The Issue The issues presented by this case concern the question of whether the Respondent, State of Florida, Department of Health and Rehabilitative Services has exhausted all treatment for the Petitioner, Harry William Rinehart, through available sex offender programs administered by the Respondent. See Section 917.20, Florida Statutes (1977).
Findings Of Fact The Petitioner submitted a "Petition for Administrative Determination" to the State of Florida, Department of Health and Rehabilitative Services. This Petition was received by the Division of Administrative Hearings on August 20, 1981, as transmitted by the State of Florida, Department of Health and Rehabilitative Services. The Department has requested the Division to conduct a formal hearing in keeping with Subsection 120.57(1), Florida Statutes. The final hearing in this cause was conducted on September 29, 1981. In the course of the final hearing, the Petitioner did not testify but did offer a witness in his behalf, one Dr. Robert M. Berland, a staff psychologist in the forensic program at the Florida State Hospital in Chattahoochee, Florida. The Petitioner submitted eighteen (18) exhibits. Respondent called as its witnesses, Robert Alcorn, Clinical Director for the mentally disordered sex offender program at the Florida State Hospital; Michael Denny, Petitioner's attending clinical psychologist at Florida State Hospital and Michael Pomeroy, another attending clinical psychologist at Florida State Hospital who had worked with the Petitioner. Respondent submitted nine (9) exhibits. At all times pertinent to this proceeding, Petitioner has been in the custody of the Respondent in keeping with the orders of court and the authority of Chapter 917, Florida Statutes (1977). During that time, the Petitioner has resided at the Florida State Hospital, Chattahoochee, Florida, where he has undergone treatment in a hospital program for the benefit of mentally disordered sex offenders. Although the Petitioner has been subjected to a full range of treatment opportunities, his progress in the recognition of and ability to deal with the underlying condition which caused him to be placed in this program has reached its zenith. In the face of this circumstance, the Respondent has made preliminary determination that it has exhausted treatment for the Petitioner, through the program in which he is enrolled. Additionally, it has been concluded that similar programs within the State of Florida do not offer other opportunities for progress. Thus, the Petitioner has requested the formal hearing which is the subject of this Recommended Order. Rinehart was committed to the custody of the Respondent on May 24, 1979, the Court having found him to be a mentally disordered sex offender within the meaning of Chapter 917, Florida Statutes (1977). He was received into the program at the Florida State Hospital in Chattahoochee, Florida, on June 18, 1979, and has undergone treatment beginning on that date. The objectives of the treatment program were to deal with Rinehart's underlying condition until he no longer evidenced himself to be a menace to society in terms of sexual "acting out" or until it was concluded that he could no longer be treated. The program at Florida State Hospital has as its central focus the utilization of group therapy with adjunctive programs of recreational and occupational therapy and some individual therapy and relies heavily on a patient's self-motivation. Respondent's Exhibits 1 through 4, admitted into evidence, are clinical summaries of the Petitioner's condition during the course of his treatment. As can be seen in the initial evaluation of November, 1979, the petitioner had made minimal progress in the program and had offered little participation. (He had come into the program in a circumstance where he was placed on suicidal precaution.) In these early phases of the treatment, the patient was distant and withdrawn and wrote notes in the group therapy sessions as opposed to communicating orally. His attitude was childish and immature and he was prone to "horseplay" and to breaking rules of the unit, for which violations he was placed in seclusion. It was difficult in the 1979 year for the therapist assigned to the Petitioner's case to establish goals for his improvement in the group setting and as a consequence an attempt was made to use individual therapy sessions to address the particular needs of the patient. By March, 1980, at the time of the next staffing of the patient to determine his progress, again minimal progress had been demonstrated; however, there had been some increase in participation in the group programs, two or three weeks prior to the staffing. The patient still had a maladaptive coping style and had problems controlling his anger and depression and still had a tendency to "act out," that is to say be involved in inappropriate behavior. At the conclusion of the March, 1980, staffing it was intended that another evaluation be made within ninety (90) days. By June, 1980, a decision had been reached to change the primary therapist for the Petitioner, from a female to a male therapist, due to the fact that the Petitioner utilized the sessions with the female therapist to seek her attention in an unacceptable way. In June, 1980, Michael Pomeroy became the therapist for the Petitioner. Pomeroy served until May, 1981. Pomeroy is a clinical psychologist. Pomeroy was replaced by Michael Denny, another clinical psychologist at the hospital and Denny worked with the patient from May, 1981, through July, 1981. Denny replaced Pomeroy when Pomeroy left the sex offender unit. In the overview, by April, 1981, when the staffing was held, Rinehart was no longer evidencing the same form of childish behavior that he had shown initially; however, the staff at the hospital was uncertain whether this change had been promoted by the aging process and maturity associated with that process or due to the therapy afforded. In the April staffing a discussion was made on the question of the twenty-five (25) year minimum sentence which the Petitioner was facing for the offense which had caused his placement in the program. By that time, i.e., April, 1981, the staff had more or less reconciled itself to the fact that Rinehart was going to make little progress in coming to some understanding of, and dealing with, the underlying sexual difficulty. Consequently, beyond April, 1981, for a period of up to one year, it was intended that an effort should be made to assist the Petitioner in coping with a prison environment. This plan of treatment came about as a result of a discussion between staff and the Petitioner's attorney. The emphasis of this coping mechanism was to assist the Petitioner in choosing friends in a prison environment; the types of behavior to avoid in prison; an effort to share experiences from people who had been in a prison environment and who were in the sex offender program and to give the Petitioner some vocational training skills which would avoid his confinement without any outlet. The April, 1981, plan was put into effect but it was interrupted in July, 1981, due to an indictment placed against the Petitioner for an alleged homicide involving a staff member at Florida State Hospital. This caused another staffing conference to be held on July 29, 1981, at which point a decision was reached which was to exhaust treatment on the Petitioner and have him returned to court. Subsequent to that date, the Petitioner has been in the maximum security building of the hospital for reasons of security and for reason that his attorney did not wish the hospital staff to talk to the Petitioner. Therefore, the Petitioner has not been involved in the sex offender program since late July, 1981. After the Florida State Hospital had decided to exhaust treatment on the Petitioner, a discussion was held between the directors of other programs in the State dealing with sex offender problems and it was the consensus of those other program directors that they could not assist in treating Rinehart's condition and a determination was reached at the Departmental level to exhaust treatment. The testimony of psychologist Pomeroy established that the Petitioner was angry when Pomeroy took over as the Petitioner's primary therapist from the former therapist Carol Ford. The Petitioner expressed his anger by wearing sunglasses at the group therapy sessions. After a time, the Petitioner began to show some maturity and to evidence a change in attitude. The Petitioner was receiving instruction from a special teacher during this period to assist him in coping with his educational deficit. He still continued to manipulate the female aides by pouting and acting inappropriately. Pomeroy responded to this by treating the Petitioner as he would other adults and the Petitioner seemed to respond to being treated as an adult as opposed to being treated as a child. The Petitioner participated in ward government in the sex offender program and became more social. Nevertheless, he continued to have problems choosing the right kind of friends and had a tendency to choose those persons who would not aid him in becoming a more responsible individual. Pomeroy was in accord with the decision in April, 1981, to assist the Petitioner in his need to cope with the prison environment and the value of such a pursuit; however, as early as April, 1981, Pomeoy correctly identified the fact that the psychosexual problems of the Petitioner would not be alleviated by further treatment in the sex offender program and to that extent that element of the treatment had been exhausted in the spring of 1981. Pomeroy's observations of the Petitioner while Pomeroy was the primary treating psychologist included the observation that the Petitioner would not talk in a group therapy session beyond expression interest in his problem as opposed to in-depth discussion of that problem. Pomeroy did find the Petitioner to be helpful to other members of the group. Once or twice the Petitioner entered into some discussion of the Petitioner's problem. At this time, Pomeroy is of the persuasion that to keep the Petitioner in the sex offender program would be counterproductive. Staff psychologist Denny, when he began treating the Petitioner as primary therapist instituted a regimen that would include individual therapy once a week for one hour a week and two times a week for one hour in each session as a group therapy treatment modality. Denny had reviewed the patient's records up to the point of his involvement as primary therapist and had discussed the case with therapist Pomeroy and other staff members. On May 20, 1981, an attempt was made by Denny to have the Petitioner share his life history with fellow patients in the patient's group and to try to assist the Petitioner in understanding his personality style. All these matters were in preparation to allow the Petitioner to adjust to incarceration in the penal system and learn to cope with that incarceration. In June, 1981, in the Denny group sessions, the Petitioner began to discuss his parents and the crime which had placed him in the sex offender program and began to express to me concern about why he committed the crime. This occurred in two sessions. After that, the Petitioner began to participate less and less in the sense of discussing his problems with other members of the group. On July 6, 1981, at the time of a staffing, the emphasis as established through Denny's testimony was to impress upon the Petitioner his need to share the history of his life and to question others on his assumptions and to work on relating himself to others either in positive or negative exchanges. These concerns, in terms of the treatment of the Petitioner, were efforts toward the goals of teaching the Petitioner to let others know how he felt about certain events in the past and to question others when he was unsure about his premise and to share similarities in his circumstance and the circumstance of others. The Petitioner's performance in July, 1981, prior to the time of the indictment, was minimal. He shared less and less of his life's experiences in that time sequence. In one of these July therapy sessions, the Petitioner was very unresponsive and in the course of that session smashed a ping-pong ball which was part of the sports equipment of the unit. The efforts which have been mentioned previously which dealt with teaching the Petitioner vocational skills were successful during the time of Denny's treatment of the patient, in that the patient attended small engine repair classes and profited from that experience. The Respondent has a so earned a graduate equivalency diploma. By late June and early July, according to Denny, whose observations are accepted as factual, the patient was no longer motivated to deal with his underlying sexual problem and the hospital had exhausted all appropriate treatment. The patient, at that time, was still a sexual menace and there was still a likelihood of the patient committing other sexual crimes. In summary, his progress in rehabilitation of the underlying sexual deviancy was minimal. There is some evidence of record indicating problems dating from 1973, and at various times thereafter, of seizure disorders on the part of the Petitioner. (See Petitioner's Exhibits 1 through 16.) The Florida State Hospital was aware of the history of those matters and although the patient has complained of numerous headaches and been treated for those headaches with aspirin substitute during his stay at the Florida State Hospital, the patient has not complained of seizure circumstances during this period nor has he appeared to have had any form of seizure during the hospitalization at the Florida State Hospital. (His last problem with seizures dates from late 1978.) Moreover, testimony revealed that any past problems the Petitioner has had with seizure type events did not hinder the treatment of the Petitioner at the Florida State Hospital. (See also Respondent's Exhibits 5 through 9.)
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED: That a final order be entered by the Department of Health and Rehabilitative Services finding that it has exhausted all appropriate treatment for Harry William Rinehart, and that said Harry William Rinehart be returned to the committing court for further disposition. 1/ DONE and ENTERED this 23rd day of October, 1981, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1981.
