The Issue Is Petitioner, M.G. entitled to receive developmental services from Respondent, Department of Children and Family Services (the Department), for his alleged developmental disability, retardation? Section 393.065, Florida Statutes.
Findings Of Fact M.G. is a Florida resident. He was born on January 29, 1982. M.G. lives with his father E.F.G. and his step-mother C.G. M.G. attends public high school. He is assigned classes for the severely emotionally disturbed. This special education program is very structured. M.G. has been in special education classes from the first grade to the present. He is currently in the eleventh grade. M.G.'s need to receive education in that environment is an indication that he suffers from deficits in adaptive behavior as manifested from early in his life and continuing to the present. The manner in which it is necessary to provide education to M.G. points out deficits in the effectiveness or degree to which M.G. may meet standards of personal independence and social responsibility expected of a person his age, cultural group, and community. Over his life M.G. has experienced deficits in adaptive behavior outside his educational environment. These deficits are in relation to day-to-day personal maintenance in matters of hygiene and health, self-motivation, and socialization. The Department takes no issue with M.G.'s established deficits in adaptive behavior manifested from early life and continuing to the present. The Department does dispute M.G.'s claim that he suffers from significantly subaverage general intellectual functioning that exists concurrently with his deficits in adaptive behavior. It is necessary for M.G. to establish that he has significantly subaverage general intellectual functioning existing concurrently with the deficits in adaptive behavior to gain eligibility for services to assist him with his claimed developmental disability. From the time M.G. reached school age to more recent times, he has been exposed to a number of tests designed to measure his general intellectual functioning. On June 30, 1988, M.G. was assessed under the Wechsler Intelligence Scale for Children - Revised (WISC-R). In that test his verbal IQ was 65, his performance IQ was 82, and his full scale IQ was 71. The Wechsler test is designed to measure performance for children up through 16 years and 11 months old. The Wechsler test has a standard deviation of 15 points. On February 24, 1994, M.G. was tested under the Wechsler Intelligence Scale for Children - Third Edition. On that occasion his verbal IQ was 63, his performance IQ was 70, and his full scale IQ was 64. On March 3, 1994, shortly after undergoing assessment by the Wechsler test, M.G. was tested through the Stanford-Binet Intelligence Scale: Fourth Edition. On verbal reasoning SAS he scored 70; on abstract/visual reasoning SAS he scored 85; on quantitative reasoning SAS he scored 84; on short-term memory SAS he scored 68; and his composite score on this test was 74. The Stanford-Binet test has a standard deviation of 16. On June 28, 1996, M.G. was assessed through a Wechsler Intelligence Scale for Children - Third Edition. On that date his verbal IQ was 64, his performance IQ was 81, and his full scale IQ was 70. On April 30, 1999, M.G. underwent a test through the Stanford-Binet Intelligence Scale: Fourth Edition. His verbal reasoning SAS score was 64. His abstract/visual reasoning SAS score was 91. His quantitative reasoning SAS score was 64. His short-term memory SAS score was 64. His test composite score was 67. The Wechsler and Stanford-Binet tests which M.G. was subjected to are standardized intelligence tests utilized by the Department to determine whether persons suffer from retardation in determining eligibility to receive services for developmental disability. Section 393.063(44), Florida Statutes. Ms. Josephine Joseph is a school psychologist. She has utilized the Wechsler and Stanford-Binet Intelligence Scale tests to evaluate her clients. Ms. Joseph administered M.G. the aforementioned tests given on June 28, 1996, and April 30, 1999. Ms. Joseph is expert in the administration and interpretation of the results from the Wechsler and Stanford-Binet tests. In explaining the results of the Wechsler test given M.G. on June 30, 1988, Ms. Joseph commented on the significant discrepancy between M.G.'s verbal and non-verbal skills, indicative of a developmental language disorder. Ms. Joseph described the verbal IQ score of 63 in the February 24, 1994, tests as a score in the mentally handicapped range of intelligence. She referred to the performance score of 70 as within the borderline range of intelligence. The full scale IQ score of 64 was described by Ms. Joseph as in the mentally handicapped range. The full scale score of 74 on the Stanford-Binet tests given on March 3, 1994, was described by Ms. Joseph as in the borderline range of intelligence. The retest by use of the Stanford-Binet was seen by Ms. Joseph as an attempt to allow M.G. to do the best he could in demonstrating his intelligence. Ms. Joseph, in describing the results of the Wechsler tests given to M.G. on June 28, 1996, referred to the verbal IQ score of 64 as within the educable mentally handicapped range. The performance IQ score of 81 was seen by Ms. Joseph in the low average range, slightly inflated by the Wechsler test. The full scale IQ of 70 was seen by Ms. Joseph as in the borderline range. In relation to the April 30, 1999, Stanford-Binet test, Ms. Joseph referred to the full scale score of 67 attained by M.G. as within the educable mentally handicapped range. In referring to all the tests that have been described, Ms. Joseph found the scores by M.G. to be basically in the same range, except for the June 30, 1988, results in the Wechsler test which Ms. Joseph described as in the borderline range, likewise in the results obtained for the Wechsler test on June 28, 1996. The results obtained on April 30, 1999, through the Stanford-Binet test represent the best measure of M.G.'s intelligence in Ms. Joseph's opinion. In that test the full scale score on the Stanford-Binet was 67. From that score, Ms. Joseph expressed the opinion that M.G. is mentally retarded. Dr. Sarah Robinson has a Ph.D. in Clinical Psychology, having also earned a Masters degree in Psychology. She is a licensed psychologist in the State of Florida. She is employed by the Department. Among her duties is the evaluation of applications to determine whether a person is eligible for developmental services for reason that the individual suffers from retardation. Dr. Robinson is expert in determining whether an individual has mental retardation in relation to the ability to obtain services for developmental disability under Chapter 393, Florida Statutes. In this instance, Dr. Robinson examined the test results that have been described and concluded that the level of intellectual functioning by M.G. was not such that he would be eligible to receive services under the law. With this determination, Dr. Robinson did not find it necessary to address any deficits which M.G. had in adaptive behavior as manifest during the period from conception to age 18. Dr. Robinson is aware of the proof concerning M.G.'s deficits in adaptive behavior and indicated in her testimony that she does not dispute what she described as "definite deficits in the area of adaptive behavior." Referring to the Wechsler test results in the June 30, 1988, tests given to M.G., Dr. Robinson notes the verbal intelligence score of 65 and the performance score of 82, a 17 point difference. Based upon reference sources that Dr. Robinson relies on, the difference in the two scores is unlikely to occur by chance alone. The difference is meaningful to Dr. Robinson. Her reaction is that the higher of the two scores is the better indicator of M.G.'s intellectual functioning. This differential in ability taken together with other information provided in the exhibits that were admitted in this proceeding leads Dr. Robinson to conclude that M.G. has a developmental language disorder. In examining the results of the Wechsler test given on February 24, 1994, in which M.G. scored 63 on the verbal and 70 on the performance portions, Dr. Robinson did not see those scores as significantly different in their portrayal. Therefore, the full scale score of 64 was looked at more critically in the assessment by Dr. Robinson. Dr. Robinson referred to the results in the Stanford-Binet tests given on March 3, 1994, where the full scale score was 74. Dr. Robinson noted that the evaluator in the two tests given in 1994 observed that M.G. tried harder on the Stanford-Binet test which would make the results in that test more meaningful. Dr. Robinson has given more credence to the results in the Stanford-Binet test. Dr. Robinson also notes, in relation to the Stanford-Binet test, that the abstract/visual reasoning SAS score of 85 and the quantitative reasoning SAS score of 84, which are similar to the performance portion of the Wechsler IQ test, point to greater intellectual functioning in those measurements than in the verbal reasoning SAS, which was