The Issue Whether Petitioner, Karen L. Ehlers was wrongfully terminated from her position with Respondent, Florida Employers Insurance Service Corporation because of her handicap or perceived handicap in violation of Section 760.10(1)(a), Florida Statutes.
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: FEISCO is a Florida corporation which is in the business of providing insurance-related services to insurance companies, self-insurer funds and self- insured employers, and is an employer as that term is defined in Section 760.02(6), Florida Statutes. FEISCO has a department called Information Services (formerly known as Management Information Services) which is responsible for providing the computer information systems within FEISCO and maintaining the many applications and data bases used by other FEISCO departments. The Petitioner, Karen L. Ehlers, was employed by FEISCO from July 17, 1989, to November 15, 1990, as a computer programmer in the Information Services department. The minimum education requirement for the position of computer programmer was two years' computer science education or equivalent Micro/Mini exposure. Petitioner holds a bachelor's degree in mathematics with an emphasis in computer science. As a computer programmer, Petitioner's job duties included writing computer programs, designed by analysts, using several computer languages and working and communicating with analysts and program users to correct design problems to assure the final program fit the user's needs. At all times during her employment with FEISCO, Petitioner was supervised by Joan Zare, Production Supervisor, Information Services department. Zare was responsible for overseeing Petitioner's training during her probationary period and for all formal evaluations of Petitioner's work. John Keegan, Manager of FEISCO's Information Services department, was Zare's immediate supervisor at all times relevant to this proceeding. Keegan reviewed and approved the written evaluations of Petitioner by Zare, but did not review Petitioner's work. Keegan did not have any direct knowledge of Petitioner's competence, and did not interview either Zare or Petitioner regarding the evaluations. Jim Venza, Director of Information Services for FEISCO, was Keegan's immediate supervisor at all times relevant to this proceeding. Venza had no direct knowledge of Petitioner's work performance. Upon being hired by FEISCO, Petitioner was subject to a ninety-day probationary period. After this probationary period (July 7, 1989 to October 13, 1989), Zare gave Petitioner a positive evaluation which included ratings of "Achieves" in all performance standards. Zare viewed Petitioner's overall performance during her probationary period as satisfactory and recommended Petitioner for full employee status. In January, 1990, Petitioner received a salary adjustment upward from $20,000.00 to $20,500.00 In June, 1990, Petitioner received a congratulatory memorandum and a $50.00 bonus for successfully completing a Property and Liability Insurance course and examination. FEISCO encouraged its employees to take course work to increase their knowledge of insurance and to join Toastmasters, a group organized to help its members improve self-confidence and public speaking skills. Petitioner participated in outsider course work and Toastmasters. On July 4, 1990, Petitioner was diagnosed as having chronic fatigue syndrome. This condition did not restrict Petitioner in her job as a computer programmer or effect her work negatively. On July 9, 1990, Petitioner advised Zare that she had chronic fatigue syndrome. On July 17, 1990, Zare gave Petitioner her first annual performance evaluation. Although Petitioner had experienced some problems with her work during the period after her probationary performance evaluation, Zare felt that her job performance in the latter part of the evaluation period indicated that Petitioner had overcome those problems. Zare rated the Petitioner as achieving at or above the standards expected of her in all areas of her job performance. In one area of work Petitioner was rated as "Exceeds". While Zare considered Petitioner as performing satisfactory at the time of her first annual performance evaluation, it was understood between Petitioner and Zare that continued improvement by the Petitioner would be necessary in order for Petitioner to maintain a satisfactory performance rating. On October 15, 1990, Keegan and Bob Burgoon, a program analyst, assigned Petitioner to the extra duty of Problem Manager. The duties of Problem Manager involved reviewing and solving problems with programs which were called in by users, and required being on-call to assist operations during off-hours. The job of Problem Manager had previously been rotated among analysts and not assigned to programmers. However, the job of Problem Manager was assigned to Petitioner because Keegan and Burgoon felt that she could handle the job. On October 16, 1990, Petitioner advised Keegan of her previously diagnosed medical condition, and presented Keegan with a written statement from her doctor recommending that Petitioner restrict herself to a forty-hour week. Petitioner advised Keegan that she still wanted to try the Problem Manager's job. However, Keegan decided not to "second guess" the doctor and removed Petitioner from the Problem Manager duties. There is insufficient evidence to establish facts to show that Keegan at any time, including the meeting with Petitioner on October 15, 1990, advised the Petitioner that her medical condition would adversely affect her job with FEISCO. Petitioner became concerned about her job after the meeting with Keegan on October 15, 1990 and discussed this matter with Frances White in personnel on October 22, 1990. Petitioner also shared these same concerns about her job with Zare on October 23, 1990. At this meeting with Zare there was no reference to Petitioner's job performance by Zare. On this same day, Zare met with Venza and Keegan together and with White individually in regard to Petitioner's concerns. On October 24, 1990, Petitioner met with Zare and White. At this meeting, Zare and Petitioner discussed concerns about Petitioner's job performance. They also discussed Zare's intention to develop a detailed list of skills necessary for the satisfactory performance of the programmer position which would be used to revise the current programmer position description, and would involve a self-assessment by all programmers. The purpose of the self- assessment was to identify the areas in which the programmers felt they needed improvement. After each programmer finished their respective self-assessment, Zare reviewed the self-assessment individually with each programmer. In reviewing Petitioner's self-assessment, Zare concluded that Petitioner had overrated her abilities in several areas. After Zare concluded the review of the individual self-assessments with each programmer, Zare prepared a memorandum of her findings to all programmers. The memorandum outlined a proposed training project that was to be given in conjunction with the individual self-assessment. As with other programmers, Petitioner was assigned a series of projects to be completed as part of this training. As each part of the project was completed, Zare orally evaluated the Petitioner's performance and tested the program and reviewed the coding used by Petitioner. Errors were pointed out to Petitioner and she was given an opportunity to correct the errors. On November 14, 1990, after completion of the entire project, Zare reviewed Petitioner's work and prepared a written appraisal of Petitioner's performance on the project. The written appraisal described Petitioner's shortcomings but also included some positive criticism. Zare concluded that Petitioner's work on the project was below the expected standard. Basically, the written appraisal was contradictory to all performance evaluations previously given to Petitioner by Zare. The programmers, other than Petitioner and Chris Brady, were unable to begin work on the project due to prior work commitments before Zare was transferred to another department. After Zare was transferred this project was terminated. While Zare did verbally counsel Brady about his work, Brady did not receive a written appraisal by Zare before her transfer. Therefore, Petitioner was the only programmer to receive a written appraisal of her work on the project. On November 14, 1990 when Petitioner met with Zare to review Zare's written appraisal of her performance, the Petitioner became upset and defensive. Therefore, Zare suggested that the Petitioner review the appraisal overnight and come back the next day to discuss the appraisal. Petitioner did not return to discuss the appraisal with Zare. Petitioner's failure to return and discuss the appraisal with Zare resulted in Zare concluding that Petitioner was unwilling to accept constructive criticism of her performance. This precluded Zare from working with Petitioner to attain any progress. Therefore, Zare concluded that nothing could be accomplished in attempting to work with Petitioner in the future. Therefore, Zare recommended to Keegan and Venza that Petitioner be terminated. Although Zare considered Petitioner's work performance to be below standards, Zare would not have recommended Petitioner's termination had it not been for Petitioner's very negative reaction and her unwillingness to discuss the appraisal with Zare. Petitioner's employment with FEISCO was involuntarily terminated on November 15, 1990. Between being terminated with FEISCO and being re-employed, Petitioner lost ten weeks of pay at $418.00 per week, an annual bonus equal to one month's pay and other monetary damages in the form of lost medical benefits. Although FEISCO had several employees that suffered a medical condition during times relevant to this proceeding, there was no evidence that FEISCO discriminated against any of these employees because of their medical condition. There was insufficient evidence to establish facts to show that FEISCO discriminated against Petitioner because of her medical condition, chronic fatigue syndrome, when FEISCO terminated Petitioner on November 15, 1990.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Commission enter a Final Order finding that the Petitioner, Karen Ehlers, was not discharged due to her handicap or perceived handicap in violation of Section 760.10, Florida Statutes, and that the Petition For Relief be dismissed. RECOMMENDED this 26th day of May, 1993, at Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 26th day of May, 1993. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-3782 The following constitutes my specific rulings, pursuant to Section 120.59(2), Florida Statutes, on all of the proposed findings of fact submitted by the parties in this case. Petitioner's Proposed Findings of Fact. 1. Proposed Findings of Fact 1 through 31 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial or a restatement of testimony, with the exception of the second sentence of Proposed Finding of Fact 30 which is rejected as not being supported by competent substantial evidence in the record. Respondent's Proposed Findings of Fact. Proposed Findings of Fact 1 through 18 and 22 through 55 have been adopted in substance as modified in the Recommended Order, except where they may be subordinate, cumulative, unnecessary, irrelevant, immaterial. Proposed Findings of Fact 19 through 21 are rejected as not being supported by competent substantial evidence in the record. COPIES FURNISHED: Snowden S. Mowry, Esquire KANETSKY, MOOR & DEBOER, P. A. Post Office Box 1767 Venice, Florida 34284-1767 David J. Stefany, Esquire HOGG, ALLEN, NORTON & BLUER, P. A. S. Hyde Park Avenue, Suite 350 Tampa, Florida 33606 Sharon Moultry, Clerk Human Relations Commission John Knox Road Building F, Suite 240 Tallahasse, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent committed an unlawful employment practice against Petitioner.
