Ms. Hickel had actual authority to extend probationers' time for reporting, it is found that she did. The Board had adopted a policy of extending by 30 days the time for filing probation reports as reflected by the minutes of an open meeting held November 3, 1989, stating: "The Board directed Ms. Hickel to send a 30-day letter any time a person is found not in compliance with a Final Order and to refer to complaints if they do not respond." (Emphasis supplied). Board Member Dale Wenal, the Board attorney, Theresa Bender, and the Department prosecutor, Renee Alsobrook, were present at the February 9, 1990 Board meeting when the November 3, 1989 Board meeting minutes were discussed and adopted. Board members, including Ms. Wenal, voted for adoption of the minutes, and both sets of minutes were preserved as a standard business record of the Board. This method of doing regular Board business, i.e. the instruction of its support service personnel, was common practice of this particular collegiate body. Under these circumstances, it is immaterial that a formal motion and vote to "create" such a policy did not occur at either meeting. It is also immaterial that Ms. Wenal and Ms. Morse were not present at the November 3, 1989 meeting and that Ms. Morse was not present at the February 9, 1990 meeting. No one for either the Board or the Department notified Ms. Nicolitz that she was in violation upon her late-filing of the third or fourth probation reports, filed within the extensions granted by Ms. Hickel on October 17, 1990 and February 6, 1991. However, on February 12, 1991, Ms. Hickel sent a memorandum to Denise Love, Senior Complaint Analyst, to the effect that she now wanted to initiate a complaint for violating the prior final order. Ms. Love advised Ms. Nicolitz via a February 26, 1991 letter of a preliminary investigation. Ms. Love already had signed the Department's internal uniform complaint form on February 21, 1991. To further obfuscate what the agency(ies) were doing, while the Department was initiating the investigation preparatory to an administrative complaint for late filed reports, Ms. Hickel notified Ms. Nicolitz by letter dated March 1, 1991 that: This will acknowledge receipt of your last quarterly report, received in this office on February 15, 1991. Please be advised we are notifying the office of licensure to remove your license from pro- bationary status, this date. The effect of the foregoing letter was to remove Ms. Nicolitz's license from probationary status as of March 1, 1991. By letter of March 28, 1991, Ms. Love invited a response to her February 26, 1991 letter from Ms. Nicolitz. Ms. Nicolitz, now thoroughly confused and frustrated, responded that she had sent all her reports and Ms. Hickel had acknowledged receipt thereof. On April 30, 1991, Ms. Love sent a similar letter to Ms. Nicolitz stating that no response from Ms. Nicolitz had been received. Ms. Nicolitz's attorney then entered the fray and wrote Ms. Love on May 21, 1991 advising her of the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation. Ms. Love had already prepared an investigative synopsis to the file dated May 8, 1991. It was not altered thereafter by her. It reads: SECTION I - ALLEGED VIOLATION Failure to comply with terms of Final Order previously entered in a disciplinary hearing; violation of a rule. STATUTE/RULE NUMBER Rule 21P-8.020(2)(i), FAC; Section 484.014(1)(g), Fla. Stat. SECTION II - SYNOPSIS This investigation is predicated on the receipt of a complaint on 2/14/91 from the Board of Opticianry, alleging that Subject has failed to comply with the terms of the Final Order issued in DPR case #0072717. Subject was placed on probation and required to submit quarterly reports to the Board, but has not done so; Subject was notified of the complaint by letter to inquire dated 2/26/91 and again on 4/30/91. Response from Subject was received 4/24/91. Subject states that she has now complied with the terms of the Final Order and has submitted all of her quarterly reports. She says that Leah Hickel of the Board of Opticianry will confirm this. (Emphasis supplied). The Probable Cause Panel (Ms. Manty Morse and Ms. Dale Wenal) had at least the following items before them when considering Ms. Nicolitz's case on September 16, 1991: a uniform complaint form, a proposed closing order and a recommendation for a letter of guidance, an administrative complaint, a previously issued final order and attached affidavit of service, a memorandum of finding of probable cause, the four letters from Ms. Nicolitz to the Board purporting to be her quarterly reports, findings made by the Department, the two "extension" letters from Leah Hickel dated October 17, 1990 and February 6, 1991, the investigative synopsis, and the March 1, 1991 Hickel letter removing Ms. Nicolitz from probation. The materials had been received and reviewed by panel members earlier. Ms. Marcel Flannigan of the Department, Renee Alsobrook and Lucy Sneider, attorneys for the Department, and Theresa Bender, Counsel for the Board of Opticianry, were also present for the meeting. The direct evidence at formal hearing by Manty Morse was that she was unaware as of the September 16, 1991 Probable