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 Should Respondent receive a passing grade on the November 1997, Chiropractic Licensure Examination?
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: The examination for licensure as a chiropractor in the State of Florida is administered by the Department of Business and Professional Regulation, Bureau of Testing, under a contractual arrangement with the Department and consists of three parts: Physical Diagnosis, Technique,and X-ray Interpretation. A candidate for licensure must receive a score of 75.00 on each of the three portions of the examination in order to receive an overall passing grade. A candidate for licensure must pass at least two of the three portions of the examination in order to retake only the failed portion of the Examination. Otherwise, the candidate must retake the entire examination. Petitioner holds a Doctor of Chiropractic degree and is a licensed chiropractor in the State of Georgia. Petitioner practices chiropractic in the State of Georgia. In September 1997, after submitting all documents required to sit for the November 1997, Examination, Petitioner experienced a total retinal detachment in his right eye and underwent ophthalmic surgery. Petitioner has significant vision impairment and his vision is described as “poor” by his ophthalmic surgeon. In November 1997, Petitioner’s ophthalmic physician opined that Petitioner “has not reached complete recovery and I do not think he has accommodated to his loss of vision in the right eye.” Prior to the Examination, Petitioner telephoned the Board to discuss his recent vision impairment and requested the special accommodations of being allowed to sit up front and to be given more time on the Examination. A Board representative requested confirmation from a physician of the vision impairment. By letter dated November 7, 1997, Robert T. King, M.D., Petitioner’s ophthalmic surgeon, advised the Board of Petitioner’s vision problem and indicated that he suspected that Petitioner would require additional time for the examination. If timely requested, accommodations such as flexible time, flexible settings, flexible recording of responses, and flexible format are available to the examinees. There is no evidence that the Board responded to the request by Dr. King or to Petitioner’s earlier verbal request for accommodations. Likewise, there is no evidence that Petitioner, prior to the Examination, followed through on his request for accommodations. On the day of the Examination, Petitioner requested a large print test booklet. Despite his impaired vision, Petitioner decided to continue with the November 1997, Examination. Petitioner passed the Technique portion of the Examination and is not challenging that portion of the Examination. Petitioner was advised that his score on the Physical Diagnosis and X-ray Interpretation portions of the Examination was 73.50 and 72.00, respectively. In his initial petition letter, Petitioner challenged the grading of his answers to questions 2, 3, 4, 8, 12, 17, and 22 on the Physical Diagnosis portion of the Examination and challenged the grading of his answer to question 24 and the accommodations he was not given for a disability on the X-ray portion of the Examination. Prior to the hearing, the Department awarded Petitioner credit for his answer to question 24 on the X-ray Interpretation portion of the Examination. Petitioner no longer challenges the Department on his answer to question 24. Petitioner’s score on the X-ray Interpretation portion of the Examination has been raised to 73.50 by the Department. At the hearing, Petitioner withdrew his challenge to questions 2, 3, and 17 of the Physical Diagnosis portion of the Examination. Without objection from the Department, Petitioner amended his petition letter to include a challenge to his answer to question 13 of the Physical Diagnosis portion of the Examination. During the X-ray Interpretation portion of the Examination, slide screens are set up in the front of the examination room and slides of an X-ray are projected on the screens. All lights in the examination room are turned off. The examinee has a test booklet and an answer sheet. A pen light is provided to read the test booklet and to see the answer sheet. The answer sheet is a “Scan-Tron” sometimes called a “bubble sheet.” In order to record an answer on the answer sheet, the examinee darkens one of four small circles (bubbles) spaced within an approximate one-inch column on the answer sheet. The examinee is allowed one and one-half minutes to answer each question. Answering the question requires the examinee to read the question in the test booklet, view the projected slide of the X-ray on the screen, and then locate and darken the appropriate “bubble” on the answer sheet with a pencil. During the X-ray Interpretation portion of the Examination, Petitioner was allowed to sit up front but was not allowed additional time or given a large print booklet. Another examinee with vision problems took the X-ray Interpretation portion of the Examination at the same time as Petitioner. This examinee was allowed to sit closer to the slide screen, given a large print test booklet, and an unlimited amount of time to transcribe answers from the test booklet to the answer sheet. However, there was no evidence as to the extent of this examinee’s vision problem or when this examinee had requested special accommodations. Petitioner did not advise any of the proctors present at the test site of the difficulty that he was having with his vision. Because of his vision impairment, the nature of the X-ray Interpretation portion of the Examination made it difficult for Petitioner. Additionally the lack of additional time resulted in Petitioner not being able to properly check his answers in the test booklet with those on the answer sheet. Petitioner did not request that his examination booklet be graded instead of his answer sheet (bubble sheet). The Examination Instructions provide in pertinent part as follows: While you may write in your examination booklet, please note that the examination booklets used during the actual examination are shredded after the examination administration. Post examination review candidates will NOT be given their original examination booklet but will be provided with a clean, exact copy of the original examination booklet. There was no evidence that the Department’s denial of Petitioner’s request for additional time and a large print test booklet was due to cost, administration restraints, or availability of resources. Petitioner contends that because he was denied certain accommodations that he most likely miss-keyed some of his answers on the X-ray Interpretation portion of the Examination when he transposed his answers from the test booklet to the answer sheet. Without the test booklet, there is insufficient evidence to show that Petitioner incorrectly transposed any answer from his test booklet to the answer sheet, notwithstanding Petitioner’s testimony to the contrary. The Physical Diagnosis portion of the Examination is a subjective test in which the examinee is presented with a test booklet with certain information. There is an examination patient (live mannequin) provided for the examinee to demonstrate answers to various questions. There are two examiners who score the examinee’s answers. This portion of the examination is videotaped. An examiner for the examination for licensure as chiropractic must be a licensed chiropractor in the State of Florida with five years of continuous practice in the State of Florida and must not have had a chiropractic license or other health care license suspended, revoked, or otherwise disciplined. Before an examination, examiners are required to go through standardization training and are not allowed to consult with each other on their scoring of an examination. After an examination, the Bureau of Testing calculates the agreement rates of the examiners to ensure scores are based on the standardization training. The examiners who graded Petitioner’s examination had agreement rates of 93 percent and 95 percent. The Department considers 80 percent or better acceptable. Test questions on the Physical Diagnosis portion of the Examination are assigned different point values, with