Findings Of Fact Petitioner is a Hispanic male. Respondent is an 860-unit apartment complex in Ocala. Petitioner was employed by Respondent as a full-time maintenance technician from 2001 through September 28, 2007. His job responsibilities included performing repairs and general maintenance work on the insides of the apartments. Petitioner’s starting wage in 2001 was $9.00 per hour. He received annual raises from 2001 to 2004, at which point his wage was $11.75 per hour. Petitioner did not receive any raises from 2004 through 2007. He was still earning $11.75 per hour when he was fired on September 28, 2007. Starting in 2004, Respondent did not give raises to any maintenance technicians who were not HVAC-certified. This policy applied equally to all maintenance technicians, including non-Hispanics, and was intended to encourage them to get HVAC- certified. HVAC certification was important to Respondent because the air conditioning systems at the apartment complex were getting older and were requiring more frequent repairs. Respondent provided the necessary study materials for the HVAC certification exam and paid for the exam. Petitioner is not HVAC-certified. He took the certification exam once, but he did not pass. He did not take the exam again, even though Respondent would have paid for him to do so as it did for other maintenance technicians. HVAC certification is not required to perform all types of work on air conditioners, and Petitioner continued to do some work on the air conditioners at the apartment complex after 2004 even though he was not HVAC-certified. Petitioner was characterized as a “fair” employee who did “okay” work. His supervisor, a Hispanic male, testified that there were some jobs that he did not assign to Petitioner, that Petitioner frequently got help from other employees, and that he received a couple of complaints from other maintenance technicians about Petitioner’s work. Respondent does not have an employee handbook, and the only written policy that Respondent has is a policy prohibiting sexual and other harassment. Respondent’s executive director, Laura Smith, testified that she expected employees to use “common sense” regarding what they can and cannot do at work. Respondent utilizes a system of progressive discipline, which starts with warnings (oral, then written) and culminates in dismissal. However, the nature of the misconduct determines the severity of the discipline imposed, and a serious first offense may result in dismissal. On October 5, 2006, Petitioner was given an oral warning for “improper conduct” for visiting with a housekeeper multiple times a day for as long as 20 minutes at a time. The housekeeper also received an oral warning for this conduct. On May 15, 2007, Petitioner was given a written warning for the same “improper conduct,” i.e., wasting time by going into an apartment to visit with a housekeeper. Petitioner acknowledged receiving these warnings, but he denied engaging in the conduct upon which they were based. His denials were contradicted by the more credible testimony of his supervisor and Ms. Smith. Petitioner was fired on September 28, 2007, after a third incident of “improper conduct.” On that day, Petitioner left the apartment complex around 10 a.m. to get gas in his truck. He did not “clock out” or get permission from his supervisor before leaving the apartment complex. Petitioner was away from the apartment complex for at least 15 minutes, but likely no more than 30 minutes. Even though Respondent does not have written policies and procedures, Petitioner understood, and common sense dictates that he was supposed to get his supervisor’s approval and “clock out” before he left the complex on a personal errand. Petitioner also understood the procedure to be followed to get the 14 gallons of gas per week that Respondent provided for maintenance technicians. The procedure required the employee to get the company credit card from the bookkeeper, get the gas from a specific gas station, and then return the credit card and a signed receipt for the gas to the bookkeeper. Petitioner did not follow any aspect of this procedure on the day that he was fired. He had already gotten the 14 gallons of gas paid for by Respondent earlier in the week. Petitioner’s supervisor, a Hispanic male, compared Petitioner’s actions to “stealing from the company” because he was getting paid for time that he was not at the apartment complex working. He also expressed concern that Respondent could have been held liable if Petitioner had gotten in an accident on his way to or from getting gas because he was still “on the clock” at the time. Petitioner testified that he and other maintenance technicians routinely left the apartment complex to fill up their cars with gas without “clocking out” or getting permission from their supervisor. This testimony was corroborated only as to the 14 gallons of gas paid for each week by Respondent. There is no credible evidence that other employees routinely left the apartment complex to do personal errands without “clocking out,” and if they did, there is no credible evidence that Respondent’s managers were aware of it. There is no credible evidence whatsoever that Petitioner’s firing was motivated by his national origin. His supervisor is Hispanic, and he and Ms. Smith credibly testified that the fact that Petitioner was Hispanic played no role in her decision to fire Petitioner. Petitioner claimed that he was “harassed” by Ms. Smith and that she accused him of having sex with a housekeeper in the vacant apartments. No persuasive evidence was presented to support Petitioner’s “harassment” claim, which was credibly denied by Ms. Smith. Petitioner also claimed that he was disciplined differently than similar non-Hispanic employees, namely James Stroupe, Jason Head, and Willie Hutchinson. Mr. Stroupe is a white male. He worked on the grounds crew, not as a maintenance technician. In May 2007, Mr. Stroupe was given a written warning based upon allegations that he was making explosive devices at work, and in September 2007, he was given an oral warning for “wasting time” by hanging out in the woods with Mr. Head. Mr. Head is a white male. He worked on the grounds crew, not as a maintenance technician. In September 2007, he received a written warning for “wasting time” by hanging out in the woods with Mr. Stroupe. Mr. Hutchinson is a white male, and like Petitioner, he worked as a maintenance technician. In September 2007, he was arrested for DUI. Mr. Hutchinson was not disciplined by Respondent for this incident because it did not happen during working hours and it did not affect his ability to perform his job duties as maintenance technician. The grounds department (in which Mr. Stroupe and Mr. Head worked) was responsible for maintaining the landscaping around the apartment complex, whereas the maintenance department (in which Petitioner and Mr. Hutchinson worked) was responsible for maintaining the insides of the apartments. The departments had different supervisors. Petitioner was initially denied unemployment compensation by Respondent after he was fired, but he successfully appealed the denial to an Appeals Referee. Petitioner received unemployment compensation through April 2008. On April 11, 2008, Petitioner started working for Holiday Inn as a maintenance technician. He is employed full time and his wage is $11.50 per hour. Respondent placed an advertisement in the local newspaper after Petitioner was fired in order to fill his position in the maintenance department. The advertisement stated that Respondent was looking for an applicant who was HVAC-certified. Respondent hired Javier Herrera to fill the position. Mr. Herrera, like Petitioner, is a Hispanic male.
Recommendation Based upon the foregoing findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission issue a final order dismissing the Petition for Relief with prejudice. DONE AND ENTERED this 16th day of September, 2008, in Tallahassee, Leon County, Florida. S T. KENT WETHERELL, II 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 16th day of September, 2008.
The Issue The issues in this case are whether, in violation of the Florida Civil Rights Act, Respondent terminated Petitioner's employment on the basis of her race, or retaliated against her for engaging in protected activity; and whether Respondent subjected Petitioner to a hostile work environment.
Findings Of Fact Respondent Cole, Scott & Kissane, P.A. ("CSK"), is a law firm having offices throughout the state of Florida. Petitioner Latasha McCleary ("McCleary"), an African-American woman, worked for CSK in its Orlando office as a legal assistant from August 7, 2017, through July 31, 2018. However, because McCleary began taking medical leave on June 6, 2018, and never returned to work, her last day in the office was June 5, 2018. Thus, the period of time in which McCleary actually functioned as a regular CSK employee was ten months. During her tenure with the firm, McCleary provided secretarial and administrative support to several attorneys, including partner Bartley Vickers and associates Jeremy Beasley and Shawn Gibbons. McCleary's direct supervisor was the then office manager, Lilliam Hernandez. CSK regarded McCleary as a valued and high-performing employee. Although, as will be discussed, McCleary complains that she was subjected to unfair criticism during the last weeks of her time in CSK's Orlando office, she was never reprimanded, disciplined, or subjected to an adverse employment action. For the first nine months of her employment, McCleary got along well with the attorneys for whom she worked, including Mr. Vickers, and she has no complaints about their treatment of her during this period. The only noteworthy incident or incidents of relevance to have occurred in this time frame are a secretary's use, on one or perhaps more occasions, of the "n- word" in McCleary's presence. An employee's use of this racial epithet in the workplace is, of course, extremely offensive and inflammatory, to say the least, and, if unchecked, could create a hostile work environment. That did not happen here, however. The legal assistant who made the offensive remark (apparently in the presence of peers only, not supervisors or managers) apologized to McCleary when the latter expressed her discomfort. McCleary never reported the incident(s) in writing to the firm's management, as the Employee Handbook required——a fact from which the undersigned infers that she accepted her co-worker's apology——and the bad behavior stopped. The upshot is that this upsetting incident was resolved informally among the affected employees without initiating an investigation by the firm, and a nascent problem was nipped in the bud. The watershed moment in this case occurred on May 7, 2018, at the beginning of McCleary's tenth month with CSK. An expert witness retained by CSK was scheduled to conduct an on- site inspection that day but failed to appear, forcing a last- minute cancelation which caused opposing counsel to incur travel expenses that CSK had to reimburse. McCleary mistakenly had failed, on the previous business day, to confirm the expert's availability, as the firm's routine required, and thus, she bore some responsibility for the unwanted results. That said, there is no evidence that this situation was other than a relatively minor inconvenience that could be fixed, learned from, and forgotten. When the problem came to light on May 7, 2018, Ms. Hernandez, the office manager, sent an email to McCleary reminding her that the inspection "should have been confirmed" beforehand to avoid a "waste[] [of] time and money." McCleary apologized for making a "human error" and promised it would not happen again. On May 9, 2018, Mr. Vickers, the partner, sent an email to McCleary and Mr. Gibbons, the associate, telling them that "some form of confirmation is needed" "for confirming inspection dates." He added: "This is a mistake that I imagine will not happen again, and I am glad we can move past it and look to the future without these types of issues again." The only thing remarkable about these emails is how unremarkable they are. Two points of interest will be mentioned. First, as just suggested, the tone of each message was neither derogatory nor personal, but measured and professional. There was a touch of criticism, to be sure, as would be expected, but the criticism was constructive in nature, not harsh or angry in tone. Second, McCleary was not the only one called to account. Mr. Vickers's email was directed as much to the associate attorney as to McCleary. The next day, Thursday, May 10, 2018, Mr. Vickers conducted a training meeting for the legal assistants in his group, which McCleary attended. There were a number of topics on the agenda, covering a range of administrative tasks that CSK expected its litigation support staff to carry out. Although Mr. Vickers brought up that week's scheduling snafu as an example of miscommunication-driven consequences, no evidence suggests that McCleary's mistake had prompted the meeting. Further, McCleary was not identified in the meeting as having been at fault or involved in the incident. McCleary, however, complains that she was "singled out" during the meeting, "80% [of which, she maintains,] covered what happened with [her] in regards to the May 7th re-inspection." The greater weight of the evidence does not support her characterization of the training session. According to McCleary, Mr. Vickers, who had been a good boss for the previous nine months, suddenly turned into a tyrant around May 10, 2018. McCleary alleged in an email written a few weeks later, on June 1, 2018, that soon after the canceled inspection, Mr. Vickers had begun asking her "idiotic questions to be sure [she knew] her job," and been constantly micromanaging [her] with multiple emails" accusing her of making numerous mistakes. Yet, although this entire period spans just 18 business days, McCleary produced none of Mr. Vickers's alleged, accusatory emails. The greater weight of the evidence does not support McCleary's allegations concerning Mr. Vickers's treatment of her during the month of May 2018. Sometime near the end of May, McCleary sent out notices of taking deposition duces tecum that did not have the document requests attached. McCleary was not solely to blame for this oversight; the attorney handling the case should have reviewed the papers to make sure that everything was in order before service. Still, as the legal assistant, McCleary should have spotted the omission and brought it to the attorney's attention. On the morning of May 31, 2018, after the problem had been discovered, Mr. Vickers sent an email to McCleary and Mr. Beasley, the associate, admonishing them to "stay focused" when preparing deposition notices for service. Similar to the canceled inspection earlier in the month, the incomplete deposition notices were a problem that CSK obviously would rather have avoided; inattention to detail, moreover, is something any reasonable employer should want to correct. There is no evidence, however, that CSK generally, or Mr. Vickers in particular, made a big deal about this incident. Mr. Vickers told McCleary and the associate that he hoped "it would not happen again"——and that, it seems, would be that. Except it wasn't. Later that day, May 31, 2018, McCleary spoke to the office administrator, Johnson Thomas. During this conversation, McCleary complained about working for Mr. Vickers and asked to be transferred to a different group of attorneys. On Friday, June 1, 2018, McCleary again contacted Mr. Thomas, sending him the email mentioned above. This email was the first written notice that CSK received from McCleary concerning her complaints about Mr. Vickers. In the email, McCleary did not allege racial discrimination, per se, but she did include some language which clearly indicated that such a charge might be forthcoming: "I refuse to subject myself to further retaliation, oppression and disrespect from Mr. Vickers. He is creating a hostile working relationship between us. I cannot concentrate on work and am in need of immediate transfer." (emphasis added). The following Tuesday, June 5, 2018, CSK approved McCleary's request to be transferred, assigning her to the work group headed by partner Melissa Crowley. When the announcement was made, Ms. Crowley sent an email to McCleary stating, "Welcome Latasha! I look forward to working with you." McCleary never reported for duty under Ms. Crowley. Instead, she took a sick day on June 6, 2018, and applied for unpaid medical leave. Despite McCleary's having presented somewhat nonspecific reasons, such as heart palpitations and anxiety, the firm granted McCleary's application and placed her on medical leave through July 11, 2018. In mid-July, McCleary provided CSK with a note from her mental health counselor in support of a request to extend the unpaid medical leave until September 5, 2018. On July 12, 2018, the firm informed McCleary that it would not be able to keep her position open that long without hiring a replacement, but agreed to let her remain on leave until July 31, 2018. CSK made it clear to McCleary that she needed to return to work on August 1, 2018, or face dismissal on grounds of abandonment. McCleary did not return to work on August 1, 2018, and the firm terminated her employment. Ultimate Factual Determinations There is no persuasive evidence that CSK took any actions against McCleary motivated by discriminatory animus, or created (or acquiesced to the creation of) a hostile work environment. Indeed, there is no competent, persuasive evidence in the record, direct or circumstantial, upon which a finding of unlawful racial discrimination could be made. There is no persuasive evidence that CSK took any retaliatory action against McCleary for having opposed or sought redress for an unlawful employment practice. Ultimately, therefore, it is determined that CSK did not discriminate unlawfully against McCleary on any basis.