Cause Panel meeting of the Board's prior delegation of authority to Ms. Hickel and that she had not interpreted the Hickel letters as granting an extension for Ms. Nicolitz's third and fourth reports. With the advice of counsel, the panel had viewed each day which the probation reports were late as a separate violation of the prior final order which had never been formally modified. The exchange at the Probable Cause Panel Meeting went as follows: A VOICE: She's saying she filed her reports on April 17th of 1991. MS. ALSOBROOK: After Lea wrote. A VOICE: After. In other words, had she not written to her we'd still be waiting for her. MS. ALSOBROOK: And we also wrote her on September 30th of 1990 and she sent her report for that quarter in on October 23rd. So you may want to file an AC. It's up to you. A VOICE: An AC, air conditioning? MS. ALSOBROOK: An administrative complaint. What would you all like? You have probable cause; you can do either one. It's up to you. A VOICE: Well I would find probable cause, okay, and do file an Administrative Complaint. MS. BENDER: Okay. So you previously had found probable cause and -- A VOICE: Letter of Guidance. MS. BENDER: -- wanted to close it with a letter of guidance. A VOICE: But I would like to change that and have an Administrative Complaint. I don't feel good about this the other way. THE CHAIRPERSON: Okay. MS. ALSOBROOK: What section, 484.014(i), failure to comply with Final Orders? THE CHAIRPERSON: You don't want to send a letter to -- you want a response. A VOICE: I can't imagine that they would have attorneys -- MS. ALSOBROOK: Ready for the next one? (Whereupon, the above matter was concluded) Ms. Morse's formal hearing testimony essentially corroborated the statements made by the panel members at the September 16, 1991, Probable Cause Panel meeting. Her comments reflect the following, in part: Q With regard to the Nicolitz case, do you remember being provided with the entire investigative file? A Yes. Q When you reviewed this file to find probable cause, can you explain briefly why probable cause was found? A Probable cause was found because she didn't file her reports on time. Q Did the panel consider that each day that the reports were beyond the cutoff date for the quarter to be a violation? A Yes, we did. And we were upset that it had taken this long for her compliance and still she had not done it in a timely manner. Q Did you consider her to be, in essence, ignoring the Board? [objection] Q How did you interpret Ms. Nicolitz's actions as far as the late filing? A Well, the way the panel saw them, myself and Mrs. Wenal, was that she really didn't care, you know, and that's why we were both upset. So, she was just disregarding all the orders that were given to her previously and now, even though we had extended for her to file her reports, you know, two years, three years later. Q Do you recall if the prosecutor had recommended that you find probable cause? A Yes. Q Do you recall if the prosecutor had indicated a recommended penalty or action after you found probable cause? A I remember that they wanted a letter of guidance at that time. Q What is a letter of guidance? A It's to explain to her that there was probable cause found and for her to, you know, tell what went wrong and to guide her so she would not do it again, I guess. Q Did the panel decide to issue a letter of guidance? A At first we thought that was the proper thing to do. But then when we got into discussion, that we saw how far the case went and we saw all this inconsistency, you know, and she still filed late, that's when we decided not to go with the recommendation of the attorney. Q And what was the direction of the probable cause panel to the prosecutor? A It was to find probable cause, that we had found, and to file an administrative complaint. (Emphasis supplied) It is accepted that at the time of the Probable Cause Panel meeting, Ms. Morse did not have actual knowledge of the actual authority reposed in Ms. Hickel by the Board's actions of November 3, 1989 and February 9, 1990, but Ms. Morse's lack of actual knowledge of the Board's directive to Ms. Hickel is not controlling as to whether or not the panel's decision to file a new administrative complaint was substantially justified. Board members have a duty to advise themselves concerning the Board directives which have been previously issued to staff. Nor is it indicative of substantial justification whether or not Ms. Nicolitz knew of the content of the prior Board minutes. It is material whether the Probable Cause Panel knew or should have known on September 16, 1991, when it determined there was probable cause Petitioner had committed a violation, rejected the Department's recommendation for closing, and instructed the Department to file an administrative complaint, that the prior Board directive permitting extensions had been issued and what the panel did, knowing that the extensions had been granted. From her presence and vote on February 9, 1990, it may be inferred that on September 16, 1991 Ms. Wenel had actual knowledge of Ms. Hickel's actual authority to grant extensions and ignored it. It also is clear that on September 16, 1991, both Ms. Wenal and Ms. Morse