The Issue The issue in this matter is whether the Department of Health should discipline Respondent’s clinical social worker’s license.
Findings Of Fact The Department is the state agency charged with regulating the practice of clinical social work in Florida. See § 20.43 and chs. 456 and 491, Fla. Stat. Respondent is a licensed clinical social worker in the State of Florida, having been issued license number SW 14255 on February 14, 2017. Respondent received his Licensed Master Social Work degree in New York in May 2006. Between August 2013 and August 2017, Respondent worked as a clinical social worker/psychotherapist at Compass Counseling Services, LLC (“Compass Counseling”), in Orlando, Florida. The Department seeks to discipline Respondent based on an incident that occurred on July 19, 2017. The Department accuses Respondent of committing “sexual misconduct” with a patient. The Administrative Complaint specifically alleges that, during a counseling session in his office, Respondent: told Patient L.P.[7/] that she was attractive, followed Patient L.P. to the door and grabbed her buttocks with his hand, and, grabbed Patient L.P.’s arm, pulled her towards him, and attempted to kiss her. “Sexual misconduct” in the practice of clinical social work, mental health counseling, or psychotherapy is prohibited under section 491.0111. “Sexual misconduct” is defined by rule 64B4-10.002, which provides: (1) It is sexual misconduct for a psychotherapist to engage, attempt to engage, or offer to engage a client in sexual behavior . . . whether verbal or physical, which is intended to be sexually arousing, including kissing; . . . or the touching by either the psychotherapist or the client of the other’s breasts, genital areas, buttocks, or thighs, whether clothed or unclothed. Section 491.009(1)(k) authorizes the Department to discipline Respondent for “sexual misconduct” up to and including permanent revocation of his clinical social worker’s license. In July 2017, L.P. was 27 years old. She was (and is currently) living with a transgender man, Kode Hulett. L.P. refers to Mr. Hulett as her husband, although they are not legally married as of yet. At the final hearing, L.P. testified that she suffers from a number of mental health conditions including Attention- Deficit/Hyperactivity Disorder (“ADHD”), auditory processing disorder, and bipolar disorder, as well as anxiety, anger issues, depression, insomnia, and mood disorder. In addition, L.P. experiences post-traumatic stress disorder (“PTSD”) stemming from past sexual abuse. During her testimony, L.P. also disclosed that she has a very bad memory and gets confused very easily. She urged, however, that her ailments do not affect her mental awareness. Conversely, L.P. is considered fully “disabled” in that she cannot work due to her mental health illnesses. L.P. explained that she has received mental health counseling since she was young. In June and July 2017, L.P. received psychotherapy services from Respondent at Compass Counseling. L.P. relayed that she was searching for a new therapist and (to the best of her memory) her insurance company recommended Compass Counseling. L.P. and Respondent met on three occasions, June 23, 2017, July 6, 2017, and July 19, 2017. Each appointment started at 1:00 p.m. and lasted approximately an hour. During all sessions, L.P. met with Respondent alone in his office, with the door closed. At L.P.’s first visit, Respondent initially informed L.P. that he was leaving Compass Counseling shortly for another job. Therefore, he offered to refer her to another mental health therapist (Ashlyn Douglass-Barnes, L.C.S.W.) if she so desired. Until he left, however, he was willing to meet with her. (In August 2017, Respondent departed Compass Counseling for a job with Magellan Behavioral Health. There, he manages a customer- provider call center and does not treat patients.) During their first session on June 23, 2017, Respondent colloquially introduced himself as “Dr. G.” Respondent then conducted an initial evaluation of L.P. and prepared a Complete Evaluation/Biopsychosocial Assessment. In his assessment, Respondent recorded that L.P. chiefly complained of “mood swings, anxiety, insomnia, attentional issues, auditory processing issues, and post traumatic stress.” He added that L.P. had experienced panic attacks two to three times a month for years, as well as depressive disorder. Respondent also wrote that L.P. experienced anxiety symptoms “a few times a week.” Finally, Respondent noted that L.P.’s PTSD resulted from several instances of physical and sexual abuse she suffered as a youth and a young adult. Despite her issues, Respondent wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, well groomed, overweight, and relaxed. . . . [L.P.’s] behavior in the session was cooperative and attentive with no gross behavioral abnormalities. Respondent recorded the following diagnoses: bipolar II disorder, panic disorder [episodic paroxysmal anxiety], and (chronic) PTSD. Regarding L.P.’s PTSD, Respondent remarked that L.P. suffered from flashbacks to the traumatic event, which resulted in feelings of detachment or estrangement from others. Respondent also documented that L.P. was prescribed several psychotropic medications including Effexor and Lamictal. (Other medical records from 2017 indicate that L.P. was also prescribed and/or taking Alprazolam, BuSpar, Concerta, Doxepin, Geodon, Hydrocodone/Acetaminophen, Lamotrigine, Meclizine, Omeprazole, Oxycodone, Quetiapine Fumarate, Promethazine, Robaxin, Rozerem, Seroquel, Sucralfate, Venlafaxine, Xanax, and Zyprexa.) As part of his assessment, Respondent formulated a six- month treatment plan for L.P., which included ongoing individual psychotherapy sessions. During their second psychotherapy session on July 6, 2017, Respondent again wrote that L.P. appeared: [C]alm, friendly, happy, attentive, communicative, casually groomed, over weight, and relaxed. . . . Mood presents as normal with no signs of either depression or mood elevation . . . thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. Respondent recorded that L.P. mainly discussed her issues coping with depression and impulsivity. Respondent responded by providing “unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors.” Respondent identified “Anxiety” and “Depressed Mood” as L.P.’s active problems in need of treatment. L.P. and Respondent met for their third (and final) appointment on July 19, 2017. During this session, Respondent recorded in L.P.’s Progress Notes that she appeared stable and made no psychiatric complaints. Respondent described L.P. as: [C]oherent and spontaneous. Mood presents as normal with no signs of either depression or mood elevation. Affect is appropriate, full range, and congruent with mood. Associations are intact and logical. There are no apparent signs of hallucinations, delusions, bizarre behaviors, or other indicators of psychotic process. Associations are intact, thinking is logical, and thought content appears appropriate. . . . Judgment appears fair. There are no signs of hyperactive or attentional difficulties. Respondent, once again, identified “anxiety” as L.P.’s active problem, which manifested in PTSD. Respondent wrote that “Clinician provides unconditional positive regard, as well as support and encouragement in [L.P.’s] therapeutic endeavors. . . . A Client-Centered and Empowerment therapeutic approach was used in session to assist [L.P.] in recognizing personal strengths, as well as how to use them to manage presenting problems.” The incident in question occurred just after L.P. and Respondent finished their final session. As was typical, L.P. and Respondent were alone in his office, and the door was closed. Initially, although Respondent was leaving Compass Counseling soon, he asked if L.P. would schedule one last appointment with him. L.P. agreed. She stood by his desk as they selected another date on his computer calendar. At that point, L.P. turned and walked to the door to leave the room. Just as she reached the door, L.P. testified that she felt Respondent’s hand grab her right buttock in a “very sexual” manner. L.P. spun around, swatted his hand away, and exclaimed, “What the f***? I’m married.” She then pivoted back to the door. L.P. asserted that when she reached for the door knob, however, Respondent grabbed her wrist. L.P. stated that she then heard Respondent say, “You’re just really attractive.” L.P. expressed that she turned toward Respondent, he leaned in close to her. She sensed (by her “intuition”) that he wanted to kiss her, but he did not. L.P. testified that she pushed him away and again said, “What the f***? I’m married.” L.P. was then able to open the door and leave Respondent’s office. When L.P. exited Respondent’s office, he accompanied her down the hallway. They walked together through the office lobby and out of the building. In the parking lot, they separated. L.P. walked to her car, where Mr. Hulett was waiting in the driver’s seat. Respondent went to his car and retrieved a business card for an auto shop. Respondent then walked over to L.P.’s car. He approached Mr. Hulett in the driver’s seat and offered him the business card. Mr. Hulett cracked down the window and accepted the card. At that point, Mr. Hulett and L.P. drove away from Compass Counseling for a trip they had previously planned for St. Augustine. Mr. Hulett testified at the final hearing in support of L.P.’s story. Mr. Hulett and L.P. have lived together for over nine years. He “believed” he accompanied L.P. on her visit to Compass Counseling on July 19, 2017. During L.P.’s counseling session, Mr. Hulett waited in his car in the parking lot. While he did not witness L.P.’s encounter with Respondent, Mr. Hulett described L.P.’s behavior and demeanor immediately following her appointment. Mr. Hulett saw L.P. and Respondent exit the Compass Counseling building together after her appointment. He then observed Respondent motion for L.P. to come to his car. He watched as L.P., instead of following Respondent, headed to their car and climbed into the passenger seat. He stated that Respondent then approached their car and offered him a business card for a car mechanic through his driver’s side window. (Mr. Hulett confirmed that his car was having engine troubles.) During this interaction, Mr. Hulett testified that he immediately noticed that L.P. was not acting “regular.” She seemed nervous, and he sensed something was wrong. L.P., however, stayed silent. He then drove away from Compass Counseling. Mr. Hulett explained that they had planned to leave for St. Augustine immediately after L.P.’s appointment. After they started driving, however, Mr. Hulett noticed that L.P. appeared “physically upset.” Therefore, he repeatedly asked her what was wrong. Around 20 minutes later, after they reached the highway (I-4), L.P. opened up to him. Mr. Hulett testified that L.P. told him what had happened in Respondent’s office. Mr. Hulett specifically recalled that L.P., who had started crying, said that Respondent touched her inappropriately; she told him to stop, but he was persistent. At that point, Mr. Hulett and L.P. discussed what to do next. They decided to press on with their vacation. They would deal with the matter when they returned to Orlando. Mr. Hulett disclosed that they did not report the incident until after their trip ended, five days later. At the final hearing, L.P. testified that she waited to tell Mr. Hulett what had transpired in Respondent’s office because she feared his reaction. She was afraid Mr. Hulett would angrily and rashly confront Respondent. Instead, after she recounted Respondent’s conduct, L.P. and Mr. Hewlett continued on their vacation to St. Augustine. On the other hand, L.P. asserted that she called Compass Counseling 20 to 30 minutes after they drove away to cancel her next appointment with Respondent. L.P.’s cell phone records document three calls to Compass Counseling on July 19, 2017. Two were placed prior to her 1:00 p.m. appointment (12:18 p.m. and 12:23 p.m.). A third call was made at 2:04 p.m., approximately nine minutes after Respondent’s Progress Notes record that he finished L.P.’s counseling session (1:55 p.m.). The final call lasted one minute and 29 seconds. No evidence was presented documenting the subject matter of the 2:04 p.m. call. During her testimony, L.P. hesitantly agreed that the 2:04 p.m. call was the one during which she cancelled her appointment. (L.P. was under the impression that she met with Respondent from 12:00 p.m. to 1:00 p.m. on July 19, 2017. However, she conceded that she would not have phoned Compass Counseling at 12:18 p.m. or 12:23 p.m. if she was actually in her therapy session with Respondent at that time.) Other than the phone call to Compass Counseling at 2:04 p.m., L.P. did not contact any person or entity to report the incident until five days later on July 24, 2017. After leaving Respondent’s care, L.P. received psychotherapeutic counseling from Ashlyn Douglass-Barnes, a licensed clinical social worker who