Findings Of Fact By application dated July 20, 1995, Petitioner applied to Respondent for a Clinical Laboratory Supervisor's license. Petitioner has not earned a doctoral degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does not have a masters degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does not have a baccalaureate degree in medical technology, one of the specialty areas, or one of the chemical or biological sciences. Petitioner does have a baccalaureate degree in business administration and has taken college level courses in biology, human anatomy and chemistry. Petitioner has demonstrated that she has five years of pertinent experience following receipt of the degree. Accompanying her application for licensure, Petitioner presented documentation that she completed an advanced clinical practicum as a Specialist in Blood Bank Technology in 1995 and has been certified by the national Board of Registry in Chicago, Illinois. Petitioner did submit an evaluation of her college transcript by a qualified staff member of the Board of Registry, Chicago, Illinois. Petitioner did not submit an evaluation of her college transcript by a Chairperson of a chemical or biological science department of a regionally accredited U. S. college or university. Petitioner did not file a motion for an extension of time in which to submit an evaluation of her college transcript prior to the expiration of the thirty day extension period.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered denying Petitioner's application for licensure as a Clinical Laboratory Supervisor. DONE AND ENTERED this 27th day of August, 1996, in Tallahassee, Florida. DANIEL M. KILBRIDE, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of August, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 96-2187 Petitioner's proposed findings of fact. Petitioner did not submit proposed findings. Respondent's proposed findings of fact. Accepted in substance: paragraphs 1,4,5,6,7,8,9,10. Rejected as subsumed or irrelevant and immaterial: Paragraphs 2 (see Preliminary Statement) and 3 (see preliminary statement). COPIES FURNISHED: Lealand L. McCharen Assistant Attorney General Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Diane Orcutt, Executive Director Board of Clinical Laboratory Personnel Agency for Health Care Administration Northwood Centre 1940 North Monroe Street Tallahassee, Florida 32399-0792 Jerome W. Hoffman, General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Mary Donna Lee, pro se 2544 Robert Trent Jones Drive Apartment Number 816 Orlando, Florida 32835
The Issue The issue is whether proposed rules 590-2.002, 590-3.003, 590-5.001, 590- 5.002, 590-5.006, 590-9.002, 590-9.004, 590-10.004 and 590-13.006 are an invalid exercise of delegated legislative authority.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background These cases arose after respondent, Board of Clinical Laboratory Personnel (Board), published in the Florida Administrative Weekly its notice of intent to adopt certain revisions in Chapters 59O-2, 59O-3, 59O-5, 59O-6, 59O-9, 59O-10 and 59O-13, Florida Administrative Code. The proposed rules deal with the subject of alternate site testing within the state. The Board was created by the legislature in 1992 to regulate clinical laboratory personnel. Its authority and duties are set forth in Part IV of Chapter 483, Florida Statutes. The Board's purpose is to ensure the protection of public health, safety, and welfare through the regulation of clinical laboratory personnel. To this end, the Board is required by law to prescribe minimal qualifications for clinical laboratory personnel. Alternate site testing is any "laboratory testing done under the administrative control of a hospital, but performed out of the physical or administrative confines of the central laboratory." It can only exist in a hospital under the direct supervision of the central clinical laboratory and its clinical laboratory director. The alternate site laboratory does the same type of testing as does the central laboratory but it uses different equipment. Alternate site testing is performed using ten to twelve instruments specifically designed for that purpose, and which specifically incorporate safeguards to prevent misuse or misinterpretation. Clinical laboratory personnel are persons who perform clinical laboratory examinations on specimans derived from the human body for the purpose of delineating information for the diagnosis, management and treatment of patients. There are four classes of clinical laboratory personnel, namely, technician, technologist, supervisor and director. Within the category of technician are various specialty categories including clinical chemistry, hematology, immunohematology, histology, radioassay, serology, microbiology, exclusive use and alternate site. In general terms, the proposed rules define an alternate site technician, set forth the curriculum requirements for training programs for alternate site technicians, state the minimum standards for licensure as an alternate site technician, prescribe the initial licensure and renewal fees for alternate site technicians, set forth the scope of practice for all clinical laboratory personnel, and enumerate the responsibilities of alternate site technicians including limits on tests that can be performed with this type of licensure. These rules were adopted after various workshops, public meetings and member conference calls were conducted by the Board in 1993 and 1994. As clarified by a more definite statement, petitioners in Case No. 94- 5968RP, Florida Perfusion Society (FPS) and Florida Hospital Association (FHA), contend that all or parts of proposed rules 590-2.002, 590-3.003, 590-5.006, 590-9.002, 590-9.004, 590-10.004 and 590-13.006 are invalid on the grounds (a) the Board exceeded its rulemaking authority, (b) the rules are arbitrary and capricious, and (c) the rules contravene the law being implemented. Petitioners in Case No. 94-5969RP, Florida Society of Pathologists (FSP) and Dr. Louis S. McCann, Jr., have challenged proposed rules 590-5.001 and 590-5.002 on the grounds the two rules contravene the statutes being implemented and are arbitrary and capricious. Petitioner in Case No. 94-5970RP, Florida League of Hospitals (FLH), has challenged the validity of all the proposed rules on the ground the Board has exceeded its rulemaking authority. In addition, it has challenged Rules 590-2.002(7), 590-5.006(2), 590-9.002(4), 590-9.004(7) and 590-13.006 on the ground they contravene the statutes being implemented. Intervenor, Florida Coalition of Professional Laboratory Organizations, Inc., is a nonprofit corporation representing twelve organizations who represent the interests of laboratory professionals licensed under Part IV of Chapter 483, Florida Statutes. It supports the challenged rules and is aligned with the Board in these proceedings. Standing Respondent has stipulated to the standing of the FSP, a professional association of pathologists, and Dr. McCann, its president-elect, and thus there is no dispute that those petitioners are substantially affected by the proposed rules. FPS is a statewide professional medical society representing professional cardiovascular perfusionists in Florida. Perfusionists are principally known for the safe operation and maintenance of the heart-lung machine in open heart surgery. The FPS currently has more than one hundred members, most of whom are actively engaged in the practice of perfusion. The purpose of the FPS is to promote perfusion education and clinical expertise and to address the professional interests of perfusionists on issues affecting the profession, including representation before governmental bodies. Perfusionists are regularly required to perform the type of tests that are performed at alternate sites as part of their profession. The proposed rules would directly regulate their practice. In addition, a substantial number of FPS members would be affected by the proposed rules because they would be required to obtain a license as a laboratory professional in order to continue practicing using alternate test sites, or to use alternate test sites in the future. As such, they are substantially affected by the proposed rules. The FHA is a statewide, nonprofit trade association representing all types of hospitals in the state. As of August 1994, or three months before the hearing, it had 233 institutional members (licensed hospitals), plus various organizational and individual members. Its purpose is to serve its members by developing and promoting programs and services that will enhance their ability to provide comprehensive, efficient, high quality health care to the people of Florida. The association also represents its members at the state and national levels in providing an effective health care system. Only hospitals with clinical laboratories can have alternate site laboratories where alternate site technicians would be employed. The number of institutional members having clinical laboratories is not of record nor is the number of hospitals who plan to operate alternate site laboratories. Even so, it may be reasonably inferred that at least some of the hospitals provide clinical laboratory services in their facilities and, in the future, they intend to provide alternate site testing. Because the proposed rules require medical professionals already licensed or certified to obtain an additional license, limit the professionals who can provide these services, and impose regulatory and financial requirements on the provision of those services, the institutional members of the FHA are substantially affected by these proceedings. Moreover, because the proposed rules impose new training requirements on medical personnel, the hospitals who employ such individuals would be required to absorb the cost of training these employees and providing coverage for their duties while they are being trained. In these respects, they are further impacted by the rules. The FLH is a trade association comprised of seventy-six for-profit hospitals. Of its seventy-six members, seventy-three have clinical laboratories. Because the proposed rules limit the categories of hospital personnel who could be licensed as alternate site testing technicians and restrict the tests that these licensees can perform, the FLH is substantially affected by the proposed rules. Legislative History of Alternate Site Testing In 1993, the Florida Legislature adopted Chapter 93-178, Laws of Florida. That act specifically provided for the implementation of alternate site testing in Florida. The section relating to alternate site testing, which has been codified as Subsection 483.051(9), Florida Statutes, provides as follows: (9) Alternate Site Testing.- The agency, in consultation with the Board of Clinical Laboratory Personnel, shall adopt, by rule, the criteria for alternate-site testing to be performed under the supervision of a clinical laboratory director. The elements to be addressed in the rule include, but are not limited to: a hospital internal needs assessment; a protocol of implementation including tests to be performed and who will perform the tests; criteria to be used in selecting the method of testing to be used for alternate-site testing; minimum training and education requirements for those who will perform alternate-site testing, such as documented training, licensure, certification, or other medical professional background not limited to laboratory professionals; documented inservice training as well as initial and ongoing competency validation; an appropriate internal and external quality control protocol; an internal mechanism for identifying and tracking alternate-site testing by the central laboratory; and recordkeeping requirements. Alternate-site testing locations must register when the clinical laboratory applies to renew its license. For purposes of this subsection, the term "alternate-site testing" means any laboratory testing done under the administrative control of a hospital, but performed out of the physical or administrative confines of the central laboratory. (emphasis added) The bill which became Chapter 93-178, Laws of Florida, originated as PCB 93-01 of the House Committee on Health Care. It was later filed as House Bill 2071 (HB 2071), Medical Tests and Procedures/Sunset. The overall purpose of the bill was to review provisions of Part I of Chapter 483 related to clinical laboratories, which was scheduled for sunset review under Section 11.61, Florida Statutes. The original version of PCB 93-01, dated January 28, 1993, had no provisions relating to alternate site testing. During consideration of the bill on February 3, 1993, the House Committee on Health Care amended PCB 93-01 to provide for rulemaking by the Board. Specifically, the amendment stated that "(t)he board shall adopt rules for alternate site testing to be performed under the supervision of clinical laboratory director." However, the authority for the Board to adopt rules was subsequently removed from the bill by amendment on the House floor on March 23, 1993. The House bill was then considered by the Senate, which amended the House bill on March 31, 1993. The amendment was a "strike everything after the enacting clause" amendment. In effect, the amendment substituted all new bill language in place of the House bill, while retaining the bill number of HB 2071. The alternate site testing language substituted was identical to the bill that had been considered in the Senate as SB 156, which, among other things, added subsection 483.051(9), relating to alternate site testing. This provision gave rulemaking authority to the Agency for Health Care Administration (ACHA) "in