The Issue Should Petitioner be granted an exemption from disqualification?
Findings Of Fact Petitioner, Corey Jay Bryden, applied for the position of counselor with ResCare, which is a counseling center for troubled youth. Petitioner was screened for this position as required by Chapter 435, Florida Statutes. As a result of this screening, it was reported that he had been convicted of aggravated assault in 1991. Aggravated assault is one of the disqualifying offenses designated by Chapter 435, Florida Statutes. Petitioner was notified that the records revealed that he had a disqualifying offense, and that he would have to apply for an exemption. Petitioner requested an exemption, and this was denied after an initial hearing. At that hearing inquiry was made into his work history and other criminal history. Petitioner candidly admitted to the committee and at formal hearing that he had become medically addicted to a prescription medication and gone through successful treatment. He also revealed at both proceedings that he had been arrested in an incident with his girlfriend while he was intoxicated. Petitioner testified regarding his diagnosis as being bipolar and having poor impulse control. He was treated in hospital for this problem and released, and he successfully controls this problem with medication. Regarding the offense for which he was disqualified, he was arrested for assault in 1991 and was in pre-trial incarcerated from 1991 until 1992 when he pled nolo contendere to aggravated assault. He was placed in house arrest from 1992 until 1994. Petitioner has been employed when not in jail, on house arrest, or hospitalized. He has been at different times between 1994 and the present a "house husband," a self-employed air- conditioning mechanic, a counselor, and a self-employed artist. In December, 1995, Petitioner admitted himself to the hospital for treatment of a medically-induced addiction to Ativan. He was hospitalized for three weeks and has had no further problems with this drug. From his release until 1996, Petitioner took no medication, and in 1996 he was arrested for an incident involving his girlfriend. The charges were dropped, but as a result he was re-assessed medically and placed on medication to control his bipolar condition. He is now prescribed Lithium and Depakote. This evidence was credible and unrefuted. In 1999, he went to work in Orange County as a counselor in a facility similar to the one at which he applied in Marion County that gave rise to this proceeding. He was determined to be “Qualified” in Orange County and employed. His work history in Orange County was favorable, and he received several promotions. It was on the basis of this employment that he was considered for the job in Marion County. Troy McDermott, who served on the committee that considered Petitioner’s exemption, testified. Mr. McDermott was concerned about Petitioner's “addiction” and about his arrest while intoxicated. Mr. McDermott was of the opinion that one who has been addicted must be in a twelve-step program to have recovered. While participation in such a program may be helpful to recovery, it is certainly not required for recovery. For the committee to establish participation in a twelve-step program as a condition for an exemption is not authorized by rule or statute. There was no evidence presented by Respondent that Petitioner abuses controlled substances. The committee also was concerned about Petitioner’s bipolar condition. Petitioner testified that he had been treated for his bipolar disorder. If one is bipolar there is no cure; a person's treatment is successful as long as he or she takes medication. Petitioner is taking his medication, and Respondent presented no contrary evidence. This testimony was credible, and unrefuted. The committee totally discounted Petitioner’s work in a facility like the one in which he was seeking employment. This evidence showed Petitioner performed duties similar to those he would be performing without problems. Performance of duties in a similar setting is an accurate prognosticator of Petitioner’s ability to work in a facility without problems after his treatment for addiction and bipolar disorder. At formal hearing, Respondent was not prepared to prove Petitioner’s disqualification; however, Petitioner admitted the offense and testified about the circumstances surrounding the original offense. This offense occurred when Petitioner was just old enough to be tried as an adult, at the conclusion of what Petitioner admits was a troubled youth impacted by his bipolar condition. Petitioner became involved in a fight between two former friends. When Petitioner's friend received the worst of the fight, Petitioner intervened by showing a knife to the other person to stop the fight. He did not injure anyone, and he and his friend left the scene when his friend was released by the other combatant.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law set forth herein, it is RECOMMENDED: That Respondent enter a final order granting Petitioner's exemption from disqualification. DONE AND ENTERED this 8th day of April, 2002, in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 8th day of April, 2002. COPIES FURNISHED: Corey Jay Bryden 19151 Southwest 49th place Dunnellon, Florida 34432 Ralph J. McMurphy, Esquire Department of Children and Family Services 1601 West Gulf Atlantic Highway Wildwood, Florida 34785-8158 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204 Tallahassee, Florida 32399-0700
The Issue Petitioner, a former employee of Respondent School Board, has alleged that the Respondent violated section 760.10, F.S., by discriminating against him based on his handicap. The basic issue is whether that violation occurred and if so, what relief is appropriate. However, in this protracted proceeding various ancillary issues have been raised and also require disposition. Those issues include: Whether Petitioner's claim of discrimination based on failure to hire was timely; whether Petitioner may also claim discrimination based on wrongful termination or is that claim time-barred; whether evidence of Petitioner's criminal history, acquired by Respondent during the pendency of the proceeding and after the alleged discrimination, is relevant in the proceeding and, if so, whether it is a bar to, or simple limitation on relief; and whether Petitioner's motion to proceed anonymously, filed after the evidentiary hearing, should be granted.
Findings Of Fact Petitioner (Sanford) was first hired as a bus driver by the school board on February 8, 1968, and became an operations administrative assistant on October 1, 1982. As bus driver, and in the early years as an administrative assistant, he received above average, outstanding or (after the evaluation form changed) satisfactory performance ratings. In 1986 Sanford was supervised by the operations chief, Geraldine Hanna. Ms. Hanna initially felt fortunate at having an administrative assistant, but after three or four weeks she had major concerns about his job performance. Sanford required excessive supervision to complete a task; there were errors, and the tasks were not being completed within deadlines. She observed his frustration and inappropriate language over the air and within the dispatch office. The school board had recently initiated an employee assistance program (EAP), and suspecting "something was wrong", Ms. Hanna referred Sanford to the program. Although she never smelled alcohol or observed the employee stumbling or staggering, Hanna felt Sanford had some type of substance abuse problem and told him that she suspected something was going on. The first EAP referral was made through Dave Wofford, Director of Transportation, to Scott Diebler, Senior Manager for the Orange County School Board's EAP. Wofford was considered a "hard-nosed" supervisor, but Scott Diebler felt that he went further with Sanford than normally because of Sanford's long prior excellent record of performance. Sanford was referred again to the EAP, directly by Hanna, in fall 1986 or spring 1987, as the performance problems persisted. These performance problems are detailed in a classified evaluation report dated 4/10/87 and signed by both Gary Sanford and Geraldine Hanna. A narrative attachment to the report cites examples and concludes: The recited examples give evidence of [Sanford's] inability to complete duties in a timely, effective and organized manner. He demonstrates no initiative in the performance of his duties and cannot work without supervision. His lack of proper documentation and follow-through have resulted in frustration on the part of the management staff. (Respondent's Ex. #8) Scott Diebler met with Sanford and his supervisors and arranged to have Sanford evaluated by outside professionals with whom the program contracted for services. At some point, Hanna and Sanford met together with a counsellor. Sanford's initial symptoms were typical of emotional and mental health problems; there were mood swings, hyperactivity and excitability. Shortly after several different professional opinions were obtained, Diebler determined that the primary presenting problem was chemical dependency (alcohol, marijuana and cocaine) and that there were secondary emotional problems. Sanford admits that in 1986 and 1987 he would go home after getting off work at 2:30 p.m. and would drink until he fell asleep. He denies ever drinking on the job. Beginning in September 1986 Sanford was treated by an EAP service provider, Psychological Service Associates, through Recovery Alternatives, Inc. (RAI). He completed Phase I of outpatient intensive group and individual therapy and was transferred to Phase II, which included Alcoholics Anonymous meetings. There is no evidence that Sanford successfully completed Phase II. The treatment he received temporarily alleviated, but in no way "cured" his addiction. According to competent expert witnesses, alcoholism as a disease is never cured. In a proper recovery program and with proper motivation, an individual may recover and arrest the disease. At times throughout his history at the EAP Sanford abstained and showed some progress toward recovery. He also experienced periods of relapse, with no progress. Sanford attended some AA meetings in 1987, but not enough to help. At that stage he was still in "denial" and tended to blame others for his problems. When the performance problems in the Department of Transportation did not improve and Sanford was headed for a "disciplinary scenario", as observed by Scott Diebler, the EAP helped