currently works at Jewish Family Services in Winter Park, Florida. Before Jewish Family Services, Ms. Douglass-Barnes worked at Compass Counseling from March 2014 through February 2017, where she met Respondent. Respondent referred L.P. to Ms. Douglass-Barnes during their first meeting on June 23, 2017. He contacted Ms. Douglass- Barnes through Facebook messenger. Respondent wrote: I have an intake today that would like to work with a female clinician. I have advised her that I am not going to be here much longer, and that I’d happily connect her with someone who is empathic, caring, and warm. I think this would be a perfect fit. . . . She’s 27 y.o. as well and is very sweet. Before Ms. Douglass-Barnes met L.P. for their first appointment, however, L.P. called her on July 24, 2017. Ms. Douglass-Barnes testified that L.P. expressed that “I need to tell you something, but it has to stay between us.” With Ms. Douglass-Barnes’s encouragement, L.P. confided that “last Wednesday [June 19, 2017], Dr. G. [Respondent] grabbed my butt and tried to kiss me.” Ms. Douglass-Barnes also recalled L.P. telling her that when Respondent grabbed her, she “turned around and yelled at him.” Ms. Douglass-Barnes invited L.P. to come to her office that day. When L.P. arrived at Ms. Douglass-Barnes’s office, L.P. repeated that Respondent made a sexual advancement towards her. Ms. Douglass-Barnes specifically recalled L.P. telling her the following: Respondent touched her butt as their therapy session ended. L.P. then slapped his hand away, and screamed, “What the hell, I’m married.” Respondent also tried to kiss her. Respondent subsequently told L.P., “I’m so sorry. I’m just so attracted to you.” Ms. Douglass-Barnes reviewed with L.P. all available options to report the incident (law enforcement, complaint to the Department, and Compass Counseling’s insurance carrier). L.P. wanted to exercise all options. Therefore, with L.P.’s acquiescence, Ms. Douglass-Barnes called 911 to report a sexual assault. A deputy sheriff from the Orange County Sheriff’s Office arrived at Ms. Douglass-Barnes’s office approximately 90 minutes later. L.P. provided a written statement to the deputy stating: On Wednesday July 19, 2017 I had an appt. w/ [Respondent]. When I arrived to the appt he brought me into his office and we began our session. When we were done with the session he told me he wanted one more appt with me. I said OK let’s make the appt. We made the appt and when I walked out of his office he grabed [sic] my butt. I slaped [sic] his hand away and said what the f[***] I am married. [Respondent] said he was sorry. You are just really attractive. Then he tried to kiss me and I pushed him away and said what the f[***] dude I am married again. He said he [was] sorry your [sic] just really attractive. I walked out of his office and he walked me out to my car. When I told him I was fine he tried to get me to go with him to his car. I said no I will meet you in my car. . . . He walked up to my car and gave my husband a card for [a] car fixing place. I DID NOT GIVE HIM ANY PERMISSION TO TOUCH ME AT ALL!! I want to prosecute and am willing to go to court for this.[8/] L.P. also told the police that Respondent had never attempted to touch her before the July 19, 2017, incident. Also on July 24, 2017, Ms. Douglass-Barnes, again with L.P.’s consent, prepared a formal complaint with the Department. On the Complaint Form, Ms. Douglass-Barnes indicated “abuse” and “sexual contact” were the reasons for L.P.’s complaint. L.P. signed the form. Ms. Douglass-Barnes faxed the Complaint Form to the Department that day and attached L.P.’s statement to the Sheriff’s Office. In addition, in August 2017, L.P. contacted a personal injury law firm. On March 19, 2018, the law firm wrote Compass Counseling on L.P.’s behalf complaining about the July 19, 2017, incident. The letter demanded $275,000 to settle L.P.’s case. Over the next few days, Respondent reached out to Ms. Douglass-Barnes expressing an urgent need to talk to her. Respondent did not explain his reasoning, although she suspected he was simply seeking support and unaware of her involvement. Ms. Douglass-Barnes avoided directly speaking with Respondent. At Compass Counseling, Ms. Douglass-Barnes considered Respondent a friend and colleague with whom she consulted and talked two to three times a week. Based on their time together, Ms. Douglass-Barnes described Respondent as a very effective therapist and passionate about his practice. She commented that he went over and above to help his clients. However, in light of L.P.’s accusations, on July 26, 2017, she informed Respondent that it was in their best interest not to communicate any further. Ms. Douglass-Barnes has had no contact with Respondent since that date. After meeting on July 24, 2017, L.P. continued to see Ms. Douglass-Barnes for cognitive behavior therapy. They met approximately every month from August 1, 2017, through June 5, 2018. L.P. first discussed her encounter with Respondent on October 4, 2017, during their third session. They also talked about the incident on April 9, 2018, May 8, 2018, and June 5, 2018. As part of her testimony, Ms. Douglass-Barnes also provided her insight into how L.P.’s mental health conditions affected her ability to perceive and understand what was happening around her in July 2017. Ms. Douglass-Barnes conveyed that L.P. has been diagnosed with auditory processing disorder. With this condition, L.P. has difficulty processing information or instructions when she is under emotional pressure or stressed. Auditory processing disorder can also cause L.P. to become confused. Consequently, L.P.’s ability to interact with others is affected. Ms. Douglass-Barnes also commented that L.P. is not manic, but does exhibit some traits of mania. This ailment is evident in L.P.’s impulsiveness. But, it does not affect her perception. Similarly, L.P. presents some traits of borderline personality disorder, but has not been diagnosed with this mental illness. (At the final hearing, Ms. Douglass-Barnes explained that borderline personality disorder is a mental condition characterized by pervasive abnormalities of perception, behavior, thinking, and relationships. Borderline personality disorder causes a person to operate in their own world, i.e., not in reality.) Finally, L.P. does not suffer from psychosis, which would substantially affect her ability to comprehend what is happening around her. Despite these mental health disorders, Ms. Douglass- Barnes testified that she never doubted L.P.’s ability to accurately recognize and understand what happened to her in Respondent’s office on July 19, 2017. Neither does she believe that L.P.’s mental health conditions impair her ability to tell the truth. Ms. Douglass-Barnes testified that, based on her interactions with L.P. and the consistency with which L.P. described the facts and circumstances of the encounter, she believes that L.P. accurately reported that Respondent “sexually touched/assaulted her inappropriately.” After L.P. reported the incident to Ms. Douglas-Barnes, on July 25, 2017, Compass Counseling received a phone call from a caller who did not identify herself. Luz Rosa was working the receptionist desk and took the call. Although the caller did not provide her name, Ms. Rosa was able to match the phone number to L.P. based on the information in her office records. Therefore, Ms. Rosa typed up a report of the call to include in L.P.’s file. (L.P.’s cell phone records from that date document a call that was placed to Compass Counseling at 2:46 p.m., which lasted approximately 10 minutes.) According to Ms. Rosa’s typed report, as well as her testimony at the final hearing, the caller (L.P.) asked about the cost of a first time visit, as well as the amount of the co-pay for follow-up appointments. Ms. Rosa relayed that the first appointment, without a medical plan, was priced at $75.00. The cost of follow-up visits differed depending on the plan. At that point, Ms. Rosa expressed that the caller became very upset. The caller threatened to sue Compass Counseling for charging too much to her medical plan. The report did not include, nor did Ms. Rosa remember, any complaint from the caller regarding Respondent’s services or an incident on July 19, 2017. On August 8, 2017, L.P. called Compass Counseling again. She left a voice mail canceling an appointment. On her message, L.P. relayed that “something else came up.” On August 16, 2017, Compass Counseling received another call from someone who did not identify herself. Dalys Melendez was the front desk coordinator that day and answered the call. Although the caller did not provide her name, Ms. Melendez was able to match L.P. to the phone number through caller ID. Ms. Melendez typed a record of the call and added it to L.P.’s file. (L.P.’s cell phone records also document a call placed to Compass Counseling at 10:40 a.m. that day, which lasted one minute and 34 seconds.) During the call, the caller (L.P.) asked if Respondent was working at Compass Counseling. After Ms. Melendez responded that he was not there, the caller became angry, screamed a profanity, then hung up the phone. At the conclusion of her testimony, L.P. stated that, in response to the July 19, 2017, incident, she wants Respondent’s license taken away. She would also like to see him go to jail. L.P. called Respondent’s actions “disgusting” and “sick.” She voiced that she should have been able to fully trust Respondent and feel safe with him during her therapy sessions, but Respondent violated that trust. L.P. expressed that what Respondent did to her should never happen to anyone else. Respondent elected not to testify at the final hearing.9/ Instead, Respondent contested the Department’s allegations by attacking the veracity of L.P.’s story. Respondent challenged L.P.’s testimony on two fronts. First, Respondent argues that the facts and circumstances surrounding the event do not support L.P.’s narrative. Second, Respondent asserts that L.P. has credibility issues which prevent the Department from meeting its burden of proof based on her testimony. To present a more comprehensive picture of the Compass Counseling office at the time of L.P.’s appointment, Respondent offered the testimony of two individuals who were working in Compass Counseling on the afternoon of July 19, 2017. Karina Flores is a psychotherapist who has provided counseling services at Compass Counseling since 2016. Ms. Flores initially described the Compass Counseling office layout. Compass Counseling operates in a two-story building. Respondent’s office is located on the first floor. The first floor includes a lobby with a receptionist desk. Through a door behind the receptionist desk is a hallway that connects three offices. Office 1 is located at the end of the hall with a door that faces the lobby. Office 2 is the middle office. Office 3 is adjacent to Office 2 and is closest to the lobby. Respondent used the second/middle office. It shared walls on both sides with Offices 1 and 3. On July 19, 2017, as Respondent was finishing his session with L.P., Ms. Flores was sitting in Office 3 waiting to confer with him about one of her clients. Her door was ajar, and she had a clear view of the hallway leading from Respondent’s office to the lobby. Ms. Flores described the hallway as a small, tight location. She also relayed that the office walls were very thin. Consequently, she could “absolutely” hear conversations coming from other offices, as well as the hallway. Ms. Flores has used all three offices for appointments, and her experience is the same: she can “hear anything” that was said in the adjoining offices. Ms. Flores expounded that, although she might not be able to make out individual words, she has clearly heard people crying, laughing, talking, or yelling through the doors and walls. Ms. Flores testified that, while waiting to speak with Respondent, she heard two voices talking back and forth in his office. The conversation was conducted in normal tones. Occasionally, she heard “giggling.” Ms. Flores further recalled that she did not hear either person raise their voice or yell or scream. Neither did she hear any cries of distress. Ms. Flores confidently asserted that if someone had shouted “what the f***? I’m married” twice while standing at the door of Office 2, she would have heard it. Ms. Flores declared that she did not hear any such outburst. What Ms. Flores did hear was the door to Respondent’s office open at the end of his appointment. Then, in her peripheral vision, she saw Respondent walk with a woman wearing a blonde ponytail to the lobby. Ms. Flores recalled that the two were talking “in a friendly manner” as they passed her door. Shortly, thereafter, Respondent returned, and she met him in his office. Ms. Flores “particularly” recalled that Respondent commented that he had just offered his patient information about an auto mechanic. Respondent also mentioned that he met his patient’s spouse and dog. (L.P.’s dog was in the back seat of Mr. Hulett’s