a score of 70, and in short-term memory SAS, a score of 68. In Dr. Robinson's view, the number of points difference between abstract/visual reasoning and quantitative reasoning compared to verbal reasoning and short- term memory are not likely to be matters of chance. Dr. Robinson perceives those differences as meaningful. They represent consistent differences over time in the way that M.G. responds to the tests, when taking into account past evaluations. According to Dr. Robinson, they point to the fact that M.G. performs significantly better in the non-verbal or performance area and that M.G. has some kind of communications disorder or verbal learning disability. Again, as before, Dr. Robinson perceived that the higher area of ability is the best indicator of intellectual functioning. In referring to the Wechsler test given on June 28, 1996, Dr. Robinson points to the performance IQ score of 81 as being the best indicator of intellectual functioning. The difference between that score and the verbal score of 64 is statistically significant in that it is unlikely to occur by chance alone. Dr. Robinson sees the results in this test as describing an individual who has some kind of language disorder or verbal learning disability, not retardation. Dr. Robinson refers to M.G.'s skills as "uneven." By contrast, Dr. Robinson states the opinion that persons with mental retardation have what are referred to as "global delays," meaning that the individuals are "equally delayed in all areas" of ability. Dr. Robinson, in referring to the Stanford-Binet test given on April 30, 1999, notes the verbal reasoning score of 64 as compared to the abstract/visual reasoning score of 91, a 27 point differential. This is perceived by Dr. Robinson as consistent with the pattern of differences in scores experienced when M.G. took prior tests. Dr. Robinson notes that in the Stanford-Binet test given on that occasion, the mean test score for the overall test composite is 100. The standard deviation is 16. Two standard deviations from the mean would establish a score of 68 as within the retardation range. The score of 67 is one point below that cutoff. Nonetheless, Dr. Robinson expressed the opinion that when examining the overall pattern of scores, to include the differential between the score of 91 on abstract/visual reasoning SAS and the score of 64 on verbal reasoning SAS in this test, M.G. has significantly better non- verbal reasoning and problem-solving skills, with significant weaknesses in the area of verbal skills, probably indicative of a communication disorder that has not been remediated. In summarizing her opinion, Dr. Robinson refers to M.G. as an individual who has non-verbal reasoning ability that falls in the low average range of intelligence. In her opinion, M.G. has verbal skills that fall in the mild deficit or mild mental retardation. In her analysis, Dr. Robinson concludes that M.G. has had a life-long communication disorder or a verbal learning disability. Those opinions lead Dr. Robinson to believe that M.G. is not entitled to receive services as a person with the developmental disability of retardation. In performing her review, Dr. Robinson acted in accordance with the practice by the Department to rely upon test results obtained in the past, unless there was no basis for making a determination, in which case a personal interview or testing would have been arranged with the applicant. Dr. Robinson's opinion concerning M.G.'s level of intellectual functioning is accepted as a more reliable impression of M.G.'s intelligence when compared to the opinion expressed by Ms. Joseph.
Recommendation Upon consideration of the findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered denying M.G. eligibility to receive services for a developmental disability. DONE AND ENTERED this 27th day of July, 2000, in Tallahassee, Leon County, Florida. CHARLES C. ADAMS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 2000.
The Issue Whether Respondent properly invalidated Petitioner’s Florida Teacher Certification Examination for Health K-12 for violating test center rules, as alleged in the Agency Action Letter dated September 17, 2019.
Findings Of Fact Petitioner, Matthew B. Forrest, resides in Jacksonville, Florida where, at all times relevant hereto, he was a football coach and teacher of Health Opportunities in Physical Education (“HOPE”) at Creekside High School. In order to continue teaching HOPE for the 2019-2020 school year, Petitioner was required to become a certified teacher by passing both the General Knowledge and the Health K-12 components of the FTCE. Respondent, Richard Corcoran, as Commissioner of Education (hereinafter, “Respondent” or “Department), is the agency with the duty and authority to certify teachers for the State of Florida. For purposes of this Recommended Order, the Department is the “test program sponsor.” The Department administers the FTCE through third party test administrators. The test administrator in the instant case is a company known as “Pearson.” Petitioner took and passed the General Knowledge Examination on February 25, 2019. Petitioner took the Health K-12 Examination on three different occasions. The administration of the exam relevant hereto was on August 7, 2019. Two different types of breaks may be taken during test administration. A scheduled break is automatic, usually given between sections of an exam. The test administrator instructs candidates as to the length of the break and when to return to the testing room. During a scheduled break, a candidate may access personal items which have been stored at the test center. An unscheduled break is voluntary, and may include time to use the restroom or water fountain. John Hartzog was the test center administrator for the August 7, 2019 exam administration. Petitioner took three unscheduled breaks during the exam. The first lasted 16 minutes, while the other two breaks lasted 6 minutes each. At each break, Petitioner notified the proctor he was leaving to use the restroom. At the Florida Gateway College test center, the restrooms are separate from the testing rooms. The two are located in the same building, but are accessed by different entrances connected by an outdoor covered walkway. The restrooms are considered part of the test center building; however, the parking lot is not. During Petitioner’s third unscheduled break, Mr. Hartzog walked down to the restrooms to check on Petitioner. Mr. Hartzog observed Petitioner exiting his personal vehicle in the parking lot. Petitioner explained that he had water bottles stored in his vehicle and had retrieved and consumed a water bottle after he used the restroom. Through the window of the vehicle, Mr. Hartzog observed a case of 12- ounce water bottles on the back seat directly next to a beach bag, which was unzipped. Mr. Hartzog observed Petitioner’s exam study notes and other papers, as well as Petitioner’s cell phone, in plain view in the open bag.1 Administrative Charges On or about September 17, 2019, Petitioner received the Agency Action Letter, which states, in pertinent part, as follows: As noted on the program website under ‘Policies,’ the FTCE/FELE testing rules DO NOT permit an examinee to leave the test center or to access personal items during an unscheduled break. Therefore, the scores for your Health K-12 examination taken on August 7, 2019, have been invalidated. The Department has charged Petitioner with both leaving the test center, and accessing prohibited materials, during an unscheduled break.2 1 Mr. Hartzog photographed the items on the back seat, as well as the items in the open bag. The photographs were admitted in evidence as Respondent’s Exhibit 10. 2 The Department’s Agency Action Letter does not specifically state what actions taken by Petitioner constitute a violation of the rules. Respondent’s position was clarified throughout the final hearing.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commissioner of Education issue a final order invalidating Petitioner’s FTCE Health K-12 Examination due to his violations of test center rules during the August 7, 2019 administration of the exam. DONE AND ENTERED this 14th day of February, 2020, in Tallahassee, Leon County, Florida. S SUZANNE VAN WYK 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 14th day of February, 2020. COPIES FURNISHED: Matthew B. Forrest 10743 Alden Road, Unit 4 Jacksonville, Florida 32246 Bonnie Ann Wilmot, Esquire Department of Education 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Gavin Hollis Dunn, Esquire Department of Education 325 West Gaines Street, Suite 1244 Tallahassee, Florida 32399-0400 (eServed) Chris Emerson, Agency Clerk Department of Education Turlington Building, Suite 1520 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Richard Corcoran, Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed) Matthew Mears, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 (eServed)
The Issue The issues are whether Respondent violated standardized testing procedures while proctoring the SAT-9 Test for her first grade class, and if so, what penalty should be imposed.