Sanford find a transfer to another department. The idea was that if the performance problems were the result of a personality conflict, a transfer would resolve the conflict. Richard Staples was senior administrator for warehouse and distribution in 1988, when he agreed to accept Sanford for transfer to a courier position with the understanding that Sanford would follow through with his offered assistance through EAP. Sanford's performance improved for a time, and on March 11, 1988, Staples evaluated him as "satisfactory", with "excellent" ratings in dependability, adaptability and attitude. By May 1989, performance deteriorated, and primarily because of attendance problems, Staples referred Sanford back to Scott Diebler and the EAP. Diebler acknowledged the referral with a memo to Staples informing him that Sanford was referred to an outpatient program at Florida Psychiatric Associates. On July 10, 1989, Sanford was absent without authorization during assigned work hours despite having been warned in May that he was to notify Staples personally with regard to any need for absence from the worksite. Staples sent Sanford a written confirmation of their July 13, 1989 meeting regarding the absence, with a warning that reoccurrence would result in a one- week suspension without pay. Sanford admits that the July 10th absence was related to his drinking. He was drinking heavily daily after work and was using cocaine on weekends during this period. He does not know how much alcohol he consumed, but as before, he drank steadily from the time he came home from work until he passed out. On July 17, 1989, someone who identified herself as a parent of an Oak Hill Elementary School child telephoned the mailroom of the courier department and informed Richard Sanders, the relief courier driver helping the mail clerk, that an Orange County School Board courier was drunk and stumbling and falling into the truck. The message was given to Richard Staples. Oak Hill was on Sanford's route. Staples checked Sanford's route schedule and had his secretary call the next two schools to tell Sanford to stay where he was and call Staples' office. Staples then took a relief driver and another administrator, Steve Wind, and found Sanford at West Orange High School, waiting as instructed. While Sanford was waiting for Staples he called Staples' secretary twice, each time talking incoherently and very upset. She kept telling him he had to wait at the school for Staples. When Staples found him waiting at the school lobby, Sanford's demeanor was lethargic and he did not appear to have himself under control. Steve Wind observed Sanford's speech as slurred and his eyes were glassy. He was unsteady, but not staggering. Staples drove Sanford to his house, with Wind in the backseat, and the relief driver finished the route. Sanford asked Staples to take him to the warehouse so he could get his car, but Staples told him that he did not want him driving in his condition. Staples asked several times if Sanford wanted to stop by a clinic on the way home. Sanford said, no. Several times Sanford asked what was going to happen and was he going to be fired. Staples said he did not know, and was only concerned about Sanford getting home. Sanford cried. After taking Sanford home, Staples explained the incident to John Hawco, the school board's senior manager of employee relations. Staples also sent a letter to Sanford, dated July 18, 1989, informing him that he was relieved of duty with pay, pending an investigation into the events of July 17th, and notifying him that a meeting which could result in disciplinary action would be scheduled in the near future. The collective bargaining agreement which covered Sanford as a courier driver provides that an employee may be suspended without pay or dismissed for conviction of any crime involving moral turpitude, drunkenness, gross insubordination, immorality, misconduct in office, willful neglect of duty, or continued failure to satisfactorily meet performance standards for the job. The agreement provides for a pretermination meeting at which the employee may be represented and is given the opportunity to explain the facts and provide other witnesses or sources of information. The pretermination meeting was scheduled for July 20th, but was cancelled because Sanford overdosed on alcohol and cocaine and was temporarily hospitalized. The meeting was held on August 1, 1989. At the meeting, Sanford denied being under the influence on July 17th, but also apologized for what had happened. Sanford was accompanied by a union representative. Staples and Hawco discussed the options and rejected the possibility of moving Sanford to another position. They considered his history of chemical abuse and failure to comply with EAP recommendations. They told Sanford that he would be terminated and urged him to obtain treatment. Hawco advised Sanford that he could resign his position or seek retirement, if eligible, and gave him three days to come to a decision, at which time his employment would be terminated. On August 3, 1989, Hawco was contacted by a staff person in the EAP who advised that Sanford had entered a treatment program. Scott Diebler worked out an arrangement for Sanford's termination to be delayed briefly to give him the benefit of insurance during his detoxification and initial treatment. Hawco's decision to terminate Sanford was based on his determination that Sanford was operating a county vehicle while under the influence, which under the School Board's policy is a termination offense. This, coupled with Sanford's past performance, was the basis for the termination, and not his status as an alcoholic. The termination notice to Gary Sanford from John Hawco is dated August 18, 1989, and informs him that the effective date of termination was August 17, 1989. By this time, Sanford was in a 35-day inpatient treatment program at Cross Roads treatment center. His mother brought him the termination notice on her first visiting day in August, the Sunday after the notice arrived. Because he was not able to have contact with outside persons during the initial stage of his treatment, Sanford asked his mother to call Scott Diebler. She did, and he told her that they could discuss rehire after Gary Sanford was successfully treated, in about six months. No one from the school board informed Sanford or his treatment facility that Sanford had not been terminated or that Sanford would automatically be rehired upon completion of a treatment program. Before termination, Scott Diebler had argued for a "last chance" contract for Sanford, to give him one final chance to be successfully rehabilitated; but the request was denied with an explanation and apology that the job problems had been too severe and there had already been many opportunities to get help. After termination, Diebler got a report from the treatment center implying that Sanford was on a leave of absence. He attempted to assure that the center was properly informed, as there were insurance implications. That is, the first 30 days were covered through the EAP or board's insurance, but thereafter Sanford was responsible. Diebler also assured himself by checking with John Hawco and the union representative that Gary Sanford understood from the August 1st meeting that his employment was to be terminated. Diebler had some contact with Sanford during treatment at Cross Roads and assured him that he could reapply after six months. At some point, Diebler sent him an employment application. Sanford completed the intensive inpatient program and stayed on at Cross Roads for another six to eight months. After the thirty-five day program was completed, he resided in the half-way house and worked various jobs such as Texaco and a dinner cruise ship. He no longer drinks and he attends AA meetings regularly. He has remained employed. In February 1990, Sanford went to see John Hawco at the school board and said he had completed six months successful treatment. Sanford told Hawco that he understood he could get his job back; he also said he wanted payment for his accrued sick leave, which was approximately 1,176 hours at the time of his termination. Hawco reminded him that because he was involuntarily terminated, he was not entitled to accrued leave. Sanford did not specifically ask for his job back and said he wanted the terminal pay (approximately $12,000) in order to get a new start. The non-eligibility for terminal pay was reiterated in writing by John Hawco to Gary Sanford in a letter dated October 1, 1990, in response to a letter Sanford had sent to the assistant superintendent. Sanford never put in an application to be rehired by the school board, contrary to Diebler's earlier advice. Sanford initially contacted the Florida Commission on Human Relations in April 1990, with regard to filing a charge of handicap discrimination. He was advised that his charge was untimely, based apparently on his termination date of August 1989. He later recontacted the commission to complain and was permitted to file his charge on March 12, 1991, based on denial of rehiring, allegedly occurring on February 2, 1990. (Petitioner's Ex. #18) This is the charge which initiated this proceeding. At some point after the charge and petition for relief were filed, and before the formal hearing, the school board requested a criminal record background check on Gary Sanford and uncovered the following: a) On July 16, 1984, after a plea of guilty to driving under the influence (DUI), Sanford was adjudicated guilty, placed on probation, fined, and sentenced to 50 hours community service with a driver's license suspension of six months; b) On October 14, 1988, after a plea of guilty to exposure of sexual organs (in a booth in an adult entertainment center), Sanford's adjudication was withheld and he was placed on unsupervised probation for one year under the condition that he not return to an adult entertainment establishment; c) On August 28, 1990, after a plea of nolo contendere to the misdemeanor of lewdness (soliciting a police agent in a park restroom), Sanford was adjudicated guilty, and was placed on supervised probation with conditions that he participate in substance abuse counselling/screening and would not return to any Orange County park; and d) On August 28, 1991, after a plea of guilty of being in a park after hours, Sanford was adjudicated guilty and sentenced to time served only. (Respondent's composite Ex. #2) On 1/25/85, 1/28/86 and 3/16/87, Sanford filed his forms, "Florida Department of Education Application for