car.) Finally, Ms. Flores offered her observations of Respondent’s psychotherapy practice. She found him friendly and professional. He was well-liked and considered a good therapist. Ms. Flores also recalled that Respondent called her about a week after the incident and divulged that he had been accused of sexual misconduct. Ms. Flores testified that Respondent appeared shocked and surprised by the allegations. Dr. Roberta Wildblood was also present at Compass Counseling on July 19, 2017, when L.P. met with Respondent. Dr. Wildblood is a clinical psychologist who has provided services at Compass Counseling since 2015. On July 19, 2017, Dr. Wildblood was scheduled to meet a patient at 2:00 p.m. in Office 1 (her office). However, she did not recall whether she was actually present when L.P. walked out of Office 2 with Respondent. She did not see or hear L.P. in the building that afternoon. However, similar to Ms. Flores, Dr. Wildblood testified that voices can be heard through the office walls. Dr. Wildblood echoed Ms. Flores in that she is not able to discern exact words while sitting in Office 1. Nevertheless, she has heard exclamations from counselors and clients. She has also heard a ball bouncing in another office. Dr. Wildblood also offered her experience working with Respondent. She described him as professional and highly regarded by his peers. She stated that he is gentle, kind, and an effective counselor. For her part, Ms. Douglass-Barnes agreed that voices can be heard through the office walls at Compass Counseling. To try and maintain privacy, Ms. Douglass-Barnes recalled that counselors routinely used noise machines in their rooms, and a radio played in the reception area. To counterbalance Ms. Douglass-Barnes’ testimony regarding the effect of L.P.’s mental health conditions, Respondent called Earl P. Taitt, Jr., M.D., to testify. Dr. Taitt is a psychiatrist who currently runs a private practice in Orlando, Florida. He is board-certified in psychiatry and neurology, as well as forensic medicine. Dr. Taitt testified as an expert in psychiatry. At the final hearing, Dr. Taitt described in detail the effect of the various mental health conditions from which L.P. suffers. He also offered his opinion on how L.P.’s mental illnesses affected her interpersonal functions with Respondent. Dr. Taitt stated that he formed his impressions based on a review of L.P.’s extensive medical and psychotherapy records, as well as his observations of her deposition and live testimony. Conversely, Dr. Taitt was careful to explain that he was not opining on L.P.’s truthfulness during her testimony at the final hearing. Further, he readily acknowledged that he has never personally examined or interviewed L.P. Neither does he possess any personal information regarding L.P.’s interaction with Respondent on July 19, 2017. Dr. Taitt’s diagnostic impression, based on his limited observations, is that L.P. suffers from borderline personality disorder. Dr. Taitt identified signs of borderline personality disorder in L.P.’s history of impulsivity, intense mood changes including anger (her most significant mood symptom), and unstable interpersonal relationships. Dr. Taitt explained that someone with borderline personality disorder exhibits abnormalities of perception relating to interpersonal relationships. Borderline personality disorder creates an impediment to social interactions and a person’s ability to accurately perceive the social interaction. Dr. Taitt opined that L.P.’s borderline personality disorder directly affected her ability to accurately relate to Respondent in his office on July 19, 2017. Consequently, when Respondent informed L.P. that their counseling sessions would be coming to an end, Dr. Taitt suggested that L.P. might have felt “a real or imagined abandonment.” Borderline personality disorder would have caused L.P. to experience a greater vulnerability to the fact that Respondent was leaving her treatment to another therapist. Therefore, L.P.’s report of sexual abuse may have been her vindictive reaction to the imagined abandonment. L.P. was lashing out at Respondent. Dr. Taitt further remarked that borderline personality disorder may have caused L.P. to misrepresent the facts of her narrative based on how she (incorrectly) perceived her interaction with Respondent in his office. Dr. Taitt also commented on the wide range of psychotropic medications L.P. was taking before and after July 19, 2017. He expressed that these medications could have impacted L.P.’s psychological conditions. Dr. Taitt further noted that the medication dosages L.P. was prescribed indicate that she was suffering from severe symptoms. Finally, Dr. Taitt discussed L.P.’s decision to proceed with her five-day trip to St. Augustine instead of immediately reporting the incident. He believed that going on a vacation following a sexual assault is atypical of someone who has actually experienced such misconduct. If L.P. truly encountered the inappropriate touching, Dr. Taitt thought that she would have disclosed it earlier. Lastly, Respondent presented the testimony of several former clients or parents of minor clients (Jessica Rosado, Erika Ana Camacho, and Marta Lopez). These witnesses described Respondent’s counseling methods and personal interactions during his therapy sessions. All were highly complimentary of his professionalism, and stated that Respondent never acted inappropriately with them. None of these witnesses, however, had personal knowledge of the allegations in this matter or knew L.P. Respondent presented them primarily for mitigation purposes. Based on the competent substantial evidence presented at the final hearing, the clear and convincing evidence in the record does not establish that Respondent engaged in behavior “which [was] intended to be sexually arousing” or that he touched L.P.’s buttocks on July 19, 2017. Accordingly, the Department failed to meet its burden of proving that Respondent committed “sexual misconduct,” which would support discipline under section 491.0111 and rule 64B-10.002(1).
Conclusions For Petitioner: Andrew James Pietrylo, Esquire Kristen M. Summers, Esquire Department of Health 4052 Bald Cypress Way, Bin C-65 Tallahassee, Florida 32399-3265 For Respondent: Carol C. Schriefer, Esquire The Health Law Firm 1101 Douglas Avenue Altamonte Springs, Florida 32714
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health, Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling, enter a final order dismissing the Amended Administrative Complaint against Respondent, Gerard Kruse. DONE AND ENTERED this 16th day of August, 2019, in Tallahassee, Leon County, Florida. S J. BRUCE CULPEPPER 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 16th day of August, 2019.
The Issue The issue for determination is whether Petitioner's Medicaid provider number should be cancelled.
Findings Of Fact I.M.P.A.C.T. Institute, Inc. (Petitioner) provides primarily counseling services to residents of Broward County and the surrounding areas. The majority of the residents who receive Petitioner's services are low income, have language barriers and have little education. Petitioner provides a valuable and important service to the community that it serves. At all times material hereto, Petitioner was licensed by the Department of Health and Rehabilitative Services in accordance with Chapter 397, Florida Statutes. Petitioner was issued its regular license on December 29, 1994. At all times material hereto, Petitioner was enrolled as a community mental health provider in the Florida Medicaid program pursuant to Subsection 409.906(8), Florida Statutes. Petitioner has been enrolled in the Medicaid program for approximately three years. At all times material hereto, Petitioner has been issued a Medicaid provider number which has been continuously renewed. Petitioner is currently receiving Medicaid reimbursement for community mental health services pursuant to Subsection 409.906(8), Florida Statutes. On June 10, 1994, Petitioner executed a Medicaid Provider Agreement (Agreement). The Agreement provides in pertinent part: The provider and the Department [Depart- ment of Health and Rehabilitative Services] agree to abide by the Florida Administrative Code, Florida Statutes, policies, procedures, manuals of the Florida Medicaid Program and Federal laws and regulations. The agreement may be terminated upon thirty days written notice by either party. The Department may terminate this agreement in accordance with Chapter 120, F.S. Respondent has a handbook which describes, among other things, the community mental health services program and provider participation requirements. Effective December 1995, the handbook provides in pertinent part: Community mental health services are governed . . . through the authority of Chapter 409.906(8), Florida Statutes. * * * To be eligible to be enrolled in Medicaid, a provider must have a current contract pursuant to the provisions of Chapter 394, Florida Statutes, for the provision of community mental health services; and, if applicable, a regular (i.e., not provisional or interim) license as an alcohol prevention and treatment or drug abuse treatment and prevention program from the district Depart- ment of Health and Rehabilitative Services (HRS), Alcohol, Drug Abuse and Mental Health (ADM) program office. Petitioner does not have a contract with the Department of Health and Rehabilitative Services, Alcohol, Drug Abuse and Mental Health (ADM) program office. Petitioner has been attempting to obtain a contract with the Health and Rehabilitative Services ADM program office but has been unable to do so because the Health and Rehabilitative Services ADM office has had no money to fund such a contract. Respondent is cancelling Petitioner's Medicaid provider number because Petitioner does not have a contract with the Health and Rehabilitative Services ADM program office.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order terminating I.M.P.A.C.T. Institute, Inc.'s Medicaid provider contract and cancelling its Medicaid provider number. DONE AND ENTERED on this 8th day of October, 1996, in Tallahassee, Leon County, Florida. ERROL H. POWELL 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 8th day of October, 1996. APPENDIX The following rulings are made on the parties' proposed findings of fact: Petitioner Partially accepted in finding of fact 1. Partially accepted in finding of fact 1. Partially accepted in finding of fact 4. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Rejected as being argument, or a conclusion of law. Partially accepted in findings of fact 5, 8, and 9. Rejected as being subordinate, irrelevant, or unnecessary. Respondent Partially accepted in finding of fact 2. Partially accepted in finding of fact 3. Partially accepted in finding of fact 6. Partially accepted in finding of fact 5. Partially accepted in finding of fact 7. Partially accepted in finding of fact 8. NOTE: Where a proposed finding has been partially accepted, the remainder has been rejected as being subordinate, irrelevant, unnecessary, cumulative, not supported by the evidence, argument, or a conclusion of law. COPIES FURNISHED: Jason H. Clark, Esquire Post Office Box 17486 West Palm Beach, Florida 33416 Roger R. Maas, Esquire Agency for Health Care Administration 2727 Mahan Drive, Ft. Knox No. 3 Tallahassee, Florida 32308-5403 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308-5403 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308-5403