consultation with the Board of Clinical Laboratory Personnel." The Senate passed the amended bill and this version was returned to the House. The House then passed HB 2071 as it had been amended and passed in the Senate (with two amendments not related to alternate site testing). The Senate then concurred in the final House version. The amendment relating to subsection 483.051(9) (on alternate site testing) remained intact and eventually became the current Subsection 483.051(9), Florida Statutes. Subsection 483.051(9), as adopted, specifically delegates the rulemaking authority for alternate site testing to AHCA. That provision calls for "consultation" with the Board, but does not give the Board any rulemaking authority. The Board had a designated member, George Mavros, who represented the Board during the legislative session. Initially, the Board recognized ACHA's exclusive rulemaking authority in a report from its legislative liason and in discussions with affected public at its regularly scheduled meetings. That position was reiterated in an official letter to a representative of an affected organization from the Board's chairman. The chairman was specifically authorized to speak for the Board, and the letter reflected the official position of the Board at that time. In its discussions and letters, the Board specifically stated that the newly adopted statute did not give the Board rulemaking authority. Such public statements and letters are evidence of the Board's contemporaneous construction of the statute that it had no authority to adopt rules governing alternate site testing. Since that time, however, the Board has taken an opposing position, that is, that it has authority to adopt rules pertaining to alternate site testing requirements, and the rules under challenge are the end product of this changed position. The statute authorizing AHCA to adopt rules is clear on its face and unambiguous. Moreover, the legislative history reveals that during the 1993 session the legislature specifically considered the delegation of rulemaking authority to the Board in an early version of the bill. The provision giving specific rulemaking authority to the Board was deleted by later action of the same legislature. The final version of the bill contains a delegation of rulemaking authority to AHCA and omits any delegation to the Board. This is clear evidence that the legislature considered giving rulemaking authority to the Board, and instead evinced a clear intent to give exclusive rulemaking authority to AHCA. The legislature cannot be said to have simply forgotton the authority of the Board. Subsection 483.051(9) specifically sets forth the Board's role as a consultant. If the legislature had intended to "split" the rulemaking authority for alternate site testing between the Board and AHCA, it would not have specifically set out a different role in the statute. The legislative staff analyses of the bill support these findings. The staff analyses of subsection 483.051(9) refer solely to AHCA when referencing rulemaking authority for alternate site testing. Therefore, the Board did not have statutory authority to adopt the rules. For the reasons given in the conclusions of law portion of this order, the statutes which the Board relies upon for its rulemaking authority are not deemed to be controlling or relevant. Are the Challenged Rules Invalid for Other Reasons? Nothwithstanding the above findings, and solely for the sake of judicial economy in the event an appeal is taken by any party, additional findings are made relative to each of the challenged rules. In making these findings, it is noted that where new grounds for invalidating a rule have been raised for the first time in a party's proposed order, they have been disregarded as being untimely. Further, where a party has not addressed a previously raised ground in its proposed order, the undersigned has assumed that ground has been abandoned. Where a party speaks to a rule in general terms, and not a specific part thereof, and the undersigned is unable to discern which part of the rule is being attacked, that contention has been disregarded. a. Rule 59O-2.002(7) The first challenged rule is 59O-2.002(7), which defines the term "technician in the specialty of Alternate Site Testing" as follows: (7) Technician in the specialty of Alternate Site Testing means a person qualified to be a technician in the specialty of alternate site testing pursuant to the rules of the Board who under the general supervision of a laboratory director, supervisor or technologist may perform specific testing authorized by the Agency pursuant to rule chapter 59A-7 and the Board pursuant to rule chapter 59O-13 in a hospital based alternate site testing environ- ment approved by the Agency pursuant to section 483.051(9), F. S. and whose practice is limited to an alternate site testing environment. The Board had cited Subsections 483.805(4) and 483.811(3) and (4), Florida Statutes, as the specific authority for adopting the rule while Subsections 483.803 and 483.811(3) and (4), Florida Statutes, are cited as the laws being implemented. Besides leveling the broad charge that the Board lacks statutory authority to adopt the rule, a contention already decided in their favor, petitioners FPS and FHA contend that the rule is arbitrary and capricious because it sets up an impossible condition for qualifying as an alternate site technician since necessary related rules in Chapter 59A-7 have never been adopted by AHCA. In order for the proposed rule to become operable, AHCA must first adopt amendments to its Chapter 59A-7, which pertain to alternate site testing laboratories. Also, AHCA must approve a "hospital based alternative site testing environment" in which such tests can take place. At the time of hearing, a draft of new proposed rules 59A-7.034 and 59A-7.035 was being circulated by AHCA, but had not yet been adopted. Even so, the fact that the Board's rule is contingent on further rules being adopted by another agency does not render the rule arbitrary or capricious. The contention is accordingly rejected. (b) Rule 59O-3.003(3)(e) This rule sets out the proposed requirements for training for individuals performing specific alternate site tests. As modified by the notice of change published in the Florida Administrative Weekly on November 10, 1994, the challenged portion of the rule now provides the following training requirements: (e) Notwithstanding all other provisions of rule chapter 59O-3.003, the only require- ments for training in the specialty of Alternate Site Testing shall be 4 contact hours of instruction per test system with an additional 0.5 contact hour of instruction for each analyte above 8 analytes performed on the same test system. The contact hours of instruction shall be by a Board approved continuing education provider approved pursuant to rule chapter 59O-11 which shall include as a minimum instruction in the tasks defined as follows: * * * The terms "analyte" and "test system," which are the guages on which training is measured, are not defined anywhere in the Board's rules. Besides the argument that the Board lacks statutory authority to adopt the rule, petitioners FPS and FHA contend the proposed rule is arbitrary and capricious in that the requirements are excessive and inflexible. They also contend that the rule contravenes the provisions of Subsection 455.201(4), Florida Statutes, which prohibits a regulatory board from adopting "unreasonably restrictive and extraordinary standards" for a given profession. In proposing the number of hours of training for alternate site testing, the Board relied mainly upon its own members' expertise and judgment. It also relied on public comment given at a Board meeting on August 7, 1993, including testimony from a manufacturer's representative. Finally, it relied upon a training and certification program manual by i-Stat Corporation, a manufacturer of equipment used in clinical laboratories, and on other unspecified "documents and manuals." It did not conduct any surveys of professional literature or other outside services, nor did its staff conduct any research on the subject. Initially, it is noted that the proposed rule gives no consideration to the relative levels of medical training and education in the various professions regulated by the rules, even though that can affect how much training time is needed. For some professionals, such as an ICU nurse or emergency physician nurse, four hours of training is excessive, based on approved manufacturer's training protocol. By providing uniform instruction for all professionals, regardless of their prior training, and without any factual basis for doing so, the Board acted in an arbitrary manner. In arriving at the number of hours of instruction required for each test system, the Board relied in part on the testimony of a manufacturer's representative (Mallinckrodt) given at the August 7, 1993 meeting. A review of his comments, however, reveals that the representative recommended far fewer hours of instruction than is provided for in the rule. Moreover, in prescribing four hours training per test system, the Board relied primarily on its own judgment rather than on technical material submitted by other affected persons. Likewise, the basis for the additional 0.5 hours per analyte over eight analytes was not grounded on empirical data. Indeed, analytes and test systems are not even defined in the rule. Given these shortcomings, it cannot be said that the requirements of the rule are based on facts or logic. The rule is accordingly deemed to be arbitrary and capricious. Given this finding, it is unnecessary to reach the issue of whether the rule contravenes Subsection 455.201(4), Florida Statutes, by providing unreasonable and restrictive standards. (c) Rule 59O-5.001(1)(b), (2)(a), and (2)(b) This rule prescribes the educational requirements for the director of a clinical laboratory. Under current standards (rule 10D-41.067), a director must be a physician or a doctoral scientist. By its rule, the Board proposes to allow a person with a master's degree to become licensed as a clinical laboratory director. The challenged portions of the rule read as follows: Education. An applicant shall meet one of the following education requirements: * * * (b) Have a master's degree in clinical laboratory science, one of the specialty areas, or one of the chemical or biological sciences. Experience. An applicant who qualifies pursuant to rule 59O-5.001(1) shall meet one of the following requirements: (a) Have full time pertinent clinical laboratory experience in an approved laboratory subsequent to receipt of the relevant degree as follows: * * * If qualifying under rule 59O-5.001(b), 8 years of experience. * * * Petitioners FSP and Dr. McCann generally contend the foregoing rule contravenes Section 483.800, Florida Statutes, and is arbitrary and capricious in that it allows untrained persons to become laboratory directors. All state clinical laboratories and their personnel are subject to federal regulation under the federal Clinical Laboratory Improvement Act (CLIA). Regulations promulgated thereunder classify clinical laboratories based on the complexity of the tests performed. The three category of tests are waived, moderately complex and highly complex. Laboratories performing waived tests, or those that are simple and pose no risk to the public, are not regulated by CLIA while those performing moderate to highly complex testing must meet CLIA's minimum requirements for quality control, quality assurance and personnel. CLIA regulations link personnel requirements with the complexity of testing. The requirements for moderate and highly complex testing personnel are defined separately and are significantly different. Those facilities providing only moderately complex testing may use directors having both master's level and bachelor's level degrees. In recognition of both the sophistication of highly complex tests and the broad scope of a laboratory director's duties and responsibilities, however, CLIA regulations require directors of clinical laboratories performing any highly complex testing whatsoever to be either physicians or doctoral scientists. It is noted that hospital laboratories and independent laboratories perform highly complex testing, and that any hospital laboratory, including rural hospitals, providing full service functions will perform highly complex testing. Under CLIA regulations, laboratories which perform highly complex testing allow the director to reapportion performance of responsibilities to persons having less qualifications. The overall responsibility, however, rests with the director, and the regulations do not allow a master's level individual to direct the clinical laboratory performing highly complex testing, or to delegate responsibilities to a more qualified individual. The proposed rule would allow master's degree scientists to direct laboratories performing highly complex testing so long as that individual hired a "co-director" who was a physician or a doctoral scientist. Under this arrangement, the co-director would be left with only those responsibilities that the lesser qualified master's level director called upon him or her to perform. In this respect, the proposed rule is at variance with federal regulations. While the Board justifies this change on the ground a study shows a shortage of various professionals in the rural hospital setting, the study itself was not introduced into evidence. Moreover, the rule would apply to all hospitals, whether rural or not. Even though the proposed rule is inconsistent with CLIA, in its filing with the Joint Administrative Procedures Committee, the