some questions having partial credit available. A question’s point value is based on the frequency, practicality, importance of the subject matter, and how much harm could be done to the patient if the procedure is not performed correctly. Partial credit is given on some questions and not others because in some situations a partial answer is considered as a no answer, whereas in other situations, partial information is considered better than no information. The Department does not award a candidate partial credit on a question where it has been determined that partial credit is not available. The first two questions challenged by Petitioner, Questions Nos. 4 and 8, are on the “Case 1” portion of the Physical Diagnosis portion of the Examination. Within “Case 1,” the examinee is required to demonstrate ability relating to case history, physical examination, selection of laboratory tests, selection of diagnostic imaging, providing a diagnosis, and exercising clinical judgment. In “Case 1,” the examinee was provided with a theoretical 68-year old female with midback and chest pain and a variety of physical complaints. After developing a case history (Question No. 1) and performing a physical examination (Question Nos. 2 and 3). The examinee was required to select laboratory tests in Question No. 4 which had assigned to it a value of either zero points or four points. The specific question in Question No. 4 is: “For the case presented, name which laboratory tests or diagnostic procedures, if any, would confirm your suspected diagnosis.” 31`. In response to this question, Petitioner stated that he would order a CPK, SGOT, CBD, and an EKG. Petitioner was advised by the examiners that an EKG was not available. Petitioner also requested a urinalysis to look for infection. An SGOT laboratory test, also known as an AST test, is a laboratory test used to indicate if there is damage to the heart. A CPK laboratory test, also known as a CK tests (which Petitioner correctly referred to as CPK but also referred to as CKP or CK, is also a laboratory test which detects heart damage. The examiners were informed in their booklets that the suspected diagnosis was congestive heart failure. The examinee was not advised that the suspected diagnosis was congestive heart failure. The examiners were also informed in their booklet that they should expect to hear the answer for Question No. 4 to be “SMAC” and a “CBC” laboratory test. SMAC is an acronym for the laboratory test know as Sequential Multi-Channel Analyzer with Computer. A SMAC laboratory test is a series of individual tests, or a biochemistry profile. And while the number of individual tests performed in a SMAC laboratory test may vary from laboratory to laboratory, there are certain individual laboratory test that are always included in a SMAC laboratory test. SMAC and CBC was the Department’s preferred answer to Question No. 4. However, based on the testimony of Dr. Roraback, which I find to be credible, Petitioner’s answer to Question No. 4 was equally correct in that the laboratory tests suggested by Petitioner would have confirmed the suspected diagnosis of congestive heart failure notwithstanding the testimony of Dr. Heyser to the contrary. Therefore, Petitioner should have been awarded 4 points for his answer to Question No. 4. In Question No. 8, Petitioner was asked to provide the diagnosis for this Case 1 patient. The value assigned to Question No. 8 is either zero points or eight points. The examiners were instructed by their test booklet that “congestive heart failure” was the correct answer. The answer sought by the Department, congestive heart failure, is a “specific ICD-9” diagnosis. ICD-9 stands for the International Classification for Disease Diagnosis. Cardiopulmonary disease is not an ICD-9 diagnosis. Petitioner’s initial oral answer to Question No. 8 was “COPD.” COPD is an acronym for chronic obstructive pulmonary disease. In response to an examiner’s question of “Which is?, Petitioner stated “cardiopulmonary disease.” In response to another examiner’s question who asked “Can you be more specific?”, Petitioner responded “It is a disease with the --- because the heart is enlarged, it is infringing on the lungs, and it causes a back-up of fluid in the lungs.” Cardiopulmonary disease is a very broad diagnosis and Petitioner’s narrative description of that diagnosis may have included congestive heart failure. However, based on the testimony of Dr. Heyser, which I find credible, Petitioner’s answer was incorrect in that it lacked the specificity the Department was seeking. Questions Nos. 11, 12, and 13 of the Physical Diagnosis portion relate to orthopedics. In Question No. 11, the examinee was asked to name orthopedic tests which would be used to evaluate a shoulder problem. Petitioner appropriately named these tests. In Question No. 12, Petitioner was asked to demonstrate several of the named tests. In Question No. 13, Petitioner was asked to name the condition which would be indicated by a positive response on each particular orthopedic test. The only test which is in dispute with regard to Question Nos. 12 and 13 is the Dawbarn’s sign or test. Petitioner’s demonstration of the Dawbarn’s test is shown on videotape. On the videotape of Petitioner’s performance with regard to the demonstration (Question No. l2), Petitioner can be seen placing his finger in the area of the patient’s shoulder and raising (abducting) the patient’s arm, performing the test, while at the same time stating: Dawbarn’s is you palpate the area of tenderness and, as I raise your arm, please let me know when the pain stops, okay. If the pain stops, it’s indicative of bursitis. It is clear from the videotape, the testimony of Dr. Roraback, and Petitioner’s exhibits that Petitioner correctly demonstrated the Dawbarn’s test. However, while one examiner gave Petitioner full credit (four points) on Question No.12, the other examiner only gave Petitioner partial credit (three points) The examiner awarding three points stated in comments: “Dawbarn’s performed improperly.” Petitioner correctly performed the Dawbarn’s test and should have been given the full four points on Question No. 12. Question No. 13 asks the examinee to state what disease conditions positive results on the different tests would indicate. With regard to Dawbarn’s test, Petitioner stated that a positive response would be indicative of “subdeltoid bursitis.” Question No. 13 was a four-point question, with partial credit being available at one, two, and three points. On Question No. 13, each examiner gave Petitioner three points out of four. Each examiner appears to have deducted one point from Petitioner’s answer, because Petitioner named subdeltoid bursitis. The examiners were informed to look for the answer “subacromial“ bursitis. Five different texts received into evidence and Dr. Roraback’s expert testimony reveal that the terms “subdeltoid bursitis” and “subacromial bursitis” are used interchangeably. One of the text specifically states: A consideration of shoulder movements would not be complete without reference to the role of subacromial (subdeltoid) bursa . . . There may be two, a subacromial and a subdeltoid, but they function as one and are frequently fused. Whether fused or not, subacromial bursa is the more common name. Petitioner’s Exhibit 12, the Merck’s Manual states: Subacromial bursitis (subdeltoid bursitis or supraspinatus tendinitis) presents with localized pain and tenderness of the shoulder, particularly in abduction in an arc from 50 to 130 degrees. Petitioner should have received full credit (four points) for Question No. 13, because a positive response to the Dawbarn’s test is indicative of subdeltoid bursitis notwithstanding the testimony of Dr. Heyser to the contrary. In Question 22, Petitioner was asked to perform a “triceps reflex”, which is one of a series of deep tendon reflexes that the examinees were asked to perform. A triceps reflex is one of several deep tendon reflexes done at various locations in the body to determine neurological status. The triceps muscle is a muscle of the upper arm, and the triceps tendon attaches the muscle to the upper portion of the lower arm bones. It is necessary for the triceps tendon to cross the elbow joint between the upper