Findings Of Fact Edward Amsbury, Petitioner, is a Career Service employee with permanent status. The Petitioner timely filed an appeal of the Respondent's actions as set forth above. According to Petitioner, he applied for several jobs under the reorganization of the Department of Health and Rehabilitative Services (HRS) prior to July of 1976. At that time he was advised that inasmuch as he was not an adversely affected employee, he would only be considered after all adversely affected employees were placed in other positions. On July 9, 1976, a letter was sent by George Van Staden, ASO, by Larry Overton to the District Administrator advising that Petitioner was originally to have been adversely affected and he (Van Staden) asked for justification as to why Petitioner's position was continued in the District III personnel structure. Thereafter, on approximately July 22, 1976, according to Petitioner, Richard Dillard, Sub- district III-A Administrator, orally advised him that his position would be abolished prior to January 1, 1977, due to HRS' reorganization. A few days later, Petitioner was advised by Mr. Dillard that his position as Mental Health Representative was being reclassified to that of the Community Resources Development Unit Supervisor as of October 1, 1976, and that the pay grade would be 18 rather than his then existing pay grade, 19. Petitioner was asked to write a new job description for the Community Resources Development Supervisor, at which time he was offered that position. Petitioner was then at the top of Pay Grade 18; however, he was advised by Mr. Dillard that his salary would not be reduced since he, in effect, was adversely affected due to reorganization. In view of the lateness with which the Petitioner was advised that his position was adversely affected, there were then only two positions available within the district, i.e., Community Resources Development Unit Supervisor or Clinical Social Worker II at the North Florida Evaluation and Treatment Center. Petitioner chose the position more closely related to his field of Mental Health, i.e., the Community Resources Development Unit Supervisor, and was told by Mr. Dillard that he would retain his present salary regardless of which position he accepted. All the Petitioner's performance evaluations were satisfactory or above. Based on the record, it appears that the Petitioner was forced to accept a position with a lower pay grade due to HRS' reorganization. By letter dated July 1, 1977, the Petitioner was advised by William H. McClure, Jr., District Administrator, that the Department of Administration had disapproved the District Administrator's request that he (Petitioner) maintain his current salary above the maximum for the class of Clinical Social Worker II, to which he was demoted on September 17, 1976. Correspondence from Conley Kennison, State Personnel Director, reveals that determination was based on the following reasons: Petitioner's voluntary demotion was not directly attributable to reorganization since the position of Mental Health Representative continued in existence until July 1, 1977; He retained his bi-weekly salary of $584.76 upon demotion without approval of the State Personnel Director; and Petitioner was not informed in writing the Mental Health Representative position would be adversely affected, by reorganization. As a result thereof, the Department of Administration contended that it overpaid the Petitioner the amount of $11.16 per bi-weekly pay period and that in accordance with provisions of Chapter 22K-10.04(2) of the Personnel Rules and Regulations, such amount must be recovered and to effect such, said amount would be deducted from each salary warrant for a period of twenty-one pay periods to cover the overpayment from September 17, 1976, through July 7, 1977. Additionally, effective July 8, 1977, Petitioner's salary was reduced to the maximum for Pay Grade 18, i.e., $573.60 bi-weekly. The letter of July 1, 1977, further advised the Petitioner that although he was originally designated adversely affected along with all the other Mental Health Representative positions, positions which were to be abolished on July 1, 1976, the District Administrator was later told that Petitioner's position would not be abolished until January of 1977. Petitioner, as stated in said letter, took his demotion in good faith, feeling that his position of Mental Health Representative would be abolished. On November 17, 1976, the District Administrator forwarded a request to the Department of Administration requesting that Petitioner's salary be maintained; however, no action was taken because no administrative disposition bad been taken with respect to the abolishment of that position. A further request was sent to the Department of Administration in April, and during June of 1977 the request was denied and efforts to recover the overpayment were implemented. Evidence contained in the case files revealed that several employees who were voluntarily demoted pursuant to reorganization were granted permission to maintain their current salaries which amounted to payments above the maximum for the class to which they were demoted. The Respondent offered no evidence to refute or otherwise contradict the statements and contentions of the Petitioner that he was advised by district representatives and personnel that his salary would be maintained even though he was being demoted due to reorganization. It further appears that the Respondent, in relying on statements by the District Administrator (Dillard), was hampered in his efforts to obtain favorable consideration for other positions which were up for bid during the reorganization process. Noteworthy is the uncontradicted statement that the Petitioner was told that inasmuch as he would not be adversely affected by reorganization, he would not be considered for positions until all adversely affected employees had been placed in positions which were open for bid during reorganization. A memorandum from Art Adams of the HRS Personnel Office to John Campbell, Personnel Officer for District IV, dated August 9, 1976, advised that all employees who were asked to take a demotion due to reorganization would retain their salaries over the maximum. For all of the above reasons, including the indefensible position advanced by the Respondent, I shall recommend that the Respondent's action in reducing the Petitioner's pay and seeking to recover amounts allegedly overpaid be reversed.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED: The Petitioner's salary be reinstated to the level to which he was receiving as of the date of demotion on or about September 17, 1976. That the Respondent make whole any loss of pay the Petitioner suffered as a result of the reduction in his salary and the bi-weekly deductions of $11.16. That the Petitioner be paid interest at the rate of 6 percent per annum based on the amounts withdrawn from his salary warrants through the deductions and the recovery of amounts allegedly overpaid him when his salary was reduced. RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1978. COPIES FURNISHED: Mr. Edward Amsbury 5620 Northwest 25th Terrace Gainesville, Florida 32601 Mrs. Dorothy B. Roberts Career Service Commission 443 Carlton Building Tallahassee, Florida 32304 Joseph E. Hodges, Esquire 2002 Northwest 13th Street 3rd Floor, Oak Park Executive Square Gainesville, Florida 32601 Thomas K. McKee, Jr., Esquire Post Office Box NFETC Gainesville, Florida 32602 =================================================================
The Issue Did Respondent, Hodges University (Hodges), commit an unlawful employment practice against Petitioner, Connie Leonessa, on account of her religion, as defined and prohibited by section 760.10(5), Florida Statutes (2018)?1
Findings Of Fact Parties Hodges is a university located in Ft. Myers, Florida. It offers a master's degree in counseling through the Clinical Mental Health Counseling (CMHC) program housed within Hodges' Nichols School of Professional Studies. Ms. Leonessa was a student in Hodges' CMHC master's program. Ms. Leonessa is an experienced registered nurse who has primarily served pediatric patients over the years. She also volunteered regularly to work with children in inner cities of the Northeast. Those experiences, her compassion for children, and her personal trauma of molestation drove Ms. Leonessa to want to serve children better. In her words, "and I just felt that God wanted me to go back to school to get a master's so I can help these victims." Ms. Leonessa was enrolled in Hodges from 2015 until the fall of 2018. Her goal was to prepare herself to provide counseling services to child victims of trauma. There is no persuasive, competent evidence proving that providing counseling services to child victims of trauma is a profession, occupation, or trade that requires a master's degree in counseling. In fact, paid positions in the counseling field are available without a master's degree. A master's degree, followed by two years of full-time, post- graduation, paid supervised work experience is required to obtain a mental health counselor license. So is passage of the NCMHCE Exam administered by the National Board for Certified Counselors. The persuasive, competent evidence of record does not prove that Ms. Leonessa intended to take the post-graduation steps required to obtain a mental health counselor license or to seek a mental health counselor license. Hodges' Master's Program Earning a master's degree in social work from Hodges requires successful completion of academic coursework, a 200-hour practicum, and three 267-hour internships. The providers of the practicum and internships are not part of or controlled by Hodges. The student is responsible for identifying and making arrangements with the practicum and internship providers. Hodges assists when it can. Hodges' program, like counseling itself, requires students to develop awareness of their preferences, prejudices, ethics, and philosophies and separate them from the support and guidance provided clients. Upon entering the program, students agree to abide by the requirements of a Clinical Mental Health Counseling Professional Attitude and Behavior Agreement (Agreement). Ms. Leonessa signed the agreement on September 2, 2015. The Agreement states the student's obligation to align her "personal ethics with the professional ethics as defined by the American Counseling Association (ACA) 2014 Code of Ethics [Code].” The Code was attached to the Agreement. The Agreement emphasizes the priority of avoiding harm to clients or future clients and taking care to not impose the counselor's personal beliefs, values, and behaviors on clients. The Agreement recognizes the ethical dilemmas the profession presents and articulates a student's obligation to consult others about the dilemmas and develop "an ever increasing ability to apply a professional ethic to difficult situations involving ethical dilemmas and associated law … ." As part of the Agreement, Ms. Leonessa agreed to have "an open and willing attitude toward feedback and suggestions given by faculty, peers and site supervisors to help the student reduce the possibility of harm." This tenet supports the value of requiring a counselor to put "a high priority on avoiding harm to clients or future clients." The Agreement obliges the student to understand and abide by the Code. The CMHC Student Handbook (Handbook) contains and emphasizes requirements similar to the Agreement's requirements. It encourages students to pursue personal therapy and growth, for their intrinsic benefits and to provide insight into what clients experience. The Handbook emphasizes that counselors are held to higher ethical standards and higher levels of personal growth and mental health than the average person. It states that evaluation of a student's progress in those areas is part of judging a student's suitability for the counseling profession. Hodges' program includes regular evaluation of a student's progress in "interpersonal interactions with students, faculty, site supervisors, and others involved with his/her academic progress." The program requires progress in those areas and provides for a Student Development Plan for remediation if the student does not improve his or her interpersonal interactions and skills. The Handbook directs students to review the Code. The Handbook requires students to work professionally and respectfully with fellow students, faculty, site supervisors, and site employees. The Handbook also requires students to accept others without rejection based upon, among other things, age, culture, gender identity, sexual orientation, religion, or marital status. A student commits to be "respectful of differing opinions and professional practice … ." A student also commits to work "to continually improve her/his professional relationship skills and clarify professional boundaries." The Handbook, signed by Ms. Leonessa, concludes with this affirmation: I understand that the Hodges University Clinical Mental Health Counseling Program requires students to perform adequately in areas of academic assessment that include the ability to form and continue positive relationships with others; the ability to acquire and correctly use counseling knowledge and skills, and the ability to successfully complete all practicums and internships in the judgment of the faculty and site supervisors. These expectations are in addition to the didactic coursework expectations and assessment procedures. I understand that I will be expected to continually improve my ability to demonstrate counseling competencies as I progress in the program. I further understand that the American Counseling Association 2014 Code of Ethics forms the basis of professional standards to which I must adhere. In sum, the nature of the counseling field that Ms. Leonessa sought to enter and the program at Hodges required students to develop an open and tolerant and patient way of communicating with people with whom they may disagree, even disagree vehemently. Conflict in Hodges' Academic Program Ms. Leonessa performed well in her academic work. But her interactions with three fellow students and a professor were marked with conflicts. She attributed the conflict to discrimination against her on account of her religion. The evidence does not support the attribution. Ms. Leonessa's sensitivity to the age differential between herself and other students and her aggressive personality caused conflict with fellow students. Ms. Leonessa acknowledged her