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 finding CSK not liable for race discrimination, retaliation, or creating a hostile work environment. DONE AND ENTERED this 20th day of December, 2019, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of December, 2019. COPIES FURNISHED: Reshad Favors, Esquire Mosaic Law Firm Tenth Floor 1875 Connecticut Avenue Northwest Washington, DC 20009 (eServed) Robert Alden Swift, Esquire Cole, Scott & Kissane, P.A. Tower Place, Suite 750 1900 Summit Tower Boulevard Orlando, Florida 32810 (eServed) Barry A. Postman, Esquire Cole, Scott & Kissane, P.A. Second Floor 1645 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401 (eServed) Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue Whether Respondent committed the unlawful employment practices alleged in Petitioner's charge of discrimination and, if so, what relief should Petitioner be granted.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since June 2008, employed as a "per diem" switchboard operator at Holy Cross Hospital. She was employed as a part-time switchboard (PBX) operator in University's PBX Department from July 25, 2005, until she resigned on October 26, 2008.6 As a University switchboard operator, Petitioner was responsible for answering and appropriately handling and routing, with dispatch, incoming calls (including "codes," which are emergency calls) to University's switchboard during her shift. The manager of University's PBX Department when Petitioner was hired was Eleanor Dingus. At no time did Ms. Dingus have occasion to discipline Petitioner, nor did Ms. Dingus ever receive any complaints from other operators about Petitioner's "performance on the switchboard." Gloria Gonzalez replaced Ms. Dingus as the PBX manager in July 2006, and has held that position ever since. At all times material to the instant case, directly under Ms. Gonzalez in the chain of command in University's PBX Department was Cathy Hudson, the PBX supervisor. Reporting to Ms. Hudson were three switchboard operators who served as "team leaders," one of whom was Miriam Reyes. At the bottom of the chain of command were Petitioner and approximately three other non-"team leader" switchboard operators. The PBX Department provided switchboard services on a 24-hour per day, seven-days a week, basis. At all times, there was either one operator or two operators (each using separate "consoles") taking calls. When there were two operators on duty, one operator's not picking up calls, or "staying on a call for an unusually long amount of time," would result in the other operator's having "more calls to pick up." Petitioner primarily worked the evening shift. "Sometimes she worked alone," and sometimes she worked a shift with another operator. In August 2007, Petitioner received a merit pay increase to $11.90 per hour (from $11.55 per hour) based upon an annual performance appraisal Ms. Gonzalez had completed on July 10, 2007. The appraisal contained the following "Evaluation Summary": Evaluation Summary Strengths/accomplishments: Gladys is a good operator. Very responsible and always on time. Areas for growth: Gladys needs to [acc]ept our Departmental changes in a much more positive manner and not get caught up with the small stuff or negativity in our Dept. This was the last annual performance appraisal that Petitioner received prior to her resignation on October 26, 2008, notwithstanding that, pursuant to written University policy, University employees were supposed to "receive an evaluation at least annually, normally twelve months from their anniversary date (date of hire) or last change of position date (promotion, lateral move, and demotion) . . . in order . . . to monitor adherence to performance standards to manage, develop and motivate individual performance." Prior to her 2007 annual evaluation of Petitioner, Ms. Gonzalez had started receiving complaints about Petitioner's performance from operators who had shared shifts with Petitioner. Over time, the complaints became more numerous. According to what the operators had told Ms. Gonzalez, Petitioner had been "slow answering [calls]"; kept "the switchboard on busy"; "take[n] her time getting to the switchboard at times"; and on occasion, "stay[ed] [on] too long with a caller." These were things that Ms. Gonzalez herself had personally observed. Initially, Ms. Gonzalez just verbally counseled Petitioner about these issues. Petitioner "would sometimes get upset" during these counseling sessions. In November 2007, Petitioner was formally disciplined for "unsatisfactory performance regarding receiving calls." The discipline she received was in the form of a "written warning" contained in a Notice of Corrective Action prepared by Ms. Hudson (the PBX supervisor and Ms. Gonzalez's second-in- command) and approved by Ms. Gonzalez. Petitioner was given a 30-day (probationary) period to improve her performance. The decision to place Petitioner on probation was made jointly by Ms. Gonzalez and Jennifer Lindsey, University's human resources operations manager. Ms. Gonzalez monitored Petitioner's performance on the switchboard during her probationary period and determined that it had improved sufficiently to warrant Petitioner's return to non-probationary status, without the imposition of any further disciplinary action. Unfortunately, Petitioner's performance deficiencies subsequently "resurfaced." On May 20, 2008, after receiving a complaint about Petitioner from Ms. Reyes (one of Ms. Gonzalez's three "team leaders"), Ms. Gonzalez prepared and gave to Petitioner a Notice of Corrective Action, reflecting that she was issuing Petitioner a "verbal warning" for "[n]ot responding to the switchboard in a timely manner." The following "details of the . . . infraction" were given in the notice: Gladys was informed that she would take over the switchboard at 4 pm on 5/12/2008 for a department meeting. She did not turn her switchboard on at that time and calls started to accumulate. Miriam asked Gladys to take over the switchboard and Gladys did not do so with a sense of urgency. The expectation going forward is that Gladys will answer the switchboard as soon as it buzzes. The notice also contained the following "Corrective Action Plan": [On] 11/21/07 [Petitioner] was given 30 days for performance improvement and although the plan was completed on 1/9/08, previous performance concerns have resurfaced with the timely answering of the switchboard. It is our expectation that within 30 days we will be able to review her performance with answering calls and be able to notice significant improvement. When presented with the notice, Petitioner wrote on it, under "Employee Comments," the following: "This was one incident on our meeting day. I do remember when it occurred." The notice had been presented to Petitioner by Ms. Gonzalez at a meeting between the two at which Ms. Lindsey had also been present. As University's human resources operations manager, it was Ms. Lindsey's responsibility to make sure that employees met the physical requirements of their position and were otherwise fit for duty. One of the physical requirements of the position Petitioner held was to "[h]ear alarm, telephone/tape recorder/normal speaking voices." During the May 20, 2008, meeting at which Petitioner was presented with the Notice of Corrective Action, Ms. Lindsey "asked [Petitioner] if [Petitioner had] heard the switchboard." Petitioner "perceived th[is] as a statement of age discrimination by Ms. Lindsey"7 (albeit one that did not "affect [her] job"). Despite what Petitioner may have believed, in making such an inquiry, Ms. Lindsey was simply seeking to find out if the reason for Petitioner's not "timely answering . . . the switchboard" was that she had a hearing problem. Petitioner responded to Ms Lindsey's question by telling Ms. Lindsey that "she did hear the calls, but that . . . the calls pile up all the time." Ms. Lindsey required Petitioner to review a Position Minimum Requirement[s] Checklist. After reviewing the document, Petitioner signed it, indicating that she believed that she met all of the requirements of her position. Some time after the May 20, 2008, meeting, Ms. Gonzalez heard from Ms. Hudson that Ms. Reyes had reported being asked by Petitioner, in a confrontational manner, whether it was Ms. Reyes who had complained about Petitioner's "[n]ot responding to the switchboard in a timely manner" on May 12, 2008. Ms. Gonzalez thereafter personally contacted Ms. Reyes to find out what had happened during this post-May 20, 2008, incident involving Ms. Reyes and Petitioner. Ms. Reyes, when contacted, told Ms. Gonzalez that Petitioner had "threatened" her. The matter was brought to the attention to Ms. Lindsey, who made the decision to suspend Petitioner for three days. The suspension was "for the purpose of conducting a fact-finding investigation" to determine whether Petitioner, in her dealings with Ms. Reyes, had violated University's Workplace Violence Policy (HR-2000-009), which provided, in pertinent part, as follows: POLICY University Hospital and Medical Center is committed to providing a safe workplace for all employees, patients, physicians and visitors. Workplace violence of any type committed by or against employees, patients, physicians or visitors will not be tolerated. PROCEDURE A. To ensure safe and efficient operations, University Hospital and Medical Center expects and requires all employees to display common courtesy and engage in safe and appropriate behavior at all times. * * * The following list of behaviors, while not all inclusive, provides examples of conduct that is prohibited. * * * Making threatening remarks; Aggressive or hostile behavior that creates a reasonable fear of injury to another person or subjects another individual to emotional distress; * * * Reporting Procedures Any potentially dangerous situation must be reported to a Supervisor, Security Department or Human Resources. Reports can be made anonymously and all reported incidents will be investigated. Reports or incidents warranting confidentiality will be handled appropriately and information will be disclosed to others on a need-to-know basis only. All parties involved in a situation will be counseled and the results of the investigation will be discussed with them. Employees are expected to exercise good judgment and to inform Security and/or Human Resources if any employee, patient or visitor exhibits behavior which could be a sign of a potentially dangerous situation. Such behaviors include but are not limited to: * * * Displaying overt signs of extreme anger, hostility, resentment or stress; Making threatening remarks; * * * e. Display of irrational or inappropriate behavior. * * * During the investigation, Petitioner submitted to Ms. Lindsey a "rebuttal" statement, dated May 29, 2008, which read as follows: This serves as notification that I am in complete disagreement with any claims made about my work performance as stated by Gigi Gonzalez. Gigi stated on 5/20/08, with Jennifer Lindsey in HR as witness, that a team leader Miriam Reyes said there were two calls backed up on the switchboard when we were changing shifts on Monday 5/12/08. She had already signed off and was abruptly leaving the office without checking if I was logged in before she signed off. Both calls were answered without problem or complaint by the callers. It is a normal occurrence when more than one call comes in at once for them to be what she referred to as "backed up." Miriam signed off the switchboard before checking if I was signed on. I received a 30 day probation disciplinary action and she did not. Per our work instruction, an operator is not to leave the position before a relief operator is available. I find the comment made by Jennifer "can you still hear the phone" a discriminatory reference to my age of 76-years-old. Furthermore, I was called at home by Jennifer Lindsey on 5/29/08 [and] put on involuntary suspension without pay for 3 days. Jennifer claimed that since I asked Miriam what she said about the incident that it was inappropriate. I was not asked about the situation. Rather I was interrogated. I have a right to know what is causing a disciplinary action . . . on my record. I also have the right to dispute or state my complaints without retaliation. Unpaid suspension without a proper investigation was undue hardship and a measure of retaliation. Since I was told I must sign the probation notice whether I agree with it or not, I request this to be in my personnel file and sign[ed] as received and reviewed by my supervisor as previously stated orally in the said meeting on May 20, 2008. This claim is unwarranted and causes undue financial hardship. Following the completion of her investigation, Ms. Lindsey determined that there was "insufficient evidence" to conclude that Petitioner had violated University's Workplace Violence Policy. Petitioner was put back on her normal work schedule and paid for the three days she had been suspended (and had not worked). Ms. Lindsey's "insufficien[cy]" determination was set forth in the following written statement Petitioner was given (and which she signed) on June 5, 2008: After an investigation was conducted on the incident that occurred on May 23, 2008, it is concluded that a discussion between Gladys and a co-worker did take place regarding Gladys' verbal warning for performance on May 