and lower arm bones in order to move the joint. Proximal means the end of a muscle or tendon closest to the body. In this case, distal means the area closer to the hand. In order for the triceps tendon to move the joint, the tendon must pass from the proximal end of the joint to the distal end of the joint. The videotape shows Petitioner preparing the patient to avoid a voluntary reflex, and then tapping an area close to the elbow of the patient, with the patient’s lower arm then reacting by moving in a somewhat jerking manner away from the body. The reason the arm “pops out to the side” is that the triceps is responsible for extending the elbow. This happens because, when the tendon is quickly stretched (tapped), it signals a nerve to tell the muscle to contract in order to prevent damage to the area. This contraction results in the lower arm responding with movement. Question No. 22 has a maximum value of two points, with partial credit of one point available. Each examiner awarded Petitioner partial credit of one point. It appears from the examiners’ comments on the score sheet that they did not believe Petitioner appropriately struck the tendon for the triceps muscle, or believed Petitioner tapped in an area “distal” to the elbow joint. With regard to distal versus proximal, it is clear that Petitioner did tap an area of the arm distal to the elbow joint between the upper arm and the lower arm, but very close to the elbow joint. However, since the triceps tendon must attach to an area of the lower arm it is possible to tap the tendon distal to the joint. It is clear from the videotape that the arm movement response was not voluntary and was consistent with a triceps reflex and that the triceps reflex was performed properly. Therefore, Petitioner is entitled to the full two points available for Question No. 22.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Department enter a final order granting Petitioner full credit for his answers to Question Nos. 4, 12, 13, and 22 of the Physical Diagnosis portion of the Examination and a final score of 80 but deny Petitioner’s challenge to Question No. 8 of the Physical Diagnosis portion of the Examination and deny any further challenge to the X-ray Interpretation portion of the Examination. It is further recommended, that Petitioner be allowed to retake the X-ray Interpretation portion of the Examination at the earliest possible date without cost. DONE AND ENTERED this 3rd day of August, 1998, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of August, 1998. COPIES FURNISHED: Eric G. Walker, Executive Director Board of Chiropractic Department of Health 1940 North Monroe Street Tallahassee, Florida 32399-0752 Angela T. Hall, Agency Clerk Department of Health BIN A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1703 Alfred W. Clark, Esquire Post Office Box 623 117 South Gadsden Street Tallahassee, Florida 32302 Anne Marie Williamson, Esquire Department of Health 1309 Winewood Boulevard Building 6, Room 240 Tallahassee, Florida 32399-0700
The Issue The issue in this case is whether the Florida Department of Transportation (Respondent) committed an act of unlawful employment discrimination against Stephen G. Leslie (Petitioner) in violation of the Florida Civil Rights Act (FCRA) of 1992.
Findings Of Fact In 1986, the Petitioner began his employment with the Respondent as a "Safety Specialist." Beginning in 2001, and at all times material to this case, the Petitioner was employed by the Respondent as an "Outdoor Advertising Regional Inspector." As an outdoor advertising regional inspector, the Petitioner's responsibilities included patrolling state roads in his assigned counties to ascertain the status of permitted outdoor advertising signs and to remove signs that were illegally placed on state right-of-way. The Respondent's duties required extensive driving, which he did in a state-supplied vehicle. The Petitioner was based at the Respondent's Tampa headquarters, but was supervised by employees located in Tallahassee. In 2007, the Petitioner began to experience neurological health issues, but he continued to work and was able to perform the responsibilities of his employment. From September 2008 to June 2011, the Petitioner was supervised by Robert Jessee. In 2009, the Petitioner's health issues got worse. He began to take more sick leave, which the Respondent approved upon request of the Petitioner. The Respondent also provided equipment to accommodate the Petitioner's health issues, including a laptop computer and larger mirrors on the Petitioner's state vehicle. The Respondent also assigned another employee to ride with the Petitioner and to remove signs illegally placed on state right-of-way so that the Petitioner did not have to exit the vehicle. In 2010, the Petitioner was involved in two automobile accidents while driving the state vehicle. In January, he ran into a vehicle that was stopped for a school bus. In February, while transporting a group of other employees on I-75, the Respondent struck rode debris and the vehicle was damaged. In April 2010, the Petitioner's presence in the Tampa headquarters building was restricted for reasons that were unclear. Although the restrictions caused embarrassment to the Petitioner, there was no evidence presented at the hearing to suggest that such measures were related in any way to the Petitioner's disability. Following an investigation of the traffic incidents by the Respondent's inspector general, the Petitioner received a written reprimand dated August 18, 2010, and was directed to take the Respondent's online driving course. Beginning in June 2011 and through the remainder of the Petitioner's employment by the Respondent, the Petitioner was supervised by Michael Green. The Respondent collects statistical data to measure the productivity of persons employed as outdoor advertising regional inspectors. The Petitioner's productivity statistics were significantly lower than those of other inspectors, and he was behind in his assignments. Accordingly, Mr. Green rode along with the Petitioner for three consecutive days in September 2011 to observe the Petitioner's work. At the hearing, Mr. Green testified that the Petitioner arrived late to pick him up at his hotel on all three days. On one of those days, the Petitioner accomplished an employment- related task prior to picking up the supervisor. Mr. Green testified that the Petitioner's driving made him feel unsafe during the observation. Mr. Green observed that the Petitioner accelerated and slowed the vehicle in an abrupt manner, and that he failed to use turn signals at appropriate times. Mr. Green also testified that the Petitioner was preoccupied as he drove by electronic devices, including a cell phone. Mr. Green testified that the Petitioner appeared to have difficulty entering and exiting the vehicle, and with hearing certain noises in the vehicle, including the click of the turn signal. Mr. Green testified that he felt so unsafe that he asked the Petitioner to alter his driving practices while Mr. Green was in the vehicle. Mr. Green testified that during the observation ride, the Petitioner discussed his physical condition and admitted that medical appointments during the week made it difficult to maintain the routine work schedule. The Petitioner also advised Mr. Green that he was considering filing for disability retirement. After returning to the Tallahassee headquarters, Mr. Green prepared a memorandum dated September 19, 2011, to memorialize his observations about the Petitioner's job performance. Mr. Green's memorandum was directed to Juanice Hughes (deputy director of the Respondent's right-of-way office) and to the Respondent's outdoor advertising manager. In the memo, Mr. Green recommended that the Petitioner be required to provide medical verification of his continued ability to perform the responsibilities of his position. In a letter to the Petitioner dated September 23, 2011, Ms. Hughes restated Mr. Green's observations and directed the Petitioner to obtain medical verification that the Petitioner was able to perform the responsibilities of his position safely. The letter specifically directed the Petitioner to provide medical information related to his ability to work his normal schedule, the existence of any