also ignored the apparent authority of Ms. Hickel's October 17, 1990 and February 6, 1991 letters, which were physically before them, and knew of and also ignored Ms. Nicolitz's ultimate compliance with those letters, which were also before them, and that both Panel members did so because the Hickel letters were contrary to the members' subjective perception that Ms. Nicolitz had been ignoring them and their prior final orders. They also ignored the apparent ratification of Ms. Nicolitz's probation compliance contained in the March 1, 1991 Hickel letter. Their deliberations indicate no adequate basis for a probable cause determination since they had Ms. Nicolitz's quarterly reports and Ms. Hickel's extension letters before them and could not have been misled by the Department's report to the effect that Ms. Nicolitz only "states that she has now complied." (Emphasis supplied) The Department report also told them that Ms. Nicolitz requested that they ask Ms. Hickel to confirm all her assertions. Leah Hickel worked for the Board. Had the Panel consulted Leah Hickel, any doubts concerning her authority to grant extensions could have been cleared up. Therefore, the Panel ignored all exculpatory evidence pointed out by the accused. The Panel did not have a basis in law or fact for the administrative complaint actually filed. The Panel also deviated from proper legal and standard procedure by not conducting a clear vote on a finding of probable cause. 1/ Ms. Nicolitz's first report (March 22, 1990) stated that as of December 1989, she had closed Specs and Company Inc.'s optical business and that for the first quarter she had not practiced opticianry. The second report (June 1, 1990) stated she had not practiced opticianry in the second quarter. The third report (October 16, 1990) stated she had done nothing optical at all during the third quarter, other than going to a few optical meetings. The fourth report (February 11, 1991) reported that nothing had changed, Petitioner was not working for anyone as an optician and she had not done so for the last quarter of 1990. Ms. Nicolitz's four reports to the Board under the terms of her probation were that she had "closed Spec's and Company's Optical Business;" was home "out of all business settings;" "had not practiced opticianry," "was not operating a business and had not done anything optical at all," and "was not working optically or for anyone as an optician," throughout the whole of 1990. Despite a great deal of backpedalling on the foregoing representations as contained in pleadings and papers filed immediately prior to formal hearing with the intent to defuse Respondents' motion for summary final order of dismissal, Ms. Nicolitz's oral testimony at formal hearing does not appear to materially alter the representations contained in her four reports for the year 1990. To the extent that she has made any inconsistent statements in any form concerning the year 1990, those statements are found not to be credible. It is therefore found that Ms. Nicolitz was not operating as a "small business party" during the whole of 1990. With regard to her situation in 1991-1992, the only years relevant to the attorney's fees and costs incurred in the underlying case, Ms. Nicolitz testified that she operated Specs and Company, Inc. as an optical shop only until December 1989, when she closed it and moved into her two residential garages the portion of optical equipment which she was unable to sell. She did this, because, as she put it, "a question of conflict of interest arose" with her opthalmologist husband's work at Baptist Eye Institute. Specs and Company, Inc. was not administratively dissolved until October 9, 1992, but it was clearly no more than a de facto corporation at all times material. Ms. Nicolitz appeared in her individual capacity in the underlying case, and Specs and Company, Inc. was not a party. Prior to her licensure, Ms. Nicolitz was apparently only an appentice employee of the corporation. It is unclear if that status of "employee" altered after she was licensed in 1985. From 1982 until Ms. Nicolitz ceased to compete with her husband due to alleged "conflict of interest" in 1989, her corporation had all the indicia of doing business including maintaining a location open to the public during normal business hours; providing opticianry services to customers; having optical equipment, a lease agreement, secretarial staff, office equipment, finishing lab, city occupational license, business stationery, advertising, income, bank accounts; filing returns and paying sales and corporate taxes; and filing W-2 forms for employees. After 1989, any equipment which had not been sold sat in residential garages, and Ms. Nicolitz maintained no occupational license or any other indicia of a business. She specifically did not operate a business for profit out of any location labelled "Specs and Company, Inc." or "Elizabeth Nicolitz, O.D." at any time after December, 1989. Ms. Nicolitz's testimony and her answers to discovery were inconsistent or vacillated with regard to whether or not she considered what she personally did during 1991-1992 to constitute "practicing opticianry." Putting the best light on