20th. Gladys does admit to questioning her co-worker regarding information she may have provided to the manager of PBX regarding her performance. There is insufficient evidence to support that Gladys threatened her co-worker or that she was verbally abusive in any way. In the future Gladys will restrict her conversations with Miriam to business- related activities. This means only communication that must take place for her to perform the functions of her job. Any unnecessary communications or interactions may result in disciplinary action. In the future it is expected that Gladys will follow the Employment Dispute Resolution policy HR 2006-416 to express any disputes or state any complaints that she may have. A copy of this policy is being presented to Gladys today for reference. Gladys will be paid for the days that she was suspended in order to conduct this investigation. In late June 2008, in accordance with the "Corrective Action Plan" set forth in the Notice of Corrective Action she had given Petitioner, Ms. Gonzalez reviewed Petitioner's performance in the area of "answering calls." Ms. Gonzalez, in a document that she prepared and presented to Petitioner on or about July 18, 2008, described the "results" of that review as follows: Operator Gladys Norris has completed her performance improvement plan as of Sunday 6/29/08. In the course of the 30 days, I have been able to observe Gladys on the switchboard. Gladys has improved greatly. She has answered the board much more quickly. She did not let the board pile up. She put the callers on hold and then came back to the calls. I am confident that Gladys understands and is taking seriously her switchboard duties. She is very much aware that whenever possible, we should not let the calls pile up as emergency codes come through the switchboard. At around this same time (mid-July 2008), Petitioner learned that she needed to have emergency vascular surgery, and she so informed Ms. Gonzalez via an e-mail message, sent the evening of July 17, 2008, which read, in pertinent part, as follows: * * * . . . . But last week I had to have some tests done rather quickly and unfortunately have to have an unexpected urgent surgery performed (vascular nature). The doctor called me late this afternoon and said he has scheduled me for next Wednesday July 23rd. At this writing I cannot say how long I will be out from work but he did say at least three or four weeks for recovery. I will keep you apprised of my situation. You may have me on medical leave also. I will not be working anywhere during my recovery period so I cannot list any hours right now. Petitioner was granted leave for this "unexpected urgent surgery," as well as for her "recovery period." When she returned to work from leave, Petitioner was given her work schedule for September, which had her working the hours and days she "usually worked." Her schedule for September, however, was subsequently changed and, to her displeasure, she had to work three "overnight," Saturday night/Sunday morning shifts (from 11:00 p.m. to 8:00 a.m.) that month. She had never before, as a University employee, worked an "overnight" shift. When Petitioner asked Ms. Hudson why she had to work these "overnight" shifts, Ms. Hudson responded, "That's just the way it is." Up until September 18, 2008, throughout her employment at University, Petitioner had used a University-provided headset when working at the switchboard. On September 18, 2008, her headset and those of the other employees in the PBX Department were taken away in anticipation of their being replaced by new headsets (from Verizon). That same day, Petitioner and the other switchboard operators received the following e-mail from Ms. Gonzalez, informing them that they would soon be experiencing an uptick in call volume: Subject: Pavilion[8] Calls Ladies, Please note that starting Tuesday morning, we will be getting all the Pavilion[']s calls. There will be more Ext: 2221. Please make sure that you go over all Ext and Pavilion info. Keep in mind that call volume is going to increase. So do not spend a long time on any one call. Remember the time allowed for each call is 24 seconds per call. The Hospital wants a live person to answer at all time[s]. Also make sure that you know how to page all Pavilion calls over head. So ladies, when you clock in, and enter the PBX office, you must be ready to log in and start to work immediately. Please let me know if you have any further questions. Due to delays, it was not until November (approximately two months later) that all of the old headsets were replaced by new ones. The first new headsets came in a group of three.9 They arrived in the first half of October and were given to Ms. Gonzalez (the PBX manager), Ms. Hudson (the PBX supervisor), and Ms. Reyes (one of the three "team leaders"). On October 15, 2008, Ms. Gonzalez held a departmental meeting at which she discussed "what was going on with the headsets." Petitioner was at the meeting. From September 18, 2008, until her resignation on October 26, 2008, Petitioner had to use a "hand-held phone," instead of a headset, to answer calls coming in to University's switchboard. Approximately two weeks after she had started using the "hand-held phone," Petitioner began experiencing pain in her wrists, arms, shoulders, neck, and lower back. She visited her primary care physician, Greg Sherman, M.D., for treatment of the pain. The pain went away five or six weeks after she had stopped working at University. All told, the pain lasted no more than ten weeks. Based on what she had been told by Dr. Sherman,10 Petitioner attributed the pain she was experiencing during this period to her using a "hand-held phone" when working the switchboard at University. Despite the onset of the pain, Petitioner continued to work and perform her job duties at University for approximately three or four weeks until she felt she could do so no longer and resigned. During this period, she made her supervisors aware that she was in pain. On the morning of October 2, 2008, during a telephone conversation, she told Ms. Hudson that her "wrist, arms and neck hurt." Ms. Hudson did not ask Petitioner for any further details, and Petitioner did not provide any. Two weeks later, on October 16, 2008, at 10:34 p.m., Petitioner sent Ms. Hudson the following e-mail: Dear Cathy, Regarding my PTO [Paid Time Off] request for Nov 13, 14, 15, 16 (Thurs, Fri, Sat, Sun) I am wondering when I will know if it has been approved. Also do you know when my headset will arrive? I went to the doctor yesterday because I have had pain for a week now in my shoulders and wrists. I explained that I have been working without my headset for the past four weekends. He stated that that was likely the cause of the strain. I do hope the headset will arrive soon. A week having passed without Petitioner's having received a reply from Ms. Hudson, Petitioner, at 9:34 p.m. on October 23, 2008, sent the following e-mail to Ms. Gonzalez, to which Ms. Gonzalez never replied: Re: Waiting for an e-mail answer Hello Gigi, I sent an e-mail to Cathy regarding the headsets on Oct 14th.[11] I have not received a reply as of today. I understand a few operators have already received their headsets. Shouldn't we all have them as we work the same consoles? Working without my headset for the past 4 weekends has caused problem[s] in my wrists and shoulder/neck which I had to see a doctor [about] last week. After taking off earlier in the week because of the pain she was experiencing, Petitioner "tried to come in" to work at University on October 26, 2008, but she did not stay her entire shift. Because she did not know when she "was going to get a headset" and she had experienced "a lot of pain" working without one, Petitioner decided to resign her position at University. At 11:05 a.m. on October 26, 2008, she gave notice of her resignation by sending Ms. Lindsey the following e-mail: I hereby give notice that today, Sunday October 26, 2008 will be my last day at University Hospital. I have used a headset since the first day of employment in July 2005 when on PBX. Over the past five weeks I have been forced to work without my headset. My physical condition has been aggravated to the point I am forced to resign. Management has been uncooperative in this problem as well as many others I have addressed that have gone unanswered. Despite the pain she was experiencing at the time, Petitioner continued working, without interruption, as a switchboard operator at Holy Cross Hospital, where she had the use of a headset. To date, University has not filled the position from which Petitioner resigned.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the FCHR issue a final order finding University not guilty of the unlawful employment practices alleged by Petitioner in her charge of discrimination and dismissing the charge. DONE AND ENTERED this 12th day of April, 2010, in Tallahassee, Leon County, Florida. S STUART M. LERNER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of April, 2010.
The Issue Whether the Flagler County School Board discriminated against Petitioner by failing to hire Petitioner based on his disability.
Findings Of Fact Respondent is the local government agency responsible for oversight of the public schools of Flagler County, Florida. Petitioner applied for two positions with the School Board. In December 2009, Petitioner applied for a job opening as a bus aide for handicapped students (Transportation Handicapped Aide position). On January 29, 2010, he applied for a lawn maintenance position at Flagler Palm Coast High School (Maintenance/Turf Care Worker position). On February 1, 2010, Petitioner received a letter from the School Board thanking him for his interest in the Transportation Handicapped Aide position, but informing him that the School Board had selected another applicant. On or about May 31, 2010, Petitioner received another rejection letter from the School Board, informing him that he had not been hired for the Maintenance/Turf Care position. Petitioner alleges that Respondent did not hire him for either position because he is “qualified deaf.” Prior to actually applying for the two positions, as part of the application process, Petitioner completed an on-line employment application with the School Board. Petitioner listed eight previous positions on his on-line application, including: dishwasher, assembler, part-time stacker, dock worker, warehouse/driver, part-time delivery driver, warehouse associate, and warehouse forklift operator. The previous positions listed on Petitioner?s on-line application did not involve working with children or lawn care. At the final hearing, Petitioner testified that he had been around deaf and blind students while attending the Florida School for Deaf and Blind. He also testified that he thought he could learn the lawn care maintenance position while on the job. Petitioner conceded, however, that his prior employment positions and experience did not involve working with children or lawn care maintenance. Qualifications the School Board required for the Transportation Handicapped Aide position included prior experience or training in the care of children, as well as knowledge of and ability to use crisis intervention and prevention techniques, CPR, and first aid. The Maintenance/Turf Care Worker position was not a beginning position where qualifications could be met by on-the- job training. Rather, the position required a state-certified pest control operator's license for lawn and ornamental plants or the equivalent, and a working knowledge of the rules and regulations on safe handling and application of pesticides, herbicides, and fertilizers. The position also required knowledge of athletic field dimensions and striping, and the ability to maintain a commercial irrigation system. Review of Petitioner's on-line application, in light of the qualifications for the two positions sought, reveals that Petitioner was not qualified for either position. In contrast, the successful applicants who were hired for the two positions possessed the required qualifications and experience. Ms. Parrella testified that, as secretary to the School Board's Director of Human Relations, it was her responsibility to monitor the applications for employment submitted for the two positions for which Petitioner applied. According to Ms. Parrella, Petitioner was not hired because he did not possess the required qualifications for the positions. Ms. Parrella further testified that the School Board would not discriminate against a person who was deaf if he had the qualifications for the position. She further explained that Petitioner's handicap or disability played no role in the decision not to hire him for the two positions. Ms. Parrella's testimony is credited. Petitioner testified that, at the time he filed the Complaint, he suspected that he had not been hired by the School Board because of his disability because he could not think of any other reason he was not hired. He admitted, however, that he had no personal knowledge as to the reasons why he was not hired. Petitioner also admitted during the final hearing that he did not list or possess all of the certifications or qualifications required for either of the two positions. In sum, Petitioner did not show that the School Board discriminated against him by failing to hire him because of his disability.
