Findings Of Fact We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence. We adopt the Administrative Law Judge’s findings of fact. Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result ina correct disposition of the matter. FCHR Order No. 01-012 Page 2 We note a statement of the Administrative Law Judge that we believe requires correction/clarification. Specifically, the Administrative Law Judge stated, “The Division of Administrative Hearings has no jurisdiction to hear allegations of discriminatory conduct which FCHR has not investigated or made a determination as to reasonable cause.” Recommended Order of Dismissal, 7 19. The Florida Civil Rights Act of 1992 does allow Petitioners to file a request for administrative hearing in situations where 180 days have passed since the filing of the complaint and the Commission has not yet reached a determination as to reasonable cause, and, therefore, in those instances, the Division of Administrative Hearings would have jurisdiction to hear allegations of discriminatory conduct “which FCHR has not investigated or made a determination as to reasonable cause.” See, Sections 760.11(8) and 760.11(4), Florida Statutes (1999). We, therefore, correct/clarify this conclusion of law. In so doing we find: (1) that the Administrative Law Judge’s conclusion of law we are correcting is within. the substantive jurisdiction of the Florida Commission on Human Relations, namely the interpretation of in what instances a Petitioner is entitled to an administrative hearing under the Florida Civil Rights Act of 1992; (2) the reason the correction is being made is that the conclusion of law as stated by the Administrative Law Judge is not supported in law; and (3) that in making this correction the rejection of the conclusion of law in question is as or more reasonable than allowing the incorrect conclusion of law to remain. See, Section 120.57(1)(), Florida Statutes (1999). With the above-stated correction/clarification, we adopt the Administrative Law Judge’s conclusions of law. Exceptions Neither party filed exceptions to the Administrative Law Judge’s recommended order. Dismissal The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice. The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this 21 day of (ranch. 2001. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: FCHR Order No. (1-012 Page 3 Commissioner Sharon Ofuani, Panel Chairperson; Commissioner Juan Montes; and Commissioner Aristides Sosa Filed this 2 \_ day of YYa@nCW _, 2001, in Tallahassee, Florida. Azizi man, Acting Clerk Commission on Human Relatioris 325 John Knox Rd., Bldg. F, Suite 240 Tallahassee, FL 32303-4149 (850) 488-7082 NOTICE TO COMPLAINANT / PETITIONER As your complaint was filed under Title VII of the Civil Rights Act of 1964, which is enforced by the U.S. Equal Employment Opportunity Commission (EEOC), you have the right to request EEOC to review this Commission’s final agency action. To secure a “substantial weight review” by EEOC, you must request it in writing within 15 days of your receipt of this Order. Send your request to Miami District Office (EEOC), One Biscayne Tower, 2 South Biscayne Blvd., Suite 2700, 27th Floor, Miami, FL 33131. Copies furnished to: Anthony Akins 7880 Talley Ann Court Tallahassee, FL 32311 Richard D. Courtemanche, Jr., Esq. David Sessions, Esq. Department of Law Enforcement P.O. Box 1489 Tallahassee, FL 32302 Suzanne F. Hood, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel
Findings Of Fact We find the Administrative Law Judge’s findings of fact to be supported by competent substantial evidence. FCHR Order No. 06-058 Page 2 We adopt the Administrative Law Judge’s findings of fact. Conclusions of Law We find the Administrative Law Judge’s application of the law to the facts to result in a correct disposition of the matter. We adopt the Administrative Law Judge’s conclusions of law. Exceptions Petitioner filed four numbered exceptions to the Administrative Law Judge’s Recommended Order in a document entitled “Petitioner’s Exceptions to Filed Recommended Order.” There is no indication on Petitioner’s exception document that it was served on Respondent by Petitioner as is required by