Findings Of Fact Respondent holds Florida Educator Certificate No. 467712, covering the area of Elementary Education. Her certificate is valid through June 30, 2007. Respondent has been a public school teacher in Florida for 21 years. During that time, she has worked as a classroom teacher in fifth and first grades at four different schools. At all times material here, Respondent was a first grade teacher at Niblack Elementary School (Niblack) in Columbia County, Florida. Respondent was the curriculum resource teacher at Niblack for the 2000/2001 school term, the first year Niblack was established. She helped organize the new school, selecting textbooks and other school materials. She assisted in the development of school improvement plans and the creation of the Parent Teacher Organization. Respondent worked long hours beyond the normal school hours to ensure the success of Niblack as a neighborhood school. She had good report with the parents and the community. After her first year at Niblack, Respondent returned to the classroom as a first grade teacher because she missed being with the children. Prior to the incident at issue here, Respondent has never been the subject of any disciplinary action. She has always received positive teacher evaluations. For the school years 1999/2000, 2000/2001, and 2001/2002, Respondent's evaluations reflect that she met or exceeded expectations. When school began in the Fall of 2001, Nikki Crawford was the paraprofessional assigned to work with the first grade students at Niblack. In the first week of classes, a conflict arose between Ms. Crawford and some of the first grade teachers, including Respondent. The initial conflict involved the scheduling of Ms. Crawford's time in each of the first grade classrooms. Eventually, Mark Crutcher, Niblack's Principal, and personnel at the school district level had to intervene in order to resolve the conflict. The purpose of the intervention was to clarify that the teachers and not Ms. Crawford were in control of the classrooms. The SAT-9 is a standardized test that is used to evaluate student performance. The staff at Niblack uses the test results as a guide to determine what the students learned over the past year, how they compared to other students nationally, and where the students should be placed the following school year. The test results do not benefit an individual teacher personally or professionally. The school does not receive a grade or funding based on the test results. The administration of the SAT-9 in the first grade is the first time that students at Niblack experience a standardized test. For the 2001/2002 school year, the test was administered in April 2002. The SAT-9 is a secure test that requires teachers and proctors to undergo training on test procedures. Amber Todd, Niblack's guidance counselor and testing coordinator, provided that training for the 2001/2002 school term. During the training, Ms. Todd gave Respondent a copy of the state statutes governing testing procedures. On or about April 5, 2002, Respondent signed a document indicating that she had received a copy of the test security requirements for the 2001/2002 administration of the SAT-9. Ms. Todd gave Respondent a document outlining the general testing procedures at Niblack. The document explained the mechanics of distributing and returning the tests to the guidance counselor's office. In regard to test preparation, the document listed spatial seating as one of several topics. The topics relating to procedures during testing included, but were not limited to, cheating and disruptive behavior. The document did not reference appropriate or inappropriate communication between teachers and students during the test. Ms. Todd gave Respondent a photocopy of the test security page out of the test manual but did not give her a copy of the test manual. However, Ms. Todd informed Respondent that she could review the manual in Ms. Todd's office. Respondent had prior experience in administering the SAT-9. She did not take advantage of the opportunity to review the test manual in Ms. Todd's office prior to the test in April 2002. Ms. Todd informed Respondent that the desks in the classroom needed to be separated. Ms. Todd and the test manual directed Respondent to read the script in the manual verbatim and to strictly follow the time allowed for each test section. Finally, Ms. Todd told Respondent and Ms. Crawford that they had discretion to redirect students but not to coach them. Respondent and Ms. Crawford could tell students to stay in their seats, to stop talking, and to pay attention. Teachers and proctors were allowed to tell students they were working in the wrong section, to erase the answers in the wrong section, and to go back to the correct section. Ms. Crawford was assigned to proctor the SAT-9 in Respondent's class in April 2002. When the test began, Respondent had not separated all of the students' desks. With the exception of a couple of desks that had been moved to one side, the desks were arranged in the normal classroom configuration with desks touching in groups of threes. The only other change in the classroom was that the seating location of some students had been rearranged. Respondent did not separate the desks because she wanted room to walk between the students during the test. The classroom was small and crowded with 18 desks. However, the most persuasive evidence is that Respondent did not make an effort to separate the desks to the extent possible. When Respondent began the first section of the test, she read the script of the instructions to her students. She read the sample question, which was in a story format, and the multiple choice answers as required. Pursuant to the test instructions, Respondent had to direct some of the students to erase their answers to the sample question and to mark the correct answers. Respondent then deviated from the script by reading aloud the first part of the first test question and telling the students to put their finger where the question began. She did not read the answers to the first question. Respondent did not improperly read any other portion of the test. Respondent was responsible for timing each section of the test. At one point during the test, Ms. Crawford asked Respondent how long the students had to finish a test section. Respondent replied that they had until 9:20 a.m. Ms. Crawford's testimony that Respondent began the timed test at 8:54, allowing the students an extra 6 minutes to complete the section is not persuasive. Students are not allowed to work on test sections that are not being timed. In other words, if a student begins to work in section 2 while section 1 is being timed, the teacher and the proctor should tell the student to erase his or her answers in section 2 and go back to work on section 1. During the test, Ms. Crawford informed Respondent that a student named Tyler was working in the wrong section. Respondent then told Tyler to go back to the section she should have been working on. Respondent's communication with Tyler was not improper according to the training provided by Ms. Todd. Ms. Crawford also had to redirect a couple of Respondent's students to erase their answers in the wrong section of the test and to begin working in the correct test section. A second student named Latrice put her head on her desk and closed her booklet within five minutes after a timed test began. Respondent did not believe Latrice could not have finished the test so quickly. Respondent picked up and opened Latrice's booklet. Respondent told Latrice that she could not possibly be finished and needed to go back and check her answers. Respondent also told Latrice she must have some of the answers wrong. Respondent made this statement to Latrice without actually checking to see if any of her answers were wrong. Even so, Respondent's communication with Latrice was inappropriate. If Latrice had finished the test and closed her booklet, Respondent should have taken the booklet without telling Latrice that she needed to keep working because she must have some of the answers wrong. After the test, Ms. Crawford informed Ms. Todd that Respondent had violated the reading portion of the SAT-9 test procedures by failing to separate the desks, by failing to properly time the test on one section, by failing to follow the script, and by improperly coaching two students. Ms. Todd then informed Mr. Crutcher about the allegations of improper test procedures. The Columbia County School District decided to invalidate the reading portion of the SAT-9 test for Respondent's first grade class. They did not invalidate the math portion of the test. The school district then administered a substitute reading test to the students. The Columbia County School District subsequently suspended Respondent without pay from May 21, 2002, through May 28, 2002. Respondent transferred to another Columbia County school for the 2002/2003 school term. As of the date of the hearing, Respondent continued to be employed by the Columbia County School District.