Board represented that "(t)here is no ascertainable parallel federal rule or standard with which to make a comparison." It is reasonable to infer that this response was given so that the Board would not have to give an explanation of the rule's inconsistency with CLIA. Although the Board had a wide range of input regarding this rule, it failed to address a number of valid concerns raised by the opponents. Because of the nature of the testing involved in laboratories performing highly complex testing, severe injury or even death can result from an incorrect test result being reported by one of the clinical laboratory personnel. It is esential, therefore, that clinical laboratories performing highly complex testing be directed by the most competent and trained personnel. This goal is not attained in the proposed rule. The appointment of a lesser qualified person would also mean that a director would not be able to perform all work functions in the laboratory, something current directors can now perform. Further, the proposed allocation of responsibilities would place virtually all of the professional liability on the "co-director" (physician or doctoral scientist) even though the co-director does not "direct" the laboratory. Finally, even though a laboratory can be licensed by specialty, this does not eliminate the above concerns since a specialty is not limited to moderately complex testing. Given the lack of a factual basis or logic to support the rule as presently proposed, subsections (1)(b), (2)(a) and (2)(b) of rule 59O-5.001 are deemed to be arbitrary and capricious and are thus invalid. These portions of the rule also contravene Section 483.800, Florida Statutes, which requires, among other things, the "licensure of clinical laboratory personnel who meet minimum requirements for safe practice." (d) Rule 590-5.006 This rule sets forth the educational requirements necessary for the specific types of licensure and certification for clinical laboratory personnel. As modified by the Board on November 10, 1994, the rule now reads as follows: 59O-5.006 Technician in the Specialty of Alternate Site Testing. Those persons licensed as a director, supervisor, technologist or technician pursuant to part IV of chapter 483, F.S., can work in the specialty of alternate site testing without additional licensure or certification. Persons only performing waived tests as defined in section 483.041(9), F. S. in a laboratory holding a certificate of exemption pursuant to section 483.106, F. S., are not required to be licensed and need not meet these requirements. Persons certified only under this rule shall not perform testing beyond that defined in rule 590-13.006. Persons who perform testing defined in rule 590-13.006 at alternate testing sites as defined in section 483.051(9), F.S., shall meet the requirements of rule 590-5.006(1), (2) and (3) as follows: Education. Have a high school diploma or its equivalent and Have completed 4 contact hours of HIV/AIDS continuing education pursuant to rule chapter 59O-11. Training. For purposes of this rule the term "licensed" requires a full permanent license not a temporary license. An applicant who qualifies under the education requirements of rule 59O-5.006(1) shall in addition meet one of the following requirements: Is licensed as a registered nurse pursuant to chapter 464, F. S. Is licensed as a radiologic technologist pursuant to chapter 468, part IV, F. S. Is licensed as a respiratory therapist or as a respiratory care practitioner certified to perform critical care services pursuant to chapter 468, part V, F. S. Is a perfusionist certified by the American Board of Cardiovascular Perfusion-ists. Additional Training. An applicant who qualifies under the education requirements of rule 590-5.066(1) and the training requirements of rule 590.006(2) shall in addition meet one of the following requirements: Have successfully completed a Board approved Clinical Laboratory Personnel Technician training program in general laboratory practice principles pursuant to rule 590-3.003(3)(d). Have successfully completed alternate site testing training for each test the applicant will be performing which provides instruction in all subject matter areas of rule 590-3.003(3)(e). After completing the training, the applicant shall submit verification from the laboratory director that the applicant has successfully completed the alternate site testing training. Have received instruction in all subject matter areas of rule 590-3.003(3)(d) or (e) while enrolled in a program leading to licensure under chapters 464, 468, part IV, or 468, part V, F. S., or certification by the Board of Cardiovascular Perfusionists and shall submit verification from the program director of such instruction. Although a number of grounds for invalidating the rule were raised in the initial petitions, in their joint proposed order, the FPS, FHA and FLH have limited their grounds to four: (a) the Board was arbitrary and capricious in limiting the application of the rule to five professions; (b) the Board did not comply with Section 455.201, Florida Statutes; (c) the proposed rule contravenes Section 468.351(2), Florida Statutes, by making the terms of the rule applicable to respiratory therapists and respiratory care practitioners, and (d) the Board was arbitrary and capricious by requiring training for waived tests. The allegation regarding the validity of the requirement in subsection (1)(b) for HIV/AIDS continuing education training has been disregarded as being untimely. The rule applies to respiratory therapists and respiratory care practitioners even though Subsection 468.351(2), Florida Statutes, which governs the practice of those professions, clearly provides that "it is the intent of the Legislature that personnel certified or registered pursuant to this part shall be exempt from the licensure provisions of chapter 483." There is no basis in the record for the Board's contention that the exemption in subsection 468.351(2) applies only to blood gas testing, and no others. Given this lack of support for that limitation, the rule contravenes the provisions of the cited statute, and paragraph (2)(c) is deemed to be invalid. The contention is also made that the Board selected the remaining three classes of professions (registered nurses, radiologic technologists and perfusionists) without any justification. Although the Board contended it studied the type of training and education received by these professions, there is no evidence of such a discussion in the Board records, nor is there evidence that rules regarding education and training of other professions were ever presented to all of the Board members. Further, there is no evidence that the Board ever considered other professionals of equal medical educational background. While the Board did receive information from the American Board of Cardiovascular Perfusionists regarding the certification requirements for that organization, that by itself is an insufficient factual basis to justify the limitation imposed by the rule. Under these circumstances, it cannot be said that the remainder of the rule is supported by facts or logic. Petitioners further contend that the rule contravenes the provisions of Subsection 455.201(4), Florida Statutes, which makes it unlawful for the Board to "create unreasonably restrictive and extraordinary standards that deter qualified persons from entering the various professions." Since the Board acted arbitrarily and capriciously in limiting the approved professions that are subject to the rule, it is found that the proposed rule creates unreasonably restrictive and extraordinary standards for the profession. Finally, by modification to the rule on November 10, 1994, the Board added the following sentence in the first paragraph: "Persons only performing waived tests as defined in section 483.041(9), F. S., in a laboratory holding a certificate of exemption pursuant to section 483.106, F. S., are not required to be licensed and need not meet these requirements." In order to obtain a certificate of exemption, a laboratory must be engaged only in waived tests. These are tests that are relatively simple and pose little risk of harm to the public. Petitioners complain that, while providing this exception to training for waived tests at laboratories holding a certificate of exemption, the Board did not remove the requirement for training for waived tests performed at alternate site testing facilities, and thus the rule is arbitrary. Under the proposed rule, any person performing waived tests, who later becomes certified to perform a moderately complex test, must receive additional training in the waived test as well. While the Board suggests that a hospital can avoid this double training by setting up multiple laboratories in the same location, it failed to provide any justification for this excessive testing. The challenged sentence is accordingly deemed to be arbitrary. (e) Rules 59O-9.002(4) 59O-9.004(7) These two proposed rules levy a $20 fee for the initial and renewal certification of alternate site testing technicians, respectively. In its petition, the FLH contended that the Board lacked statutory authority to adopt both rules, a contention already resolved in petitioner's favor. In its posthearing filing, however, it argues for the first time that the rules are arbitrary and capricious. This contention has accordingly been rejected as not being timely. The FPS and FHA have similarly contended that rule 59O-9.004(7) is invalid on the ground the agency lacks statutory authority to adopt the rule. They also contend for the first time that the rule is arbitrary. This untimely allegation has been disregarded. (f) Rule 59O-10.004 This proposed rule sets forth minimum standards that all laboratory professionals must meet. At issue here are the requirements that all clinical laboratory personnel provide the following services: (14) Process aliquots or components of specimens for analysis according to the type of specimen and procedure to be performed. * * * (18) Recognize output signals and observations and convert them to prescribed units for recording and reporting. * * * In their initial petition, as clarified by a more definite statement, FPS and FHA contended the Board exceeded its rulemaking authority by including professionals engaged in alternate site testing as clinical laboratory personnel subject to Board regulations, a ground already discussed. In their proposed order, petitioners have added the contention that the rule is vague because it contradicts the terms of another rule. Because this newly raised ground is untimely, it has been disregarded. (g) Rule 59O-13.006 The final rule being challenged describes the responsibilities of alternate site testing technicians. Among other things, the rule prescribes the tests that the technicians can perform. The specific portions of the rule which are being challenged read as follows: Alternate Site Testing Technican shall: * * * (b) Perform only tests from the following list provided the requirements of Rule 59O-13.006 have been met: 1. Tests designated as waived pursuant to 42 CFR 493.15, incorporated by reference. * * * 3. Tests designated as moderately complex pursuant to 42 CFR 493.10 and 42 CFR 493.17 which employ whole blood and require no pre- analytical, analytical or post-analytical specimen or reagent manipulation, treatment, extraction, separation or other processing of any kind and must employ an automated single, closed, dry or electrochemical sensor reagent system. The instrumentation shall provide for instrument calibration without any operator adjustment. Post analytical instrument output signals must be directly reportable in the correct units of measure- measure without need for data conversion or other manipulation. Electronic instrumen- tation must have a mechanism whereby the operator is alerted when patient results exceed reportable limits and when internal or external quality control or calibration is not acceptable. Such results shall not be used for the diagnosis, treatment, management or monitoring of patients and shall be validated through the central laboratory. Validation shall be documented at the alternate test site. * * * (j) When affixing the name or signature to any laboratory record or patient report, indicate the professional status by adding the designation "ASTT" to designate Alternate Site Testing Technician immediately following the name or signature if holding a current Florida certificate. The holder of temporary certification must use the designation "GASTT" to designate Graduate Alternate Site Testing Technician until such time as certification is granted by the Board. * * * The specific authority for adopting the rule is Subsection 483.805(4), Florida Statutes, while the laws being implemented are Sections 483.800, 483.813 and 483.825, Florida Statutes. Although a number of grounds for invalidating the rule were raised in the petitions filed by the FLH, FPS and FHA, these grounds have been narrowed in their joint proposed order. As to the newly raised contention that certain parts of the rule, including subparagraph (1)(b)3., are vague, this contention has been disregarded as not being timely. Similarly, the argument that subparagraph (1)(b)3. contravenes the provisions of Subsection 455.201(4), Florida Statutes, was not specifically pled by any party. Likewise, the assertion that paragraph (1)(a) is invalid because its effectiveness is dependent on other rules being enacted has been rejected as being untimely. Since no other viable claim has been raised, the rule is deemed to be invalid on the single ground that the agency has exceeded its rulemaking authority.