Fla, Admin. Code R. 28-106.110. The exceptions docurnent was received after the expiration of the 15-day period from the date of the Recommended Order for filing exceptions. See, Recommended Order, Notice of Right to Submit Exceptions; Section 120.57(1)(k), Florida Statutes (2005); and Fla. Admin. Code R. 28-106.217(1). The Recommended Order is dated March 23, 2006, the cover letter accompanying the exceptions document is dated April 10, 2006, and the exceptions document was received by the Commission on April 17, 2006. All exceptions relate to the elements for establishing a prima facie case of discrimination. Exceptions 1 and 4 deal with issues surrounding whether Petitioner was handicapped within the meaning of the law. Exception 2 deals with the issue of whether Petitioner was qualified for the position in question. Exception 3 deals with the issue of whether Petitioner was treated less favorably than other employees. In our view, if all these exceptions were granted, the outcome of the case would not change, since the Administrative Law. Judge concluded that, even if a prima facie case had been established, Respondent established legitimate, nondiscriminatory reasons for terminating Petitioner from her position as a bus driver, namely Petitioner’s taking of the indicated prescription drugs and her inability to meet the lifting requirements of the position (Recommended Order, [42 and J 49), and that there was no showing that these reasons were a pretext for discrimination (Recommended Order, { 49). Further, the Commission has stated, “It is well settled that it is the Administrative Law Judge’s function ‘to consider all of the evidence presented and reach ultimate conclusions of fact based on competent substantial evidence by resolving conflicts, judging the credibility of witnesses and drawing permissible inferences therefrom. If the evidence presented supports two inconsistent findings, it is the Administrative Law Judge’s role to decide between them.’ Beckton v. Department of Children and Family Services, 21 F.A.L.R. 1735, at 1736 (FCHR 1998), citing Maggio v. Martin Marietta Aerospace, 9 F.A.L.R. 2168, at 2171 (FCHR 1986).” Barr v. Columbia Ocala Regional FCHR Order No. 06-058 Page 3 Medical Center, 22 F.A.L.R. 1729, at 1730 (FCHR 1999). Accord, Bowles v. Jackson County Hospital Corporation, FCHR Order No. 05-135 (December 6, 2005). Petitioner’s exceptions are rejected. Dismissal The Petition for Relief and Complaint of Discrimination are DISMISSED with prejudice. The parties have the right to seek judicial review of this Order. The Commission and the appropriate District Court of Appeal must receive notice of appeal within 30 days of the date this Order is filed with the Clerk of the Commission. Explanation of the right to appeal is found in Section 120.68, Florida Statutes, and in the Florida Rules of Appellate Procedure 9.110. DONE AND ORDERED this__20th _ day of June 2006. FOR THE FLORIDA COMMISSION ON HUMAN RELATIONS: Commissioner Donna Elam, Panel Chairperson; Commissioner Onelia A. Fajardo; and Commissioner Mario M. Valle Filed this__20th day of June _, 2006, in Tallahassee, Florida. . eld baed iolet Crawford, Cler! Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, FL 32301 (850) 488-708 Copies furnished to: Lorraine C. Morris c/o Warren K. Anderson, Jr., Esq. c/o Michael L. Howle, Esq. Anderson & Howell, P.A. 2029 North Third Street Jacksonville Beach, FL 32250-7429 FCHR Order No. 06-058 Page 4 Lee County Government c/o Andrea R. Fraser, Esq. c/o Jack Peterson, Esq. Post Office Box 398 Fort Myers, FL 33902-0398 William F. Quattlebaum, Administrative Law Judge, DOAH James Mallue, Legal Advisor for Commission Panel IHEREBY CERTIFY that a copy of the foregoing has been mailed to the above listed addressees this__20th _ day of June 2006. we Yat Can Clerk of the Commission Florida Commission on Human Relations
The Issue Whether the Petition for Relief from an unlawful employment practice was timely filed with the Florida Commission on Human Relations. Whether the Division of Administrative Hearings has jurisdiction to conduct a formal hearing under the provisions of Section 120.57(1), Florida Statutes, if the Petition was not timely filed.