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the EPC enter a final order, placing Respondent’s teaching certificate on probation for a period of five years. DONE AND ENTERED this 20th day of November, 2003, in Tallahassee, Leon County, Florida. S SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 20th day of November, 2003. COPIES FURNISHED: Betty N. Goggins 1291 East Camp Street Lake City, Florida 32025 William B. Graham, Esquire Ginger L. Barry, Esquire McFarlain & Cassedy 305 South Gadsden Street Tallahassee, Florida 32301 Kathleen M. Richards, Executive Director Education Practices Commission Department of Education 325 West Gaines Street, Room 224E Tallahassee, Florida 32399 Marian Lambeth, Program Specialist Bureau of Educator Standards Department of Education 325 West Gaines Street, Suite 224E Tallahassee, Florida 32399-0400 Daniel J. Woodring, General Counsel Department of Education 1244 Turlington Building 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact Prior to March 9, 1983, Petitioner had been employed by Respondent for a period of approximately 13 years. On March 9, 1983, Petitioner was serving as Superintendent of Respondent's West Palm Beach Field Station, a position which required that he supervise some 88 of Respondent's employees. By memorandum dated March 9, 1983, Petitioner was terminated from his position with Respondent by virtue of Respondent's contention that he discharged his responsibilities in an unsatisfactory manner. In the memorandum of March 9, 1983, Petitioner was advised that he had been advised of the shortcomings leading to his discharge in performance reviews conducted pursuant to Respondent's Merit Review Program from as early as April 1977, through October of 1982. Respondent's Merit Review Program, which was in effect at the time of Petitioner's termination, "...establishes policies and procedures for evaluating and recognizing employee performance This policy....applies to all District employees filling a permanent position The program establishes a procedure whereby Respondent's employees are evaluated twice yearly to determine their level of performance and to make salary adjustments. There is no provision in the Merit Review Program for either disciplining or discharging a District employee as a result of performance reviews conducted pursuant to the policy. The Merit Review Program establishes six types of merit reviews, which include normal, interim, initial probation, proportional, positional probation, and special probation. Supervisory personnel conducting reviews are required to follow specific procedures within each of these categories. In addition to the six categories of merit reviews, the Merit Review Program establishes a complex and mandatory evaluation procedure for supervisors conducting reviews. The program also establishes a mandatory appeal procedure should an employee disagree with his rating. Evaluation factors utilized in the program are defined and established from "outstanding" performance to "unacceptable" performance. The program establishes specific performance categories including planning, organization, coordination, administration, control, human relations, knowledge of work, leadership, dependability, communications skills, efficiency, judgment, performance skills, initiative, cooperation, and job knowledge. Effective July 18, 1982, Respondent effectuated a Corrective Action Policy for resolving performance problems and violation of Respondent's rules of conduct. This policy categorizes unsatisfactory behavior, divides disciplinary action into four categories according to the Seriousness of the offense, and establishes penalties ranging from verbal warnings for less serious offenses to termination of employment for more serious violations. This policy is not challenged in this proceeding. The Merit Review Program, which is the subject matter of this proceeding, provides a procedure whereby employees may appeal the result of a merit review within five days of receipt of their copy of the Merit Review Form should they disagree with the contents of that review. Although Petitioner had received merit review ratings for at least seven years prior to the date of final hearing in this cause, there is no evidence that he ever appealed any such evaluation. Although it is undisputed that Respondent did not comply with the rulemaking procedures established In Section 120.54, Florida Statutes, prior to adoption of the Merit Review Program, it is equally clear that results from the Merit Review Program in this case were used solely to document Petitioners performance problems for purposes of applying Respondent's Corrective Action Policy, thereby resulting in Petitioner's discharge from employment
Findings Of Fact The National Council of Examiners for Engineering and Surveying (hereinafter "NCEES") writes and otherwise prepares the examinations for candidates seeking engineering licenses in 55 states and jurisdictions. The examinations are then administered by the states and jurisdictions which constitute NCEES' member boards. Respondent, State of Florida, Board of Professional Engineers, is a member board and uses NCEES' examinations. The Fundamentals of Engineering (hereinafter "FE") examination is given twice a year, in April and in October. The FE examination measures the basic knowledge a candidate has acquired in a bachelor degree program in the first two years during which the candidate takes basic engineering and science courses. Passage of the examination does not result in licensure as an engineer; it results in either an "engineer intern" or an "engineer in training" certificate which shows that the examinee has completed the necessary educational requirements to sit for that eight-hour examination and to have passed it. The next step is that a successful candidate will then complete four years of experience and then pass a principles and practices examination called the "PE" examination in order to then be licensed as a professional engineer. The FE exam is a minimal competency examination. Questions for the FE examination are written by individuals and are then reviewed by a committee. That committee is composed of registered professional engineers who are practicing engineers and engineers from the academic world, from consulting firms, and from governmental entities. Each question or item on the examination is reviewed by at least 12 to 15 individuals during the review process which takes from one to one and a half years. As part of the development process, individual items appear on examinations as pre-test questions. The purpose of using pre-test questions is to determine the characteristics of that specific item, as to how hard or easy the item is when used on the target population (candidates for the FE examination), and to verify that minimally competent candidates can answer the test item correctly. If pre-test questions perform as expected, they are used on subsequent examinations. If they do not perform adequately, the questions go back to the committee to be changed or to be discarded. Pre-test questions on examinations are not scored, and whether an examinee correctly answers that question is irrelevant to the raw score or final grade achieved by that candidate on the examination. Pre-test questions are distributed proportionately throughout the examination, and no subject area on the examination ever consists of only pre-test questions. Pre-test questions are used by other national testing programs. No unfairness inures to candidates from the presence of pre-test questions on an examination for two reasons. First, all candidates are treated equally. Candidates do not know that the examination contains pre-test questions, and, even if they did, they do not know which questions are pre-test questions and which questions will be scored. Second, the length of the examination itself is not increased by adding pre-test questions. The examination has the same number of questions whether pre-test questions are included or not. In the actual exam preparation, NCEES uses American College Testing and/or Educational Testing Service as contractors. The contractors pull the proper number of items in each subject area from the item bank and assemble the examination which is then sent to the NCEES committee of registered professional engineers to see if changes in the examination are necessary. Once approved, the contractor then prints the examination booklets and sends them to the member boards to administer the examination. Answer sheets from an exam administration are transmitted to the contractor for scanning and statistical analysis. The contractor then recommends a passing point based on a scaling and equating process so that future exams are no easier or harder than past exams. When NCEES approves the passing point, the contractor sends the examination scores or results to the member boards. When the examination is changed in some fashion, a new base line or pass point must be established to ensure that the new examination remains equal in difficulty to past examinations and remains a good measure of competency. The new examination is referred to as the anchor examination. The October, 1990, FE examination was an anchor exam. The member boards of NCEES determined that the October, 1993, FE examination would be changed to a supplied reference document examination, meaning that the candidate during the examination could use only the supplied reference handbook, a pencil, and a calculator. Candidates would no longer be able to bring their own reference materials to use during the examination. One of the reasons for the change was fairness to the candidates. The FE examination was not being administered uniformly nationwide since some member boards prohibited bringing certain publications into the examination which were allowed by other member