work restrictions or required accommodations, and the impact of any medications prescribed for the Petitioner. The letter established a deadline of September 30, 2011, for the Petitioner's compliance with its requirements, and advised that he would not be permitted to resume his employment duties until the medical verification information was provided and any required accommodations were in place. The Petitioner apparently did not become aware of the letter until September 29, 2011. On that date, both Mr. Green and Ms. Hughes attempted to contact the Petitioner via his work cell phone and by email to advise him of the letter and to direct that he retrieve the letter from the district headquarters. Shortly after 4:00 p.m., contact was made with the Petitioner by calling his personal cell phone. At that time, the Petitioner was advised that he needed to return to the district headquarters to pick up the letter. He was further advised that he was being placed on leave until the requirements of the letter were met and that he needed to turn in his state vehicle when he arrived at the headquarters. The Petitioner advised Mr. Green and Ms. Hughes that he was attempting to obtain documentation required to file for disability retirement, and he asked for an extension of time during which to do so. His request for an extension was denied. The Petitioner, clearly unhappy with the circumstance, made a statement during the conversation that was considered by Mr. Green and Ms. Hughes to suggest that the Petitioner could cause damage to himself or to the state vehicle. The actual words spoken were disputed at the hearing, and the evidence fails to establish that the Petitioner would have actually damaged the vehicle or himself. Nonetheless, it was clear after the conversation that the Petitioner was resistant to the Department's instructions. The Respondent immediately directed James Moulton, the director of Transportation Operations for the Tampa district, to check on the Petitioner's condition and to retrieve the vehicle assigned to the Petitioner. Mr. Moulton did so, accompanied by local law enforcement personnel, at approximately 7:00 p.m. on September 29, 2011. In a letter to the Petitioner dated September 30, 2011, Ms. Hughes recounted the events of the day before and again directed the Petitioner to obtain medical verification that he was able to perform the responsibilities of his position safely. No deadline was set for the Petitioner's compliance, and he was advised that he could use leave for any absence related to obtaining the medical documentation. A few days later, the Petitioner advised the Respondent that he would be unable to obtain the requested medical verification and that he would be filing an application for medical disability retirement. In November 2011, the Petitioner filed the application accompanied by medical documentation establishing that the Petitioner had a "total and permanent disability," as defined by section 121.091(4)(b), Florida Statutes (2011).1/ His application was approved.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief filed by the Petitioner against the Respondent in this case. DONE AND ENTERED this 13th day of August, 2013, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 13th day of August, 2013.
The Issue The issue in this case is whether Petitioner was the subject of an unlawful employment practice by Respondent.
Findings Of Fact Respondent is a healthcare facility that provides in- patient nursing care to patients after their surgery. As a healthcare facility, Respondent employs an ethnically diverse staff of nurses, including several black nurses. Petitioner is a black female. As such, Petitioner is a protected person under chapter 760, Florida Statutes. Additionally, Petitioner is a Licensed Practical Nurse (LPN). She received her nursing license in 2002 and has worked in the nursing field since that time. Currently, she is completing her education to become a Registered Nurse. In March 2011, Petitioner was employed by Respondent as an LPN on its skilled medical surgical unit in Tallahassee, Florida. Petitioner was supervised by the Director of Nursing (DON), Michelle, who was, in turn, supervised by Heritage's administrator, Brenda. Both the DON and administrator are white. An important part of Respondent's service is the administration of prescribed medications to its patients in accordance with the medication's prescribed dosage and schedule. As an LPN at Heritage, Petitioner was responsible for the proper administration of medications to patients under her care. At some point, two patients accused Petitioner of giving them their medications earlier than they were supposed to receive them. Although the evidence is unclear, these accusations may have been reported to the administration of Heritage by another nurse who worked the same unit as Petitioner and who Petitioner believed was jealous of her because the patients preferred Petitioner's care to that of the other nurse. Additionally, Petitioner testified that one of the patients told her that she was bribed with a package of cigarettes by the other nurse to make the allegations. However, neither of these patients testified at the hearing. As a consequence, such patient statements constitute uncorroborated hearsay and cannot be considered in this proceeding. Petitioner denies that she ever gave these two patients medication earlier than the prescribed time. Sometime around April 1, 2011, Petitioner was called into a meeting with the administrator and the DON for a "number 2 write-up." There was no evidence that demonstrated the nature of such a disciplinary action or the action that would be taken for such a write-up. The write-up was based on the allegations of the two patients referenced above. However, there was no evidence that Respondent did not investigate or follow its policy on employee discipline. Indeed there was no evidence regarding any of Respondent's policies. Likewise, there was no evidence that other similarly-situated, non-protected employees had received less discipline for similarly alleged infractions. Petitioner tried to explain what the patient had told her about being bribed and making her allegation up. Petitioner also asked the administrator to explain what a "number 2 write- up" was since she did not know, and did not know at the hearing, what such a write-up was. The administrator said she did not have to explain anything, slammed her hand down on her desk, and loudly said "you people make me sick." The administrator also referenced something about lying and trying to cover things up instead of admitting mistakes. There was no substantive evidence that the administrator’s very subjective statement was a reference to Petitioner's race or was intended as a racial epithet. Indeed, viewed objectively, the statement appears to be, at worst, abusive or rude. Ultimately, there was insufficient evidence upon which to base a finding (or to infer) that these remarks were anything but an administrator venting her exasperation at staff. Without more, such language is not the sort of language that anti-discrimination laws are designed to reach. Petitioner was told to sign the write-up or be terminated. She was understandably offended by the administrator's behavior, refused to sign "something that was untrue,” wished the administrator "Jehovah's blessing" and left. Petitioner never returned to the facility and her paycheck was mailed to her. However, as indicated, the evidence was insufficient to demonstrate that Petitioner was the victim of racial discrimination. The Petition for Relief should, therefore, be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations dismiss the Petition for Relief with prejudice. DONE AND ENTERED this 2nd day of March, 2012, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 2nd day of March, 2012. COPIES FURNISHED: Kareen Anita Gantt 1340 Mount Hosea Church Road Quincy, Florida 32352 Michael McKelvaine Heritage Health Care 1815 Ginger Drive Tallahassee, Florida 32308 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
The Issue The issue in this case is whether Respondent engaged in an unlawful employment practice by discriminating against Petitioner on the basis of handicap in violation of section 760.10, Florida Statutes.