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 Complaint and Petition for Relief. DONE AND ENTERED this 17th day of May, 2011, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 2011.
Findings Of Fact The Petitioner was employed by the Respondent as an Accountant II on December 1, 1987 and in December of 1993, was promoted to Tax Auditor II. In September of 1991, the Respondent received a complaint regarding Petitioner from a taxpayer. The taxpayer alleged that the Petitioner had accused the taxpayer of attempting to sabotage the Petitioner's van. When questioned about the complaint, the Petitioner stated that the taxpayer had attempted to damage his van because the Petitioner had denied the taxpayer's refund claim. The Petitioner's supervisor investigated Petitioner's claims, counseled him and suggested that the Petitioner participate in the Employee Assistance Program (EAP). The Petitioner declined assistance. In October and November of 1992, the Petitioner began making bizarre allegations about his co-workers and supervisors engaging in outrageous and deviant sexual conduct and activities, and began to behave strangely. The Petitioner told his supervisors that his co-workers were engaging in sex with his mother, aunt, uncle and other members of his family. According to the Petitioner, these sexual activities were taking place in the office. The Petitioner was upset particularly at one co-worker, who Petitioner stated had moved in next door to him or into his neighborhood in order to spy on Petitioner. In addition, Petitioner stated that the "sex police" were observing him at Walmart. The police would get on top of his van to spy on him according to Petitioner. During this time, the Petitioner filed a "sexual harassment" complaint with the Respondent's Inspector General. Petitioner's statement to the investigators repeated the bizarre accusations outlined above regarding his co- workers. After investigating the Petitioner's claim, the Respondent's Inspector General found no evidence to substantiate these allegations and statements. Because the Petitioner's increasingly bizarre behavior, the Respondent became concerned about the Petitioner's ability to perform his duties as a Tax Auditor I. Therefore, the Respondent requested that the Petitioner go to a psychiatrist for an evaluation. The Petitioner agreed and went to the Apalachee Center for Human Services, where he was examined by Dr. Terence Leland, a psychologist and Dr. Inez Bragado-Spence, a psychiatrist. The evaluation consisted of three, one- hour interviews and various written tests. It was understood that the results of this examination would be shared with Respondent. Dr. Leland reported to the Respondent that the Petitioner had made delusional statements of the type made to and investigated by the Inspector General and found to be baseless. The Petitioner reported that co-workers and others were spying on him. The Petitioner reported alleged sexual liaisons at the office between various employees and supervisors. The Petitioner reported plots against him by various conspirators and "hit men" of the Respondent. Dr. Leland's diagnosis was that the Petitioner suffered from a delusional (paranoid) disorder, persecutory type. It was Dr. Leland's opinion that the Petitioner clearly needed treatment. Dr. Leland felt that the Petitioner could not perform his duties without treatment, and recommended requiring treatment as a condition of the Petitioner's continued employment. During this period, the Petitioner's job performance suffered. Based upon Dr. Leland's reports, the Respondent required that the Petitioner obtain treatment as a condition of continued employment. The Petitioner and the Respondent entered into an agreement which required the following as a condition of continued employment: Seeking psychiatric treatment within 40 days. Furnishing documentation that treat- ment had commenced and was continuing for as long as treatment was recommended. Following the prescribed treatment so long as it was recommended. The Petitioner commenced treatment in June of 1993, Dr. Prasad, a psychiatrist, prescribed medication for the control of Petitioner's illness and Suzan Taylor, a counselor associated with Dr. Prasad, held regular counseling sessions with Petitioner. As a result of his treatment, the Petitioner was asymptomatic, his work improved, and he was promoted to Tax Auditor II in December of 1993. In the summer of 1994, approximately one year after commencing treatment, Dr. Prasad and Suzan Taylor began to suspect that the Petitioner was no longer taking his medication when he again began making delusional statements. At the same time, the Petitioner's supervisor began to notice the reoccurrence of Petitioner's prior conduct. When confronted by his doctors in November of 1994 about the failure to take his medication, the Petitioner stated that he had quit taking it. He was given the option of getting shots of the same medication on a regular basis, but he declined. On November 18, 1994, the Petitioner had an altercation with a co- worker and received a one-day suspension. Dr. Prasad had diagnosed the Petitioner as having major depression with psychotic features of persecution and delusion. Dr. Prasad's opinion was that the Petitioner could not perform his essential job functions without treatment. On or about November 21, 1994, the Petitioner told his supervisor that his last visit to Dr. Prasad was on November 16, 1994. Dr. Prasad was contacted by Petitioner's employer, and Dr. Prasad issued a final report dated November 23, 1994, in which she stated that the Petitioner refused to take any further medication or follow her directions; therefore, there was nothing further she could do to help him if he refused her recommended treatment. She did not release Petitioner from treatment. The Respondent issued its proposed letter of termination based upon the Petitioner's refusal to continue treatment contrary to his agreement and the Petitioner's behavior on the job. In a response to the letter of termination, the Petitioner made bizarre statements about the co-worker with whom he had had the altercation with on November 18, 1994. At a pre-determination conference conducted by William Fritchman, the Respondent's Chief of Personnel and Training (at the time), it was suggested that the Petitioner go to another doctor for evaluation and treatment, if necessary. The Petitioner stated that he would not seek further medical help and stated that he would not take any drugs. The Respondent had real concerns about the Petitioner's ability to perform his job duties, his interaction with taxpayers, and potential harm to fellow employees. Based upon Dr. Prasad's diagnosis and opinion that Petitioner required continuing treatment and Petitioner's declining job performance, Mr. Fritchman issued the Final Action Letter of Termination citing the Petitioner's breach of the conditions of employment, as agreed in the letter of April 30, 1993, which constituted insubordination. Petitioner offered no evidence showing he was sexually harassed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's claim be dismissed. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Jack E. Franklin Post Office Box 572 Tallahassee, Florida 32302-0572 Gene T. Sellers, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32311-6668 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent discriminated against Petitioner based on his race contrary to Section 760.10, Florida Statutes (2009).
Findings Of Fact Respondent operates a lumber mill in a community known as Cypress near Marianna, Florida. In 2007, Respondent hired Petitioner, an African-American male, to operate a 966 Caterpillar loader (the loader) at the mill. Melvin Lewis is an African-American male. Mr. Lewis is a second-shift supervisor. At all times relevant here, Mr. Lewis was Petitioner's immediate supervisor. Mr. Lewis reports directly to Ross Jackson, a white male. Mr. Jackson has been Respondent's general manager since January 2008. In May 2008, Mr. Lewis told Petitioner that the loader was slowly leaking brake fluid. Mr. Lewis instructed Petitioner to always check the loader to ensure that it had brake fluid. On or about Thursday, May 28, 2009, between 2:30 a.m. and 3:00 a.m., Petitioner was involved in an accident while operating the loader. Petitioner told Mr. Lewis that a log fell onto the loader, the brakes failed, and the loader went over a retaining wall. After the accident, Mr. Lewis immediately checked the brake fluid reservoir. He found the reservoir empty. Petitioner knew or should have known the standard procedure to follow when, and if, a log rolled onto a loader. In that event, the loader operator was supposed to immediately call his supervisor on the two-way radio and request help. At the time of the accident, Petitioner and Mr. Lewis had working two-way radios. Petitioner used the radio to call Mr. Lewis right after the accident. He did not call for help when the log first rolled onto the loader. On May 28, 2009, Petitioner was operating the 966 loader on a ramp that is 75-feet long and 40-feet wide with a retaining wall on each side of the ramp. At the high end of the ramp is a flat area where Petitioner was picking up logs from a pile. To get off of the flat part of the ramp, Petitioner had to accelerate backwards to then go down the ramp. When the accident occurred, Petitioner had traveled almost all of the way down the 75-foot ramp and then turned the loader 90 degrees toward the retaining wall. To go over the one and one-half foot retaining wall, the loader must have been traveling at a fairly high rate of speed. The accident tore the transmission off of the loader. The loader was inoperable and had to be repaired. The cost of the repairs was over $14,000. After the accident, Mr. Lewis told Petitioner that "this is really bad." Mr. Lewis first directed Petitioner to clock-out and go home. Mr. Lewis then told Petitioner to stay until Mr. Jackson arrived at work at 5:00 a.m. When Mr. Jackson came in to work, he told Petitioner that he would be suspended until Mr. Jackson and Mr. Lewis had a chance to review the situation. Mr. Jackson told Petitioner to report back on Monday, June 1, 2009. Mr. Lewis decided that Petitioner should not be allowed to operate equipment for the following reasons: (a) Petitioner failed to keep brake fluid in the loader as instructed; (b) Petitioner failed to call for help on his radio when the log rolled onto the loader; and (c) with the log on the loader, Petitioner accelerated backward down the ramp, turned the loader 90 degrees, and drove the loader fast enough to hit the retaining wall and bounce over it. Mr. Lewis recommended termination of Petitioner's employment. Mr. Jackson concurred. Petitioner was terminated on June 1, 2009. No evidence indicates that the decision to terminate Petitioner's employment was based on his race. There was no persuasive evidence that Respondent gave any white employee more favorable treatment under similar circumstances.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of August, 2010, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 2010. COPIES FURNISHED: Eric J. Holshouser, Esquire Fowler, White and Boggs, P.A. 50 North Laura Street, Suite 2800 Jacksonville, Florida 32202 Gary Powell 6782 Bumpy Lane Grand Ridge, Florida 32442 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 Whether the Agency for Health Care Administration (AHCA) should deny Petitioner's application for renewal of a standard assisted living facility (ALF) license.