License to Drive School Bus and Physical Examination for School Bus Driver Applicant". These were renewal applications as the form indicates that a license to drive a school bus is valid for no more than 12 months from issue date. On each of these forms, Sanford answered "no", and certified his answers to be correct, to questions of whether he had been convicted of a misdemeanor or felony in the last three years and whether his driver's license had been suspended or revoked during the last three years. (Respondent's composite Ex. #3) The Orange County School Board requires Florida Department of Law Enforcement (FDLE) and Federal Bureau of Investigation (FBI) fingerprints and screening of all employees, upon hire, including former employees with a greater than 90-day break in service (separation from employment). Since approximately 1991, the school board has notified law enforcement agencies to advise the board any time a student or employee is arrested for a felony or misdemeanor. Upon receipt of the screening report or arrest report, the employee is given an opportunity to provide court records and explanations surrounding the incident. Board staff, including representatives of personnel and employee relations and the equal employment opportunity office, review the information for recommendation to the Superintendent. These reviews are also conducted for applicants for employment. Any time an employee is found to have falsified an application with respect to criminal background, staff recommends termination. Any time an applicant for a position to drive a vehicle is found with a DUI, that applicant is not recommended for consideration to be employed. If Sanford had actually applied for rehire in 1990, his 1984 and 1988 offenses would have been revealed in the employment screening. The DUI, the "Pee-Wee Herman" offense, and the falsification of his school bus licensure applications would have made him ineligible for further employment under the board's policy. If he had not been terminated, those offenses, and the misdemeanor incidents in 1990 and 1991 would likely not have been discovered by the board, since they predated the notification arrangement the board now has with local law enforcement agencies. SUMMARY OF FINDINGS As an alcoholic and substance abuser, Sanford was handicapped. His drinking and substance abuse interfered with his proper performance of his job duties on occasion. He was referred to the EAP and received assistance; he had a dozen major contacts with the EAP, not including telephone calls and correspondence, from 1986 to 1989. Although he did not receive inpatient treatment until the time of his termination, such treatment was not requested by Sanford, nor is there any evidence that earlier inpatient treatment was recommended by the professionals who were under contract with the EAP and who had worked with Sanford since 1986. John Hawco's termination decision was based on Sanford's employment record and performance at work, rather than on his handicap. Sanford was informed of the decision in August 1989, in a meeting which he attended with his union representative, and later, in writing, when his mother brought him the termination letter. No one, not even Scott Diebler, his most partisan supporter, promised Sanford that he would be rehired. Sanford did not follow Diebler's advice about applying for re- employment. Instead, he contacted Hawco in February 1990, and was told that he would not be rehired by the school board at that time. (Respondent's exhibit #13) Even if he had formally applied for employment, Sanford's prior convictions and falsification of his application would have barred re- employment, according to established school board policy.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That a Final Order be entered dismissing Gary Lee Sanford's complaint and petition for relief. DONE AND RECOMMENDED this 19th day of April, 1994, in Tallahassee, Leon County, Florida. MARY CLARK 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 19th day of April, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 92-6332 The following constitute specific rulings on the findings of fact proposed by the parties. Petitioner's Proposed Findings of Fact 1. - 4. Adopted in substance in paragraph 1. 5. - 6. Adopted in substance in paragraph 2. Adopted in substance in paragraphs 3 and 4. Adopted in substance in paragraph 3. Rejected as unnecessary. Adopted by implication in paragraph 10. Adopted in paragraph 7. Rejected as contrary to the weight of evidence. On July 17th he was intoxicated on the job. Adopted in substance in paragraphs 8 and 9. Adopted in substance in part in paragraph 42; otherwise rejected as irrelevant and unnecessary. Adopted in paragraphs 12 and 13. 17. & 18. Adopted in substance in paragraph 13. Adopted in part in paragraph 14; otherwise rejected as unnecessary. Rejected as unnecessary. Adopted in part in paragraph 13; otherwise rejected as unnecessary. & 23. Adopted in paragraph 15. Rejected as unnecessary. The proposed findings are not inconsistent with the fact that Sanford was under the influence at some point on his route. Adopted in part in paragraph 17; otherwise rejected as immaterial and unnecessary. & 27. Rejected as unnecessary. 28. Adopted in part in paragraph 18; otherwise rejected as immaterial. 29.-31. Rejected as immaterial. Adopted in paragraph 18. Adopted in part in paragraph 19, otherwise rejected as contrary to the weight of evidence. Adopted in part in paragraph 20, otherwise rejected as contrary to the weight of evidence. Adopted in substance in paragraph 21. Adopted by implication in paragraph 21. Adopted in paragraphs 22 and 25. Adopted in paragraph 25. Adopted in substance in paragraph 30. Adopted in substance in paragraphs 24 and 28. Adopted in substance in paragraph 33. Rejected as unnecessary. Rejected as immaterial; see paragraph 42. Adopted in paragraph 33. Adopted in paragraph 34. Rejected as contrary to the weight of evidence (as to Diebler's changing his story). Adopted in substance in paragraph 34. & 49. Adopted in substance in paragraph 35. 50. Adopted in paragraph 33. Respondent's Proposed Findings Adopted in substance in paragraph 1. Adopted in substance in paragraph 2. Rejected as unnecessary. Adopted in paragraph 4. Rejected as unnecessary. Adopted in paragraph 6. - 9. Adopted in paragraph 8. 10.-11. Rejected as unnecessary. 12. & 13. Adopted in paragraph 5. 14.-16. Rejected as unnecessary or cumulative. Adopted in paragraph 7. Adopted in paragraph 11. Adopted in paragraph 13. & 21. Adopted in paragraph 15. Adopted in substance in paragraph 15. Adopted in paragraph 13. & 26. Rejected as unnecessary. Adopted in paragraph 9. Adopted in paragraph 16. Rejected as unnecessary. & 31. Adopted in paragraph 16. 32.-34. Adopted in paragraph 17. 35.-36. Rejected as unnecessary. Adopted in paragraph 18. Adopted in paragraph 19. 39.-41. Adopted in substance in paragraph 20. Adopted in substance in paragraph 21. Rejected as unnecessary. 44.-46. Adopted in substance in paragraph 21. 47. Adopted in paragraph 22. 48.-50. Rejected as unnecessary. 51. & 52. Adopted in paragraph 23. Adopted in paragraph 24. Adopted in part in paragraph 25, otherwise rejected as contrary to the evidence. (He denied being under the influence.) & 56. Adopted in substance in paragraphs 25 and 27. Adopted in paragraph 26. Adopted in paragraph 28. Rejected as unnecessary. Adopted in paragraph 30. Adopted in paragraph 32. 62.-65. Adopted in paragraph 34. Adopted in paragraph 38. Adopted by implication in paragraph 41. 68.-72. Rejected as unnecessary. 73.-75. Adopted in paragraph 36. Adopted in paragraph 37. Adopted in paragraph 36. Adopted by implication in paragraph 37. Adopted in paragraph 40. Adopted in paragraph 41. 81.-83 Rejected as unnecessary. 84. Rejected as unnecessary. Further, the hearing officer denied Respondent's request to take official recognition of the weather reports. That denial is based on failure to comply with notice requirement of Section 90.203, F.S. and the unreliability of the report in establishing the fact that Respondent was attempting to establish: that it did not rain in Orlando on a given day. 85.-88. Rejected as unnecessary. 89. Adopted in paragraph 42. 90.-91. Rejected as unnecessary; except that the ultimate fact of the reason for termination is adopted in paragraph 43. COPIES FURNISHED: Tobe Lev, Esquire Post Office Box 2231 Orlando, Florida 32802 Frank C. Kruppenbacher, Esquire 545 Delaney Avenue, Suite 8 Orlando, Florida 32801 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 315 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
The Issue The issue in this case is whether petitioner's request for an exemption from disqualification from employment in a position of special trust should be approved.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At issue in this case is a request by petitioner, W. D., for an exemption from disqualification from employment in a position of special trust, namely, working with developmentally disabled persons. Respondent, Department of Health and Rehabilitative Services (HRS), is the agency charged with the statutory responsibility of approving or denying such requests. When the relevant events herein occurred, petitioner was sharing an apartment with his fiance in Gainesville, Florida. As such, his fiance was a "family or household member" within the meaning of the law. On the evening of October 16, 1992, petitioner was arrested on charges of battery (domestic violence) against his fiance and battery against her girlfriend as a result of an altercation. After a trial was conducted in the Alachua County Court on February 9, 1993, the jury returned a verdict of guilty on both charges. Thereafter, petitioner was ordered to pay costs in the amount of $310.00 or in lieu thereof complete 50 hours of community service, and reimburse one of the victims for the cost of replacing her broken eye glasses. He was also placed on six months probation. On August 20, 1993, petitioner was discharged from probation after successfully complying with all general and special conditions of his probation. In 1995, petitioner secured employment with the Alachua County Association for Retarded Citizens (ARC) as a residential care technician. Because the job involved working with developmentally disabled persons, petitioner was required to undergo a background screening for disqualifying offenses. A background check by the Florida Department of Law Enforcement revealed petitioner's arrest and conviction on two counts of battery. Because