The Issue Whether Respondent discriminated in its hiring practices against Petitioner because of his race, and whether Respondent retaliated against Petitioner because he filed a charge of discrimination, and a complaint.
Findings Of Fact On or about October 2000, Petitioner filed a Charge of Discrimination with the FCHR. (The Charge of Discrimination was FCHR No. 2101775). Thereafter, on or about May 3, 2001, Petitioner filed an Amended Charge of Discrimination (attached to Petition for Relief filed on July 17, 2002). The essence of the Amended Charge was that he had been discriminated against on the basis of race because whites were employed in positions for which he had applied. Petitioner also alleged retaliation and claimed that after he filed his initial Charge of Discrimination, he was not rehired by Respondent as an adjunct instructor and he was denied compensation. The Commission conducted an investigation and on June 4, 2002, issued a Determination: No Cause. The Commission found that there was "no reasonable cause to believe that an unlawful employment practice has occurred." On the same date, the Commission also issued a Notice of Determination: No Cause, in which it advised Petitioner of his right to request an administrative hearing by filing a Petition for Relief within 35 days of the Notice. Petitioner was also advised that if he failed to request an administrative hearing within 35 days "the administrative claim under the Florida Civil Rights Act of 1997, Chapter 760, will be dismissed pursuant to Section 760.11, Florida Statutes (1992)." Petitioner did not file his petition for relief until July 17, 2002, 43 days after the date of the Notice of Determination. In his Petition for Relief, Petitioner claimed that he had been denied full-time employment by Respondent since 1998, and when complaints were filed, Respondent retaliated against him by not rehiring him as an adjunct instructor and denying him unemployment compensation. Petitioner is an African-American male. He received a bachelor of science in mathematics education from Tuskegee University in 1967; a master's degree in business management from Rollins College in 1976; and, a Doctor of Education degree from the University of Central Florida in 2000. Petitioner worked in private industry in Central Florida during the period 1972-1992. During portions of that time, he also worked as an adjunct instructor at Valencia Community College, Florida Southern, and Phillips College. He was employed full-time as an instructor at Brevard Community College from 1992-1996. From 1996 to 1998 he taught at Evans High School in Orlando where he also served as the assistant football coach. Petitioner also taught mathematics and science classes to fifth to eighth grade students at Madison Middle School for part of the 1998/1999 school year. In 1998, Petitioner began teaching as an adjunct instructor at North Florida Community College (College). The College is located in Madison, Florida. It serves the six counties of Hamilton, Madison, Jefferson, Suwannee, Lafayette, and Taylor. The College's district is, geographically, the largest community college district in Florida. Respondent offers a variety of programs ranging from its college transfer program with an associate of arts (AA) or associate of science (AS) degree to two vocational certificate programs. Total enrollment varies from 3,000 to 4,000, depending on vocational enrollments which are demand-based. The current FTE (full-time equivalency) is just under 800. Classes are taught at the campus in Madison and at public high schools in each of the six counties in the service district. Approximately 72 percent of the population of the district is white and 28 percent is non-white. Enrollment at the College mirrors to a large extent the population of the district, except in the college transfer program, where the African-American enrollment is approximately 20 percent, white enrollment is 75 percent, and other groups, including Hispanics, comprise five percent of the students. The Hispanic population of Respondent's six-county district has increased from 1,699 or 1.92 percent of the population in 1990, to 5,019 or 4.73 percent of the population in 2000. This represents a 195 percent increase. Statewide, Florida's Hispanic population grew by 70 percent during the same period. Search committees are appointed by the president of the College and efforts are made to ensure that a member of Respondent's equity committee and a minority, if at all possible, are assigned to each committee. A search committee was appointed by Respondent for each of the applications at issue in this case. Each search committee was charged with reviewing the applications which met the minimum qualifications for each position and then determining the most qualified individuals to be interviewed. After the interviews, the search committee was to recommend the best qualified individual to be offered the position. Search committees are not told to interview individuals of a particular race or gender, but they are encouraged to give special consideration to minorities. If the top two applicants are equal in terms of qualifications and one is a minority candidate and the other is not, they are told to recommend the hiring of the minority applicant over the non-minority. There are 23 full-time instructors in the AA and AS degree programs at the College. Four of those are math instructors. In 1998, Petitioner applied for a position as a full-time mathematics instructor. There were no vacancies in the mathematics department at that time, nor has there been a vacancy for a full-time mathematics instructor at the College at any time since 1991. In 1998, Respondent advertised for an instructor to teach computer science courses in the Business Department. The courses were designed to develop basic computer operation skills, and focused primarily on Microsoft Office Suite software. At the hearing, Petitioner introduced a copy of a letter which was sent to Mr. Doug Brown, a college administrator, in July 1998. In the letter, Petitioner stated that he was "applying for a position in the business or education disciplines." Petitioner discussed his private sector employment experience and his college-level teaching experience, but did not state whether he had any computer science teaching or work experience. The computer science vacancy was filled by a white female who had a master's degree in business and 18 graduate hours in computer science. She had been an adjunct computer science instructor at the College for two years prior to being hired as a full-time instructor. She also taught computer science courses at Madison High School, and she had her own computer business. In 1999, Respondent advertised for the position of program administrator for the North Florida Workforce Development Board. At the time, Respondent was the administrative entity and fiscal agent for the Workforce Development Board. Petitioner applied for the position. None of the applicants were interviewed and the position was never filled because it appeared that Respondent was going to be replaced as administrative entity and fiscal agent, which, in fact, occurred. In December 1999, Respondent advertised to fill the position of project coordinator for the College Reach Out Program (CROP). The program targets economically and educationally disadvantaged youth enrolled in grades 6-12 in the schools in Respondent's service district, who have the potential to finish college but who are likely, without intervention, to drop out of high school. The goal of the program is to keep the students in high school, get them to graduate, and enroll in college. Requirements for the position of project coordinator included a bachelor of arts degree from a four-year college or university and three years of experience working with alternative education programs, at risk youth, or teaching in a youth program department. Approximately 30 persons, including Petitioner, applied for the position of CROP coordinator. A five-member search committee was appointed to review the applications and select individuals to be interviewed. The members of the search committee included Amelia Mulkey, who at the time was Respondent's Director o f Financial Aid, Purchasing and Reports; Mary Anne Wheeler, Director of Student Support Services; and Clyde Alexander, an African-American who is Respondent's athletic director and equity coordinator. After reviewing the applications, the search committee selected five individuals, including Petitioner and Nancy McClellan, to be interviewed. When the interviews were completed, the search committee chose not to rank the applicants. Instead the members unanimously recommended Nancy McClellan for the position. Nancy McClellan was a white female with a bachelor's degree in psychology and a master's degree in social work. A major factor in the selection committee's decision was her ten years of experience working with at-risk adolescents at DISC Village in Leon County, Florida, where she coordinated a comprehensive vocational services program. Her work at DISC Village included assessment, case management, community networking, career exploration, providing employability skills classes, coordinating with education and training providers, grant work, supervising staff, and counseling with parents. In September 2001, Respondent advertised for a case manager for the College Reach Out Program (CROP) in Lafayette and Suwannee Counties. The qualifications for the position were identified as a bachelor's degree in secondary education, social work, or the social services field, with the provision that working with at-risk youth could substitute for education on a month-by-month basis. Case managers are responsible for implementing the CROP programs in the counties to which they are assigned. They market, recruit, and provide services to students in the counties. They work closely with teachers, guidance counselors, students, and parents to enroll the students in the program and to ensure that the students remain in school and graduate. The case managers work with the students on a one-to-one basis. Experience has shown that a social work case management background is an important asset in a CROP case manager in Respondent's district. Students recruited for CROP have a multitude of family issues in their family lives which impact on their ability to remain in school. These include poverty, abuse, neglect, divorce, mental health, and disability issues, all of which social workers are taught to identify, assess, and address. Case managers also educate parents of students regarding available financial aid and college preparation courses which their children should be taking. Eight people, including Petitioner, applied for the position. Two individuals, Lynn Waller and Cheryl Chandler, were interviewed. Lynn Waller was selected for the position. She has a bachelor's degree in social psychology. At the time she was selected, she had been employed as a children's case manager at Apalachee Center for Human Services, working with students in the Madison County School System. She was responsible for recruiting students, working with them, their parents, teachers, and guidance counselors to assess needs, perform psychological assessments, and coordinate same. In his application, Petitioner stated that he had been employed as the CROP Coordinator by Respondent and by Brevard Community College. In fact, Petitioner had never been employed as the CROP Coordinator by Respondent or by Brevard Community College. Petitioner had been employed as one of four part- time facilitators by Respondent from January through June 2000. His duties were to recruit students, organize them into groups, meet with the groups two days per week and schedule one Saturday field trip per month. Nancy McClellan elected not to interview Petitioner for the case manager position, based upon her experience with Dr. Brown as a CROP field facilitator in 2000. When Nancy McClellan assumed her role as CROP Coordinator, Petitioner had not recruited any students from Suwannee County. Eventually, he recruited a total of eight students for CROP. By contrast, in April 2000, Lafayette County had 23 students, Taylor County had 15, and Madison County had 35 students. While Petitioner was case facilitator for Suwannee County, Nancy McClellan received complaints from Suwannee County regarding Petitioner's failure to bring application forms to the County's schools, to pick them up when they had been filled out, and to attend scheduled meetings with students. Petitioner also failed to take the eight students who enrolled in the program on any field trips. By contrast, the other field facilitators were taking the students on regular field trips which was an important part of motivating students to stay in school. In June 2001, Respondent advertised for two positions: learning resource coordinator and transfer advisor. Both were grant-funded positions. The learning resource coordinator is the manager of the tutoring lab for developmental students. These are students who do not have the placement test scores to begin college level work. In the lab they receive assistance in developing their skills in mathematics and English. The learning resource coordinator supervises the transfer advisor, who works with students in developing skills in English, and the retention advisor, who works in developing students' mathematics skills. The learning resource coordinator also supervises and trains tutors, peer mentors, and does some individual tutoring. In addition to the requirement for a four-year degree, the advertisement for the position stated that language proficiency