aggressiveness, saying, "You know, I know I have a tone and I've been honest about that. I have a tone." (Tr. V. I, p. 206). Ms. Leonessa also had a pattern of attributing any disagreement or conflict to opposition to her Christian beliefs. Dr. Thomas Hoffman taught many of Ms. Leonessa's classes. Like Ms. Leonessa, Dr. Hoffman is a Christian. In email communications each referred to scripture. For instance, Dr. Hoffman, in counseling Ms. Leonessa about alleviating her repeated personal conflicts, advised her to be "wise as a serpent, but gentle as a dove." Ms. Leonessa, in defense of her combative approach said, "Jesus Christ spoke truth and was hated for it." Neither Dr. Hoffman nor any other Hodges representative ever prohibited Ms. Leonessa from referring to her Christian beliefs in communications with them. In addition, Dr. Hoffman never asked Ms. Leonessa not to share her religious views, such as her anti-abortion beliefs, in class. As the years passed, Ms. Leonessa's communications to Dr. Hoffman grew increasingly querulous and combative. Her tone was frustrated and loud. She challenged Dr. Hoffman's competence, honesty, and integrity in a disrespectful manner. Ms. Leonessa clashed, in class and outside class, with three fellow students. She felt the students did not treat her with the respect that was her due because of her age. Ms. Leonessa had a dispute with one student about abortion. She had conflicts with another about the use of the "F" word in class. Ms. Leonessa had a conflict with a third student who said that Ms. Leonessa was trying to impose her values in class. During these conflicts, Ms. Leonessa raised her voice and spoke hostilely. Sometimes she pointed her finger. In an encounter outside of the school, one of the students told Ms. Leonessa that Ms. Leonessa's beliefs were "f…ed up" and that Ms. Leonessa should attend a Christian school. Once Ms. Leonessa jerked on another student's purse strap to make a point. Those three students did not have conflicts with other students or faculty. Also, as will be addressed below, Ms. Leonessa had significant problems in her internships, problems the other students did not have. The three students were not similarly situated to Ms. Leonessa. Due to these conflicts and ways of interacting with Dr. Hoffman, Hodges faculty met with Ms. Leonessa in February 2016 in an informal coaching session. The purpose was to address Ms. Leonessa's inability to control her emotions and express herself in an appropriate manner. These are all issues whose importance to counseling the Agreement, the Handbook, and the Code all emphasize. Ms. Leonessa's religious beliefs were not the reason for convening the coaching session or the communications during it. The faculty also conducted informal coaching sessions with the other three students. Despite the coaching sessions, Ms. Leonessa's conflicts with the students and Dr. Hoffman continued. Hodges' Handbook provides for establishing a formal Student Development Plan (SDP) to assist students who are not performing in a manner that is consistent with the Code. An SDP's purpose is to formalize concerns not resolved by the informal coaching and provide a plan for addressing them. It is a remedial measure. Hodges established SDPs infrequently. Since 2011 it has implemented seven. The faculty created an SDP for Ms. Leonessa and placed her on it in October 2016. Ms. Leonessa's religious beliefs played no part in the decision to create the plan or setting the plan's requirements. The behaviors which the SDP addressed included the changes in Ms. Leonessa's tone and raised volume when she disagreed with others, her practice of interrupting others with whom she disagreed, and her belaboring of class topics well after the instructor was trying to move the class to a resolution and on to the next subject. The plan provided supports and measurable goals for Ms. Leonessa. They were: (1) pairing her with a third-year student as a mentor, (2) completing a case study assignment, (3) completing role-playing exercises, and (4) documenting her changes of tone and volume in class. Ms. Leonessa disagreed with the SDP but agreed to follow it and signed it some two months after the faculty presented it to her. The role-playing exercises assigned to Ms. Leonessa involved same-sex attraction and abortion. The faculty selected these two topics because they recur frequently in counseling. Ms. Leonessa's religious beliefs were not the reason for selecting the topics. Ms. Leonessa successfully completed the SDP. The three students with whom Ms. Leonessa clashed were not placed on SDPs. Their issues did not match Ms. Leonessa's in frequency or intensity. Practicum Ms. Leonessa sought to establish a practicum placement at Cape Christian, also known as Samaritan Health and Wellness Center (Cape Christian). There was some uncertainty whether the supervision available at Cape Christian met Hodges' requirements. Ms. Leonessa's contact at Cape Christian, Ms. Trout, was not satisfactorily responsive to Ms. Leonessa's efforts to sort the issue out. This resulted in combative telephone calls and emails from Ms. Leonessa to Ms. Trout. An excerpt from one email illustrates Ms. Leonessa's pattern of hostility and injection of religion into disputes. In a December 5, 2016, email to Ms. Trout from Ms. Leonessa describing her displeasure with the responsiveness of Cape Christian and a conversation with one of Ms. Trout's co-workers, Ms. Leonessa wrote: You stated I chewed her out but you were not on the phone. I did not disparage her character in any way, I said as believers we are to keep our word and that now I would have to find another place at the last minute. That is all I said. The Bible says be angry and sin not. According to what I have heard, you do not believe people should be angry and I would bet there are times in your life when you have had an unprofessional tone. Also I have had to wait weeks before hearing back from you, it amazed me how quickly you called about this situation-seconds! Ms. Trout replied: If you were my student and you'd have behaved in the manner as this [sic], you would be put in a professional development status, complete with remediation, to determine your appropriateness to move forward in the field of counseling. The fact that you sent this email in its current form further highlights the display of lack of professionalism and emotional maturity now exhibited in two separate phone calls as well. I would encourage that you seek some assistance in processing your emotions, and the manner in which you communicate those. I wish you the best. Ms. Leonessa replied to Ms. Trout, "Please do not contact me further." Ms. Trout forwarded the email exchange to Sue Hook and Dr. Mary Nuosce of Hodges. Dr. Nuosce answered, "Amy, I apologize for her total lack of professionalism. We are working on this. Thank you for your patience." This incident triggered an update to the SDP. The update was because of Ms. Leonessa's conduct and unrelated to her religious beliefs. Ultimately, Ms. Leonessa obtained and successfully completed a practicum with FRS/Omega Center. Tina Friedman was her supervisor. Ms. Friedman twice noted in the July 7, 2017, evaluation form that Ms. Leonessa required ongoing attention in the area of values management. The values criterion relates to many of the requirements and principles of the Agreement, the Code, and the Handbook. The evaluation form describes it thus: "Value Management: How did the student cope with values? Were attempts made to impose the student's values during the interview?" Ms. Friedman's Session Evaluation Form noted, "Connie does repeatedly offer her own values during client/student interaction." Ms. Friedman wrote a note to Ms. Leonessa on the form stating that Ms. Leonessa's development was at an expected level save for in values management. The note went on to specify: "Please work more diligently in this area as that may [prove] to be a problem in the future." The August 17, 2017, final evaluation emphasized the problem stating, HER BURNING DESIRE TO INITIATE CHANGE, MAY PROVE TO BE HER MOST DIFFICULT PERSONAL CHALLENGE AS A CLINICIAN. IT IS HOPED THAT IN TIME AND WITH FURTHER EXPOSURE TO THE TENETS OF EFFECTIVE COUNSELING, CONNI CAN LEARN TO ACCEPT AND MEET THE CLIENT WHERE THEY ARE AT IN THE PROCESS. CONNI HAS STRONG, DEEP ROOTED BELIEFS AND VALUES, WHICH MAY BE DIFFERENT THAN THOSE OF THE CLIENTS AS WELL AS HER PEERS, THAT SHE ENCOUNTERS. I HAVE SHARED THIS OBSERVATION WITH CONNI AND HAVE ENCOURAGED HER TO CONSIDER THE IMPORTANCE OF BEING OPEN AND ACCEPTING TO THE DIVERSITY OF THE POPULATION SHE WILL SERVE. Internships Ms. Leonessa obtained an intern position with True Core Behavioral Solutions (True Core). True Core provided services to the Ft. Myers Youth Academy, a juvenile detention center. True Core terminated Ms. Leonessa's internship after two days. The problems leading to her termination were those of value imposition and boundary crossing presaged by her practicum. Ms. Leonessa participated in two counseling sessions for the juveniles. Her improper conduct included sharing personal information about her abandonment by her husband and her celibacy since then. In the counseling profession this boundary crossing behavior is often damaging to the therapeutic process. Ms. Leonessa also criticized a young man who supported his girlfriend obtaining an abortion, telling him abortion was murder and talked about holding premature babies in her hands. She criticized some of the youth for engaging in premarital sex telling them it violated God's law. She told one young man his troubles stemmed from abandonment by his father. This conduct demonstrated emotionalism and an inability to respect client perspectives that the SDP was intended to ameliorate. For this reason, Hodges updated the SDP. Ms. Leonessa acknowledges that it would be professionally wrong for a counselor to advocate her personal religious beliefs and values to clients. She denies that she did so. But the preponderance of the competent, substantial evidence proves that she did. True Core reported Ms. Leonessa's termination and the causes for it to Hodges. After Ms. Leonessa's termination from True Core, Dr. Mary Nuosce, Dean of the Nichols Schools of Professional Studies and a faculty member, tried to assist her in finding another internship placement. Dr. Nuosce was the supervisor for Ms. Leonessa's internships. She approached Janean Byrne from Serenity Counseling about accepting Ms. Leonessa as an intern. Dr. Nuosce thought Serenity might suit Ms. Leonessa more because it was a faith-based counseling provider. She gave Ms. Leonessa Ms. Byrne's contact information and asked her to follow up on establishing an internship. Ms. Leonessa did not seek the internship. She refused to contact Ms. Byrne for non-specified reasons. She told Dr. Nuosce, "I just emailed her [Ms. Byrne] and turned down the position. What occurred today has taught me that I need to find a place where my values are shared and respected so I will continue to look for a sight [sic]." When Dr. Nuosce asked how she could be so judgmental about someone she had never met, Ms. Leonessa responded, "I never said anything against her [Ms. Byrne], however, I am looking for a place that shares my biblical values especially after what occurred today that is all. I do have the right to choose where I want to intern at!" Hodges' faculty continued efforts to help Ms. Leonessa locate an intern position. Ms. Leonessa obtained an internship at HEADS. Within a few weeks, HEADS dismissed her. Ms. Leonessa worked with therapist Julie Jakobi attending sessions with clients. Jerry Sprague, HEADS's clinical supervisor for Ft. Myers, selected Ms. Jakobi to work with Ms. Leonessa because he was aware of Ms. Leonessa's ardent Christian beliefs and Ms. Jakobi held similarly strong Christian beliefs. The first client Ms. Jakobi and Ms. Leonessa saw was a 13-year old female with a long history of running away and conflict with her mother. They saw her at school in a room in the office. The student was very concerned about telling her mother that she was gay. After the student left the room, Ms. Leonessa turned and loudly and aggressively confronted Ms. Jakobi telling her she was wrong in her counseling of the student. Ms. Leonessa insisted Ms. Jakobi should have told the student that she would catch sexually transmitted diseases, she would become depressed, and she would commit suicide. The room's door was open, and a secretary sat right outside the door. The lack of privacy and danger to client confidentiality concerned Ms. Jakobi. They also visited a client, a man concerned about becoming an opioid addict and the effect on him of growing up in a rough neighborhood. He and his wife were separated and had completed the documents necessary to finalize their divorce. Ms. Jakobi had informed Ms. Leonessa of the pending divorce before they arrived at the home. Ms. Jakobi and Ms. Leonessa met with the client at his wife's home. Ms. Leonessa began talking to the man about