the offense of battery against a "family or household member" constitutes domestic violence and is a disqualifying offense under the law, petitioner was notified by HRS that he was ineligible to continue employment with ARC. That advice prompted petitioner to request an exemption. After his request was denied by an HRS committee, petitioner initiated this proceeding. In order to obtain an exemption, a disqualified person must present (a) "clear and convincing evidence to support a reasonable belief that the person is of good character so as to justify an exemption," and (b) "sufficent evidence of rehabili-tation." In establishing rehabilitation, the circumstances surrounding the incident, the time period that has elaped since the incident, the nature of the harm occasioned to the victim, and the history of the person since the incident, are factors to be considered. In support of his request, petitioner first described the circumstances surrounding the incident. According to his account, which was not controverted, it was precipitated by the friend of his fiance, who was drinking that evening. After the argument began, the friend placed petitioner in a "bear hug." While breaking free, petitioner unintentionally knocked her down. She also broke her glasses during the altercation. There were no apparent injuries to the friend. Petitioner denied that his fiance suffered any serious injuries during the incident. However, the arrest report does indicate that his fiance suffered a cut on her elbow, "soreness" in her face, and her clothes "were pulled open and dissheveled (sic)." Even so, there is no indication that the fiance required medical treatment or suffered any permanent injury. Petitioner avers that this was the only incident of that nature during his nine year relationship with his fiance, and he asks that he not be punished indefinitely for this one mistake. Petitioner has no blemishes on his record since the incident occurred more than three years ago. A contention that he is now undergoing counseling was not disputed. As to petitioner's "history since the incident," except for a six-week stint with ARC, the record does not show his entire employment history since late 1992. However, petitioner did work for eighteen years with the Gainesville Regional Utilities, including some period of time after his 1992 arrest. Petitioner enjoys working with retarded children and desires to continue his employment with ARC. Letters received in evidence as petitioner's exhibit 1 corroborate his assertions that he did a good job during his brief tenure with ARC, he was considered a "reliable" employee, and he will be reemployed if his request for an exemption is granted. They also corroborate his contention that he is now a good citizen. Based on this unrefuted evidence, it is found that there is sufficient evidence to support a reasonable belief that petitioner is of good character so as to justify an exemption and that he will not be a danger to the safety or welfare of the children with whom he would work. Accordingly, his request should be granted.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Department of Health and Rehabilitative Services enter a final order granting petitioner's request for an exemption from disqualification from employment in a position of special trust, namely, working with the developmentally disabled. DONE AND ENTERED this 27th day of March, 1996, in Tallahassee, Florida. DONALD R. ALEXANDER, 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 27th day of March, 1996. COPIES FURNISHED: Sandra R. Coulter, Acting Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Richard E. Doran, Esquire Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 W. D. (address of record) Lucy E. Goddard, Esquire 1000 Northeast 16th Avenue, Box 3 Gainesville, Florida 32601
The Issue The issues in this case are whether Respondent terminated Petitioner due to race or handicap and, if so, the nature of the relief that she should be awarded. The parties agreed to reserve the issue of attorneys' fees for a later hearing, if necessary.
Findings Of Fact The parties have stipulated that Respondent is an "employer" and Petitioner is a "person," within the meaning of Section 760.02. Respondent is an African American female. Respondent employed Petitioner as a phlebotomist. She was hired on December 28, 1987, as a phlebotomist for International Clinical Laboratories, which was acquired by Respondent in 1988. While employed for Respondent and its predecessor, Petitioner worked at the main facility adjacent to Tallahassee Community Hospital. A phlebotomist collects blood and urine, supervises specimen collection, provides off-site service when needed, and completes associated paperwork. The job requires bending and stooping when collecting specimens and sometimes requires physically subduing combative patients. Petitioner took short-term disability leave from September 16 to October 16, 1991. Three months later, Petitioner injured her knee on January 12, 1992, when she bumped it into a cabinet at work. She took a couple of days off for this injury. On April 12, 1992, Petitioner injured her lower back while taking blood from an uncooperative patient. She sought treatment from Dr. Robbie G. Hansen, a chiropractic physician. Dr. Hansen gave Petitioner no orders concerning work, which she continued to attend, even though she was in pain. At the same time, Respondent was beginning to address some problems experienced by several phlebotomists, including Petitioner, in maintaining the chain of custody of specimens. Respondent's supervisors counselled several such employees, including Petitioner. On May 5, 1992, Deborah Glee, an African American female, counselled Petitioner orally for a mistake in the collection of a urine sample taken as part of a drug screen. On June 24, 1992, Dr. Harold Panzik, a white male who is the general manager of Respondent's facilities in northwest Florida, counselled three employees, including Petitioner, for mistakes in maintaining the chain of custody of urine samples. A week later, Ms. Glee counselled Petitioner for another chain-of- custody mistake. On July 15, 1992, Petitioner refused to perform a specimen collection for Tallahassee Community Hospital, Respondent's most important client. She caused a disruption in front of patients and coworkers. On the same day, Pete Lowhorne, a white male supervisor, issued Petitioner a written warning for an error in the collection of urine samples for drug screens. On August 3, 1992, Dr. Hansen advised Petitioner to discontinue working for a week in order to obtain relief from the pain from which she had been suffering. He intended to reevaluate her in a week to determine if her condition had improved. He wrote her a doctor's excuse from work for one or two weeks. Respondent placed Petitioner on short-term disability leave. Under Respondent's policy, as expressed in the employee handbook given to Petitioner previously, an employee begins short-term disability leave after five days' absence due to injury or illness. Short-term disability leave may extend up to 130 working days, at which time the employee becomes eligible for long-term disability leave. Long-term disability leave is then available. While on short-term disability leave, Petitioner received rehabilitation services from Maria Halpin, who was the rehabilitation counsellor for Respondent's workers' compensation carrier. Ms. Halpin scheduled medical examinations for Petitioner with Dr. Antolic and Dr. Bellamy. Dr. Hansen released Petitioner to return to work on August 19, 1992, with limited bending and stooping. Instead of returning to work, Petitioner sought treatment from Dr. Pierce Jones, an orthopedist. Dr. Jones first saw Petitioner on August 24, 1992, and he dismissed her on September 9, 1992, after determining that he could do nothing more for her. Petitioner then returned to Dr. Hansen, who referred her to Dr. Antolic, who, in November, advised Petitioner that she could return to work. Petitioner also saw Drs. Willis and Hoffman at the Spinal Testing and Strength Center. They excused her from work, but released her to return to work on November 11, 1992, provided that she not lift more than 25 pounds, engage in any prolonged bending, or work more than four hours per day for the first week. Ms. Halpin helped design a plan for Petitioner to return to work gradually. The schedule called for Petitioner to work two to four hours daily the first week, four hours daily the second week, six hours daily the third week, and, if able, eight hours daily the fourth week. For the first two weeks, Petitioner was to work in a less physically demanding position as a receptionist and then return to her job as a phlebotomist. Dr. Panzik created the receptionist job for Petitioner, who would thus have, during the first two weeks, only occasional phlebotomy duties. Before Ms. Halpin's plan was implemented, Petitioner returned to work as a phlebotomist on November 11, 1992. She worked parts of a couple of days that week. Petitioner returned to work under Ms. Halpin's plan on Monday, November 16. She found that she could not sit prolonged periods in the new position as receptionist. She worked a few days, but never more than two or three hours during a single day. Feeling unable to work in any position, Petitioner last worked for Respondent on November 27, 1992. On that day, she visited Dr. Hansen, who felt she could return to work and referred her to Dr. Antolic. On December 3, 1992, Petitioner returned to Dr. Antolic. Discovering Ms. Halpin with Dr. Antolic upon her arrival, Petitioner became angry, confronted both of them, and dismissed Ms. Halpin from her case. On that day, Dr. Antolic concluded that Petitioner just does not have enough objective findings to limit return back to work. I feel she is able to go back to light-duty work 4 hours per day until 01/01/93. At that time she should be able to tolerate full duties with limitations of no lifting greater than 25 pounds. I explained to her that she should be able to go back to light- duty work, but she became extremely unhappy, stood up and walked out of examining room saying "this is not why I came from Quincy." Unfortunately, it appears that I have nothing more to offer this lady and I will give her maximal medical improvement as of 01/01/93 with a 3.5 percent impairment as a whole person based on her present physical findings. The patient was not given an appointment for re-evaluation. At the same time, Petitioner was seeing her personal physician, Dr. Whiddon, for