it, Ms. Nicolitz was clear that she did not think anything she did for family or friends during 1991-1992 constituted practicing opticianry "until I thought about it," immediately before a hearing on the motion for summary final order in this fees case. Her position at formal hearing was that merely maintaining an active individual professional opticianry license was sufficient to constitute "practicing opticianry." She gave as an example of what she was capable of doing as, "[A]t any time if I wanted to practice opticianry that I could. If someone was absent at, let's say Lens Crafters and they needed me to come in, I would bring my license in with me and practice under Lens Crafters with my new license for them." Admittedly, however, she never was actually employed anywhere by any other optician during this period of time. Rather, she listed herself for income tax purposes in both 1991 and 1992 as a "consultant" employee of her husband's business, "Ernest Nicolitz, M.D. P.A." She testified that this term meant "design consultant." Her husband is a medical physician, an opthalmologist. The total of the practice of opticianry now recollected by Ms. Nicolitz for 1991-1992 is that over some unspecified period of time, on sporadic occasions, she pushed lenses back into glasses frames for children whose names she did not know and with whom she had no ongoing relationship when their tumbling activities at a gym she belongs to resulted in the lenses popping out; in March or April of 1991, she replaced stripped screws in a neighbor's damaged glasses frames and heated the frames in hot water to mold them back in shape for the neighbor's face; later, she sold the same neighbor some glasses frames with nonprescription display lenses for the neighbor's mother, apparently without ever seeing the mother, and definitely without reporting the $50 sale as professional or any other type of income, and without paying any sales or other tax thereon. Ms. Nicolitz derived no pay as an optician for any of these activities and had no prescription for the tumblers, the neighbor, or the neighbor's mother. She had her professional license but no occupational license in her own name. Also, at a time no more definite than "in the fall" of 1991, Ms. Nicolitz was involved in fitting hunting glasses for her husband and son, one pair each. At her home, upon written prescriptions from her opthalmologist husband, Ms. Nicolitz fitted frames to her husband's face and her son's face, took the offset of the pupillary distance due to the scope on a gun and then "we figured out the density of the lenses we would be using and we figured out, what, you know, color tones we wanted to use in the lens. And then we ordered the lenses and had them ground at a lab to my specifications." Although she testified that her husband did not know how to offset the optical center for the hunting glasses and could not physically measure himself, her overall description shows Ms. Nicolitz was working under the direction, not of a customer, but of her husband, the opthalmologist, for whom she worked as a "consultant." She charged no separate opticianry fees and had no occupational license in her own name. Clearly, she was intentionally not in competition individually in her own right or as "Specs and Company, Inc." with her husband for "conflict of interest" purposes. Ms. Nicolitz and her C.P.A., Mr. Shelton, whose expert testimony came by way of deposition, estimated her personal net worth as between $400,000 and $450,000 for 1991-1992, but given that Ms. Nicolitz's C.P.A. made his estimates purely for family financial planning purposes 2/ and Ms. Nicolitz eschewed any concrete knowledge of her own financial affairs, their evidence does not establish Petitioner's net worth. The Department's C.P.A. expert witness estimated the combined worth of Ms. Nicolitz and her husband as $2,190,000, based upon tax returns and Mr. Shelton's deposition. No evidence categorized Petitioner's personal net worth as derived in any significant part as related to her practice of opticianry, or established the net worth of Specs and Company, Inc. or broke out with reasonable clarity Ms. Nicolitz's "personal net worth from personal and business investments." The testimony of the three attorneys who testified as to fees and costs has been thoughtfully considered and weighed. It is found that Petitioner was obligated to her attorney for fees and costs for 15.30 hours and no allowable costs as of the date of voluntary dismissal of the underlying case, for 40.30 hours and $279.70 in allowable costs as of the date the initial petition for fees and costs was filed February 26, 1993, for 40.30 hours and $279.70 in allowable costs as of the date of filing of the amended fees and costs petition herein; and for 126.30 attorney hours and $368.05 costs as of the commencement of formal hearing on fees and costs herein. The rate of $200.00 dollars per hour charged by Petitioner's counsel is a reasonable hourly rate, given the unique circumstances of this case. At that rate, Petitioner's counsel established sufficient hours to reach the $15,000 statutory cap prior to the commencement of formal hearing on the attorney's fees and costs issues. 3/