Findings Of Fact On December 15, 1994, the Florida Commission on Human Relations (FCHR) transmitted to the Division of Administrative Hearings (DOAH) a Petition for Relief from an Unlawful Employment Practice, together with all other "pleadings and jurisdictional papers heretofore filed in this proceeding." The pleadings and papers transmitted by FCHR show that Petitioner filed a Charge of Discrimination with FCHR on November 2, 1993, charging an unlawful employment practice by Respondent in connection with her lay off on October 29, 1992. On October 21, 1994, the FCHR concluded its investigation into the matter and issued its determination of No Cause to believe that an unlawful employment practice has occurred. Notice of that determination was mailed to Petitioner and Respondent on October 21, 1994 by regular mail. The Notice of Determination of No Cause served on Petitioner included the following statement: Complainant may request an administrative hearing by filing a PETITION FOR RELIEF within 35 days of the date of this NOTICE OF DETERMINATION: NO CAUSE. A Petition for Relief form is enclosed with Complainant's notice. It may be beneficial to seek legal counsel prior to filing the petition. If the Complainant fails to request an admini- strative hearing within 35 days of the date of this notice, the administrative claim under the Florida Civil Rights Act of 1992, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992). Counsel for Petitioner, George T. Paulk II, received the Notice of Determination on behalf of Petitioner and prepared the petition to be "filed" with the FCHR. On November 25, 1994, 35 days after the Notice was mailed, Counsel for Petitioner transmitted to the FCHR her Petition for Relief, requesting an administrative hearing. The petition was submitted on the form provided by the FCHR. The petition was sent by regular U.S. Mail. The Petition for Relief was filed with the FCHR on November 29, 1994, 39 days after the Notice of Determination was issued. The FCHR transmitted the pleadings to the Division of Administrative Hearings for further proceedings. At the same time of the transmittal to Division of Administrative Hearings, FCHR issued a notice of the petition to Respondent advising it of the requirement to file an answer to the Petition for Relief. Respondent timely filed its answer with affirmative defenses, including the first affirmative defense that "Petitioner failed to file her petition within the time allowed by law." Respondent also filed a separate Notice to Dismiss raising the same issue. The Petition for Relief was deposited in the mail on Friday, November 25, 1994, the day after Thanksgiving which is an official state holiday. The next business day was Monday, November 28, 1994.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a Final Order be entered dismissing with prejudice the Petition for Relief in Division of Administrative Hearings' Case No. 94-6976 and FCHR Case No. 94-7490, for failure to timely file the Petition. DONE AND ENTERED this 29th day of March, 1995, in Tallahassee, Florida. DANIEL M. KILBRIDE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 29th day of March, 1995.
The Issue Whether Respondent committed the violations alleged in the Administrative Complaint, and, if so, what sanctions, if any, should be imposed.
Findings Of Fact Based on the evidence adduced at the final hearing and the record as a whole, including the factual stipulations contained in the parties' Joint Prehearing Stipulation,2 the following findings of fact are made: Admitted facts The Respondent operates a six-bed assisted living facility located at 12085 West Dixie Highway, Miami, Florida 33161, and is licensed by the State of Florida under Chapter 400, Part III. The Agency conducted surveys at First Care on November 29, 2004, and on May 24, 2005, and identified three alleged repeat deficiencies that were described as three Class III deficiencies. An Administrative Complaint was filed on August 15, 2005. The deficiencies alleged in the Administrative Complaint are: (1) that the facility failed to maintain an accurate record of admissions and discharges; (2) failed to have weight recorded for some residents; and (3) failed to properly complete the health assessment for some residents. Because the deficiencies alleged in the Administrative Complaint are alleged to be Class III deficiencies, the Agency is seeking to impose a fine of $500.00 for each deficiency, for a total fine of $1,500.00. The Respondent timely requested an evidentiary hearing pursuant to Section 120.57(1), Florida Statutes. The records provided by the Respondent through discovery and those copied by the Respondent at the time of the survey are authentic records that are true and correct. Additional findings about Count I Alfonso Martin, a Health Care Evaluator for the Agency, conducted a survey inspection of the Respondent's facility on November 29, 2004. There had been prior inspections of the Respondent's facility. None of the prior inspections had revealed any violations that resulted in any Agency action against the facility. The Respondent's admission and discharge log ("A&D log") shows that Resident R.M. was taken from the Respondent's facility by his guardian to live with his fiancée. The A&D log shows that Resident D.K. left the Respondent's facility and went to the local VA Hospital. The A&D log shows that Resident P.H. went first to the VA Medical Center and then to North Shore Hospital. The A&D log does not contain any information as to where Resident G.D. went, because that resident left the Respondent's facility in a taxi without telling anyone where he was going. The A&D log shows that Resident J.W. was discharged or transferred "to his family." Actually, Resident J.W. did not have any family, but he had friends who treated him like family. Those friends had brought Resident J.W. to the Respondent's facility and those same friends had arranged for J.W. to be taken to a hospice facility by Vitas Medical Center. The A&D log does not contain any information as to where Resident