unrelated problems with her knee and blood pressure. Dr. Whiddon gave her an excuse from work for these problems for November 19 and 20, 1992, and January 1-11, 1993. This was the only doctor's order excusing Petitioner from significant periods of work that she possessed after her return to work in November. At the request of her attorney, Petitioner sought another opinion from Dr. Bellamy. On January 22, 1993, Dr. Bellamy found "[n]o abnormality found other than obesity. My suggestion is that she lose a lot of weight and exercise vigorously on a regular basis. I would expect her to continue to complain of pain." By the time of the last visit with Dr. Bellamy, Drs. Jones and Antolic had also dismissed Petitioner as a patient. After her unsuccessful return to work in November 1992, Petitioner's employment relationship with Respondent became attenuated. She did not supply her employer with doctors' excuses because most of the time she did not have any. She spoke to Dr. Panzik's assistant two times and possibly to Dr. Panzik, but neither of them assured Petitioner that she could return to her job. In January, Petitioner called Mr. Lowhorne and promised him a doctor's excuse for her knee. He referred her to Dr. Panzik's assistant, with whom Petitioner discussed the possibility of more sick pay for the new year. When the assistant told Petitioner that she was ineligible for more sick pay, Petitioner asked about resigning in order to obtain the balance of a profit-sharing account. After thinking about the option, Petitioner told the assistant that she would not resign until she had spoken to her attorney. In January, Brenda Oxley, Respondent's human resources supervisor located in Tampa, discovered that Petitioner had not returned to work after being released to do so. Unaware that Petitioner had not remained at work following her short-lived return in November, Ms. Oxley contacted Dr. Panzik and the workers' compensation carrier and learned of the upcoming January 22 appointment with Dr. Bellamy. Following receipt of Dr. Bellamy's report, Ms. Oxley and Dr. Panzik decided to terminate Petitioner. The employee manual states: for employees who have medical limitations which prohibit them from performing their normal job, an attempt will be made to provide a temporary work assignment suitable to these medical restrictions [and i]f you decline a temporary work assignment, it will be considered a voluntary termination of employment. The manual elsewhere adds: refusal to cooperate in training, rehabilitation, temporary work assignment or placement efforts, when offered will result in disqualification for disability benefits and the employee will be considered to have voluntarily resigned employment effective the last day for which [short-term disability] benefits were approved. By letter dated January 27, 1993, Ms. Oxley informed Petitioner that she was terminated effective February 1, 1993, unless she could produce more information from a doctor by February 1. Petitioner received the letter on February 1, but did not provide such information to Ms. Oxley, Dr. Panzik, or anyone else at Respondent's offices. As of February 1, 1993, Petitioner remained unable or unwilling to return to work as a phlebotomist or any other available assignment. After that date, Dr. Panzik hired Petitioner's temporary replacement, a white female, as a permanent employee. Doubtlessly, Ms. Oxley was not always aware of developments concerning Petitioner after her unsuccessful return to work in November. It is unclear exactly when Petitioner came off short-term disability leave, and it is likely that Ms. Oxley and Dr. Panzik did not come to a common understanding on this point until they spoke after receiving Dr. Bellamy's final report. It is clear, however, that several doctors saw Petitioner, and they all dismissed her and released her to return to work. It is also clear that Petitioner did not return to work, except for a short time in November. These factors, coupled with repeated performance counselling of Petitioner by an African American female supervisor, tend to preclude a finding of discrimination based on race or handicap, even if Petitioner's termination were deemed involuntary. The time had come for Petitioner to return to work or, if unable, pursue other legal remedies available to all other employees claiming to be injured on the job or wrongfully deprived of contractual disability benefits. Petitioner cites two factors as evidence of discrimination. The first is the handling of another employee, Deborah Tinter, a white female, who was allowed to take short term disability. Petitioner used Ms. Tinter for a dual purpose. In addition to being offered as an additional victim of discrimination due to disability, Ms. Tinter was offered as the beneficiary of racial discrimination. Counsel chose not to disclose the nature of Ms. Tinter's afflictions or injuries, except for a minor injury. This appeared to be a commendable attempt to spare the witness embarrassment. However, as the hearing officer warned during the hearing, it is difficult to compare the treatment given Petitioner and Ms. Tinter by Respondent without understanding the natures of their disabilities. But, regardless of the nature of Ms. Tinter's disability, there is no evidence in the record to suggest that the disabilities and impairments arising from Ms. Tinter's afflictions or injuries were in dispute. In this important respect, Ms. Tinter's situation differed from Petitioner's situation and merited different treatment by Respondent. Petitioner also attempted to show that other African American employees were subjected to racial discrimination by Respondent. Several such employees testified that they were victims of racial discrimination. Necessarily, the evidence of discrimination concerning several other employees was summary. It is possible that one or more of these persons in fact have been victims of racial discrimination. However, based on the abbreviated records presented on each such person, Petitioner did not prove that these persons were victims of race discrimination by Respondent. Sometimes, the alleged facts did not establish prima facie racial discrimination. In each case, based on the testimony of the alleged victim, it is at least as likely as not that legitimate, nondiscriminatory reasons existed for the complained-of acts or omissions.
Recommendation It is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. ENTERED on May 24, 1995, in Tallahassee, Florida. ROBERT E. MEALE 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 on May 24, 1995. APPENDIX Rulings on Petitioner's Proposed Findings 1-3: adopted or adopted in substance. 4: rejected as subordinate. 5: adopted or adopted in substance, except for last sentence, which is rejected as unsupported by the appropriate weight of the evidence. 6-7: rejected as subordinate. 8-9: adopted or adopted in substance. 10-12: rejected as subordinate, except that Dr. Jones saw Petitioner and later dismissed her. 13: adopted or adopted in substance. 14: rejected as subordinate. 15-17: adopted or adopted in substance. 18: rejected as subordinate. 19-21: adopted or adopted in substance. 22: rejected as unsupported by the appropriate weight of the evidence. 23: adopted or adopted in substance. 24-25: rejected as recitation of evidence. 26: adopted or adopted in substance, but not for the continuous period in question. 27 (first sentence): rejected as irrelevant. 27 (remainder): rejected as unsupported by the appropriate weight of the evidence. 28: rejected as unsupported by the appropriate weight of the evidence, except for last sentence, which is adopted or adopted in substance. 29-30: adopted or adopted in substance. 31 (first sentence): adopted or adopted in substance. 31 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 32: rejected as unsupported by the appropriate weight of the evidence. 33: adopted or adopted in substance. 34: rejected as unsupported by the appropriate weight of the evidence, except for learning that her short term disability did not recommence in the new year. 35-36: rejected as unsupported by the appropriate weight of the evidence. 37: rejected as subordinate. 38: rejected as irrelevant. 39: rejected as unsupported by the appropriate weight of the evidence. 40-46 (first two sentences): rejected as irrelevant. (remainder): rejected as unsupported by the appropriate weight of the evidence. (first sentence): adopted or adopted in substance. 47 (second sentence): rejected as irrelevant. 48: adopted or adopted in substance. 49-53: rejected as irrelevant. 54: adopted or adopted in substance. 55-57: rejected as irrelevant. 58: rejected as repetitious. 59-60: rejected as subordinate. 61-62: rejected as unsupported by the appropriate weight of the evidence. 63-64: rejected as unnecessary. 65-66: rejected as irrelevant. 67-70: adopted or adopted in substance. 71-82: rejected as irrelevant. 83: rejected as subordinate. 84: adopted or adopted in substance. 85-92: rejected as irrelevant. 93: adopted or adopted in substance. 94: rejected as subordinate. 95-110: rejected as subordinate, unsupported by the appropriate weight of the evidence, and recitation of testimony. 111 (first sentence): rejected as irrelevant. 111 (second sentence): rejected as unsupported by the appropriate weight of the evidence. 112: rejected as recitation of evidence. Rulings on Respondent's Proposed Findings 1-25: adopted or adopted in substance. 26: rejected as subordinate. 27-31: adopted or adopted in substance. 32: rejected as recitation of evidence. 33: rejected as subordinate. 34-35: adopted or adopted in substance. 36: rejected as irrelevant. 37-43: adopted or adopted in substance. 44-45: rejected as irrelevant. 46: adopted or adopted in substance. 47-50: rejected as irrelevant. 51: adopted or adopted in substance. 52-67: rejected as recitation of evidence and subordinate 68: adopted or adopted in substance. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Dana Baird, General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, FL 32303-4149 Marie A. Mattox Marie A. Mattox, P.A. 1333 North Adams Street Tallahassee, FL 32303 John P. McAdams Carlton Fields P.O. Box 3239 Tampa, FL 33601
The Issue Whether Petitioner, Alexander DeArmas ("Petitioner") can establish, by a preponderance of the evidence, that at least three years have elapsed since he has been lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felonies pursuant to section 435.07(a)(1)1., Florida Statutes, such that he is eligible for an exemption from disqualification.