in Spanish was preferred. The preference for Spanish proficiency was based upon the growing Hispanic population on Respondent's campus and the need for a staff person who could tutor the students in their own language, as well as to speak with the families who often accompany them to campus. Experience had shown that Hispanic students were better able to grasp concepts, as in mathematics, when they received tutoring in their native language. There were 18 applicants for the position of learning resource coordinator, among them Petitioner. Petitioner was not selected to be interviewed by the search committee because he did not have proficiency in Spanish. The three individuals who were chosen to be interviewed were proficient in Spanish: two were native Spanish speakers and one had a degree in Spanish. Maria Elizabeth Gonzalez was selected to fill the position. She was a native of Colombia and a native Spanish speaker. She identified herself on her application as Hispanic. At the time she was selected, she had been working for the previous three years as a tutor and as a lab assistant. The transfer advisor position is a grant-funded advisor position in the tutoring lab for developmental students. The transfer advisor works with developmental students in English; the retention advisor works with those students in mathematics. The advertisement for the transfer advisor listed as one of the qualifications a bachelor's degree with an emphasis in English. There were 20 applicants for the Transfer Advisor position. Petitioner was one of the applicants. Four individuals were chosen by the selection committee to be interviewed; all had an undergraduate degree with an emphasis in English. Petitioner was not chosen to be interviewed because his degree did not have an emphasis in English. Carmen Renee Perez was selected to fill the position. She had a bachelor's degree in English and two years of graduate work in English. She had also taught English as a second language. On her application she identified herself as Hispanic/Cuban/Caucasian. In March 2000, Respondent advertised to fill the position of instructor of business and economics. The advertisement stated that the duties of the position would include teaching courses in business, management, accounting, finance, business law, and economics. The minimum requirements included an MBA from an accredited institution or a master's degree with a minimum of 18 semester hours of subject specific graduate course work. There were between 20 and 30 applicants for the position. The search committee chose to interview five of the applicants. Among them were Petitioner; Ellen Stevens, a white female; and Scott Tori, a white male. Following the interviews, the search committee concluded that Dr. Brown had "great math credentials," but his business and economics credentials "were considerably less" than some of the other applicants. The committee concluded that both Ellen Stevens and Scott Tori were better qualified than Petitioner for the position. Ellen Stevens had a masters in business administration, and Scott Tori had a doctorate in economics. Scott Tori was offered the position and he accepted. In addition to his Ph.D., he had a master's degree in economics, and a bachelor's degree in business administration, with an emphasis in finance. At the time he was hired, Tori was an assistant professor of economics and finance at Thomas University. In the late winter of 2002, Respondent advertised to fill a vacancy caused by the retirement of the chemistry and physics instructor. The advertisement stated that the successful candidate would teach chemistry courses through the sophomore level, a year-long organic chemistry sequence, an algebra and calculus-based physics course sequence, and physical science courses, as needed. Petitioner submitted a letter application to Respondent dated March 2, 2002, for a "mathematics/physics/science instructor" position. This was not the title of the open position. In his letter, Petitioner identified himself as a "professor of mathematics." Petitioner was considered for the position but not selected. Terrence M. Zimmerman was determined by the search committee to be the best qualified to fill the position. He had a bachelor's degree in chemistry cum laude, a master's degree in science education, and all but a dissertation for a doctorate in chemistry. He had been an adjunct instructor in chemistry at Tallahassee Community College, an adjunct in chemistry and environmental science at Santa Fe Community College and, at the time he was hired, he was teaching chemistry and environmental science for Respondent as an adjunct. From 1988 until the time he was hired, he also taught chemistry, environmental science, and general science at Taylor County High School in Perry, Florida. Respondent presented credible evidence for each of the positions for which Petitioner applied establishing a non- discriminatory reason for Respondent's decision to hire someone other than Petitioner. In 1998, Petitioner began teaching mathematics courses for Respondent as an adjunct instructor (Adjunct). Adjunct instructors (Adjuncts) are part-time faculty members who are hired by Respondent on a semester-by-semester basis to teach specific classes in subjects in which they are qualified to teach. Adjuncts teach classes at various locations throughout Respondent's six-county district. They are employed on an as-needed basis and execute a new contract for each semester they are hired. Each semester, Respondent publishes a class schedule for the following semester. If Respondent has confirmed that a particular adjunct is going to be teaching a particular class, the adjunct's name will appear on the schedule. If an adjunct has not been confirmed to teach a particular class, the designation of the instructor for that class will appear as "staff." Petitioner was identified by name on the class schedule for one class each in the Spring and Fall of 1999, two classes in the Spring of 2000, and one class in the Fall of 2000. He taught classes in which the name of the instructor appeared on the class schedules as "staff" as follows: one class in the Fall of 1998, two classes in the Summer of 2000, and two classes in the Fall of 2000. The department chair has the discretion to determine which individuals will be hired to teach as adjuncts. Generally, if there is an adjunct who is local, competent, and willing, he or she will be rehired. There is no prescribed procedure for contacting adjuncts. Sometimes the adjuncts contact the department chair; sometimes the department chair contacts the adjuncts. In the Fall semester of 2000, David Proctor, a history professor, was department chair for Respondent's entire AA program. In addition to teaching three classes, one of which was in Hamilton County, he was responsible for scheduling full-time faculty instructors and 34 adjuncts to teach courses in the AA program. He was also responsible for preparing budgets for each department, evaluating faculty, and preparing class schedules. David Proctor intended that Petitioner would teach some of the introductory and intermediate algebra and developmental arithmetic classes during the 2001 Spring Semester. He did not hear from Petitioner in the Fall of 2000 regarding Petitioner's interest in teaching for the 2001 Spring Semester while he was preparing the schedule for the semester; therefore, he used the term "staff" in place of the instructor's name for four classes, intending that Petitioner would teach some of them. In October 2000, after the schedule for the Spring 2001 semester was published, Petitioner approached Proctor on the sidewalk outside the general classroom building on Respondent's campus and asked why his name was not in the schedule. Proctor assured Petitioner that he had every intention of having Petitioner teach during the Spring semester and suggested that they meet and decide what classes Petitioner would teach. Proctor was subsequently unable to meet with Petitioner as scheduled, so he left a note for Petitioner in which he highlighted classes on the schedule and asked Petitioner to tell him which two classes he would like to teach. This occurred in late October or early November. In December 2000, Proctor saw Petitioner outside Proctor's office in the adjunct mailbox area on campus and remembered that he had not heard from Petitioner regarding Petitioner's choice of classes to teach during the Spring semester. Proctor approached Petitioner and suggested they look at the schedule together and identify the classes Petitioner wanted to teach. Petitioner informed Proctor that he was looking elsewhere for employment and he would not be teaching for Respondent. Proctor was surprised, but wished Petitioner well and offered to write letters of recommendation for him. When Petitioner informed Proctor that he did not intend to teach for Respondent, Proctor asked a Hispanic adjunct instructor, Ephraim Bonilla, to pick up these additional courses. The only subsequent contact Petitioner made with Respondent regarding teaching again as an adjunct was a single telephone call at an unspecified date to the new mathematics department chairman, Mr. Harris, during which Petitioner inquired if there were any courses available. Harris told him there were none. Petitioner asked another individual to call with the same question. The individual Petitioner asked to call reported to Petitioner that he had met with the same response. When he prepared the schedule for the Summer of 2001, Proctor assumed that Petitioner was no longer interested in teaching for Respondent, and when he did not hear from him, he did not put his name in the schedule. When Proctor prepared the schedule for the 2001 Spring semester he was unaware that Petitioner had filed a charge of discrimination with the Commission. He was aware of it by the time he prepared the schedule for the Summer of 2001, but that knowledge played no role in his decision not to list Petitioner by name as an adjunct instructor when he prepared the class schedule for the Summer of 2001. Petitioner filed a claim for unemployment compensation benefits effective December 17, 2001, because he was not employed by the College as an adjunct instructor during the 2001 Spring semester. When Respondent received a copy of Petitioner's claim for unemployment compensation, Respondent's Director of Human Resources, Bill Hunter, spoke with David Proctor and learned from him that Petitioner had rejected the opportunity to teach during the 2001 Spring Semester. Bill Hunter provided this information on Respondent's copy of the claim and returned it to the Agency for Workforce Innovation. Petitioner's claim for unemployment compensation was subsequently rejected by state officials and he appealed. Following a telephone hearing during which David Proctor and Petitioner testified, the appeals referee concluded that Petitioner had refused Respondent's offer of an adjunct teaching position for the 2001 Spring Semester and, therefore, was properly barred from receiving unemployment compensation benefits. Petitioner subsequently sought review by the Unemployment Appeals Commission, which affirmed the decision of the appeals referee. In August 2000, Petitioner, and several other college employees, filed a complaint against Respondent with the U.S. Department of Education, Office for Civil Rights (OCR), alleging that Respondent was discriminating against students on the basis of race with regard to recruitment and financial aid. The complaint also alleged that Respondent was discriminating on the basis of race in its hiring practices. In a letter dated September 13, 2000, OCR notified Respondent's former president, Dr. Beverly Grissom, of the Complaint. In an attachment to the letter, OCR advised Dr. Grissom that "OCR does not reveal the name or other identifying information about an individual unless it is necessary for the completion of an investigation or for enforcement activities against an institution that violates the laws, or unless such information is required to be disclosed under the FOIA or the Privacy Act." OCR subsequently determined that there was insufficient evidence to support the student financial aid and recruitment allegations. OCR also determined that there was no statistically significant difference between the number of African-American administrators and faculty members actually employed and the expected employment rate based on the relevant labor market. OCR, therefore, concluded that it lacked jurisdiction to further investigate the matter. Finally, OCR referred the individual employment allegations in the complaint to the U. S. Equal Employment Opportunity Commission because it did not have jurisdiction over such claims. Consistent with its September 13, 2000, letter to Dr. Grissom, OCR did not identify the individual complainants, and Respondent was not otherwise aware of this until the hearing in this case that Petitioner had been one of the complainants. Respondent's decisions with regard to filling the vacancies for which Petitioner applied were not based on race, nor were they based on any retaliatory motive. Respondent's decision regarding the absence of Dr. Brown's name from the Spring 2001 class schedule was not based upon a retaliatory motive, nor was there a retaliatory motive involved in informing the unemployment compensation office that Petitioner had refused the offer of a position as an adjunct instructor for the 2001 Spring Semester.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter its final order dismissing the case. DONE AND ENTERED this 12th day of December, 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 12th day of December, 2002.