boards. Accordingly, it was determined that NCEES would write and distribute at the examination its Fundamentals of Engineering Reference Handbook, thereby placing all candidates nationwide on an equal footing in that all examinees would be using this same reference material of charts, mathematical formulas, and conversion tables during the examination, and no other reference materials would be used during the examination itself. In August of 1991, NCEES approved the concept of a supplied reference handbook, and a beginning draft was sent to the FE sub-committee of the examination committee for review. The individual members of the sub-committee actually took two FE examinations using the draft of the supplied reference document to ensure that all material needed to solve the problems on an FE examination was included in the reference document and that the document was accurate. On a later occasion the committee took the examination that would be administered in October of 1993 using a subsequent draft of the supplied reference handbook. The last review of the handbook occurred in February of 1993 when the committee used that draft to review the October 1993 examination for the second time, and NCEES' Fundamentals of Engineering Reference Handbook, First Edition (1993) was finished. When NCEES received its first copies back from the printer, it mailed copies to the deans of engineering at 307 universities in the United States that have accredited engineering programs for review and input. As a result, NCEES became aware of some typographical and other errors contained in that document. In July of 1993 NCEES assembled a group of 12 individuals for a passing point workshop for the October 1993 a/k/a the '93 10 examination. The group consisted of three members of the committee, with the remainder being persons working in the academic world or as accreditation evaluators, and recent engineer interns who had passed the FE examination within the previous year and were not yet professional engineers. That group took the '93 10 FE examination using the first edition of the Handbook and then made judgments to determine the pass point for that examination. During that two day workshop, the errors in the Handbook were pointed out to the working group so it could determine if any of the errors contained in the Handbook had any impact on any of the problems contained in the '93 10 examination. The group determined that none of the errors in the Handbook impacted on any test item on the '93 10 FE examination. In September of 1993 subsequent to the passing point workshop, the '93 10 FE exam and the first edition of the Handbook went back to the committee of registered professional engineers for a final check, and that committee also determined that none of the errors in the Handbook would have any impact on the questions in the '93 10 FE examination. An errata sheet to the first edition of the Handbook was subsequently prepared but was not available until December of 1993. In September of 1994 the second printing of the Handbook was completed, and that version incorporated the changes contained on the errata sheet. Of the errors contained in the first edition of the Handbook, only one error was substantive; that is, one mathematical equation was wrong. However, no item on the '93 10 FE exam could be affected by that mathematical error. The remaining errors were typographical or simply matters of convention, i.e., errors in conventional terminology and symbols found in most textbooks such as the use of upper case instead of lower case or symbols being italicized as opposed to being non-italicized. Candidates for the '93 10 FE examination were able to purchase in advance as a study guide, a Fundamentals of Engineering sample examination which had its second printing in March of 1992. The sample examination was composed of questions taken from previous FE exams which would never be used again on an actual FE examination. The sample examination consisted of actual test questions and multiple choice answers. The sample examination did not show candidates how to solve the problems or work the computation, but merely gave multiple choice responses. Errors were contained on the two pages where the answers to the sample examination were given. The answer key was wrong as to two items on the morning sample examination and was wrong for all of the electrical circuit items, one of the subject areas included in the afternoon sample examination. An errata sheet was prepared and distributed in September of 1993 to those who had purchased the sample examination. Petitioner took the '93 10 FE examination, which contained 140 items during the morning portion and 70 items during the afternoon portion. Approximately 25 percent of the questions on the examination were pre-test questions. The minimum passing score for that examination was 70, and Petitioner achieved a score of only 68. Accordingly, Petitioner failed that examination.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Petitioner failed to achieve a passing score on the October 1993 Fundamentals of Engineering examination and dismissing the amended petition filed in this cause. DONE and ENTERED this 14th day of April, 1995, at Tallahassee, Florida. LINDA M. RIGOT, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 14th day of April, 1995. APPENDIX TO RECOMMENDED ORDER Petitioner's proposed findings of fact numbered 1-5 and 8 have been adopted either verbatim or in substance in this Recommended Order. Petitioner's proposed finding of fact numbered 7 has been rejected as being subordinate to the issues herein. Petitioner's proposed findings of fact numbered 6 and 9 have been rejected as not constituting findings of fact but rather as constituting recitation of the testimony or conclusions of law. Respondent's proposed findings of fact numbered 1-15 have been adopted either verbatim or in substance in this Recommended Order. Respondent's proposed finding of fact numbered 16 has been rejected as being unnecessary to the issues involved herein. COPIES FURNISHED: Wellington H. Meffert, II Assistant General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0750 Dorian Kenneth Zinck, pro se 521 Beech Road West Palm Beach, Florida 33409 Angel Gonzalez, Executive Director Board of Professional Engineers Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0755 Lynda Goodgame, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue Whether the application of Petitioner to participate in the Developmental Services Program offered by Respondent to benefit mentally retarded individuals should be granted.
Findings Of Fact An application filed on behalf of 20-year-old Janette Stone, Petitioner, to receive services of Respondent’s Developmental Services Program was denied by Respondent’s representative as documented in a letter dated January 16, 1997. Following submittal of Petitioner’s application, her eligibility for admission to the program was reviewed by Respondent’s staff psychologist, Filipinas Ripka. In order to determine Petitioner’s eligibility, Ripka reviewed psychological evaluations of Petitioner, three of which had been completed prior to Petitioner’s 18th birthday. One of the reviewed evaluations was made when Petitioner was 12 years of age. Another evaluation of Petitioner was completed when she was 15 years and eleven months of age. A third evaluation occurred when Petitioner was 17 years old. Petitioner received full-scale intelligence quotient (IQ) scores of 73, 72 and 73 respectively on the evaluations reviewed by Ripka. The evaluations were made on the revised Weschler Intelligence Scale For Children. The final evaluation, where Petitioner obtained a full-scale IQ score of 73, was made on the revised Weschler Adult Intelligence Scale. The IQ scores received by Petitioner were all within what is termed the borderline range of intellectual functioning, as opposed to test results indicative of significant cognitive or intellectual functioning impairment reflective of retardation. Petitioner would have had to score 69 or lower to be considered retarded and eligible for Respondent’s developmental program. Further, manifestation of such impairments must be documented prior to age 18 in order to demonstrate eligibility for participation in Respondent’s program. Accordingly, Ripka determined that Petitioner was ineligible to participate in the Developmental Services Program offered by Respondent because Petitioner exhibited only borderline intelligence prior to age 18, instead of cognitive or intellectual function impairment.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That Respondent enter a final order denying Petitioner’s application. DONE AND ENTERED this 12th day of January, 1998, in Tallahassee, Leon County, Florida. DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 1998. COPIES FURNISHED: Robin H. Conner, Esquire 1750 Highway A1A South, Suite B St. Augustine, Florida 32084 Roger L. D. Williams, Esquire Department of Children and Family Services Post Office Box 2417 Jacksonville, Florida 32217 Gregory D. Venz, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard A. Doran, Esquire Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
The Issue The issue is whether General Electric Company (GE) engaged in an unlawful employment practice by discriminating against Petitioner, Shahla Evans (Evans), on account of sex or by retaliating against her for filing a complaint of sex discrimination.