Findings Of Fact Petitioner is a 38-year-old male seeking to qualify, pursuant to section 435.07, to participate in the Medicaid program. AHCA is the state agency responsible for administration of the Medicaid program in Florida. On February 27, 2014, Petitioner pled guilty to the two disqualifying felony drug offenses. Petitioner was adjudicated guilty and he was sentenced to five years of drug offender probation. On April 15, 2014, the court entered an Order that the "remainder of the defendant's probation shall be converted from drug offender probation to regular probation." On February 23, 2017, Petitioner was released early from his probation. On October 4, 2018, Petitioner submitted an application for exemption from disqualification to AHCA pursuant to section 435.07. In a letter dated December 28, 2018, AHCA notified Petitioner that his request for an exemption from disqualification was denied. AHCA determined Petitioner is ineligible for an exemption because section 435.07 requires that three years elapse between the date Petitioner was lawfully released from confinement, supervision, or nonmonetary condition imposed by the court for the disqualifying felonies and the date of application for the exemption. Petitioner is ineligible for an exemption because three years have not elapsed since he was released from probation on February 23, 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order denying Petitioner's request for an exemption from disqualification as a Medicaid provider. DONE AND ENTERED this 5th day of September, 2019, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 5th day of September, 2019. COPIES FURNISHED: Bradley Stephen Butler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Alexander DeArmas 8874 West 35th Lane Hialeah, Florida 33018 Ryan McNeill, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Thomas M. Hoeler, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Kim Annette Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Richard J. Shoop, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Stefan Grow, General Counsel Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3 Tallahassee, Florida 32308 (eServed) Mary C. Mayhew, Secretary Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 1 Tallahassee, Florida 32308 (eServed)
Findings Of Fact Petitioner, Harold Mayo, was employed by Respondent in March, 1987, through December 1, 1987. He has difficulty in controlling his emotions. He experiences rapid changes in mood. He has been diagnosed as suffering from a variety of mental disorders all of which have depression and rapid mood changes as part of their symptomatology. He often feels threatened by stressful situations, and sometimes responds to such situations by losing control of himself and crying as well as sometimes withdrawing from human contact. The Respondent, Advocacy Center for Persons With Disabilities, Inc., ("Center") is a private, non-profit organization which receives federal funds in order to provide advocacy for persons with disabilities. The Center has existed in its present, private status since October 1, 1988. Prior to October 1, 1988, the Center was a public agency within the Governor's office known as the Governor's Commission on Advocacy for Persons With Disabilities ("Commission"). The Commission was established in 1977, by executive order of the Governor. Since its creation, the Executive Director of the Commission (now the Center) has been Mr. Jon Rossman. Mr. Rossman is an attorney. Prior to becoming Executive Director of the Commission, Mr. Rossman worked as a staff attorney for the Association of Retarded Persons. The Center provides legal assistance to handicapped individuals, to ensure that they receive appropriate treatment and services by agencies designed to serve them. Specifically, the Center provides representation and advocacy under three programs: one program is designed to represent individuals with certain developmental disabilities defined by Congress. A second program is designed to represent individuals who are recipients of, or applicants for, vocational rehabilitation services from the state. A third program, the Mental Illness Protection and Advocacy ("MIP&A") program, is constituted to provide representation for mentally ill persons. The Center employs between 20 and 30 individuals. Each of the three programs administered by the Center is headed by a program director. The Center employs approximately six or seven attorneys, and several non-lawyer client "advocates." These jobs are supported by secretarial and clerical staff. Mr. Mayo had previously identified himself to Mr. Rossman as a former mental patient at a mental hospital, and therefore, as a "consumer" of mental health services. Mr. Mayo had indicated that he was interested in employment with the Center and in March 1987, Mr. Rossman offered employment in an OPS position to Mr. Mayo at the Commission. Prior to his employment Mr. Mayo had sought the Commission's assistance in dealing with the Division of Vocational Rehabilitation of HRS. At the time Mr. Rossman offered employment to Mr. Mayo, Mr. Rossman was aware that the Division of Vocational Rehabilitation had determined that Mr. Mayo was "not employable." Nevertheless, aware of this determination and of Mr. Mayo's status as a mental health consumer, Mr. Rossman offered Mr. Mayo employment and created an OPS position for him at the Commission. Mr. Mayo began his OPS employment with the Center on March 30, 1987. Mr. Rossman employed Mr. Mayo to assist the Center on two specific projects: a. to review applications which had been received by the Center for membership on an advisory committee; and b. to assist in organizing a conference to be sponsored by the Florida Mental Health Advocates Network. He was not hired to be a client-advocate and his OPS position did not include those duties. Mr. Mayo was assigned a space in a library/conference room in which to work. Mr. Mayo was only required to work as long as he felt able and comfortable in so doing; and was allowed to leave the office any time he felt threatened, to go home if he wanted, to talk to other employees and Mr. Rossman, to go outside and walk around in the parking lot, and to take breaks as he felt necessary when he experienced stress. He would sometimes lie on the floor and cry prior to getting back to work. There were times when Mr. Mayo took days off after experiencing a particularly emotional workday. Mr. Rossman spent entire days and afternoons talking things out with Mr. Mayo, walking around the office complex, and discussing his employment with him. These sessions occurred both in Mr. Rossman's office and in Mr. Mayo's. In short Mr. Rossman and other Center employees made a genuine, wholehearted effort to work with Mr. Mayo and went out of their way to accommodate him. There was absolutely no intent to unlawfully discriminate against Respondent due to his mental illness. In fact, the opposite was shown by the evidence. Mr. Rossman had a genuine desire that Respondent succeed as an employee. On two separate occasions, Mr. Rossman called Mr. Mayo's wife, concerned due to Mr. Mayo's depression and behavior, and expressed his concern and worry about Mr. Mayo's welfare to Mr. Mayo's wife. The contact on Mr. Rossman's part was a simple gesture of human concern for not only an employee but for a person who Mr. Rossman was very interested in his well-being. Instead Mr. Mayo took great umbrage at Mr. Rossman contacting his wife. He assumed that such contact was an affront to him and was treating him as if he could not take care of himself. On more than one occasion, Mr. Mayo tendered his resignation to Mr. Rossman. Mr. Rossman refused to accept the resignations. On several occasions, Mr. Rossman asked Mr. Mayo if Mr. Mayo would mind Mr. Rossman's speaking to Mr. Mayo's psychiatrist, in an effort to get his psychiatrist's opinions and suggestions on what Mr. Rossman could do to make Mr. Mayo's employment experience successful. On these occasions, Mr. Mayo responded that he was insulted by the request, and did not wish Mr. Rossman to contact his psychiatrist. Again, Mr. Mayo's over- sensitivity to attempts to gain insight into his handicap interfered with his ability to perceive the true intent of his employer in making such a request. Mr. Rossman did not contact Respondent' s psychiatrist. 1/ During his employment, Mr. Mayo frequently overstepped his bounds and overstated his position. This included contacting and writing letters to various persons and agencies, writing letters to the editor of publications, contacting "Nightline," and commenting on news articles, either on Commission letterhead or while identifying himself as an employee of the Commission. Mr. Mayo spent Commission time engaged in advocacy of his personal views which was not within the duties of the OPS position for which he had been hired. In April 1987, Mr. Mayo advised Mr. Rossman of his desire to be the Director of the MIP&A program, and further advised Mr. Rossman of his view that it was very important that the Director's position "should be occupied by a consumer, client or survivor." Mr. Rossman began to consider another individual, Kathleen Regan, for the position of Director of the MIP&A program.2/ Mr. Rossman sought Mr. Mayo's views on the matter. Mr. Mayo expressed his opinion that he thought Ms. Regan was incompetent for the position since she was a mental health professional and a middle management employee at HRS, rather than a consumer. Mr. Mayo told Mr. Rossman of a series of concerns he had should there be "such an incompetent source" running the program. He predicted, "it would all be downhill from now on." Ms. Regan was hired as the MIP&A Program Director effective August 1, 1987. As MIP&A Program Director, Ms. Regan would be Mr. Mayo's direct supervisor. At the time, Ms. Regan began, Mr. Rossman communicated to Ms. Regan that he strongly desired to see Mr. Mayo succeed in his employment at the Commission. He asked for her assurance that she would cooperate in that effort. She gave such an assurance. As the first director of the MIP&A program, Ms. Regan