J.N. went, because, after receiving an eviction notice, that resident left the Respondent's facility in a taxi without telling anyone where he was going. Mr. Martin conducted another survey inspection of the Respondent's facility on May 24, 2005. During this inspection Mr. Martin noted that, with regard to Resident R.M., the A&D log showed "taken by guardian" as the place to which R.M. was discharged. The A&D log also showed "other facility" as the place to which Resident J.B. was discharged. Resident J.B. was taken from the Respondent's facility by a State Ombudsman. The State Ombudsman did not tell anyone at the Respondent's facility where J.B. was being taken. At all times, the Administrator of the Respondent's facility did the best she could to maintain appropriate records with the sometimes incomplete information she received from the Residents. Findings about Count II During the course of the survey on November 29, 2004, Mr. Martin reviewed the weight records at the Respondent's facility. He did not see any weight records for Resident A.L. On that date there was a written weight record for Resident A.L., but for reasons not explained on the record in this case, Mr. Martin did not see the record that day. If Mr. Martin had seen the weight record for Resident A.L. on November 29, 2004, he would not have cited the Respondent's facility for insufficient weight records. During the course of the survey on May 24, 2005, Mr. Martin again reviewed the weight records at the Respondent's facility. The records for Resident J.B. show he was admitted on January 13, 2005, and that his weight was recorded on February 21, 2005. The records for Resident P.H. show he was admitted on November 1, 2004, but his weight was not recorded until February 21, 2005. The records for Resident R.H. show that he was admitted on May 1, 2005, but his weight was not recorded until June 8, 2005. There is no evidence that the quality of care of any resident was diminished or compromised by reason of the manner in which the weight records were prepared and kept. Findings about Count III During the course of the survey on November 29, 2004, Mr. Martin reviewed Health Assessments for residents at the Respondent's facility. He did not see any Health Assessments for Residents J.W. or A.L. On that date there was a written Health Assessment document for Resident A.L., but for reasons not explained on the record in this case that document could not be located during the course of the November 29, 2004, survey. During the course of the survey on May 24, 2005, Mr. Martin again looked at the Health Assessments. The survey report states that Health Assessments for Residents 2, 3, and 4 were not completed. Mr. Martin testified about the Health Assessment documentation of Resident R.H. In the survey report for the May 24, 2005, survey, Resident R.H. was identified as being either Resident 5 or Resident 11. Health Assessments are not prepared by employees of the Respondent facility. They are prepared by third parties; usually medical doctors or health care professionals working under the supervision of medical doctors, such as physician assistants or advanced registered nurse practitioners.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Agency issue a final order dismissing the instant Administrative Complaint in its entirety. DONE AND ENTERED this 28th day of February, 2006, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 28th day of February, 2006.
The Issue The issue in this case is whether Respondent, Steve E. Montgomery, committed the violations alleged in the Second Amended Notice of Specific Charges and, if so, what disciplinary action should be taken against him.
Findings Of Fact Steve Montgomery has been employed with the School Board since May 13, 1988. He last held the position of a Plumber II Journeyman in Miami-Dade County Florida. Montgomery's job description and the maintenance employee's handbook mandated that he maintain a valid driver's license and Certificate of Competency in order to remain employed by the School Board. During the hearing, Montgomery admitted that he was aware that he had to maintain such minimum qualifications for his job. Montgomery started a pattern in 2003 of his driver's license getting suspended and then being reinstated again. Montgomery admitted during hearing that his driver's license had been suspended at least four times. Each time, the School Board notified Montgomery that his license was not valid and provided him five working days to get a valid license. Montgomery was placed in an alternative work assignment whenever he did not have the valid credentials. The School Board kept a record of the occurrences in Montgomery's personnel file. The file contained a December 15, 2003, memorandum entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION" directing Montgomery that his license was suspended and/or revoked and detailing that his job description requires that he maintain a valid State of Florida Class D license as one of the minimum qualifications of the position. The memorandum also stated that Montgomery had five days until December 22, 2003, to present evidence of a valid license. A May 24, 2004, memorandum almost identical to the one dated December 15, 2003, except for the deadline dates, was also in Montgomery's personnel file. The memorandum provided a deadline of June 1, 2004, to present evidence of a valid driver's license and indicated that, if there was a failure to satisfy the requirement in the allotted time period, a Conference-for-the Record ("CFR") would be scheduled to discuss the matter further. A July 26, 2005, memo identical to the two previous memorandums except for the dates was also in Montgomery's personnel file. The memorandum gave a deadline of August 2, 2005, to present evidence of a valid driver's license. Mr. Palacio personally gave the invalid driver's license memorandums to Respondent and verbally notified Montgomery of the requirement to get a valid license. Montgomery signed the memorandum dated September 15, 2005, entitled "FAILURE TO MAINTAIN