Findings Of Fact Although evidence was presented concerning all factual and legal issues, including mitigation, a recitation of all of that evidence is not necessary to a resolution of this case. Survey allegations and defense theories which were not proven will not be discussed, except as necessary, and only findings of fact which are dispositive will be made. AHCA is the state agency for quality control and licensing of ALFs. In order to ensure quality control of such facilities, AHCA conducts annual, biennial, and follow-up surveys. It also conducts complaint investigations as needed. Peggy Watkins and Timothy G. Watkins, Sr., hold a standard ALF license to operate Watkins Health Center, which they own. They held such a license and operated that facility throughout the 1996-1998 biennial licensure period. This case arises upon the denial of Watkins' renewal application for a standard ALF license. The renewal application was denied on the basis of deficiencies found by AHCA surveyors during the biennial licensure period. The reasons for denial are set out in the April 15, 1999, amended denial of renewal application letter which states the reasons for denial as: . . . It has been determined by the Agency for Health Care Administration that your application does not meet or comply with the standards as an ALF pursuant to Chapter 400, Part III, Florida Statutes (F.S.), and Chapter 58A-5, Florida Administrative Code (F.A.C.) Further, the licensee has committed an intentional or negligent act which materially affects the health and safety and walfare [sic] of the residents of your facility. See 400.414(1)(a), Florida Statutes Suppelment [sic] (1998). This specific basis for this determination is: The administrator failed to adequately supervise residents and endangered the lives of the residents at your facility. The facility failed to meet minimum licensure standards pursuant to Section 400.414(1)(e) and (i), F.S., as evidenced by two repeated class II deficiencies, eight repeated class III deficiencies cited by the Agency between June 11, 1996 and October 9, 1998, during biennial and follow-up surveys, and complaint investigations. Petitioner contends that all or some of the cited deficiencies did not exist, were merely record-keeping flaws, or otherwise were not so serious as to require denial of the renewal application. Petitioner also asserts that all deficiencies were corrected by the respective follow-up surveys; that if a follow-up survey had been conducted after the October 1998 biennial survey, those deficiencies also would have been found to have been corrected; and that since a final follow-up survey was not conducted, the October 1998 survey results should not be used against Petitioner for purposes of denying the standard license renewal. In making surveys and investigations, AHCA follows a team approach. Surveyors on a team individually observe and note flaws and tentatively assign "tag" numbers to them, based on categories of deficiencies. Under each tag, all flaws in that category which are observed on that date are described with specificity. Members of the survey team write-up their individual observations and then meet together to discuss the flaws before the team finalizes the tagging and classing of all observations, with Class I being the most severe type of defect and Class IV being the least severe type of defect. See Section 400.419(1)(b), Florida Statutes, as set out more fully in the following Conclusions of Law. Complaint investigations may be done by a team or by only one surveyor. Although it is axiomatic that some subjectivity will be inherent in tagging and classing of violations, it is found, upon the evidence as a whole, that all surveyors who testified herein were adequately trained and professionally motivated within statutory and rule standards for surveying. Having different surveyors participate on different complaint investigations and surveys contributed to a fair assessment and diminished the possibility of unfairness through any individual surveyor's improper motive or subjectivity. It is further found that the surveyors herein appropriately followed survey protocols by using samples and stating percentages instead of tracking each specific resident or bedroom or bathroom from survey to survey. The utilization of sampling and percentage methodology is fairer to a facility than the tracking method proposed by Petitioner because the sampling and percentage methodology does not factor-in either a facility's consistent failures or consistent successes in any single location within the facility and because it provides a better overview of whole-facility compliance. In making these following Findings of Fact, I have not considered a survey tag or violation severity classification to have been proven without direct testimony by at least one surveyor who observed the deficiency on the date specified. The mere fact that a survey report contained a specific tag and class and that the same survey then became a business record of the Agency is not sufficient to establish that the deficiency actually existed. In addition to surveyors who evaluated Watkins during the biennial licensure period, AHCA presented the testimony of John Morton as an expert in regulation and operation of ALFs. His testimony sometimes differed from the on-site surveyors in ranking of various deficiencies, but overall his classifications were substantially the same. In considering Mr. Morton's testimony with regard to tags and classifications of deficiency, I have considered that he has been employed as a surveyor by the Agency for 20 years as a health facility evaluator, that he is a State-certified ALF administrator, and that he is a federally-certified quality control supervisor. While his opinions have been considered in determining the reasonableness or unreasonableness of the on-site surveyors' tags or classifications for specific deficiencies, Mr. Morton's opinions have not been applied to raise or lower the classifications assigned by the surveyors because Mr. Morton did not actually participate in any survey of Watkins. Watkins housed mentally ill residents throughout the 1996-1998 biennial licensure period. It was stipulated that these residents sometimes behave in bizarre ways, often require psychotropic medications, and are unpredictable, scatological, and unsuccessful at using restrooms. 3/ In 1995, AHCA began to create a licensing process for "limited mental health" resident facilities, pursuant to Section 400.4075, Florida Statutes (1995). The Agency acknowledged that Petitioner applied for such a license in April 1997. Its licensing officer, Ms. Huff, testified that the Agency "put a hold on such licenses." No legal authority for this "hold" was cited. The Agency contends that it sent Petitioner a request for further applicant information in October 1997 and never received the information. Petitioner contends that Mr. and Mrs. Watkins never received the Agency's request. The Agency failed to demonstrate the contents of its request for further information, and clearly, if sent, the October 1997 request was not sent to Petitioner's owners within 90 days of receipt of Petitioner's April 1997 application. Surveys, complaint investigations, and follow-up surveys of Watkins, pursuant to its 1996-1998 biennial standard license, were conducted by the Agency on June 11, 1996; July 31-August 1, 1996; September 5, 1996; October 18- 20, 1996; October 27, 1997; November 10, 1997; January 27, 1998; May 4, 1998; June 15-16, 1998; and July 6, 1998. On October 8-9, 1998, a biennial survey was conducted. It was not established that the Agency targeted Watkins for more investigations and surveys than other ALFs. Agency personnel had no control over when complaints were made against Watkins, which complaints required Agency investigation, and once the Agency had cited Watkins for a deficiency(ies), surveyors were required to return timely for compliance follow-ups until the biennial survey. On June 11, 1996, the Agency conducted a survey of Watkins. In the course of that survey, surveyor Sandra Holbert observed five residents taking food and drink off discarded dining trays and consuming it themselves. A staff member was present and did not intervene. Ms. Holbert observed the five residents return to the kitchen door and receive additional portions. She interviewed residents and found that they knew they were free to get second portions if they desired. The survey team correctly recorded this deficiency as a Class II, Tag A700, Resident Care Standard violation. The other tags cited for the June 11, 1996, survey on the June 18, 1996, survey report were not proven. On July 31-August 1, 1996, the Agency conducted a complaint investigation of Watkins. Surveyor Richard G. Glover reviewed Watkins' staffing and found it to be deficient. The minimum full-time equivalent staff (FTE) hours per week required for Watkins' resident census were 288, and the actual hours posted were 260. Despite explanations then, and at hearing, by Administrator Peggy Watkins that her time when working as a staff person was overlooked or ignored by Mr. Glover, I find more credible Mr. Glover's testimony that on July 31-August 1, 1996, Mrs. Watkins was unable to explain when the current work schedule had changed and that even if he added in the hours Mrs. Watkins had told him she worked, the total hours would not match the FTE requirements. Mr. Glover concluded that there were no time sheets nor payroll cards present in the facility on the date of his visit to support Ms. Watkins' contention. This deficiency was recorded as a Class II, Tag A505 (later re-numbered A507) Staffing Standards violation on the August 15, 1996, survey report, and proven at the hearing. The August 15, 1996, report also recorded that two resident bedrooms had broken windows: in one broken window, the shards of glass had been taped with gray tape, and in the second broken window, the shards of glass remained in the pane. This situation was classified on the report as a deficiency under Tag A705, Resident Care Standards, but it is unclear from Mr. Glover's testimony whether he personally saw the broken windows on July 31-August 1, 1996. On September 5, 1996, the Agency conducted a follow- up investigation/survey of Watkins. In the course of that survey, Mr. Glover again reviewed Watkins' staffing and found that it was deficient. The minimum hours, per week, required for the resident census at that time were 288, and upon the same type of review as noted in Finding of Fact 19, above, it was verified that the actual hours worked were 279. Weighing the credibility of Petitioner's several witnesses against the surveyors' contemporaneous request for, and the contemporaneous absence of, actual timesheets, I find that this deficiency was fully established as a repeat Class II Tag A505 deficiency on September 5, 1996. Also on September 5, 1996, Mr. Glover personally observed that two resident bedrooms had broken windows. In one broken window, the shards of glass had been taped with gray tape. In the second broken window, the shards of glass remained in the pane. He recorded this deficiency under Tag A705, Resident Care Standards. He noted the broken windows as a repeat of the same Class II deficiency found on the July 31- August 1, 1996, complaint investigation. Also included under Tag A705, were the September 5, 1996, observations by Mr. Glover of bedroom lights being out and exposed overhead lights. During the same survey, Mr. Glover identified the need for a preventive maintenance program to prevent grease build-up contamination in the vent over the kitchen range from falling into the food on the range. Without direct proof of broken windows on July 31-August 1, 1996 (see Finding of Fact 20, above), it is not possible to label the broken window on September 5, 1996, as a "repeat" deficiency. However, it is specifically found, pursuant to Mr. Glover's direct testimony, that the broken windows, defective lights, and greasy stove existed on September 5, 1996, constituting a Class II, Tag A705, Resident Care Standards deficiency at that time. On October 18-20, 1996, during a follow-up investigation, Mr. Glover noted that both the A505 staff deficiency and A705 grease build-up situation had been corrected. On October 27, 1997, the Agency conducted a complaint investigation of Watkins. Surveyors Ana Lopez- Edwards and Mr. Glover tagged and classified three deficiencies. The ALF license was not posted or located. This was Tag A003, Class III, a Facility Record Standards deficiency. Advocacy information, including the Resident Bill of Rights, was not posted, and this was tagged as A201, Class III. They found no documentation that residents were receiving, at admission, packets of rules and regulations, as required by law. This was classified as Tag A308, Class III, because, by inference, it was a denial of the rights of the residents, or the residents' representatives, to be aware of, and to function in, their surroundings. These deficiencies certainly presented an impediment to residents lodging complaints or seeking third party intervention. Surveyors also cited and directly testified to the following specific observations on October 27, 1997: twenty percent of resident bedrooms contained non-operational overhead lights, which were frequently uncovered. One fixture had a broken bulb with an exposed lighting element. The concern with the light fixtures was that a resident could stick his hand into the exposed lighting element. Two bedrooms and three bathrooms had a strong urine odor. Thirty percent of the bedrooms had no window covering. Other bedrooms had curtains only partially covering the windows. One bathroom had a stained window which partially exposed any resident in the bathroom. Fifty percent of the bathrooms were not adequately cleaned. Seventy-five percent of the bathrooms contained no soap or towels. Two bathroom commodes were non-functional. Surveyors also found that the hot water temperature in one resident bathroom was 96 degrees Fahrenheit, when the hot water temperature is required to be between 105 degrees and 115 degrees Fahrenheit. Many of the foregoing specific flaws had been raised on previous survey reports, but only the lighting deficiencies and window problems were observed previously and on October 27, 1997, by testifying surveyors, so as to prove- up repeated specific flaws. Nonetheless, since all the foregoing flaws which were observed on October 27, 1997, fit within the specifications for Tag A705, Resident Care Standards, I am satisfied that a "repeat" Class III, A705 deficiency has been proven for October 27, 1997. On October 27, 1997, a Class III, A902 Tag, Maintenance and Housekeeping Standards, was correctly assigned to the absence of drawer pulls