was responsible for developing program priorities, and developing a structure for the MIP&A program. Ms. Regan found that she had a number of people who had input into the development of such priorities and structure, including the Commission's Board of Directors, the Executive Director, the 24 members of the advisory committee, and Mr. Mayo. Ms. Regan attempted to integrate all that input into decisions on the direction and structure of the program. Ms. Regan found it difficult to integrate Mr. Mayo's own strong personal convictions about priorities and structure, but attempted to do so. Mr. Mayo and Ms. Regan had an extremely difficult time in their working relationship. As an example of the problems between Mr. Mayo and Ms. Regan, after it was agreed that they would meet for one-half hour, twice each week, to discuss Mr. Mayo's work, Mr. Mayo submitted a nine-item agenda for the first meeting. Ms. Regan, feeling that one-half hour was insufficient time to discuss so many items, asked Mr. Mayo if he would select two of the items for discussion. Mr. Mayo refused. The following day, Mr. Mayo again attempted to address the entire agenda, refused to select two items for discussion, and told Ms. Regan that he would not "play by her rules." These and subsequent meetings deteriorated,3/ and communications between Mr. Mayo and Ms. Regan broke down. Mr. Mayo told Ms. Regan that he did not consider her to be an advocate, but a "badvocate." Mr. Mayo would undertake work activities not assigned to him without first discussing them with Ms. Regan. On a number of occasions, Mr. Mayo would engage in some such activity, embarrassing Ms. Regan when she would get a call or communication from persons outside the Commission inquiring about Mr. Mayo's conduct, and she would be entirely unaware of his activities. Mr. Mayo and Ms. Regan experienced difficulties when Mr. Mayo sent out personal correspondence advocating personal views on Advocacy Center letterhead. This included correspondence sent by Mr. Mayo to Mr. Allen Tedder, Executive Director of the Mental Health Association of Florida. At least one such letter was sent on Commission letterhead even though Ms. Regan had specifically instructed Mr. Mayo to have the letter redrafted on non-Commission letterhead. Mr. Mayo and Ms. Regan had difficulties when Mr. Mayo refused to acknowledge that Ms. Regan had any right to approve or disapprove his travel requests. Part of Ms. Regan's supervisory duties was to review such travel requests. On another occasion, Mr. Mayo refused to submit his time sheets to Ms. Regan for approval. Again, part of Ms. Regan's supervisory duties was to review and approve employee time sheets. Likewise, when Ms. Regan told Mr. Mayo that he needed to route certain documents through her for signature, Mr. Mayo made an obscene gesture to Ms. Regan three times in the course of the morning. Ms. Regan told Mr. Mayo that his conduct constituted insubordination. His response was, "Fuck you." A frequent issue between Mr. Mayo and Ms. Regan was the issue of "partnership." Mr. Mayo asserted that he wanted to be viewed as an equal. Whenever Ms. Regan made a decision he didn't agree with, Mr. Mayo complained that she was violating her commitment to work with him, and was excluding him from the decision-making process. Ms. Regan received complaints from members of the advisory committee about Mr. Mayo. She also received verbal complaints from Martha Larson, Administrator of the hospital program at HRS. Ms. Regan heard from at least one outsider that Mr. Mayo was advocating against her as the program director. Ms. Regan reported these problems to Mr. Rossman. They met frequently in an effort to determine how best to resolve these difficulties. During his employment, people with whom Mr. Mayo had contact, outside the Center, complained directly to Mr. Rossman about Mr. Mayo's behavior and conduct. Many of these complaints were discounted by Mr. Rossman, who frequently defended Mr. Mayo against accusations being made about him. Inside the office, Mr. Rossman also received complaints about Mr. Mayo. There were complaints from other employees about difficulties working with Mr. Mayo, about shouting matches, about Mr. Mayo going through mail, about telephone calls he was making, and about representations made by Mr. Mayo outside of the office, regarding office policy. Mr. Mayo went directly to Mr. Rossman with his own complaints about Ms. Regan. At first, Mr. Rossman told Mr. Mayo that he did not want to get involved, and that Mr. Mayo and Ms. Regan should attempt to work the problems out themselves. However, the problems between Ms. Regan and Mr. Mayo worsened. Mr. Mayo repeatedly asked Mr. Rossman to take him out from under Ms. Regan's supervision. On September 9, Mr. Mayo submitted a written resignation in which he stated that he didn't feel his presence would serve any purpose "without direct involvement in policy matters." Mr. Rossman refused to accept Mr. Mayo's resignation. Instead, however, he agreed to Mr. Mayo's request that he (Mayo) not work under Ms. Regan's supervision. Once again, Mr. Mayo reported directly to Mr. Rossman. By September 9, the Governor had ordered that the Commission would become a private not-for-profit corporation effective October 1. Mr. Rossman was extremely busy making preparations for this transition and did not have the time to give Mr. Mayo as much individual attention as he had previously. The Commission's offices at that point were on two floors, Ms. Regan's office was on the first floor, and Mr. Rossman's office was on the second floor. This period was one of transition, and eventually, all the Center's offices were consolidated on the second floor. During the transition period, the office was very crowded. Mr. Rossman shared a corner of his office with his administrative assistant. Two lawyers shared the conference table at which Mr. Mayo had previously worked. Mr. Mayo was moved to a work location in an alcove outside Mr. Rossman's office on the second floor. When Mr. Mayo expressed concern about his ability to make the move, everyone in the office encouraged him, telling him that he was capable of making the move. Mr. Mayo made an attempt to change office locations. The new location did not work very well because Mr. Mayo felt exposed to other human beings. After September 9, Mr. Mayo continued to report to work each day, and was paid for a full eight hours. During this time Mr. Mayo invented work to do since Mr. Rossman did not have enough work to keep him busy. Following Mr. Mayo's being removed from Ms. Regan's supervision, Mr. Mayo continued to respond to matters that would be properly directed to Ms. Regan. He made calls about the MIP&A program around the state, criticizing the program and Ms. Regan, and again asserting his beliefs that the Center made a bad decision in employing her. As one example, Mr. Mayo, without authorization, contacted people to attend a consumer conference and invited a number of people to come on scholarship. Scholarship means that the Advocacy Center would pay that individual's expenses. No one at the Center (other than Mr. Mayo) had authorized the reimbursement for their expenses. A number of such people arrived without the registrar having any advance notice that they would attend. On another occasion, Mr. Mayo wanted certain individuals to be invited to attend a meeting between some of the staff and some of the members of the Board. Mr. Rossman advised Mr. Mayo that those individuals did not need to be involved. Nevertheless, Mr. Mayo insisted that the meeting was covered by the Sunshine Act, and that 11 members of the public were entitled to attend the meeting. On that basis, without asking permission, Mr. Mayo telephoned members of the advisory committee and invited them to this meeting. Since Mr. Mayo had been unable to work directly for the MIP&A program director, Mr. Rossman asked Mr. Mayo to prepare a job description for his position.4/ Mr. Rossman asked Mr. Mayo to advise him on how Mr. Mayo felt that he could be of use to the Advocacy Center. Mr. Mayo responded by typing out Respondent's Exhibit No. 6, asserting that he should be able "to advocate as a Consumer Consultant in whatever direction I choose (emphasis added)," and "as a Consumer Consultant to be kept up to date on all the workings of the MIP&A and to be involved as a consultant in that work." Following September 9, Mr. Rossman assigned Mr. Mayo the task of rewriting a report or contract which had been prepared by Ms. Regan. Mr. Mayo refused the assignment because of his view that it was "grossly unethical" to rework another person's work product. Although he refused to work on it, Mr. Mayo objected that Mr. Rossman "had refused to allow consumers any part in writing the contract and I could not speak for all consumers . . ." Shortly before October 8, 1987, Mr. Rossman was contacted by Allen Tedder, Executive Director of the Florida Mental Health Association, with a complaint about Mr. Mayo. Mr. Rossman replied to Mr. Tedder by letter dated October 8, 1987 stating that, as a mental health consumer, Mr. Mayo "apparently has less control over his personal feelings than might otherwise be expected," and further, that Mr. Mayo had undoubtedly "let his strong beliefs get ahead of him at times, overstating his position." Mr. Mayo was offended by Mr. Rossman's October 8th letter because of his view that while he had the right to identify himself to others as a person with difficulty controlling his emotions, Mr. Rossman, as a professional, had no such right. Mr. Mayo felt so "demeaned" by the letter that he cried uncontrollably, left the office, and spent the rest of the afternoon crying on the floor at his doctor's office. On October 21, Mr. Mayo left a copy of a memorandum from him to Dr. Schuchts, his psychiatrist, on the desks of both Mr. Rossman and Ms. Regan. In this memorandum, Mr. Mayo complained that he, as a consumer of mental health services, was being excluded from decision-making at the Center, and criticized advocates "who maintain [they] can speak for us." Outlining his opinions in his October 21 memorandum