Findings Of Fact At all times relevant to this proceeding, Shahla Evans was employed at GE's Simulation & Control Systems department in Daytona Beach, Florida. The Simulation & Control Systems department (SCSD) is part of GE's aerospace business group. Employees at SCSD are primarily engaged in the design, development and assembly of computer generated visual simulation systems and training programs and of automated ship control systems. GE and SCSD are employers within the definition relevant to this case. Evans received her master's degree in computer science from the University of Utah in 1974 and another master's degree in electrical engineering in Iran in 1970. After moving to Florida from California, Evans was hired by GE at a salary level 10 and began work at SCSD on August 16, 1982. In her previous job she had excellent reviews and had in excess of ten years of experience in engineering and two years as an instructor and teaching assistant prior to coming on board at the GE's Daytona Beach facility. Evans' technical abilities and intellect rendered her an extremely talented engineer. Although Evans was initially offered a position at SCSD as a senior engineering programmer analyst, she did not accept the job because she was afraid it was too regimental and required too much programming. Prior to informing GE of her decision, however, she was contacted and interviewed by Dr. Richard Economy, SCSD's manager of advanced engineering. Unaware of the outstanding offer until their interview, Dr. Economy offered Evans a position in research & development, which she accepted. Dr. Economy extended the job offer based on Evans' resume and his belief that she was talented and could be a contributor to the company. The Simulation & Control Systems department is divided into sections, subsections and units. During the relevant time frame, Dr. Economy was the manager of advanced engineering, a subsection of the engineering section. The advanced engineering subsection consisted of four units. Until mid-1986, Evans received good to excellent evaluations, but notations consistently showed a need for improvement in the areas of negotiating, particularly in selling a product, taking a more diplomatic approach to leadership, and integrating her work with related projects. In 1985 she was promoted to level 11 and rated as progressing upwardly in her subsection. Dr. Economy recommended Evans for a promotion to level 12 in early 1986, however that recommendation was never approved. Until mid-1986, Evans' work involved Research and Development in Data Base Generations Systems (DBGS). At times the thrust of the DBGS Research and Development was to unify the Data Base Generation Systems. At that point the Research and Development Project was called Unified Special Modeling Systems (USMS). The thrust of Evan's work always involved Research and Development on Data Base Systems. She was a leader of the Data Base Research and Development effort under Dr. Economy. In May, 1986, Dr. Kenneth Donovan became Evans'unit manager. At the time, Evans and Barry Fishman, a white male, were co-managers of the database research & development project. During the latter part of 1986, Dr. Donovan took over the project manager role for the database area and another project in the advanced engineering architectural area. Although Evans and Fishman were still considered the leaders of the database project, Dr. Donovan became the overall manager of the project and remained the functional manager of the unit to which Evans was assigned. During the 1986-87 time frame, the business needs at SCSD changed from an internal focus on projects and research to applying research to the products SCSD was producing. These changes required significant communication between Evans and Fishman and other engineers outside the database project. In June of 1987, Evans' performance was evaluated by Dr. Donovan. In this performance evaluation, Dr. Donovan addressed certain areas of Evans' performance that needed improvement in order for her and the database project to succeed. The areas noted by Dr. Donovan were Evans' ability to communicate and negotiate with people outside her project in order for them to understand the project's needs and requirements. Sometime in the latter part of 1987, Dr. Donovan proposed that Evans assume the project manager role of the database area in 1988. This proposal was made in conjunction with a career planning discussion between Dr. Donovan and Evans. In the fourth quarter of 1987, Dr. Donovan sought the assistance of Evans and Fishman in drafting the 1988 plan for the database research & development effort. As a result of meetings and discussions between Dr. Donovan, Evans and Fishman, it was apparent to Dr. Donovan that changes he had proposed for the project in 1988 were viewed by Evans and Fishman as unrealistic. Based on Dr. Donovan's perception that Evans had not made sufficient progress in the development needs he identified in the 1987 performance evaluation in terms of communication skills, willingness to negotiate, and a willingness to determine the needs of other projects, and because of Evans' handling of the interchanges with other project leaders, he did not feel she was suited for the project manager role at that time. Several memoranda were generated regarding the work necessary to finalize the 1988 plan. These memoranda, which are Petitioner's exhibits 7, 8 and 10, bear the names of Evans and Fishman and were distributed to Dr. Donovan, Dr. Economy and others. Although Fishman, and not Evans, drafted these memoranda, Evans agreed with their content and allowed them to be distributed with her name on them. Dr. Donovan responded to those memos from Evans and Fishman on February 9, 1988. On March 14, 1988, Dr. Donovan wrote Evans a memo entitled "Unsatisfactory Performance." Prior to this memo, Dr. Donovan had had several discussions with Evans regarding what Dr. Donovan felt were areas Evans needed to improve in order to build the support necessary to get the database project incorporated into GE's products. Dr. Donovan cited several events that concerned him, some of which were the three memoranda from Evans and Fishman. The March 14, 1988, memo addressed certain actions by Evans which were not constructive to the database project and were even derogatory towards the professionalism and views of other engineers. The memo indicated that Evans' behavior must change and that Dr. Donovan desired to meet with her as soon as possible to discuss the situation. Dr. Economy concurred with this memorandum. Dr. Donovan did not send a similar memo to Fishman because he was not Fishman's unit or functional manager. During that time, Fishman was in a unit managed by Randy Abidin. As Fishman's unit manager, Abidin believed the best way to address the derogatory comments and negative tone of the memos was in a direct meeting with Fishman. Although Fishman does not have a clear recollection of the memos being addressed by Abidin, he recalled a meeting with Abidin during this time frame where Abidin referred to problems between Evans and Dr. Donovan. Abidin told Fishman in a face to face meeting that the memos were unprofessional and to cease writing them. Dr. Donovan never took any action with respect to the USMS project that affected Evans only. Any changes in the direction or breadth of the project affected Barry Fishman just as much as Evans. On March 22, 1988, Evans sent a letter to the manager of SCSD's personnel department, Robert Tucker. In that letter, Evans complained about Dr. Donovan's March 14, 1988 memo. Nowhere in that letter did she complain that she believed she was a victim of gender discrimination. Mr. Tucker referred Evans' March 22, 1988, letter to Wayne Norfleet for a reply. Mr. Norfleet has been in employee relations with GE for 25 years. Through Norfleet's assistance, a meeting between Evans and Dr. Donovan was arranged in order to allow both of them the opportunity to air their grievances, concerns and criticisms of each other in a face to face session. Dr. Donovan documented the discussion process with a note and letter to Evans on May 16, 1988. Dr. Donovan was willing to continue the process; however, at Evans' request, she was transferred to a different unit in advanced engineering headed by Stanley Urbanek. This transfer took place in the summer of 1988. In June of 1988, Dr. Donovan became a consultant with the company and no longer had any supervisory responsibilities over Evans. After her transfer to Mr. Urbanek's unit in the summer of 1988, Evans continued to do the same work as before. GE has a policy that allows exempt employees such as Evans to self- nominate for open positions in the department. During 1988 and the early part of 1989, Evans applied for several posted positions. Ms. Evans was not selected for any posted position for which she applied. The persons selected for the positions were all males. The only position for which she applied that was the subject of much evidence was the position of Advanced Course Supervisor. While Evans was equally qualified on paper, Don Rollins was hired for that position because of his outgoing personality, his history of thoroughness and technical achievement, his performance as a student in the advanced courses, and his communication skills. Evans did not have a good interview for the position. No evidence was presented to show any discriminatory motive in GE's personnel selections for these positions. Evans remained in Urbanek's unit and continued to work on the USMS project until October, 1988. After Dr. Donovan's transfer, Dr. Economy selected Bob Ferguson to be project manager in the database area. Ferguson