QUALIFYING DOCUMENTS REQUIRED BY JOB DESCRIPTION." As in the previous memos, it stated: Attached please find a report dated September 15, 2005 that indicates your driver's license has been suspended and/or revoked. Your official job description requires you to maintain a valid State of Florida CDL Class D* driver's license as one of the minimum qualifications of this position. (Effective July 1, 2005, Class D licenses were converted to Class E.) You are advised that this requirement is a condition of your continued employment with Miami-Dade County Public Schools. Without a valid driver's license you are no longer qualified to perform the requirements of your position with the District. Effective immediately, you are being placed on an alternate work assignment. Accordingly, you are directed to present evidence of this required license to your Satellite Director or designee within five (5) working days from the date of this memorandum, which will be September 23, 2005. Until such time, you are not authorized to operate any District vehicle or motorized equipment that requires possession of a driver's license. If you fail to satisfy this requirement within the allotted time period, a Conference-for-the-Record will be scheduled to address this matter further. Please review your Maintenance Operations handbook (Trades Chapter, Page 4) for further details. A CFR was held with Montgomery on September 30, 2005, because he did not obtain a valid driver's license by September 23, 2005. Montgomery was provided a copy of the job description for plumber II and the September 15, 2005, memorandum. At the CFR, Montgomery was again informed that maintaining his valid driver's license is a minimum qualification of his position and that "Without a valid driver's license, you are no longer qualified to perform the requirements of your position with the District." Montgomery signed the summary of the CFR on October 3, 2005. On October 13, 2005, the School Board notified Montgomery by memorandum that he had failed to maintain his Certificate of Competency and it had expired on August 31, 2005. Montgomery signed the memorandum and was instructed to present a valid certificate no later than October 17, 2005, at 8:00 a.m. Montgomery was aware that it was his responsibility to know when his qualifying documents expired and keep them valid as a minimum requirement for his job. A CFR was held on February 11, 2006, regarding Montgomery not possessing a renewed Certificate of Competency and a valid driver's license. At the CFR, Montgomery produced a renewed certificate but did still did not have a valid license. On May 4, 2006, Montgomery still did not have a valid driver's license and Mr. Palacio recommended Montgomery's termination. In Palacio's memorandum, the grounds for such discipline were as follows: Mr. Montgomery is in violation of School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, members of the non-instructional staff shall maintain all certifications, licenses and job requirements as a condition of employment. Failure to do so shall warrant disciplinary action. On May 9, 2006, Mr. Brown and the maintenance officer signed a memo entitled Recommendation for Termination Mr. Steve E. Montgomery Employee # 169252 Plumber II, Region Maintenance Center II providing grounds for disciplinary measures inasmuch as Montgomery was unable to produce a valid Florida's driver's license, a condition of employment. The memo stated: As a Plumber II, Mr. Montgomery must maintain all certifications, licenses and job requirements. Failure to comply with minimum job requirements warrants dismissal. Montgomery let the Certificate of Competency expire again on August 31, 2007. Subsequently, on September 17, 2008, another CFR was held with Montgomery notifying him of the recommendation for suspension and termination because Montgomery's license and Certificate of Competency were not valid. During the CFR, Montgomery did not offer any explanation as to why his license was still suspended or submit proof of his Certificate of Competency but only commented he "will have [both] soon."4 Montgomery also did not complain about any working conditions during the CFR. At a regularly scheduled meeting on January 14, 2009, the School Board suspended Montgomery without pay and initiated dismissal proceedings against him from all employment with Miami-Dade County Public Schools for just cause, including, but not limited to: violation of School Board Rules 6Gx13-4A-1.21 Responsibilities and Duties, 6Gx13-4A-1.213 Code of Ethics, and Sections 1001.32(2), 1012.22(1)(f), 1012.40, and 447.209, Florida Statutes. Montgomery's license was suspended at the time of his suspension and termination. Likewise, Montgomery's Certificate of Competency had still not been renewed at the time of his suspension and termination. No other School Board employee had his/her license suspended as many times as Montgomery with an expired Certificate of Competency at the same time. Further, the School Board has disciplined employees by termination for having a suspended driver's license. Montgomery had a valid Florida driver's license and a renewed valid Certificate of Competency at the hearing. On August 20, 2009, the School Board filed its Second Amended Notice of Specific Charges charging Respondent with violating School Board Rule 6Gx13-4A-1.21, Responsibilities and Duties, School Board Rule 6Gx13-4A-1.213, Code of Ethics, and State Board Rules 6B-1.001 and 6B-1.006 by failing to maintain a valid driver's license and Certificate of Competency.
Recommendation Upon consideration of the Findings of Fact and the Conclusions of Law reached, it is RECOMMENDED that Petitioner, Miami-Dade County School Board, enter a final order that: (a) dismisses Count I; (b) finds Respondent in violation of Count II as charged; and (c) upholds Respondent's suspension without pay and termination. DONE AND ENTERED this 26th day of February, 2010, in Tallahassee, Leon County, Florida. S JUNE C. McKINNEY 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 26th day of February, 2010.