to Dr. Schuchts, Mr. Mayo listed as one of them: "To continue to disobey Jon and act upon my conscience. To attend meetings for which he refuses to "empower consumers and to openly submit reports from those meetings to him." Shortly before October 28, Mr. Gene Padgett, a close friend of Mr. Mayo's and a personal advisor to him, met Mr. Rossman for lunch. At lunch, they discussed Mr. Mayo's status, and Mr. Padgett encouraged Mr. Rossman to give Mr. Mayo a very definite set of guidelines within which to operate. On October 29, Mr. Rossman issued to Mr. Mayo a memorandum dated the previous day. The memorandum of October 28 began with a statement of the problems which had occurred and which Mr. Rossman felt required the setting forth of specific guidelines and limitations for Mr. Mayo's subsequent work activities. The memorandum then set forth specific assignments and guidelines for continued employment. The conditions were reasonable and nondiscriminatory. Mr. Rossman advised Mr. Mayo that he was expected to agree to the conditions if he was going to continue working for the Advocacy Center. Mr. Rossman's purpose in giving Mr. Mayo the memorandum of October 28 was an attempt to salvage Mr. Mayo's employment. By that time, Mr. Rossman had become convinced that excess independence and insufficient direction might be contributing to the problems with Mr. Mayo's employment. He believed that setting forth strict assignments and guidelines, as suggested by Mr. Padgett, might result in a productive work experience for Mr. Mayo. On October 29, Mr. Mayo was given the memorandum and told he must agree to its terms. Mr. Rossman had arranged for two other employees to witness the events of the meeting. Mr. Mayo asked if he could have a copy of the memorandum and if he could have until November 3 to take the document to his attorney. Mr. Rossman agreed to the request. Mr. Mayo left the office and did not return to work. Nothing in the meeting demonstrates any discriminatory purpose or intent on the part of the Center or Mr. Rossman. Mr. Mayo's claim that the presence of the two other employees was intimidating and therefore discriminatory is simply not born out by later events and Mr. Mayo's own actions. On November 10, Mr. Rossman received a letter from Mr. Richard Powers, a Tallahassee attorney, on behalf of Mr. Mayo. Mr. Power's letter indicated no willingness on Mr. Mayo's part to accept the conditions set out in the October 28 memorandum. The letter suggested a meeting to discuss the subject. On November 18, Mr. Rossman, Mr. Mayo, Mr. Parker Thompson (Board Member), and Mr. Powers met at Mr. Power's office. Mr. Mayo and his attorney insisted that Mr. Mayo be allowed to return to work without conditions. Mr. Mayo's return without conditions addressing the problems in the performance of his job was not acceptable to the center. On November 25, 1987, Mr. Rossman wrote to Mr. Powers, confirming Mr. Rossman's understanding that Mr. Mayo was insisting on a "return to work without any conditions," and reiterating Mr. Rossman's own position that Mr. Mayo could return to work "under conditions designed to address problems in his performance." Mr. Rossman agreed in the letter to hold Mr. Mayo's position open until December 1, 1987. Mr. Rossman did not hear further from Mr. Mayo or his attorney prior to, or following December 1, 1987. The only conclusion that can be drawn from Mr. Mayo's action or inaction is that he quit his employment with the Center when he determined that he was not going to be allowed to do as he pleased in his employment. In January 1988, following Mr. Mayo's departure, the Advocacy Center hired an individual, to fill the position of client advocate for the MIP&A program. The individual hired has a history of mental illness -- specifically, bipolar depression. Other than Mr. Mayo, the Commission/Center has employed a number of individuals with a variety of handicaps. The former Program Director for the Developmentally Disabled Program was a person with cerebral palsy who chose not to continue in employment with the Commission when it converted to private status. The Center's CAP Program Director is a wheelchair user, due to childhood polio. She has her desk up on blocks, high enough to accommodate her wheelchair. One of the Center's attorneys has epilepsy. A CAP client advocate for the Center is blind. Another Center employee has a hearing impairment. During his employment, Mr. Mayo was not able to accept supervision and was unable to work in the structured environment at the Center. There was no substantial evidence presented which establishes a nexus between Mr. Mayo's shortcomings and his mental illness. Without such evidence it is difficult to say what role Mr. Mayo's handicap played in his demise. A handicap does not entitle the individual to accommodation in areas unrelated to that handicap. Therefore, the evidence did not demonstrate any discrimination by the Center due to that handicap.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that the Petitioner's Petition be dismissed. DONE and ENTERED this 6th day of December, 1989, in Tallahassee, Leon County, Florida. DIANE CLEAVINGER 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 6th day of December, 1989.
Findings Of Fact The Petitioner is the Department of Health and Rehabilitative Services. The Respondent is Elizabeth Joseph, licensed at all times pertinent to these proceedings to operate Jas Manor, an adult congregate living facility in Miami, Florida. Petitioner's employee, Elizabeth Baller, conducted an inspection of the Respondent's facility on September 18, 1986, and discovered seven persons in residence. This number of individuals exceeded the licensed capacity of Respondent's facility by one person. Ms. Baller recited the initials of those residents present in Respondent's facility on that date. Respondent's composite exhibit number 1, consisting of what are alleged to be copies of admission and discharge records, corroborates Ms. Baller's finding. The Respondent was not present at the facility at the time of this inspection. The failure of the Respondent to limit the capacity of the facility to no more than six residents posed a potential threat to the well-being of the residents. The existence of the deficiency finding was discussed with the Respondent by Baller via telephone on September 26, 1986. Ms. Baller did not visit Respondent's facility on September 24, 1986 and is without any direct personal knowledge that the number of residents in the facility on that date exceeded the licensed capacity. In the absence of such direct testimony, Petitioner exhibit number 1, alleged to be a statement of deficiencies issued by Petitioner, is not corroborative or credited with probative value as to the existence of any deficiency of the licensed facility on September 24, 1986. Petitioner exhibit number 1 does not conform to the statutory requirements for a class III deficiency citation as specified in section 400.419(3)(c), Florida Statutes, in that the exhibit fails to set forth the time within which the deficiency is to be corrected. Ms. Baller conducted a follow up visit on November 21, 1986, which, she contends, revealed seven residents in the facility, and a continuation of the violation cited previously in September. This contention of Ms. Baller is not supported by the weight of the evidence. Respondent's denial of the continuation of the deficiency at that time is supported by the testimony of Christine Sassone who regularly visits the facility on behalf of the church attended by her and Respondent. Ms. Sassone works with the residents of Respondent's facility, teaching arts and crafts there every evening, Monday through Friday, from 3:30 or 4 P.M. until 8:30 or 9:00 P.M. She was present at the facility on September 18 and November 21, 1986. She attests that there were only six residents present on either occasion. It is her testimony that individuals in excess of the licensed capacity on both of the dates in question may have been visitors from a neighboring facility known as the "Vet's Nest" which abuts Respondent's property. While discounting Sassone's unsupported testimony regarding the number of residents present on September 18, 1986, her testimony and that of the Respondent establish the fact that only six residents were present at the time of the follow up visit by Baller. Notably, Respondent's exhibit number 1 which supported the Petitioner's finding of seven residents in Respondent's facility on September 18, 1986, corroborates the testimony of Respondent and Ms. Sassone establishing that such deficiency was cured by November 21, 1986. The evidence fails to establish that the violation of Respondent discovered on September 18, 1986, was a repeat offense. It is found that the offense was not a repeat offense.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED the Department of Health and Rehabilitative Services enter a final order finding the commission of a class III violation by Respondent, but assessing no civil penalty for the violation. DONE AND RECOMMENDED this 11th day of March, 1988, in Tallahassee, Leon County, Florida. DON W. DAVIS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 11th day of March, 1988. APPENDIX The following constitutes my specific rulings on findings of fact submitted by the parties. PETITIONER'S PROPOSED FINDINGS Included in findings 2 and 3. Included in finding number 3, except for the last sentence relating to the visit of November 21, 1986. This sentence is rejected as not supported by the weight of the evidence. Included in finding number 3 and 9, except for the last sentence which is rejected. Rejected as unnecessary. COPIES FURNISHED: Leonard T. Helfand, Esquire Department of Health and Rehabilitative Services 5190 N.W. 167th Street Miami, Florida 33014 Elizabeth Joseph Administrator Jas Manor 645 N.E. 131st Street North Miami, Florida 33161 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire Department of Health and Rehabilitative Serviced 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power HRS Clerk Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700