and other furniture deficiencies in many bedrooms. Additionally, on October 27, 1997, Tag A1010 was validly assigned a Class III, Physical Plant Standards deficiency, in that 50 percent of the bedrooms were without reading lamps. On this same survey, surveyors found that one resident bathtub was not equipped with a required safety handrail. The Agency validly cited this deficiency under Tag 1018, Physical Plant Standards, as a Class III deficiency. On November 10, 1997, a complaint investigation was performed. Minimal testimony was presented, and no deficiencies were proven for this date. On January 27, 1998, a follow-up survey of Watkins occurred. At that time, surveyors cited Watkins under Tags A003, A201, A705, A902, A1001, A1018 and A1022 as uncorrected from the October 27, 1997 date, and cited additional deficiencies as being out of compliance with State Standards under Tags A200, A700, A702, A703, A706, A1002, and A1016, all of which were cited as either Class II or Class III deficiencies, some of which were allegedly repeat deficiencies. The only direct evidence as to the validity of these January 27, 1998, citations was introduced through the testimony of surveyor Ana Lopez-Edwards. Ms. Lopez-Edwards testified to the presence of strong urine odors on January 27, 1998, and to a "musty" smell about the entire facility on that date. This direct evidence only proves-up a very small portion of the several flaws listed to make up the citation of a repeat Tag A705, Resident Care Standards. Without more, that entire tag assigned on January 27, 1998, is not proven and it cannot legitimately be classified as a repeat Class III deficiency for that date. Ms. Lopez-Edwards also verified that during the January 27, 1998, survey, she had observed a Watkins resident kneeling in a public road that abuts the property. This is a paved road with numerous speed bumps designed to slow down vehicular traffic. Ms. Lopez-Edwards alerted one of Watkins' staff members to the resident's peril. The staff person told Ms. Lopez-Edwards, "That's Mr. ---, he does that all the time." The staff person then walked away without intervening to remove the resident from the road. On January 27, 1998, surveyors classified this incident under Tag A700 as a Class III deficiency. At hearing, Ms. Watkins admitted that the resident was at risk while in the road, but contended that he was actually to the side of the road when observed by Ms. Lopez- Edwards. Ms. Watkins testified that, "Now you ask was that health, a risk for him per se, being in the road I would say, yes, but this is what he does constantly." Apparently, this particular resident constitutes both a "wanderer" and a religious devotee. While ALF residents are entitled to visit outside the facility and to practice their freedom of religion, the ALF has an obligation to protect them from inadvertent self-injury. The evidence is clear that although rural, the paved road passing Watkins represents a danger to this potentially self-injurious resident, and the ALF was deficient in not intervening to protect him. The citation of this incident under Tag A700 as a Class III, Resident Care Standard deficiency was appropriate. Although the specific incident was not a "repeat," the Tag was a "repeat" of June 11, 1996. On May 4, 1998, a follow-up survey and new complaint investigation was conducted. At that time, Watkins' logbook stated that a resident had disappeared at some time after 8:00 p.m. on April 20, 1998. The logbook did not mention any notification to the administrator, neighbors, or police. The logbook further stated that at 3:30 or 4:00 a.m., April 21, 1998, the resident returned and was at Southwestern State Hospital in Thomasville. It apparently was unclear from the log book whether this patient was picked up at Southwestern State Hospital in Thomasville, Georgia, or was taken there by Administrator Peggy Watkins after his return, but Ms. Watkins' testimony concerning the incident was as follows: Q: With regard to the resident named M.T. having disappeared back in 4/98, are you familiar with that incident? A: Yes. Q: One it was - was the resident in fact - were his whereabouts in fact unknown? A: At that particular time, yes. Q. All right. And once that determination was made, what action was taken: What action was taken, if any? A: Well it wasn't on my shift, but it was told to me that she called, she reported him missing. Q: To whom? A: To the sheriff's department. Q: By calling 911? A. Yes, by calling 911 she reported him missing. . . And probably that morning about 4:00 that morning, they called and stated his whereabouts. And I went after him probably around 7:00 that morning. Clearly, Ms Watkins admitted leaving the patient in police custody an additional three hours. The Agency validly tagged this as a Class III, Tag A700, Resident Care Standards, deficiency. The A700 classification makes it a repeated tag. Also in the course of the May 4, 1998, survey, Mr. Glover observed, and correctly assigned, a Tag A705 Resident Care Standards Class III deficiency because an east bathroom light was inoperable; a second floor bedroom did not have a light bulb cover for the overhead fan light; and the second floor bedroom had no window covering, thus exposing the resident within. Some of the tag components are repeats; the tag itself is a repeat. Mr. Glover also assigned yet another Tag A705, Class III repeat deficiency for findings that included 20 percent of the resident bedrooms observed having non-operational overhead lights or uncovered overhead lights and one fixture with a broken bulb and an exposed lighting element; two bedrooms and three bathrooms with strong urine odor; and 30 percent of the bedrooms observed having no window covering while others had curtains that only partially covered the windows. So as to be fair to the facility, Mr. Glover and other surveyors tested the bedroom lights during the survey, both from the wall switches and the pull cords in each of the rooms they observed. It is immaterial that the defective bedrooms and bathrooms observed for the repeat deficiency ratings on May 4, 1998, may not have been the same bedrooms and bathrooms as were found defective when this problem was cited previously. Sampling is within survey protocols, and facilities have the obligation of the whole physical plant meeting standards. A complaint was initiated by the Jefferson County Health Department, and on June 15-16, 1998, the Agency conducted an investigation. By observations and interviews on that date, Mr. Glover concluded that a repeat Tag A705, Class II, Resident Care Standards citation was appropriate because the facility was not being maintained in a safe, sanitary manner ensuring the safety of residents and their physical well-being. This was proven by direct evidence as follows. Temperatures were measured at 6:40 p.m. on June 15, 1998, and bedrooms were found to be between 88 degrees and 92 degrees Fahrenheit. Agency standards provide that residents' rooms may not exceed 90 degrees Fahrenheit. Two bedrooms were missing ceiling tiles and had damaged screens. The air conditioner compressor was non-operational. Ms. Watkins advised Mr. Glover that the facility's air conditioning had been off since June 11, 1996, and that she was having difficulty getting a repairman to come. In Mr. Glover's opinion, Watkins had an obligation to remove residents to a cooler environment once the temperature hit 90 degrees Fahrenheit. On June 16, 1998, the second story reception room light was flickering on and off, indicating a possible short circuit. There also were at least six residents in the common area, smoking cigarettes, with no sprinkler system in place. Watkins has a "no smoking" policy, which clearly was not being enforced by its staff. Mr. Glover was particularly concerned about the electrical system. On July 6, 1998, the Agency conducted a second follow-up to its June 15-16, 1998, complaint investigation. In the course of that survey, Mr. Glover observed that 50 percent of the bathrooms in the facility needed cleaning between the hours of 9:00 and 10:30 a.m.; a rear bathroom located in the single-story building had no hot water accessible to the residents; one bathroom commode was found to be non-functioning at 9:30 a.m.; hot water in the bathroom located on the first floor of the two-story building recorded a water temperature of 80 degrees Fahrenheit; and approximately twenty-five percent of the resident bedrooms had a musty odor. These combined defects were validly assigned a repeat Tag A705, Class III deficiency. On July 6, 1998, and referring back to the May 4, 1998, survey, the team found that the east bathroom light remained inoperable; the second floor bedroom still did not have a light bulb cover for the overhead fan light; and a second floor bedroom still had no window covering. These deficiencies were also validly classified as a repeat Tag A705 Class III deficiency. On October 8-9, 1998, when four surveyors conducted the biennial/renewal survey of Watkins, the facility had a census of 34 residents, 25 of whom were limited mental health residents. Under Tag A006, the Agency cited this as a Class III, absence of license deficiency. However, due to the confusion regarding the status of Watkins' limited mental health resident ALF license application, this citation is found to be without validity. In October 1998, under Tag A100, the Agency cited Watkins with a Class III deficiency for not having its fiscal records on the premises. However, since it was shown that the fiscal records could have been made available at the time of the survey from another location, I find that this citation also lacks validity. In October 1998, under Tag A203, Watkins was cited with a Class III deficiency for failure to maintain adequate written admission and discharge records. This deficiency was substantiated through Nurse Huff's observations, interviews, and testimony. However, this information was made available and conformed in the course of the survey, and therefore should not count against Watkins in this proceeding. In October 1998, under Tag A206, surveyors cited Watkins for having a total of 28 facility incident reports between January 1, 1998 and September 15, 1998, without having documented any prevention or intervention measures to prevent reoccurrences. In fact, 16 out of the 28 reports constituted reoccurrences. All of this information was transcribed from facility records. Therefore, I find this deficiency cited as a Tag A206, Class III deficiency to be accurate and proven. In October 1998, under Tag A208, Watkins was cited for failure to develop a management plan approved by the Office of Emergency Management for Evacuations and Disasters. At formal hearing, however, Watkins demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports that it had consistently held regular fire drills. Although regular fire drills do not satisfy all parts of the required standard, they somewhat mitigate the situation, so that a Class III citation would not be in order. In October 1998, under Tag A213, Nurse Huff noted that Watkins' personnel records for its staff were inadequate and not current. Two staff members, among the facility's eight employees on that date had no personnel files at all, and six out of the eight staff members did not have various types of required training documented in their personnel files. One staff member had previously been diagnosed with tuberculosis, and no negative test update was available in her personnel file. At hearing, Watkins produced all missing personnel records, including tuberculosis, HIV/AIDS training, training in self-administration of medicines, First Aid/CPR certifications, and ALF training, but with very few exceptions, none of the required training or medical clearances were obtained by staff members prior to the October 1998 biennial survey. Most such records were obtained by the employees after the October 1998 survey. Some were even earned after the October 1998 survey. Watkins asserts that securing these certifications within the 60 days' correction period provided for on the survey form was sufficient compliance with State standards so as to preclude using this deficiency against Watkins in this proceeding. I find otherwise. Not only was Watkins unable to demonstrate record compliance on the date of the survey, but many of its staff were uncertified in important categories on the date of survey, thus exposing residents to inferior care and safety up to the date those staff members finally became certified. Assigning a Tag A213, Class III to this deficiency was appropriate and valid. Under Tags A301 (rated Class III), A302 (rated Class III), and A305 (rated Class III), Ana Lopez-Edwards observed and described deficiencies concerning residents' admission height and weight recordation, contracts not signed by residents upon entry into the facility, and absence of required demographic data, respectively. Only the A301 deficiency, failure to record initial heights and weights in a reasonably accessible manner were proven to present even a potential or indirect threat to residents, which defines a Class III offense. The other flaws were paperwork problems, worthy of a Class IV citation at the worst. In October 1998, under Tags A401 and A404, the Agency cited Watkins for two Class III deficiencies arising out of the failure to have six out of eight resident health assessments performed and on file within the time frame established by statute and rule. This citation appears to be a duplicate citation, and at hearing, mitigation was demonstrated due to the refusal of health care professionals to perform any health assessments until such time as a resident qualifies for Medicare. At worst, this citation should constitute a single Class III violation. In October 1998, under Tag A406, the Agency cited Watkins with a Class III deficiency in that out of a sample of eight residents, there was no documentation on those residents' capacity to "self preserve." However, at hearing, Petitioner demonstrated through Alternative Approaches to Life Safety Worksheets and Fire Drill Reports, a consistent history of regular fire drills and recording of residents' ability to evacuate timely. The issue then became whether Watkins' failure to maintain this information in an accessible place clearly related to each respective patient so that it could be effectively used in case of emergency should be cited as a Class III deficiency. I view this as a Class IV or "paperwork" offense at worst. Although the Agency cited Watkins in October 1998, under Tag A409, for two inappropriate resident placements, it was demonstrated at hearing that there was only one inappropriate placement and that was a paperwork error corrected immediately by the physician who had made