Findings Of Fact Petitioner is a female, age 44 at the time of the final hearing, who was employed with Respondent between May 14, 2012, and July 1, 2013. Respondent is an active limited liability company established and doing business pursuant to Florida Law. Petitioner was hired by Respondent on May 14, 2012, as a Document Control Supervisor. Her duties consisted of managing documents for Respondent in connection with Respondent's subcontract for the T-4 Gate Replacement Project ("Project") at the Fort Lauderdale-Hollywood Airport. Petitioner was assigned to work in a trailer at or near the Project jobsite. She was Respondent's only employee working full-time at the Project jobsite. She was supervised by Wayne Messam, Angela Messam, and Dwayne Vaughn, all of whom worked primarily at other locations. As Document Control Supervisor, Petitioner performed a vital function for Respondent in performing its subcontract for the Project. The persuasive evidence establishes that she was well-qualified for, and proficient at, her job. Many feral cats frequented the area immediately outside the trailer at the Project jobsite. They were attracted to the area because persons working in and near the trailer fed them. As a result of the cats frequenting the area, fleas and animal dander were pervasive at the jobsite, including inside the trailer where Petitioner worked. At times, cat feces were tracked into the trailer. In May 2013, Petitioner reported to Dwayne Vaughn, Respondent's Project Controls Manager and Petitioner's direct supervisor, that she was being bitten by fleas in and around the trailer due to the feral cats frequenting the area. She asked Vaughn to contact the Broward County animal control service to remove the cats. On June 14, 2013, Petitioner suffered an asthma attack. She received medical care at the Broward Health Medical Center Emergency Department and was diagnosed as having acute asthma and allergic rhinitis. According to her treating physician, the asthma was precipitated or aggravated by cat dander and other conditions attributed to the presence of cats at the jobsite. She was prescribed, and took, medication. At a follow-up visit on June 17, 2013, Petitioner's primary care physician strongly advised her to avoid being around cats in the workplace environment. Petitioner continued to press Vaughn about contacting the local animal control service to remove the cats. At some point, some, but not all, of the cats were removed from the Project jobsite. However, some continued to frequent the area around the trailer and continued to be fed. Petitioner contacted Angela Messam to request instructions on filing a workers' compensation claim. Messam did not provide her the requested instructions, but instead directed her to go to U.S. HealthWorks, a medical treatment facility, located at 407 Southeast 24th Street, Fort Lauderdale, Florida. On June 20, 2013, Petitioner sought medical care at U.S. HealthWorks. Messam met Petitioner there and authorized her medical treatment. The credible evidence establishes that Messam attempted to dissuade Petitioner from filing a workers' compensation claim. The credible, persuasive evidence also establishes that, despite Messam's representation to Petitioner and to her treating physician at U.S. HealthWorks that she would be re- assigned to work in a different location, Petitioner was instead directed to return to the Project jobsite. She was not re- assigned to work at an alternative location. On June 21, 2013, Respondent wrote Petitioner a letter detailing the measures that Respondent was undertaking to address the presence of cats and related unsanitary conditions at the jobsite, and accommodations that Respondent and the contractor, Turner Construction, would provide to Petitioner until conditions at the Project jobsite were addressed to the extent that Petitioner could return to work there without aggravating her asthma. The credible evidence showed that despite such representations, Respondent and Turner did not provide Petitioner the accommodations promised in the June 21, 2013, letter. The evidence establishes that Respondent did not implement any measures that would have allowed Petitioner to perform her job in another location. Thus, if Petitioner wanted to keep her job, she had to report to the Project jobsite. Petitioner continued to suffer debilitating asthma- related illness. Petitioner sought additional medical care for her asthma from her primary care physician on June 24, 2013, and from U.S. HealthWorks on June 26, 2013. Treating physicians at both facilities told Petitioner that she had asthma and warned her that working at a jobsite where cats were present would aggravate her asthma. The credible, persuasive evidence establishes that despite Petitioner's repeated entreaties, the Project jobsite conditions that precipitated or aggravated her asthma went unaddressed or were inadequately addressed by Respondent. On July 1, 2013, Petitioner reported to the Project jobsite. She observed cats and feeding dishes present outside the trailer. She told Vaughn that she was still having difficulty breathing and that her condition would not improve as long as cats were allowed to remain outside the trailer. Vaughn told Petitioner there was nothing more that Respondent could do about the remaining cats. At that point, Petitioner realized that Respondent was not going to address the circumstances that precipitated her asthma. Petitioner finished the high-priority matter on which she was working, then submitted her resignation, effective immediately. In her letter of resignation, Petitioner made very clear that the sole reason for her resignation was that the conditions that precipitated or aggravated her asthma——the presence of cats and attendant environmental conditions——had not been adequately addressed, so she was forced to leave her job in order to protect her health and safety. While employed with Respondent, Petitioner was paid an annual compensation of $56,160.00. Since resigning her job with Respondent on July 1, 2013, Petitioner has been unable to find employment. As a result, she was unable to pay rent so was evicted from her home, and her automobile was repossessed. Petitioner seeks an award of back pay in the amount of her annual salary pursuant to section 760.11(5). Angela Messam, appearing on behalf of Respondent, testified that Respondent did, in fact, take substantial measures to remove the cats from the Project jobsite, sprayed for pests, and cleaned up conditions at the site. Messam claimed that notwithstanding these measures, Petitioner continued to complain and that it seemed that Respondent could do nothing to satisfy her. Messam further testified that Petitioner was offered the accommodation of working at the corporate office but chose not to do so. The undersigned finds Messam's testimony on these points completely incredible and unpersuasive. To the contrary, Messam and other employees of Respondent were fully aware of the conditions that precipitated or aggravated Petitioner's asthma, failed to take adequate steps to remove those conditions from the Project jobsite, and failed to provide any reasonable accommodation to Petitioner by enabling her to work at an alternative location. At the final hearing, Respondent presented a Florida Department of Revenue Employer's Quarterly Report covering each quarterly reporting period commencing in June 2012 and ending December 31, 2013. Each report shows that Respondent employed fewer than 15 employees for the quarter covered by the report. These reports, supported by Messam's testimony, constitute competent substantial evidence showing that Respondent employed fewer than 15 employees for each working day in each of 20 or more calendar weeks in 2012, the calendar year preceding the alleged discrimination; and that Respondent employed fewer than 15 employees for each working day in each of the 52 calendar weeks in 2013, the year of the alleged discrimination. Petitioner did not present any competent substantial evidence to counter or rebut this evidence.