was selected for the project manager role because the USMS activity Evans had been working on was perceived by management not to be broad enough to cover all of GE's image generator business activities. Because Ferguson had image generator experience, he was selected. Because of Ferguson's concern about Evans' focus in research and development, he did not select her to work on the database project. Although Fishman was approached and asked to work part time on the project, he refused this offer. Ms. Evans claims that she was advised on two occasions by her managers to leave GE, once by Dr. Economy and then again by Mr. Urbanek. The managers who are alleged to have told Evans this deny any such statement. They both testified that leaving the company was mentioned in passing with Evans as a career option that any employee could choose if they were dissatisfied with the circumstances of their employment. Evans was openly expressing such dissatisfaction. After Dr. Donovan left the unit manager position in 1988, Dr. Economy acted as unit manager until March of 1989 when he selected Michael Nelson to fill the position. On at least two occasions, Nelson attempted to assign tasks to Evans. On both occasions, Evans told Nelson that she did not want to do the tasks. She told Nelson she was more qualified for other kinds of jobs and that she should be doing managerial type of work. She believed the tasks to be programming and she did not want to do programming. In April, 1989, Evans filed a complaint with the Florida Commission on Human Relations. In the complaint, Evans charged that projects were taken away from her and she was not being given any work, all because she was a female. From January, 1988, through September of 1989, Evans claims that she spent most of her time doing technical and professional studies and received no assignments from any GE managers. GE's aerospace business began a downturn in 1987, and by 1989, SCSD had more employees in advanced engineering than its business could accommodate. In the spring of 1989, GE identified several employees to be laid off. Other employees were transferred to different areas of the department. Evans was considered for layoff in 1989, but considering its affirmative action responsibilities, GE chose not to place Evans on lack of work status. In August, 1989, Dr. Economy told Evans that she should go see Tim Connolly because he had a job for her. Mr. Connolly was the manager of systems engineering, which is another subsection of the engineering section at SCSD. Dr. Economy encouraged Evans to take this job. Because of reductions in his subsection, Dr. Economy did not have a position for her in advanced engineering. Mr. Connolly's subsection was in charge of upgrading the software system from a microcomputer environment to a network environment in order to incorporate the database system into the product for delivery to customers by the end of the year. From discussions with Dr. Economy, Connolly was aware that there had been a relationship problem between Dr. Donovan and Evans. Connolly was not aware until told by Evans, however, that she had filed a discrimination complaint against the company. Ms. Evans claims that she made it clear to Mr. Connolly prior to accepting a position in his subsection that she would not do programming work. Prior to officially accepting a position in Connolly's subsection, Evans spoke with Mr. Urbanek, who was to be her unit manager. Although Evans claims to have informed Urbanek that she would not do any programming, Urbanek recalls that Evans said she did not want to be a programmer. Mr. Urbanek and Evans discussed the fact that essentially all of the positions in his unit involved some aspect of software engineering or programming. A programmer is an employee whose entire job consists of operating a keypunch machine. A programmer takes a design given to them by someone else and puts it into programming language. On the other hand, a software engineer is someone who designs and selects requirements for other aspects of software engineering. Part of a software engineer's tasks includes programming. Evans officially joined Connolly's subsection on September 11, 1989. Prior to her joining Connolly's subsection, Urbanek was transferred. Accordingly, Evans reported directly to Connolly after she joined the advanced database engineering unit. Upon joining the unit, Connolly gave Evans tasks to be accomplished. Ms. Evans' initial reactions was that she did not want to perform many of the tasks because they involved programming. According to Connolly, the tasks were high level systems tasks that required implementation and testing of the computer systems in order to put the systems in the product for sale to the customer. Ms. Evans felt that the tasks assigned to her constituted a demotion. She felt like she was not qualified to do the tasks and she did not understand the system. While she was capable of doing tasks involving some programming, Evans simply believed that she should not have to do any programming. Ms. Evans told Mr. Connolly that she would not and could not do the tasks he assigned her. Upon learning that Evans needed more time to understand how the system worked, Connolly agreed to give her more time, and in fact, gave her more time to understand tasks than any person that had come into his area from another area. Because of Evans' continued refusal to do the work assigned and because in several of the conversations between her and Connolly she made outbursts about the assignments and GE in general, Connolly went to see Norfleet in employee relations. Norfleet recommended that a work package be put together that involved tasks indisputably within Ms. Evans' expertise and skill level. It was decided that if Evans refused to accept the assignment, it would be explained to her that he actions left Connolly no choice but to recommend that she be terminated. After Connolly's meeting with Norfleet, Connolly assigned Evans a detailed design, implementation, validation and documentation task involving DMA manuscript files. Ms. Evans refused to do this task. These tasks were within her expertise, training and experience. Mr. Connolly told Evans that she should go home and consider the consequences of her refusal to perform the work assigned to her. When she returned the next day, she again refused to perform any task involving detailed design, implementation, validation or documentation, because she incorrectly classified the tasks as being programming. After seeking and receiving the approval of his immediate manager, Connolly notified Evans that her employment was terminated on October 6, 1989.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order determining that Shahla Evans has failed to establish that GE discriminated against her on the basis of her sex in the decisions affecting her employment. DONE and ENTERED this 23rd day of October, 1992, in Tallahassee, Florida. DIANE K. KIESLING Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 23rd day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NOS. 91-6396 AND 91-6879 The following constitutes my specific rulings pursuant to Section 120.59(2), Florida Statutes, on the proposed findings of fact submitted by the parties in this case. Specific Rulings on Proposed Findings of Fact Submitted by Petitioner, Shahla Evans 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 3(1); 4&5(2); 6&7(3); 8(4); 9(5); 11(5); 12(2); 19&20(7); 24(8); 30(9); 31(10); 107(42); and 127(50). 2. Proposed findings of fact 1, 2, 13-17, 21, 23, 25, 34-36, 40- 50, 52-54, 57-68, 72, 75-89, 95, 98-104, 106, 108, 113, 115- 118, 122-126, 128-131, 136, 137, 139, 140, 142-149, 152-155, 157-160, 164, and 165 are subordinate to the facts actually found in this Recommended Order. 3. Proposed findings of fact 10, 18, 22, 27, 28, 32, 33, 37-39, 51, 55, 56, 69-71, 73, 74, 90-94, 96-both 97s, 105, 111, 112, 114, 119-121, 132-135, 138, 141, 151, and 156 are unsupported by the credible competent and substantial evidence. Proposed findings of fact 26, 29, 109, 110, 150, and 162 are irrelevant. Proposed findings of fact 161, 163, and 166-168 are unnecessary. Specific Rulings on Proposed Findings of Fact Submitted by Respondent, General Electric Company 1. Each of the following proposed findings of fact is adopted in substance as modified in the Recommended Order. The number in parentheses is the Finding of Fact which so adopts the proposed finding of fact: 1(1); 2(2); 3-5(4-6); 6-10(11-14); 11-15(15-18); 16-25(19-27); 26-30(28-31); 31-34(32-34); 35- 49(35-47); and 50-63(48-61). COPIES FURNISHED: Rick Kolodinsky Attorney at Law 1055 N. Dixie Highway, Suite 1 New Smyrna Beach, Florida 32169 Francis M. McDonald, Jr. Attorney at Law Olympia Place, Suite 1800 800 North Magnolia Avenue Post Office Box 2513 Orlando, Florida 32802-2513 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113 Margaret Jones, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4113