The Issue Whether Respondent violated Section 760.10, Florida Statutes, by denying Petitioner employment with Respondent because of her sex (female).
Findings Of Fact Petitioner, a female and a member of a protected class, completed an application for employment with Respondent in or about February of 2002 for the position of Wastewater Operator "C." The particular position she applied for was a night shift position which runs from 11:00 p.m. to 7:00 a.m. In February of 2002, Respondent had an opening for a Class "C" Wastewater Operator's position. Prior to that time, this position had been open for approximately one year. Respondent's standard interview process for a wastewater position is that Charles McDonald ("McDonald"), the Wastewater Production Supervisor, reviews the applications to see if they have the minimum qualifications for the open position. If the applicant possesses the minimum requirements, McDonald will schedule an initial appointment with the applicant. At this initial appointment, McDonald reviews the duties of the position with the applicant and finds out some general background on the applicant. Once that is accomplished, McDonald will arrange for an interview with his superior, James Anselmo ("Anselmo"), the Division Chief over the water and wastewater treatment facilities of Respondent. Anselmo, in his capacity as a Division Chief, oversees the operations of the water and wastewater treatment facilities of Respondent, as well as all the personnel matters in those departments. Anselmo has served as a supervisor for Respondent for fourteen (14) years, and during that time has not had any grievances or complaints of discriminatory treatment filed against him. The Wastewater Operator "C" that Respondent was seeking to hire was to perform chemical analysis and perform general preventative maintenance work. This chemical analysis work on the water samples consists of performing "solids determination, chlorine residual and pH determination; perform [ing] sludge volume tests; measure dissolved oxygen levels; perform [ing] chlorine residual test; turbidity and telemetry monitoring." These chemical testing duties consist of more than gathering samples, but also include taking them to the lab, actually performing the tests and then reading and recording the results. These lab-testing duties are considered an essential function of this position. The job description for this position also states that an operator "performs general preventive maintenance work" on machines. Anselmo considered this requirement to include changing packing on pumps, changing oil, greasing motors and pumps, making adjustments on machines and fixing broken lines. He feels this requirement is important because it is necessary to have all of his wastewater employees cross-trained to perform multiple functions. Petitioner's application was initially forwarded to Anselmo, who reviewed it and was impressed with the fact that the applicant possessed an "A" license. As a result, he forwarded the application to McDonald to initiate the interview process. It made no difference to Anselmo whether the applicant was a male or a female. In or about March 2002, McDonald contacted Petitioner by telephone and arranged for her to come meet him for an initial interview. During this initial interview with McDonald, Petitioner indicated to him that she did not perform any maintenance duties at her previous employment with the City of Orlando. McDonald mistakenly understood Petitioner to say that she did not do any lab work at the City of Orlando, but rather it was done at the laboratory by others. After the initial interview with McDonald, he spoke with Anselmo and informed him that he had a lady that had put in for the Wastewater Operator "C" position, and suggested that he interview her. McDonald did not emphasize the fact that Petitioner was a female, but rather made his usual comment that it was either a lady or a guy that was coming in for the interview. Anselmo indicated that McDonald should bring her over immediately for the second interview. Petitioner then had an interview with Anselmo in his office later that same day. This interview began by Anselmo and Petitioner shaking hands. McDonald was present and handed Anselmo a copy of Petitioner's application. Prior to this meeting, Anselmo had not been in possession of a copy of Petitioner's application, other than his very brief initial review of it. Before getting into the substantive interview, Anselmo initially said to Petitioner "Carmen Christensen, that's a very unique name. I went to school with a friend, and his name was Carmen also." Anselmo intended this comment simply to be small talk, and to serve as an "ice breaker." Anselmo and McDonald both testified that Anselmo never stated to Petitioner: "I thought you were a man with the name Carmen." They also denied that Anselmo stated "I went to school with a twin by that name." Anselmo made no references to Petitioner's gender during the interview. This testimony is credible. After this initial "ice breaker," Anselmo then reviewed Petitioner's application and began asking her questions about it. As a result of not seeing the application prior to this, Anselmo got a few of the minor items on her application wrong. On her application, Petitioner indicated that her duties at the City of Orlando had required her to "grab samples." In reading this, Anselmo assumed that this meant that Petitioner simply gathered water and did not perform any laboratory tests on the sample. Thus, Anselmo was hoping that Petitioner would elaborate and demonstrate to him that she had actually performed laboratory testing on these samples. During the interview, Anselmo asked Christensen questions about her duties at the City of Orlando. Petitioner responded that she simply collected samples and carried them to the lab, and occasionally, ran a few tests. Petitioner did not share any specific types of tests that she had done while at the City of Orlando. Anselmo encouraged Petitioner to take the opportunity during the interview to elaborate on these duties, but she failed to do so. When he asked her whether she had performed specific tests, she respondent that she did not because laboratory employees had performed those tests at the City of Orlando. Petitioner also did not present Anselmo with any of the written certificates that she now claims she possesses. At no time during the interview did Petitioner give Anselmo sufficient reason to believe that she did more than gather water samples at her previous job and bring them to the lab. During the interview, Anselmo also asked Petitioner questions about her maintenance duties while at the City of Orlando. Petitioner responded that maintenance work at the City of Orlando was done by maintenance personnel and, thus, she had not done any such work. Finally during the interview, Anselmo asked Petitioner about the reasons for her termination by her previous employer, the City of Orlando. Petitioner informed Anselmo that she had been terminated from the City of Orlando based on allegations of "falsified records." The City considers allegations of falsification of records to be a serious violation. Anselmo was not able to verify the reasons for Christensen's termination from the City of Orlando because she had indicated on her application that they could not contact her previous employers. Based on this request by Petitioner, Anselmo made no independent efforts to verify the reason for her termination. At no time during the interview did Anselmo ever tell Petitioner that he did not want females working at the facility. In fact, Anselmo testified that he hires employees based simply on their qualifications, not their gender; although no other female operator is employed by Respondent. Other than the alleged comment about her name, Petitioner did not offer any other evidence that Anselmo had any problem with women working in the wastewater facility. Instead, Petitioner gave her "opinion" that she was not hired because she is a female. At the end of the interview, Anselmo informed Petitioner that Respondent was still accepting applications for the position. Following the interview, Anselmo and McDonald discussed Petitioner's qualifications as a candidate. They agreed that she appeared to be inexperienced based on her responses during the interview. In particular, they were concerned with her lack of maintenance and laboratory testing experience. Anselmo completed an Applicant Referral form on or about March 12, 2002, in which he indicated that Petitioner had been "rejected" for the position of Wastewater Operator "C." On that form, Anselmo indicated that Petitioner had been rejected for employment because she "said she had no lab experience or did not perform any maintenance. Performing lab tests and maintenance is crucial to this position." Anselmo testified that this form accurately sets forth the reasons on which he made the decision to reject Petitioner for employment. Subsequent to Petitioner's interview, McDonald and Anselmo had the opportunity to interview two additional candidates, Richard Neitling ("Neitling") and Richard Burns ("Burns"). Neitling set forth more laboratory testing experience than Petitioner in his interview and on his resume. He indicated during his interview with Anselmo that he had done the specific laboratory tests that Respondent does at its wastewater facility, including BOD's, suspended solids, mixed liquid suspended, sludge samples and TSS. He also indicated during his interview that he had maintenance experience, including tearing down pumps, changing filters and oiling and greasing machines. Based on these expressed qualifications and experience set forth in his application and presented during his interview, as well as the fact that he was a "C" Operator and that was the actual position being offered, Neitling was offered the position of Operator "C." It was later discovered, however, that Neitling had provided false information on his application, and, therefore, he was never actually hired for the position. Respondent then turned its attention to the application of Burns. On his application and resume, Burns indicated that he could perform "all aspects of treatment plant op's." In addition, he indicated that he had 15 years experience as a wastewater plant operator, and that he possessed a Level "A" operator's license, the same license possessed by Petitioner. After submitting his application for employment to Respondent, Burns received an interview from McDonald and the lead operator, Tad Blazer ("Blazer"). During this interview, Burns informed McDonald and Blazer that he had previously done laboratory testing including OUR's, BOD's, fecal's and others. They also asked Burns about his maintenance skills, and he informed them that he had received cross-training in maintenance, preventive maintenance and pulling of pumps while at Orange County. Approximately a week after this initial interview, Burns had an interview with Blazer, McDonald and Anselmo. In this second interview, Burns again shared his laboratory testing experience, his maintenance skills and his cross-training. In particular, Burns represented that he could do all of the laboratory testing that the position required, and that he had extensive background in equipment maintenance. Burns also indicated to Anselmo that he had 15 years of experience in all aspects of the treatment process, including lab work and maintenance duties. In addition, Burns informed them that he had spent two months at Orange County in a cross-training program that consisted of him performing strictly maintenance duties. During