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 Petition for Relief for lack of jurisdiction under chapter 760, Florida Statutes. DONE AND ENTERED this 20th day of February, 2015, in Tallahassee, Leon County, Florida. S CATHY M. SELLERS 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 20th day of February, 2015.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on December 24, 2007.
Findings Of Fact Petitioner, Linda J. Coonrod, was employed by Respondent, Baptist Hospital (the hospital), since approximately 1993. She became a unit coordinator in approximately 2002 and remained in that position until she was terminated from employment effective September 4, 2007. Petitioner is a licensed practical nurse. Her position as a unit coordinator required her to perform such tasks as answering the phone, coordinating doctors' appointments and doctors' orders, and performing various tasks using a computer. Petitioner’s regular work schedule was Monday through Friday from 6:00 a.m. until 2:00 or 3:00 p.m. Petitioner was scheduled to work on Thursday, August 30, 2007, and Friday, August 31, 2007. However, she did not report to work on either August 30 or 31. Petitioner did not report to work as scheduled on August 30 and 31, 2007, because she had been admitted as a patient to the emergency room of the hospital on the evening of August 29, and remained a patient at the hospital on August 30 and 31, 2007. She was discharged on September 1, 2007, a Saturday. Melanie Kuzma is a registered nurse and is employed by Respondent as the clinical manager of the medical floor. Ms. Kuzma was Petitioner’s supervisor when Petitioner was employed at the hospital. Unfortunately, Ms. Kuzma did not know why Petitioner did not report for work as scheduled on August 30 and 31. Petitioner was being treated at the hospital for chest pain and was given several medications while a patient there. She could not or did not notify Ms. Kuzma of her admission to the hospital and her resulting unavailability to report to work as scheduled. Petitioner did not ask her treating nurse, her treating doctor, or anyone else to inform Ms. Kuzma of her whereabouts. No one else contacted Ms. Kuzma as to Petitioner’s whereabouts. In any event, Ms. Kuzma was not aware of why Petitioner did not report to work as scheduled. While in the hospital as a patient, Petitioner was not in the same unit in which she worked as an employee. Ms. Kuzma was not a supervisor over the area of the hospital where Petitioner was a patient. When Petitioner did not report to work as scheduled on August 30, 2007, Ms. Kuzma called Petitioner’s home. No answering machine or voice mail was available to leave a message, so she and the unit coordinator continued to call Petitioner’s home throughout the day with no success. When Petitioner did not report to work as scheduled the following day, Ms. Kuzma and the unit coordinator continued to call Petitioner’s home. Again, they did not reach Petitioner and had no way of leaving a message. Attempting to call a person who fails to report to work as scheduled is standard practice at the hospital. A person who fails to report to work as scheduled and fails to call in is referred to by the hospital as a “no call, no show.” Ms. Kuzma notified Venus Jones, the Employee Relations Manager for the hospital, that Petitioner had not reported to work as scheduled and failed to call in for two days. Ms. Jones informed Ms. Kuzma that when an employee had two days “no call, no show,” that it would result in discharge from employment with the hospital. Petitioner reported to work on Monday, September 3, 2007, which was a holiday. It was then that Petitioner told Ms. Kuzma that she had been admitted as a patient in the hospital on the evening of August 29, and remained a patient on August 30 and 31, 2007. Ms. Jones has terminated the employment of other employees for “no call, no show” for a two-day period. Ms. Jones does not consider anything unique about Ms. Coonrod’s situation. Ms. Jones did not consider Petitioner’s reason for her “no call, no show” to work to be adequate. On September 11, 2007, Ms. Jones sent a letter to Petitioner informing her that her employment was terminated for failure to report to work and failure to notify her department of her absence. Petitioner acknowledged that her heart problem which precipitated her hospitalization at the time in question was not a disability. This medical condition did not prevent her from working and did not limit her from doing everyday tasks such as getting dressed, driving, brushing her teeth, or other normal life activities. When questioned at hearing about her medical condition, Petitioner responded, “I’m not disabled. I don’t have a handicap because of it.” Further, there is no evidence in the record that anyone employed by Respondent perceived Petitioner to have a disability.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Employment Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 13th day of February, 2009, in Tallahassee, Leon County, Florida. S BARBARA J. STAROS 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 13th day of February, 2009. COPIES FURNISHED: Linda J. Coonrod 40487 Audiss Road Milton, Florida 32583 Russell F. Van Sickle, Esquire Beggs & Lane. LLP Post Office Box 12950 Pensacola, Florida 32591-2950 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact At all times relevant hereto William L. McCallister was licensed in Florida as a Class P Detection of Deception (Polygraph) Examiner and he was so employed by the Polk County Sheriff's Office. He has conducted some 800 polygraph examinations since becoming licensed. Standard procedure in conducting polygraph examination, which was followed by Respondent, involves taking the examinee to an examining room where interruptions are unlikely, going through the test questions with the examinee before the test begins to avoid any surprises to the examinee, modifying the questions as necessary to allow the examinee to truthfully answer the questions, and then connecting the polygraph machine to the examinee and conduct the test. Upon completion of this test the examinee is asked if he or she had any problems with the questions, any discrepancies so found are resolved and the test is readministered. Respondent always administers the test twice to insure accuracy. The three complaining witnesses who were given polygraph examinations by Respondent are Rose Marie Giannotti, Phyllis Langsdale, and JoAnne Meyer. Langsdale's examination occurred January 8, 1985, Giannotti's exam was given February 7, 1985, and Meyer's exam was given March 11, 1985. Ms. Langsdale was employed by Polk County Commissioners in the Crime Watch Division. Her former supervisor in that job resigned to run for sheriff and was elected. Langsdale then applied to transfer to the Sheriff's Office where a job similar to the Crime Watch position was established. It was standard procedure for all applicants for jobs in the Polk County Sheriff's Office to be given a polygraph examination. Prior to conducting the test Respondent asked Langsdale questions on the test form and filled in the "green sheet" from the answers given. During the pretest questions Langsdale admitted having used cocaine, marijuana and amphetamines. On the green sheet Respondent reported Langsdale as having used cocaine only once and that was in 1984 and marijuana and speed last used in 1982. Langsdale testified she told Respondent she had used cocaine only once in her life and that was while she was a teenager and that she was pressured into smoking marijuana in 1984 by a boy friend. Langsdale further testified that respondent told her the Sheriff wouldn't hire anyone who had used drugs within the last year and suggested he put 1982 on the green sheet for date of last use of marijuana so she could pass. Langsdale denies advising Respondent the date of last use of cocaine other than while a teenager. Respondent testified that Langsdale told him she had used cocaine only once in her life in 1984 while with a boy friend at the beach. This is the entry made on the green sheet. Following the examination Langsdale and Respondent had a meeting with the Sheriff and Langsdale was hired for the job. This job involved speaking to groups and was a high profile one in which Langsdale was often in the public eye. In mid to late 1985 the Lakeland Ledger did an investigative report on some of the employees hired by the new sheriff and in the course of that investigation obtained access to the polygraph files on those employees. Among those files was the polygraph green sheet on Langsdale which noted the last use of cocaine in 1984. When this information was published in the newspaper Langsdale was