how he could work through his problems and learn to love his wife better. This "froze" the client and sabotaged efforts to provide the addiction counseling he sought. On the drive back to the office, Ms. Leonessa was very rude and hostile to Ms. Jakobi. Ms. Leonessa was physically tense. Her tone was sharp. Ms. Leonessa brought up homosexuality again and renewed advocacy of "conversion therapy." At the time, this was not permitted. As soon as she left Ms. Leonessa at her car, Ms. Jakobi called Mr. Sprague to report the day's incidents. He concluded that quick action was required and asked Ms. Leonessa to apologize to Ms. Jakobi. It is worth noting that Mr. Sprague's email signature quotes from the Bible, Psalm 82:3. Ms. Leonessa’s apology read as follows: "I realize not everyone see's [sic] things eye to eye. However when differences occur truth needs to be spoken in a way that is gentle. I realize my 'tone' is not always gentle and I am working on this." This is no apology and was not received as one. Mr. Sprague spoke further to Ms. Jakobi and another counselor who worked with Ms. Leonessa about their experiences with her. He concluded that he was "not convinced that she will not cause harm." He decided that terminating Ms. Leonessa promptly was best. Mr. Sprague's September 27, 2018, email to Dr. Nuosce explaining his decision is persuasive and was reasonably accepted by the Hodges faculty. He began by reporting that Ms. Leonessa was very difficult to communicate with. He reported that Ms. Leonessa "failed at a very basic level to demonstrate the ability to maintain appropriate boundaries and to demonstrated basic empathy skills." His email went on to state: I would be surprised if you didn't already know this as her strong personality, strong beliefs and aggressive tendencies are hard for her to manage. She had told me she has had conflicts with professors so I imagine this is why. He concluded that Ms. Leonessa was "stuck on a superficial (immature) level of reasoning and so she is failing to both read others well and to maintain appropriate social boundaries … ." Mr. Sprague strongly suggested Ms. Leonessa consider a different career than counseling. This report, supported by the evidence in this case, caused Dr. Nuosce to conclude that Ms. Leonessa was not complying with her revised SDP. Also Ms. Leonessa had failed to complete two internship programs and one practicum. Failure to complete the practicum revealed significant problems which persisted. Three internships are required to obtain a counseling degree from Hodges. Ms. Leonessa completed none. For these reasons, Hodges administratively withdrew Ms. Leonessa. Ms. Leonessa appealed within the Hodges system. Her appeal papers did not acknowledge what she had done wrong or how she proposed to improve. Instead they discussed her background and accused Hodges of repeatedly violating its policies and procedures. Hodges' Provost reviewed the many documents generated during Ms. Leonessa's tumultuous enrollment. He noted the similarity of reports of unacceptable behavior from different and unrelated sources, within and without the University. He denied the appeal. Summary The record of Ms. Leonessa's three years in Hodges' counseling program, including her time in practicum and internships, is a record of consistent, disputatious conduct. When the subject of religion, specifically Christianity arose, it was because Ms. Leonessa initiated criticisms of others' behavior as unchristian, because Ms. Leonessa sought to advocate her Christian views to counseling clients, and because she explicitly judged clients' actions, decisions, and options by her standards. The evidence does not prove that Hodges took any actions against Ms. Leonessa, including imposition of the SDP and termination from the program because of her religion. Hodges' terminated her because she violated the fundamental counseling requirement to accept clients as they are and not seek to impose her values on them. The record does not prove that any of the practicum and internship providers took any actions against Ms. Leonessa on account of her religious beliefs. Furthermore, the practicum and internship providers were independent of Hodges. They were not subject to its control or direction or acting in its stead.
Recommendation It is Recommended that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief of Connie Leonessa. DONE AND ENTERED this 22nd day of January, 2021, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 Thomas K. Rinaldi, Esquire Bond, Schoeneck & King, PLLC Suite 105 4001 Tamiami Trail North Naples, Florida 34103 Cheyanne Costilla, Gen. Co. Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 S JOHN D. C. NEWTON, II Administrative Law Judge 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 www.doah.state.fl.us Connie Leonessa American Liberties Institute Post Office Box 547503 Orlando, Florida 32854 Matthew Brown McReynolds, Esquire Pacific Justice Institute Post Office Box 276600 Sacramento, California 95827 Michelle Wilson, Executive Director Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399
The Issue The issue is whether the Florida Department of Education (“the Department”) committed one or more unlawful employment practices against Petitioner (“Ms. Spradlin”) by discriminating against her based on race.
Findings Of Fact Based on the oral and documentary evidence adduced at the final hearing and the entire record in this proceeding, the following Findings of Fact are made: Ms. Spradlin worked from 2006 to 2010 as a psychological specialist at a facility known as Sunland in Marianna, Florida. Ms. Spradlin is Caucasian. During a portion of the time that Ms. Spradlin was at Sunland, Tawana Gilbert worked there as a human service administrator. Ms. Gilbert is African-American. Ms. Spradlin and Ms. Gilbert did not work closely together, but they served on the same interdisciplinary team and worked with the same residents. Ms. Gilbert’s only knowledge of Ms. Spradlin was through the documentation that Ms. Spradlin submitted to the interdisciplinary team. Ms. Gilbert left Sunland in approximately November of 2009, and began working for the Department as a unit supervisor for a vocational rehabilitation services unit in Marianna, Florida. Vocational rehabilitation assists people by providing them with services that enable them to obtain and maintain gainful employment. During the time period relevant to the instant case, the Marianna unit had 10 staff members and served five counties. Of those 10 staff members, five were counselors and one was the unit supervisor. At some point after Ms. Gilbert left Sunland, Ms. Spradlin saw an advertisement for an entry level vocational rehabilitation counselor position at the Marianna unit. Ms. Spradlin applied for the position and was hired in 2010. In March or April of 2011, Ms. Gilbert invited all of her coworkers to a special event at her church. Ms. Gilbert asked her coworkers with children if their child would like to participate in a program that was to be part of the festivities. Ms. Spradlin said that her daughter was willing to participate, and Ms. Gilbert typed out the words that Ms. Spradlin’s daughter was to recite during the program. When it was time for Ms. Spradlin’s daughter to recite her part, she became nervous, and her grandmother read the part. Following this event, Ms. Spradlin asserts that Ms. Gilbert’s attitude toward her changed and that the unlawful employment practices alleged in her Charge of Discrimination began. Findings Regarding Ms. Spradlin’s Interviews for Senior Counselor Positions There were two openings for senior vocational rehabilitation counselors at the Marianna unit in October of 2012.1/ When the Department is considering applicants for a particular position, it utilizes a three-person panel to conduct interviews and score the applicants. After the interviews, the three-person panel reaches a consensus as to each applicant’s scores, and the Department uses a standardized matrix to rank each applicant. The panel for the two senior vocational rehabilitation counselor openings consisted of Allison Gill, the Department’s area supervisor; Michael Nobles, the former supervisor of the Marianna unit; and Ms. Gilbert. Ms. Gill and Mr. Nobles are Caucasian. Of the five people who interviewed for the two openings, Ramonia Robinson earned the highest score, a 72. With regard to Ms. Robinson’s qualifications, Ms. Gilbert testified as follows: Ms. Robinson, she was a current employee there. She was an entry-level counselor, had been for many, many years. She was there prior to my hiring with VR, so I was familiar with her work history. And she was very thorough, very detailed, very flexible, and very unemotionally involved with her cases. So she, in conducting her cases and case management, was awesome. And she was very knowledgeable about the questions that were being asked. She had had a long history of experience with case management, providing services to individuals with disabilities, and just adequately managing her caseload. She did very well on her interview. Ms. Spradlin received the second highest score, a 56. Keith Sutton, an outside applicant, received a score of 55. When two applicants’ scores are within one point of each other, the Department bases the ultimate hiring decision on reference checks. Ms. Gilbert contacted Mr. Sutton’s references and received positive feedback about him. As for Mr. Sutton’s qualifications, Ms. Gilbert provided the following testimony: Q: What about Mr. Sutton’s experience, resume was notable to you in the interview process? A: Well, he had his degree. It’s directly related to the field of counseling. He had a wealth of experience in the counseling field. He came to us from the Agency for Persons with Disabilities, which is Sunland, where he had a year there, and he met at least the minimum qualifications. He was very – his application was very detailed, and it identified precisely his experience based on his ability to – or his experience with providing counseling, providing services for those with disabilities. And he had a long history from where he had previously worked in the field of counseling. Q: Okay, so Mr. Sutton achieved a Master’s in Counseling in 2011, is that correct, according to his application? A: Yes. Q: And that’s directly related to the position; is that correct? A: Yes, that’s correct. Q: And he had experience as a master’s level therapist? A: Yes. Q: Is that accurate, according to the application? A: Yes. He worked for Florida Therapy as a master’s level therapist, where he was expected to provide counseling, psychotherapy to children, adults and their families, but doing so on an independent basis. That demonstrated he was very flexible, detailed oriented and [had] the ability to function independently. Because she was Ms. Spradlin’s supervisor at the time, Ms. Gilbert acted as her reference and did not recommend her for a senior counselor position. In explaining her reasoning, Ms. Gilbert testified that: Ms. Spradlin was difficult to work with and she was very negative. She had several participant complaints during the span of [] that year. In her first year coming in, she was very challenging, she did not want to accept constructive criticism from me as the unit supervisor. She did not want very – she wanted very little feedback from me based on her performance. Several participant complaints, calling me directly, contacting the ombudsman, faxing me complaints based on their interaction with Ms. Spradlin, how they felt that they were being treated unfairly, they did not agree with her tone from time to time. She was not at all culturally sensitive to some of our participants. She was insubordinate. She would – there were times she would just leave the unit because things – conditions were unfavorable to her. Ms. Gilbert submitted her recommendation to the Department’s area director, and Mr. Sutton was ultimately offered a senior counselor position. Mr. Sutton is currently the supervisor of the Marianna unit. There is no persuasive evidence that Ms. Spradlin was not promoted because of her race or any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding that Ms. Robinson and Mr. Sutton were more qualified for the openings. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of applicants for the two openings discussed above. In May of 2016, Ms. Spradlin applied for another senior counselor position in the Marianna unit. The interview panel for this opening consisted of Ms. Gilbert and two other Department employees, Evelyn Langmaid and Rebecca Stevens. Ms. Langmaid and Ms. Stevens are Caucasian. Ms. Gilbert did not supervise Ms. Langmaid or Ms. Stevens, and she did not attempt to influence their decision-making. Georgia Britt received the highest score from the interview panel and was offered the senior counselor position. Ms. Langmaid described Ms. Britt’s interview as follows: She just came in and every answer we’d or every question that we gave her she was just right on with the answers and [was] hitting the points on the – because we have sort of like a little sheet that we can look for certain points that we’re looking for answers, and she was just right on every point, and was very, very knowledgeable of what was going on. Ms. Spradlin had obtained a certified rehabilitation counseling certification in October of 2014, and Ms. Britt lacked that certification. However, Ms. Britt’s other credentials bolstered her application. For instance, she has a bachelor’s degree in elementary and special education and a master’s degree in counseling. Ms. Britt also had relevant work experience. When she applied for the senior counselor position, Ms. Britt was employed at Sunland as a behavior specialist working with adults with developmental disabilities. Ms. Britt wrote in her application that she had been able to “work with all different types of individuals at all intellectual levels” via her position at Sunland. Prior to working at Sunland, Ms. Britt had worked in a children’s psychiatric hospital in Dothan, Alabama. That position also gave her an opportunity to work with individuals from diverse backgrounds. Ms. Britt wrote on her application that her position at the hospital required her to engage in some counseling and that she had to use counseling skills in order to obtain psychiatric histories and other information. Ms. Britt’s interview bolstered her application. According to Ms. Langmaid, Ms. Britt “blew it out of the water. She was fantastic on the interview.” Ms. Gilbert was also very complimentary of Ms. Britt’s interview: Q: What about Ms. Britt stood out to you and the panel? A: Her ability to respond to the questions as they were being asked. At that time, we were transitioning to where we were asking more emotional [intelligence] questions where – to identify a counselor’s ability to emotionally manage cases and refrain from being emotionally involved with that case. So she answered the questions. It’s on ones that can give a thorough answer based on the circumstance that occurred, the actions that took place and the results of the question. Q: Okay. A: She was really, really thorough with her answers. There is no persuasive evidence that Ms. Spradlin did not receive the promotion because of her race or due to any animus from Ms. Gilbert. The interview panel, consisting of two Caucasians, had legitimate, nondiscriminatory grounds for concluding Ms. Britt was more qualified for the opening. In short, the greater weight of the evidence demonstrates that there was no unlawful employment practice associated with the Department’s selection of Ms. Britt. Findings Regarding Ms. Spradlin’s Hostile Work Environment Allegations Ms. Spradlin made several allegations during the final hearing that she was subjected to a hostile work environment during her time with the Marianna unit.2/ For example, in October of 2010, Ms. Spradlin exposed at least part of her posterior to a coworker in the Marianna unit in order to demonstrate the severity of a sunburn. Ms. Gilbert did not learn of that incident until another incident was reported to her on May 2, 2011. That day, Ms. Spradlin was seated in an office within the Marianna unit when a female coworker got very close to Ms. Spradlin and “twerked” in her face. Ms. Spradlin states that she placed her hands on the coworkers posterior and playfully pushed her away. However, the coworker reported to Ms. Gilbert that Ms. Spradlin had pinched her posterior. Upon learning of both incidents, Ms. Gilbert discussed them with Ms. Spradlin and conferred with the Department’s labor relations unit on formulating a proper course of action. With input from the labor relations unit, Ms. Gilbert issued a counseling memorandum to Ms. Spradlin on October 4, 2011.3/ The counseling memorandum4/ read in pertinent part as follows: You are being issued a Counseling Memorandum for your violation of Rule 60L- 36.005(2)(f)(1), Florida Administrative Code (F.A.C.), Conduct unbecoming a public employee. On October 12, 2010, you signed the Department’s Acknowledgement Form stating you received copies of the policies and rules of the Department. Please be aware that you are expected to abide by all Standards of Conduct as stated in 60L- 36.005, F.A.C. On May 2, 2011, you violated the following rule and policy: Rule 60L-36.005(2)(f)(1), F.A.C., requires that “Employees shall conduct themselves, on and off the job, in a manner that will not bring discredit or embarrassment to the state. Employees shall be courteous, considerate, respectful, and prompt in dealing with and serving the public and co-workers.” On May 2, 2011, it was reported by one employee that you pulled your pants down exposing your buttocks and “mooned” that employee. Another employee informed me that on that same day you pinched her on her buttocks. After I was told about these incidents that day, I counseled you and informed you that this was inappropriate behavior and it was explained that your actions were unacceptable. This type of conduct is not conducive to a satisfactory work environment. Your conduct has adversely impacted the morale and efficiency of your unit and the Department, is detrimental to the best interests of the state and Department, and adversely affects your effectiveness with the Department, as well as your ability to continue to perform your job. This behavior must cease immediately. Should you continue conduct unbecoming a public employee, disciplinary actions, up to and including dismissal may be taken. Ms. Spradlin signed the counseling memorandum on October 4, 2011, and added the following comments: These two incidents happened on [sic] different persons. The incident w/ “mooning” was with [a] coworker after I incurred a severe sunburn. It was done only to show my burns not to offend her. She sobbed – I was not wearing pants – skirt instead. On the second occasion w/co-worker E.R. she put her buttocks in my face, playing around, & I pinched it as if to express my willingness to play as well. It was provoked – not done in an offensive manner. I understand that this type of behavior is not accepted in my work environment. They were done in a playful uplifting manner, not intentional. However, I will refrain from this behavior as I have obviously offended my colleagues. Another allegation of disparate treatment concerned an incident with a Department client named B.H., who Ms. Spradlin assisted with enrolling in nursing school. B.H. arrived at the Marianna unit one day without an appointment and reported that he wanted to do something other than nursing. Ms. Spradlin asserts that B.H. got aggressive when his requested changes could not be accomplished immediately. Ms. Spradlin further asserts that she became afraid, threatened to call 9-1-1, and managed to get past B.H. and into the hallway outside her office. Ms. Gilbert heard the commotion and called the police. By the time the police arrived at the Marianna unit, B.H. was very calm, and Ms. Gilbert concluded there had been no need to call law enforcement. While Ms. Spradlin asserts that she became an object of ridicule in the Marianna office for overreacting, Ms. Gilbert asserts that she was ridiculed for failing to give the address of the Marianna office when she called 9-1-1. As another example of disparate treatment, Ms. Spradlin cites an incident on November 14, 2013, involving a cigarette butt. Ms. Spradlin was in Ms. Gilbert’s office and dropped a cigarette butt into a trashcan. According to Ms. Spradlin, Ms. Gilbert demanded that she remove the cigarette butt and forced Ms. Spradlin to search through used tissues for the cigarette butt. Ms. Gilbert acknowledged that she asked Ms. Spradlin to remove the cigarette butt from the trashcan, but she credibly denied berating Ms. Spradlin or yelling at her. According to Ms. Gilbert, Ms. Spradlin was able to quickly remove the butt from the trashcan and was not upset about having to do so. Ms. Spradlin made several other allegations about how Ms. Gilbert gave African-American employees in the Marianna unit preferential treatment. For example, Ms. Spradlin alleges that she was required to handle more cases and incur more travel than her African-American coworkers. With regard to her travel reimbursements, Ms. Spradlin alleged that Ms. Gilbert refused to account for all the miles she traveled. Ms. Spradlin further asserts that Ms. Gilbert subjected her to disparate treatment by requiring her to maintain more documentation of her daily activities, inundating her with e-mails inquiring about the status of her work, and being less lenient regarding Ms. Spradlin’s use of flex and leave time. Ms. Gilbert testified that she has never denied a request for annual leave and that she approved the majority of Ms. Spradlin’s requests for flex time, even though Ms. Spradlin did not follow the proper procedure for making such requests. As for the other allegations mentioned above, Ms. Gilbert credibly testified that she did not subject Ms. Spradlin to any disparate treatment. Finally, Ms. Spradlin alleges that Ms. Gilbert unfairly administered a system by which counselors within the Marianna unit shared their successful cases with African- American counselors who had fewer successful cases. This system was implemented because counselors within the Marianna unit were expected to have a certain number of successful cases. Ms. Gilbert credibly denied that the system was administered unfairly: Q: Ms. Gilbert, do you ever ask counselors to donate their successful cases or case numbers to other counselor? A: I never asked counselors specifically to do that. I did discuss it with the unit, with our team as an option. Q: Okay, and why would that be an option they may want to do? A: Well, the way Vocational Rehabilitation operates is a person has to be on their job a minimum – a minimum of three months, okay, 90 days, to consider that person as successfully rehabilitated. And that was a measurement. That was an expectation on each counselor’s performance evaluation, that they had to get so many successful rehabs within one year. So someone that’s being hired and coming to Vocational Rehabilitation in the middle of the year, they don’t have that opportunity to monitor that person for 90 days, if they don’t already have someone that’s in that employment status ready to begin monitoring. So it’s difficult. But I did not want that to be a negative reflection of a counselor that’s really trying and that’s working their caseload and trying to get their successful rehabs. So I would ask counselors once they’ve received all of their rehabs and they close enough people successfully that allows them to get the most maximum score that they can get on their evaluation, I would ask them if they wanted to, share those rehabs with someone that’s probably a new counselor or that’s just having a difficult time with obtaining their successful rehabs. Q: Okay. And so Mr. Sutton’s first year, might he have received some successful numbers donated to him from other counselors? A: That is a possibility. Q: Okay. Did Ms. Spradlin ever receive any successful numbers donated to her when she had a lower number? A: Yes. * * * Q: Okay. And so that number of successes or successful rehabilitations is important to counselors? A: Absolutely. Q: Because they are – are they evaluated on that each year in their yearly performance evaluation? A: Yes. Each level of counselor, if you’re an entry-level counselor, your first year you may be expected to get five. Those numbers are prorated. So the cutoff period is last business day of June, so if you have a new counselor that starts in February or March, they’re at a disadvantage, they don’t have the time. Time works against them. But if they are involved with their cases and they are trying to work their cases, I felt that it was only reasonable to assist them. * * * Q: Okay, so you said that Ms. Spradlin would have received a donation of successful cases maybe early on in her career? A: Yes. Q: Did she donate cases once she became a more proficient counselor? A: I’m pretty sure she did. Q: And did you specifically ask her to donate cases to any particular employee? A: No. Ms. Spradlin resigned from the Department on August 10, 2016. There is no sufficiently persuasive evidence to support Ms. Spradlin’s disparate treatment claims. The greater weight of the evidence demonstrates that Ms. Spradlin was not subjected to any disparate treatment during her tenure in the Marianna unit.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order dismissing Petitioner’s Petition for Relief. DONE AND ENTERED this 24th day of July 2018, in Tallahassee, Leon County, Florida. S G. W. CHISENHALL 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 24th day of July 2018.
The Issue The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.
Findings Of Fact Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor. ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792 Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Suresh Paul Pushkarna, pro se 309 Hidden Hollow Court Sanford, FL 32773