this interview, Burns also shared with Anselmo the reasons for his leaving Orange County. He informed Anselmo that he had been terminated by mutual agreement, but that the reasons for the termination involved a conflict with one supervisor, not actual performance problems. Following this interview, but prior to hiring him, Anselmo and McDonald visited Orange County's personnel department and reviewed Burns' file. In reviewing his file, they discovered that he had exceptional evaluations except for his last year, and that the only negative comments in his file involved failure to give proper notice prior to taking a vacation. There were no allegations of falsification of any records in Burns' file at Orange County. Based on his background and hands-on experience, Burns was eventually hired by Respondent for the Operator "C" position in May of 2002. At the time he was hired, Burns could perform all of the functions set forth on Respondent's job description for the position of an Operator "C." More importantly, he had conveyed to McDonald and Anselmo that he was capable of performing all of those duties. Respondent's wastewater facility is smaller than the facility that Petitioner worked at while with the City of Orlando. In fact, the City of Orlando's facility has a capacity of 25 million gallons of water a day, while Respondent's facility can handle only 750,000 gallons per day. In addition, the City of Orlando employs two or three times more employees that Respondent. William Hurley ("Hurley"), the Section Manager for the Orange County Wastewater Utility, testified that he has been employed in the wastewater industry for 28 years, and has worked at four different facilities during that time. In his experience, larger facilities often require different tasks from their operators than smaller facilities require of operators. Hurley also testified that he plays a role in the hiring of operators at Orange County. In this capacity, he would consider it a serious violation, and it would give him serious concern, if an applicant revealed to him during the interview process that there were allegations of her committing a falsification of records at her previous employer.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order which DENIES the Petition for Relief. DONE AND ENTERED this 31st day of January, 2003, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE 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 31st day of January, 2003. COPIES FURNISHED: Carmen Christensen 5419 Shiloh Drive Adamsville, Alabama 35005 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Paul J. Scheck, Esquire Shutts & Bowen LLP 300 South Orange Avenue, Suite 1000 Post Office Box 4956 Orlando, Florida 32802-4956 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The parties stipulated to the following facts: That at all times material to these proceedings, Respondent, Luis A. Doural was licensed as Clinical Laboratory Technologist, License No. JC 0008567, in the specialty areas of Serology, Hematology and Immunohematology. which are 2, 4 and 5, respectively. That Respondent, Luis A. Doural altered his Clinical Laboratory Technologist License by adding the specialty areas of Microbiology and Clinical chemistry which are 1 and 3, respectively. This alteration resulted in Respondent's license showing specialty areas of Microbiology, Serology, Clinical Chemistry, Hematology and Immunohematology which are 1, 2, 3, 4 and 5, respectively. That Respondent, Luis A. Dural altered his Clinical Laboratory Technologist license in order to obtain a job as a Clinical Laboratory Technologist at Miami General Hospital. That the alteration was discovered in a routine check of Miami General Hospital by Petitioner and not as a result of a malfeasance or misfeasance on the part of Respondent. The following facts were determined at the hearing: That Respondent had failed to pass the test in Microbiology and Clinical Chemistry. That Respondent had performed some procedures in Clinical Chemistry under supervision but in his Petition For Administrative Hearings he alleged that he was not called upon to perform any procedure in the unlicensed areas. That Respondent tried to cover-up the misrepresentation of his license when confronted by the hospital. The following testimony of Respondent went unrebutted: That he was under extreme pressure and financial hardship due to medical care needed by his daughter and that these circumstances caused his poor judgment in his intentional misrepresentation of his license. That he had lost his job with the Miami General Hospital. That if his license was revoked he would lose his present job where he is now working in the area of specialties in which he is licensed.
Recommendation Based on the Findings of Fact and Conclusions of Law recited herein, it is RECOMMENDED that the Respondent be found guilty of violating Section 4S3.21(2)(7) and 483.23(2), Florida Statutes (1983). For such violations, considering the mitigating circumstances surrounding the violations, it is RECOMMENDED that the Petitioner enter a final order suspending Respondent's Clinical Laboratory Technologist License for a period of two (2) years and assess the Respondent with an Administrative Fine of $500.00, stay the suspension and place the Respondent on probation for a period of two (2) years, with conditions necessary to carry out the probation provided Respondent pays the $500.00 Administrative Fine within ninety (90) days. The Respondent's failure to pay the fine within the time specified will result in his license being suspended for a period of two (2) years with the requirement that when the fine is paid and the suspension lifted, the Respondent must appear before the Petitioner for reinstatement of his license. Appearance before the Petitioner for reinstatement will not be required provided the fine is paid timely and the conditions of probation are not violated in any respect. Respectfully submitted and entered this 28th day of January, 1986, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of January, 1986. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Department 1350 NW 14th Street Miami, Florida 33125 Verne L. Freeland, Esquire., P. O. Box 693652 Miami, Florida 332169 David Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee Florida 32301
Findings Of Fact After the hearing was called to order in the above styled cause, the parties submitted the following stipulation: Sometime in December of 1978, the Petitioner, MARY KANNER applied tot he DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Clinical Laboratory Registra- tion and Licensure Program, for a Clinical Laboratory Technologist License. After reviewing the petitioner's application and supporting documents, the DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES discovered that she did not have the sixty (60) semester hours required by Section 10D-41.25(9). MRS. KANNER was notified of her failure to qualify for the requested Technologist license by letter from the Department dated January 30, 1979. Subsequently, MRS. KANNER requested an Administrative hearing. Pursuant to her inquires, Mrs. Kanner received several communications from the Respondent Department. One letter dated January 30, 1979, from Nathan B. Schneider, Director of the Office of Laboratory Services, stated that it was the finding of the Respondent Department that Mrs. Kanner might be eligible for licensure as a clinical laboratory technician, and the letter authorized her to work in that capacity until the next scheduled examination, or no later than July 1, 1979. The letter stated that Mrs. Kanner would be notified in advance of the time and place of the examination. A second letter dated January 30, 1979, to Mrs. Kanner from Nathan B. Schneider, acknowledged the receipt of her application for licensure as a technologist but informed her that she was apparently ineligible because she did not have the required sixty (60) semester hours, but also advised her of her entitlement to an administrative hearing. Petitioner submitted letters as follows: a letter to Dr. Schneider from Alice Browner, Registrar of the Canadian Sociaety of Laboratory Technologist. The letter stated in pat that Petitioner had trained for a period of six (6) months, mainly September, 1966, to March of 1967, in a training program in the hematology department. The training was listed as follows: Bacteriology 1 evening a week February - May Biochemistry Sunday afternoons March - June Histology Saturday mornings March - Middle of May Blood Bank One evening a week January, February & March Hematology 6 months formal training Experience - 23 months (excluding formal training) (Resume in Hematology written previously) A letter dated March 29, 1979, to Dr. Schneider from Arthur Rosenberg, Chief of the Department of Hematology at the Sir Mortimer B. Davis - Jewish General Hospital, stated in part that Petitioner started her course in medical technology in 1966, and that in 1969, she wrote the hematology subject examination and received her Canadian registration. She worked as a hematology technologist until 1971, and as a department supervisor from 1971, to 1974. The letter stated that the preparation time prior to writing her examination subject would be the "equivalent of 60-plus semester hours of study." A letter was submitted to Counsel for the Respondent Department dated July 16, 1979, in which John V. Briscoe, Director of Hospital Services for the Sir Mortimer B. Davis - Jewish General Hospital, supplied a document which stated that the Jewish General Hospital is "an affiliated teaching hospital with McGill University, Montreal, Quebec, and is fully accredited by the Canadian Council on Hospital Accreditation, the date of the last accreditation survey being September 26, 1977." In answer to the statement by the Respondent Department that the Petitioner did not have documented evidence of the required sixty (60) semester hours direct from a university, Petitioner explained that in Montreal, Canada, in 1966, all English-speaking schools for nursing and technology took place in various accredited hospitals, using the same format as would be used at a university. In a separate section of the hospital was the school of nursing and the school of technology, but in recent years all of the schools were at the universities. Dr. Howard R. Rarick, Chief of the Clinical Laboratory Improvement Program for the Respondent Department, reviewed Petitioners application and supporting documents and did not find a transcript showing completion of sixty (60) hours credit or its equivalent as required by the State statute and rule promulgated thereunder. The Respondent Department does not evaluate the credits from foreign schools or institutions but forwards the credits to the International Education Research Foundation, which evaluates and determines the equivalent American credits that should be allowed. The Petitioner had no certified transcript from the hospital or university in which the foreign credits were earned and, therefore, was unable to send this to the Research Foundation to convert the foreign credits. The letters submitted by Petitioner are insufficient to substitute for a certified transcript for evaluation purposes. Both parties submitted a stipulation of facts, and the Respondent Department submitted a memorandum of law. These instruments were considered in the writing of this Order. To the extent the proposed findings of fact have not been adopted in, or are inconsistent with, factual findings in this Order they have been specifically rejected as being irrelevant or not having been supported by the evidence.