quite upset at the adverse publicity and demanded to see her personnel file. Upon seeing the 1984 date opposite the last use of cocaine on the green sheet, she complained that the report was incorrect and was asked to make a statement. From that statement came the charge that Respondent had counseled her to give a false answer to drug use so she would be employed. The false answer involved the date of the last use of marijuana. The green sheet noted 1982 and Langsdale testified she told Respondent the last use was 1984 and he counseled her to say 1982. It is not logical that Respondent would counsel Langsdale to say last use of marijuana occurred in 1982 when he entered on the green sheet that the last use of cocaine occurred in 1984, if the purpose of the deception was to insure her employment by showing no drug use in the last year. Similarly Langsdale's contention that the green sheet was altered by the Respondent, which was not given as a basis of the disciplinary action taken by the Petitioner, is not supported by logic or reason. Absolutely no motive was shown for Respondent to have made such an alternation. The publication of this information in the Lakeland Ledger occurred more than six months after the polygraph examination was conducted, Langsdale had made no charges against the Respondent prior to the newspaper publication, and no possible motive was offered to induce such an alteration. On February 7, 1985, Respondent gave a polygraph examination to Rose Marie Giannotti who submitted an application for a job as auxiliary deputy sheriff. Giannotti testified that she was not qualified to be hired as a uniformed officer and was seeking only a civilian job as bookkeeper in the sheriff's office. However, her application was for a uniformed position and Giannotti was asked questions prescribed for such a position. Standard examination questions for a uniformed officer position are different from those given to an applicant for a civilian position. Specifically, the applicant for a uniformed officer position is asked questions regarding homosexuality while the applicant for a civilian position is not. Questions regarding homosexuality are proper questions to ask an applicant for a uniformed officer position while conducting a polygraph examination. Giannotti testified that when Respondent asked her about homosexuality, she thought that term was applied only to men. To clear the issue, Respondent asked her if she had ever committed cunnilingus on a woman. Giannotti testified she wasn't familiar with that word, but if it meant had she ever gone down on a woman, the answer was no. Giannotti also testified that Respondent asked her if she had ever performed fellatio on her husband or had anal sex. She replied that what she did with her husband was private and of no concern to anyone else. Respondent, categorically denies asking Giannotti any questions regarding her marital relations. Most of Giannotti's testimony related to Respondent's questions to her regarding the use of drugs. Her testimony generally was that she told Respondent that she had used marijuana a few times as a teenager and he suggested he put on the form that she had used marijuana ten times so her answer would be accurate when she was asked if she had used marijuana more than ten times. On the green form Respondent noted Giannotti as having used marijuana ten times with her last use in 1985. During the polygraph examination, Giannotti's reaction to the questions regarding use of drugs indicated deception and Giannotti failed the examination. At the conclusion of the examination Giannotti testified she was upset and crying and she and her husband came back to talk to the sheriff two days later about the polygraph examination. At this meeting with the sheriff, Respondent was present with the sheriff, Giannotti and her husband. Giannotti didn't get the job because she hadn't passed the polygraph examination. Giannotti testified that Respondent apologized to her husband. Respondent testified that her husband apologized to him for his wife's conduct. The sheriff did not testify. Giannotti was subsequently employed by the sheriff's office and in November 1985, after the Ledger had published reports on employees hired by the sheriff, Giannotti was asked to give a statement to Mary Campbell who was conducting an investigation at the request of the sheriff. Giannotti was later fired from the sheriff's department after being charged with impersonating an officer and car theft. By undated memo (Exhibit 7), Mary Campbell was told by the sheriff to look into alleged improprieties by Respondent while conducting polygraph examinations on Langsdale and Giannotti. That memo also referred to an anonymous report that Respondent is the person who "advised the media on the KKK item in the Redman Polygraph," with a request to have the Respondent "take a poly on this issue if he will." Giannotti's and Langsdale's statements were obtained by Campbell in November 1985. As a result of these complaints or the disclosure of the Klu Klux Klan (KKK) information, Respondent was dismissed from the Sheriff's Department as polygraph examiner in December 1985. In February or March 1986 Ms. Campbell received an additional complaint from JoAnne Meyer. JoAnne Meyer applied for a position with the Polk County Sheriff's office in January or February 1985 and was given a polygraph examination by Respondent on March 11, 1985. Meyer testified that Respondent asked her no questions regarding sex, but did ask her about drugs. Following the first polygraph test Respondent asked her if there were any areas in which she was upset and wanted to discuss. Meyer, who was in the process of getting a divorce, told Respondent of an incident some years ago where her ex-husband had given her some valium which spaced her out during which time she was sexually used by several friends of her husband. She also told him she was concerned because her ex-husband had taught her son to shoplift. Respondent then took another polygraph examination of Meyer. When that was completed the polygraph attachments were removed from one hand and Meyer testified Respondent took her hand, put it on his crotch and asked what she was going to do about it. She replied you must be kidding. She further testified that after Respondent said he had marital problems, she made it plain to him that all she wanted to do was settle down into a monogamous relationship with somebody and just live quietly. Meyer also testified she was asked by Respondent to say hi into a video camera for a friend of his. She agreed and while she was sitting in front of the video camera Respondent pulled her dress up to show her knees and walked behind her chair. He then started his hands down the inside of the front of her dress when she stopped him. Respondent adamantly denies any improper touching of Meyer but corroborates Meyer's apparent compulsion to talk about her marital and sexual problems. Meyer produced the dress she wore at the polygraph examination pursuant to a subpoena issued by the Respondent. This was a high neck dress which provided little, if any, room for hands down inside the front. Both Respondent and Mary Campbell testified that at the time Meyer's polygraph examination was given, the video camera had been removed from Respondent's office (where Meyer's polygraph was given) and was kept in the training section. Although this polygraph examination was conducted in March 1985, she did not make accusations regarding respondent until after she read in the Ledger that other women had filed complaints against the Respondent. She attributes the delay to the trauma associated with her divorce and her not wanting any more problems at that time. Although Meyer passed the polygraph examination she was not hired by the Sheriff. Petitioner presented the Associate Director, Division of Licensing, Department of State, who testified that the agency has been using the American Polygraph Association standards of conduct in disciplining licensed polygraph examiners, and that the Florida Polygraph Association has adopted those standards. Exhibit 8 contains the constitution and code of operating procedures for the Florida Polygraph Association. Respondent's expert witness acknowledged that, if a polygraph examiner asked an examinee questions relating to his or her marital sex life, such would constitute misconduct as would an improper touching of an examinee by the examiner. This witness also testified that asking witnesses questions relating to homosexuality was proper for certain potential employees. Here the sheriff's department specifically approved use of those type questions on pre-employment polygraph examinations for uniformed officers.