it. Therefore, this citation was invalid. The minimum staff hours for the resident census in October 1998, were 288 hours per week. The actual hours staff worked in that week was 279. Surveyors found that Watkins was under-staffed by nine hours for the week. Watkins knew from long experience that its necessary FTE hours were 288. Surveyors validly cited this as a repeat deficiency under Tag A507, Class II, Staffing Safeguards. Considering the content, weight, and credibility of Watkins' several witnesses against the Agency's witnesses' testimony and its surveyors' contemporaneous request for, and the absence of, actual timesheets on the date of survey, I find that this repeat deficiency was fully proven. In October 1998, under Tag A511, Watkins was cited with a Class II deficiency, based on staff interviews and a record review, for frequently operating without any staff on duty who are certified in First Aid, including CPR. I find this survey citation to be valid for the reasons given in Findings of Fact 50-53 and 58, above. In October 1998, under Tag A512, a Class III deficiency was cited, the core of which was that various staff members, particularly food staff personnel, did not have documentation of freedom from tuberculosis on an annual basis on file with the facility administrator on the date of the survey. At hearing, some staff were able to demonstrate prior tuberculosis screenings, while others were not. I find this survey citation to be valid for the same reasons given in Findings of Fact 50-53, above. In October 1998, under Tag A513, Watkins was cited for a Class II deficiency due to its failure to appoint in writing a staff member trained in First Aid and CPR to act in the absence of the administrator. This citation was made upon direct observations by qualified surveyors, who saw an undated appointment for a person without CPR certification documentation. At hearing, Watkins was able to demonstrate that Etta Brinson had been timely appointed, in writing, but had been certified in CPR on November 13, 1998, after the survey. Although there was some evidence that certification is good for three years, it was not sufficient to show that Ms. Brinson's November 13, 1998, certification renewed one from 1995. I find this citation to be valid for the same reasons given in Findings of Fact 50-53, above. On the same date, Watkins was cited under Tag A804, Class III, for failure to maintain nutrition and dietary standards and under Tag A1024, Physical Plant Standards, relating to fire safety reports within the last year. However, neither of these tags was proven. Insufficient evidence with regard to the absence of fire safety reports was presented by the Agency, and Watkins affirmatively demonstrated the existence of dietary menus and food substitution lists which had been prepared by a registered dietitian and were available within the facility on the date of survey. In October 1998, under Tag A901, upon surveyors' observations, Watkins was sited for a Class III deficiency based on peeling wallpaper in the dining room; missing ceiling tiles exposing the building's superstructure in two locations; unclean dining room chairs; and flies and spiders present elsewhere. Ms. Watkins confirmed that the ceiling tiles are light and that one had blown off the morning of October 9, 1999, and that she had been unable to replace it prior to the survey. This citation was adequately proven. In October 1998, under Tag A902, Watkins was validly cited for a Class III deficiency based on direct testimony of mildew on the main icemaker; 20 percent of the chests of drawers in the resident bedrooms missing handles; an expired health department sanitation certificate; and a cabinet in the dining room missing a door. In October 1998, Watkins also was cited for four Class III deficiencies under Tags A1016 for 15 percent of its water faucets not being labeled for hot and cold water; under Tag A1018 for an insufficient quantity of non-slip surface in the tubs and showers; under Tag A1021 for absence of a written infection control policy; and under Tag A1022 for using torn and threadbare linens. However, upon considering the evidence as a whole, I find that the criteria applied by the surveyors to these quantities and samples was so subjective as to have not proven any of these violations. Also, insufficient direct evidence was presented to prove-up a citation for Tag A1024 concerning fire inspection deficiency as a Class III deficiency in October 1998. In October 1998, Medical Standards Tags A600, A605, A606, and A610 were cited against Watkins for the following reasons established by observation. The A600 Tag was assigned because six out of eight sampled resident records offered by the facility did not have documentation of the method of management of medication administration. Staff was interviewed and was unable to provide further information regarding the appropriateness of the manner of medication, supervision, and assistance as required by State standards. A Class III deficiency was validly assigned. Also, in October 1998, surveyor Linda Huff, who was accepted as an expert on nursing, cited Watkins for multiple problems in the administration of medication. Watkins' medication administration record (MAR) or medicine log which Nurse Huff reviewed on that date, did not match the prescription bottle labels from which patient medications were being dispensed by facility staff. While she was not able to opine whether the bottle labels or the MAR were correct, Nurse Huff believed that the very fact that the prescription labels and the MAR were not identical exposed residents to dangerous drug mix-ups, dangerous drug interactions, and incorrect over- and-under medication by facility staff, who have only limited knowledge of medicine. On October 9, 1998, Nurse Huff had found, in Watkins' dispensary, a bottle labeled for Resident P.H. as Loperamide, two milligrams up to four times a day as necessary for diarrhea. However, this drug was not reflected in the MAR which Nurse Huff reviewed that day. Etta Brinson regularly assisted with medications at Watkins. She testified at hearing and identified Petitioner's Exhibit No. 4 as Watkins' MAR or medical log for October 1998. Ms. Brinson admitted that P.H. had been prescribed Loperamide and that she had not noted that drug on Petitioner's Exhibit No 4 because the drug had been prescribed "as needed." Nurse Huff considered this a safety issue. Nurse Huff had found a prescription bottle for Thorazine, made out to Resident W.C., during the course of the October 1998 survey. However, on the day of the survey, this prescription was not recorded in the MAR provided her by Watkins. On Exhibit P-4, identified by Ms. Brinson at hearing as Watkins' MAR, Chlorpromazine was indicated for W.C. Ms. Brinson admitted that she kept two different MARs for Resident W.C. Ms. Brinson stated that she kept one MAR in a separate folder, which she had not shown to Nurse Huff in October 1998. Ms. Brinson testified that she had made a second MAR for Resident W.C. and kept it in a separate folder because he had a prescription "as needed" for hiccups. Ms. Brinson understood that the drug Chlorpromazine was a medication for hiccups. Nurse Huff stated that "Thorazine" and "Chlorpromazine" are different names for the same drug and that it is a serious problem to refer to the same drug by two different names because only a doctor, pharmacist, or registered nurse would know that they are the same drug. In October 1998, Nurse Huff had found that Resident G.M. had in Watkins' dispensary a prescription bottle marked "Clozaril, 25 milligrams, take one i.p.o. twice daily." Exhibit P-4 and the MAR which Nurse Huff saw in October 1998, showed that Watkins' staff were giving Clozaril, 100 milligrams, one tablet twice-a-day and two tablets at bed for a total of 300 milligrams. It also stated "Clozaril 25 milligrams, take two tablets twice-a-day," which is another 100 milligrams. There was no bottle of Clozaril, 100 milligrams, in Watkins' dispensary in October 1998. Nurse Huff testified that Clozaril is a central nervous system anti- psychotic drug which must be administered in slowly increased doses over time. The MAR indicated that G.M. was receiving ten times the dose of Clozaril as was indicated on his prescription bottle. Nurse Huff found this to be a health hazard. Ms. Brinson admitted that she would be concerned if the prescription bottle for G.M.'s Clozaril did not match the MAR. In October 1998, Nurse Huff also considered the situation of Resident W.I. She found in Watkins' dispensary a prescription bottle for W.I. labeled for Glucophage, "500 milligrams, two tablets in the morning and one tablet at night." She also reviewed an Insulin vial labeled for W.I. for Insulin to be administered in the morning and at night. The MAR she reviewed in October 1998, showed W.I. receiving Glucophage only in the morning and Insulin in the morning and at night. Generally speaking, when Glucophage is prescribed, it is prescribed instead of Insulin. Nurse Huff interviewed staff to see if there were a problem and even interviewed W.I. because the administration of both Insulin and Glucophage together could have such an impact on W.I.'s health. During these survey interviews, Nurse Huff determined that W.I. was on a 1500-calorie diabetic diet and took Insulin and Glucophage only in the mornings. However, at hearing, Exhibit P-4 showed W.I. getting one 500 milligram Glucophage tablet morning and night and no Insulin at all. Ms. Brinson testified that W.I. was not administered Insulin in October 1998. Ms. Brinson also stated that Watkins had a policy of taking discontinued prescription medications to the pharmacy for disposal. If W.I. was not being administered Insulin as of October 1998, Watkins' policy of disposing of discontinued medications clearly had not been followed because W.I.'s Insulin vial was still there. Moreover, based on any construction of the discrepancies in the records, Watkins did not meet medical standards. With regard to the preceding medical record problems, related in Findings of Fact 68 through 74, the Agency recorded a Class II deficiency under Tag A605, Medication Standards, on the October 1998 survey. Upon all the evidence, this deficiency assignment was proven valid. In October 1998, under Tag A606, Watkins was cited with a Class II deficiency for, among other things, keeping improperly labeled samples of prescription medicines. Evidence showed that certain samples were being dispensed to a resident without that resident's name and the dosage being placed on the sample box as required by law. Therefore, a Tag A606, Class II deficiency was proven. Tag A610, citing a Class III deficiency for improper labeling or absence of labeling of over-the-counter drugs was insufficiently proven by direct evidence. Considerable time was expended in the course of the hearing directed to issues of a pervading urine smell, the existence or absence of regularly-scheduled recreational activities for the residents, and the general cleanliness of Watkins' facility, particularly the stove hood, which problems were cited on several surveys. From the credible evidence as a whole, I find that despite constant cleaning by at least one Watkins' staff member, one or more parts of the facility contained pervasive urine odors at all times. It was also established that although Watkins addressed stove hood cleanliness through an independent contractor cleaning it every six months, the stove hood frequently was less than sanitary. However, due to the methods of presentation of evidence herein and the necessity of categorizing multiple defective components by tags and classes, Finding of Fact 78 does not comprise a single tag or class of deficiency so as to establish "repeat" deficiencies, except where specifically noted in other Findings of Fact, above. The Agency's repeated citations of Watkins for failure to provide structured recreational activities to its residents was refuted by direct evidence. Satisfactory recreational activities were provided by Watkins' contract with Apalachee Mental Health for at least four hours every week day within Watkins' facility and for optional field trips of approximately four hours, one day per week. Watkins also affirmatively established through testimony and its Policy and Procedure Manual that it had an infection control policy with regard to urine, feces, and laundry in place, contrary to citations by the Agency. The Agency did not establish that the infection control policy had to be in writing. Watkins also affirmatively established that it regularly employed a handyman to repair damage caused by residents, and that on at least one occasion when Watkins was cited for having a hole in the drywall, on-going repairs were actually in progress on a bathroom. This situation, however, does not account for all of the times that disrepair of the facility was cited. Moreover, there being some discrepancy between the testimony of Peggy Watkins and Mr. Clark, the handyman, as to when this particular bathroom repair occurred, this bathroom repair "in progress" cannot form a basis to refute all citations for damage to the walls of the facility. Due to the November 17, 1998, date of the original intent to deny the license renewal application, the Agency conducted no follow-up survey after the biennial survey of October 1998. An Ombudsmen Report done within 32 days of the Agency's October 1998 survey, found that Watkins "appeared satisfactory" under its criteria, which are not the same as the State's criteria. Representatives of the County Fire Department and County Health Department testified that they believed that Watkins had the best interest of its residents in mind and did the best job it could of providing a reasonably satisfactory facility. Laura Harris, who is employed with Apalachee Center for Human Services as its Program Supervisor for the Jefferson County Outpatient Program, and who trains its surveyors, testified as an expert witness in the areas of staff training, administration training, and quality of care. In her opinion, the overall quality of care at Watkins ranks eight and one- half on a scale of one-to-ten, and the facility itself ranks seven on a scale of one-to-ten.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED that Petitioner's application for renewal of its standard assisted living facility standard license be denied and that the provisional assisted living facility license currently in use by Petitioner be revoked. DONE AND ENTERED this 17th day of February, 2000, in Tallahassee, Leon County, Florida. Hearings Hearings ___________________________________ ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative 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 this 17th day of February, 2000.