Findings Of Fact Steven Frank (Petitioner) is legally incompetent and his adoptive father, Edward Frank, is his guardian. At the time of the hearing, Petitioner, a 37-year-old male, was a patient at South Florida State Hospital 1/ in West Palm Beach, Florida, on a unit for persons who have been dually diagnosed with developmental disabilities and mental illness. At the facility he is receiving treatment for his mental illness. He has not been given an IQ test since being admitted. As a child, Petitioner was determined to be mentally retarded. Before he was eight years old, Petitioner had been given IQ tests on several occasions, and his IQ ranged from 52 (moderate mental retardation) to 58 (mild mental retardation). At age eight, he tested at 68 (mild mental retardation). As a teenager, Petitioner began to receive psychiatric treatment. Around the age of seventeen, he began to have violent outbursts. Throughout his adult life, Petitioner has received psychiatric treatment at a number of facilities. At some of the facilities, his IQ was tested. In 1983, around the age of twenty-seven, Petitioner was a psychiatric patient at Sharon General Hospital. He was given an IQ test and tested at 72, which equated to general intellectual functioning in the borderline range. In late 1986, Petitioner was admitted to Jackson Memorial Hospital in Miami, Florida, for diagnosis purposes to determine if alternative treatment would be beneficial. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. In 1987, around the age of thirty-one, Petitioner was a psychiatric patient at Montanari Residential Treatment Center, a residential treatment facility in Hialeah, Florida. He was given an IQ test and tested at 75, which equated to borderline range of intellectual functioning. Petitioner was diagnosed, among other things, as being a chronic, residual schizophrenic and as having borderline intellectual functioning and pervasive developmental disorder. He also showed signs of organic brain damage. In 1989, Petitioner was discharged from Montanari, even though there was no improvement in his condition, because of the decision by Developmental Services of the Department of Health and Rehabilitative Services (Respondent) to place Petitioner in a group home setting. In 1987, Petitioner was determined eligible for the Developmental Services Program by Respondent's District XI, the Dade County area, even though he tested 75 on the IQ test. Petitioner has not been given an IQ test since 1987. The accepted criteria used for determining mental retardation and used by Respondent to determine eligibility for its Developmental Services Program is as follows: Significantly subaverage intellectual functioning: an IQ of approximately 70 or below on an individually administered IQ test (for infants, a clinical judgment of significantly subaverage intellectual functioning). Concurrent deficits or impairments in present adaptive functioning (i.e., the person's effective- ness in meeting the standards expected for his or her age by his or her cultural group) in at least two of the following areas: communication, self-care, home living, social/interpersonal skills, use of community resources, self-direction, functional academic skills, work, leisure, health, and safety. The onset is before age 18 years. Code based on degree of severity reflecting level of intellectual impairment: 317 Mild Mental Retardation: IQ level 50-55 to approximately 70 Moderate Mental Retardation: IQ level 35-40 to 50-55 Severe Mental Retardation: IQ level 20-25 to 35-40 Profound Mental Retardation: IQ level below 20 or 25 319 Mental retardation, Severity Unspecified: when there is strong presumption of Mental Retardation but the person's intelligence is untestable by standard tests On the IQ tests there is a three-point margin of error. In determining an individual's eligibility for its Developmental Services Program, Respondent has a two-step process. First, it determines whether the individual meets the IQ requirement for mental retardation. If, and only if, the individual satisfies this first step, does Respondent proceed to the second step which is determining whether the individual meets the adaptive functioning requirements. In making determinations regarding mental retardation, Respondent does not consider IQ test results prior to age nine because such tests results are not considered reliable for placing a child. Environmental factors may interfere with test results and labeling children as mentally retarded may interfere with the child receiving an appropriate education. The basis for placement is clinical judgment. At the request of Respondent's District IX, the Palm Beach County area, in October 1993, while a patient in the psychiatric unit at the University Medical Center in Jacksonville, Florida, a psychological evaluation of Petitioner was performed. The purpose of the evaluation was to assist District IX in determining Petitioner's eligibility for its Developmental Services Program. The evaluation was completed in one day with no intelligence testing being performed due to Petitioner's mental condition at that time. 2/ The psychologist reviewed Petitioner's past records, observed Petitioner, and interviewed staff. She determined that Petitioner was not mentally retarded based upon him testing at 72 and 75 on the IQ tests previously administered as an adult, which was beyond his developmental years, and that he was, therefore, not eligible for Respondent's Developmental Services Program. Respondent's evaluator determined that Petitioner failed to satisfy the IQ requirements and, therefore, it was not necessary to examine Petitioner's adaptive functioning. At the request of Petitioner's parents, in January 1994, a psychological examination was performed on Petitioner, while he was a patient at South Florida State Hospital, by a psychologist. The examination occurred over several occasions, on different days and at different times of the day. Additionally, Petitioner's records were examined and interviews of the hospital staff on Petitioner's unit and his parents were conducted. Again, no IQ test was administered. The psychologist's diagnosis was consistent with that expressed by South Florida State Hospital: Petitioner suffered from both developmental disabilities and mental illness. The psychologist determined that Petitioner was eligible for Respondent's Developmental Services Program and for psychiatric services. Petitioner's IQ results in his late twenties and early thirties should be evaluated from the lower tested result, i.e., at 72, and the margin of error should be placed at the lower, not the higher, spectrum. The lower tested result now becomes 69. Petitioner has a significant delay in social/adaptive skills and has deficits or impairments in adaptive functioning in the following areas: communication, self-care, home living, social/interpersonal skills, self- direction, work, leisure, health, and safety. His strong area is functional academic skills. Petitioner has both developmental and psychiatric needs. One need is not more important than the other; Petitioner requires assistance in both. An intermediate care facility for the mentally retarded is best suited to address Petitioner's dual needs. Respondent's Developmental Services Program is not an entitlement program. Even though an individual may be eligible for the Program, the individual may not be admitted to the program if funds are not available. There is no dispute regarding the onset of Petitioner's condition before eighteen years of age.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order declaring Steven Frank eligible for the Developmental Services Program and placement in the intermediate care facility for the mentally retarded. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of October 1994. ERROL H. POWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of October 1994.
The Issue The issue in this case is whether the Petitioner, Robin Carter Millan, is eligible for the Developmental Services Program of the Department of Children and Family Services (DCFS).
Findings Of Fact The Petitioner, Robin Carter Millan, requested developmental services from the Department of Children and Family Services (DCFS) in September 1997, when she was 26 years old. The Petitioner's mother, Ann Millan, met with an intake counselor and completed a Referral/Intake Information Questionnaire. Consistent with a long-standing preference not to label her child as autistic, Mrs. Millan listed her daughter's primary disability as mental retardation. After the Petitioner submitted additional information, DCFS psychologist specialist-coordinator Jane Schiereck sent the Petitioner a letter dated March 6, 1998, notifying the Petitioner that DCFS had determined her ineligible for developmental services because the information submitted included IQ test scores exceeding the maximum for mental retardation. At the hearing, the Petitioner's mother presented evidence that the Petitioner actually has autism--a pervasive, neurologically-based developmental disability which causes severe learning, communication, and behavior disorders with age of onset during childhood. Schiereck testified that the evidence proved the Petitioner is eligible for developmental services under the category of autism. According to Schiereck, the Petitioner did not apply for services under the category of autism and that the Petitioner had to reapply under autism. The Petitioner agreed to do so. However, Schiereck also testified that the intake procedures and eligibility determination preceded the filing of an application.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that DCFS enter a final order determining the Petitioner eligible for developmental services. DONE AND ENTERED this 14th day of May, 1999, in Tallahassee, Leon County, Florida. J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 14th day of May, 1999. COPIES FURNISHED: Amy V. Archibald, Esquire Department of Children and Family Services 11351 Ulmerton Road, Suite 100 Largo, Florida 33778-1630 Robin Carter Millan c/o Robert and Ann Millan 3963 Eagle Cove West Drive Palm Harbor, Florida 34685 John S. Slye, General Counsel Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700 Gregory D. Venz, Agency Clerk Department of Children and Family Services Building 2, Room 204 1317 Winewood Boulevard Tallahassee, Florida 32399-0700