Recommendation It is RECOMMENDED that a final order be entered finding Petitioner not guilty of all charges and the emergency suspension of his license be vacated. DONE AND ENTERED this 3rd day of November 1986 at Tallahassee, Florida. K. N. AYERS 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 3rd day of November 1986. APPENDIX Proposed findings submitted by Petitioner which are not adopted or accepted. This finding comprises nearly two legal size pages and contains numerous factual conclusions. Those relating to the witness drug use are rejected as immaterial to the allegations made against Respondent. Those relating to sexually oriented questions which are in conflict with the Hearing Officer's numbers 11 through 21 are rejected as not supported by credible evidence. This finding comprises nearly two legal size papers and contain numerous factual conclusions. No credible evidence was presented that the green sheet had been altered. See Hearing Officer's numbers 9 and 10. This finding comprises one and one half legal size pages and contains numerous factual conclusions. Reference to a video camera in the examination room is rejected. See Hearing Officer's number 29. Statements in this finding inconsistent with Hearing Officer's numbers 24 through 31 are rejected as unsupported by the evidence. 10. Rejected insofar as this implies justification of non-rule policy is concerned. Proposed findings submitted by Respondent which were not adopted or accepted. 26. Rejected. Additional questions are asked if the applicant evidences difficulty understanding the question and such questions are continued until the examiner is sure he has a question the applicant can intelligently answer. 29. Rejected as argument. 43, 44. Rejected as not supported by credible evidence. See 26 above. Rejected as argument. This testimony was disregarded. 57. This testimony was disregarded. 60. This testimony was disregarded. 74. Rejected as not supported by any evidence. 84. Rejected. Witness never testified to this. 103. Rejected as a conclusion. 111. Rejected as a conclusion. 135. Rejected as unsupported by the evidence. 151. Rejected as conclusion and argument. Rejected as conclusion and argument. Rejected as speculation. COPIES FURNISHED: William L. McCallister 310 West Davidson Street Suite 103 Bartow, Florida 33830 James V. Antista, Esquire Office of General Counsel and Cabinet Affairs Room LL-10, The Capitol Tallahassee, Florida 32308 John C. D. Newton, II, Esquire Mayhan Station 1711-D Mayhan Drive Tallahassee, Florida 32308 Honorable George Firestone Secretary of State The Capitol Tallahassee, Florida 32301 Shelly Bradshaw Director, Division of Licensing Department of State 227 North Bronough Street City Centre Building Tallahassee, Florida 32301
The Issue The issue to be resolved in this proceeding concerns whether the above-named Respondent discriminated against the Petitioner based upon her race, in purported violation of Section 760.10, Florida Statutes.
Findings Of Fact The Petitioner, Barbara Means, is an employee of the Department, occupying the position of "Accountant III." She has been employed with the Department since 1994. She applied for a promotion to a position of "Accountant IV" in October 2003. She competed for that position with other employees. The Petitioner was one of three finalists for the Accountant IV position. The other two finalists for the position were employees who had been hired by the Department in 1995 and 1997. One factor considered in the evaluation process for the promotion position was the various employees' most recent performance evaluations. The Petitioner had received lower overall performance evaluation scores than had the other two finalists. The three finalists, including the Petitioner, were interviewed by a panel of four supervisors, one of whom was Omar Arocho, the Petitioner's own supervisor. Mr. Arocho supervised both Petitioner Means and Ms Wells, one of the other finalists for the accountant position. The four interviewers asked each employee applicant the same ten skills questions and then recorded their responses, for comparison with standard acceptable answers to the questions. The employee performance during this skill interview was considered to be crucial to a determination of who was to be promoted to the subject position. The testimony of Mr. Arocho persuasively established that the Petitioner was excelled in these interviews by the two competing co-workers. This is shown in his testimony, in the recorded responses to the questions in evidence, and their comparison to the standard acceptable answers provided. The conclusion of the evaluation panel of four supervisors, according to Mr. Arocho's testimony which is accepted, was that the Petitioner and the other two applicants were qualified, but that the other two applicants were more qualified than the Petitioner. The Petitioner was not promoted to the position of Accountant IV and remains in the position of Accountant III with the Department. There was no substantial, persuasive evidence to show that the employment decision made by the panel of four supervisors, including supervisor Arocho, was based in whole or in part on any intentional discrimination or animus based upon the Petitioner's race.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 1st day of November, 2004, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 1st day of November, 2004. COPIES FURNISHED: Barbara Means Post Office Box 1345 Newberry, Florida 32669 Mark Simpson, Esquire Department of Corrections 2601 Blairstone Road Tallahassee, Florida 32399 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