Recommendation Based upon the foregoing Findings of Fact and conclusions of Law, the Hearing Officer recommends that the application of the Petitioner, Mary Kanner, to sit for examination as a technologist be denied. DONE and ORDERED this 30th day of August, 1979, in Tallahassee, Leon County, Florida. DELPHIAN C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675 COPIES FURNISHED: Harold L. Braynon, Esquire Department of HRS 201 West Broward Boulevard Fort Lauderdale, Florida 33301 Mrs. Mary Kanner 1901 North 51st Avenue Hollywood, Florida 33021
Findings Of Fact Based upon my observation of the witness and their demeanor while testifying, documentary evidence received, I make the following relevant factual findings: Petitioner was employed by Respondent in its utilities department for approximately 10 years and 10 months. Petitioner's initial employment commenced in 1974, where he was employed in the position of treatment supervisor and remained in that position for approximately 2 years. In 1975, Petitioner was promoted to treatment supervisor superintendent and worked in that position until July 30, 1984. Respondent admits, and it is undisputed, that Petitioner was a good employee. (TR 8). It is also undisputed that Petitioner was the oldest employee (70 years old) in Respondent's utilities department and he resigned from his duty after he was transferred to a plant designated as the 3 B water treatment plant (3B). On July 20, 1984, Henry J. Block, an employee at 3 B submitted his resignation. Respondent thereafter held a meeting on July 23, 1984, with its operations superintendent, John Hayes, its operations manager, Michael J. Scottie, and chief plant operator II, Ralph Piacente, to discuss its staffing requirements and its need to shift personnel to maintain operations at 3 B on an interim basis. Following that meeting, it was determined that based on Petitioner's qualifications and the duties that he was them performing, which primarily involved process control and the collection of statistical data for both water and wastewater treatment operations, Petitioner would best be able to fill the new position brought about by Block's resignation with the least disruption of staff. Petitioner was therefore advised, on July 27, 1984, that he was being transferred, on an interim-temporary basis to 3 B , effective July 30, 1984. Petitioner was advised that the transfer was temporary and that he would retain his existing pay and benefits while fulfilling his newly assigned temporary responsibilities at 3 B. Additionally, Petitioner was advised that when a permanent replacement was employed to fill the vacancy created by Block's resignation, Petitioner would return to his previous duties. Respondent's two available employees who were able to be temporarily assigned to 3 B, Petitioner's temporary assignment was least disruptive to the efficient and effective operation of Petitioner's operations inasmuch as the other available employee, Ralph Piacenti, was already employed as an operator, whereas Respondent was involved in routine daily gathering and analysis of data that could be compiled and analyzed at a later time. Age was not a factor in Respondent's deliberations and Petitioner was temporarily assigned to 3B based on his ability to step in and perform the duties of retiring employee (Block) with minimal disruption of Respondent's available staff. Respondent has, in the past, required temporary transfers of employees to fill positions vacated by employees who resign. These transfers have included employees of higher rank assigned to lower rank positions and once a replacement is found, the temporarily assigned employees are transferred to their former positions. (TR 125-126). The 3 B plant is situated in the extreme south end of Broward County. It is one of Respondent's older treatment plants and requires more mechanical operations, i.e. requires a greater degree of input by the treatment plant operators who must closely monitor the various functions that take place at the treatment plant such as backwashing filters, etc. Over the years, the plant has been modified and improvements have been made. The 3 B water treatment plant is safe, works properly, and is not obsolete. The working conditions at 3 B are not deplorable and while it does not have some of the automatic capabilities that are available at some of Respondent's more modern plants, this absence of features does not render the working conditions deplorable at 3B. (TR 135-138). Petitioner was provided office space at 3 B. The office was airconditioned with a telephone and had adequate clerical and other support staff.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: The Florida Commission on Human Relations enter a Final Order denying Petitioner's prayer for relief and dismiss the petition. RECOMMENDED this 25th day of March, 1987, in Tallahassee, Florida. JAMES E. BRADWELL 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 25th day of March, 1987.
The Issue The issue for determination is whether Respondent is guilty of discrimination in employment on the basis of race in connection with the terms and conditions of employment of Petitioner.
Findings Of Fact Petitioner Angelo Rivers, a black male, was employed in the formulation/confirmation unit of Respondent's pesticide laboratory located in Tallahassee, Florida from May 25, 1990, through August 20, 1992. Marshall Gentry, a white male, provided overall supervision of the pesticide laboratory during Petitioner's employment. Petitioner's direct supervisor when he began work in the laboratory, however, was Wendy King, a female of oriental extraction. Subsequently, King was promoted and direct supervision of Petitioner was accomplished by Patty Lucas, a white female, who in turn was supervised by Wendy King. In the course of his employment with Respondent's pesticide laboratory, Petitioner exhibited a good attitude and received good performance ratings from Respondent. Included among these ratings was a special evaluation related to the conclusion of Petitioner's probationary period following his promotion from laboratory technician I to laboratory technician II. Two other laboratory technicians were employed in the pesticide laboratory. William Reeves, a black male, was employed as a laboratory technician IV in the formulation/confirmation unit of the laboratory. Elliott Healy, a white male, was employed as a laboratory technician III in the pesticide use monitoring unit of the laboratory. Both of these individuals were required to perform all the functions of a laboratory technician. The formulation/confirmation unit is the consumer protection component of the pesticide laboratory. The unit's field staff surveys the marketplace and collects samples of pesticides that are in channels of trade for distribution and sale. Those samples are then analyzed by the unit to assure that the contents of the package match the label guarantee, thereby providing reasonable assurances to consumers that the products which are sampled contain the represented contents. The pesticide use monitoring unit of the pesticide laboratory performs analyses associated with either groundwater sampling used to determine trace levels of pesticides or samples collected in association with determining misuse, property damage or human health damage connected with exposure to pesticides. Personnel in this unit are usually analyzing within the range of parts per billion, sometimes parts per million, and to prevent contamination the unit is separated from the formulation unit. The pesticide laboratory contains three permanent types of employees: Chemists (including supervisors), clerical and laboratory technicians. Each of these have their own duties and responsibilities. With regard to educational requirements, a chemist is required to have at least one college degree in the subject area of chemistry. Requirements for laboratory technicians are fairly minimal although a scientific education may play a part in initial assignment. In accordance with normal practices, training was provided to Petitioner commensurate with his position as a laboratory technician II, inclusive of some formal training but generally on the job training. William Reeves, the black laboratory technician IV, is presently in his junior year of undergraduate study in Entomology; Elliot Healy, the white laboratory technician III, received his degree in Entomology in 1979. Petitioner offered no evidence at final hearing regarding his education, except to state that he does not have a college degree. There is no laboratory technician position above the laboratory technician IV position. Neither Petitioner, Reaves or Healy meet requirements for promotion to the position of chemist since they do not possess the required chemistry degree. With regard to promotion within the laboratory technician family, no specific time periods are required to elapse before employees are granted a promotion. Such action depends upon other factors such as promotional opportunities. Duties within the laboratory are assigned on the basis of the position (e.g., chemist II, laboratory technician III, etc.) and the area where the individual is assigned. Race is not a consideration in making duty assignments. Twelve of Respondent's twenty-six laboratory technicians are white and fourteen are black. Laboratory technicians perform the duties required for their specific level without regard to the individual technician's race. The same is true of chemists in the laboratory. James Fort, a black chemist, performs the functions of a chemist. There are occasions or special events that occur from time to time when news media or officials tour the facility and all personnel are expected to help with cleaning the pesticide laboratory. The laboratory technicians, however, are responsible for the laboratory at large. This responsibility does not include the normal maintenance chores such as changing light bulbs, fixing water fountains and leaking sinks or similar functions since these duties are normally performed by a maintenance and grounds crew who also take care of the exterior grounds of the facility. The end product of the laboratory is the analytical result for which laboratory technicians and clerical staff provide support. Chemists or their supervisors perform the analytical chemistry work, quantitative analytical work and detailed analyses of samples, resulting in a laboratory report. Such work could require the use of nitrogen analyzers, gas chromatographs, high performance liquid chromatographs and other similar analytical instrumentation. Laboratory technicians perform the less technical tasks in the laboratory while clerical and support staff handle paperwork, correspondence and similar functions. Non-black employees, whether laboratory technicians or not, performed physical and other tasks of which Petitioner has complained. Such non-black employees include Marshall Gentry, Wendy King, Patty Lucas, David Bevis, Michael Bentley, Elliot Healy and David Goldston. Healy and Goldston are laboratory technicians in the pesticide laboratory. On January 22, 1992, Petitioner suffered a back injury in the course of assisting with the moving of a freezer at the laboratory. Numerous whites assisted in the moving the freezer, including Marshall Gentry, David Goldston, David Bevis, Michael Bentley, and three or four other unnamed white persons. None of the persons involved in moving the freezer had lifting belts. Laboratory services, a section within Respondent's Feed, Seed and Fertilizer Laboratory Bureau, functions as the receiver for all feed, seed and fertilizer samples for Respondent's laboratories. Marshall Gentry eventually discovered that assistance of laboratory services personnel would be required to move the freezer. After obtaining that assistance, Gentry withdrew from the effort of moving the freezer and went about other tasks. Gentry mistakenly thought that Petitioner had also returned to other duties. Petitioner did not report his injury to anyone on January 22, 1992, until after the movement of the freezer had been completed and disposal of packing materials accomplished. He was immediately taken to see a physician and an accident report was filed. Following his injury, supervisory staff made periodic inquires regarding Petitioner's physical condition and made good faith efforts to comply with the limited information flowing to them which placed physical restrictions on Petitioner. Petitioner received doctor's orders dictating that he not lift more than a certain amount of weight. Over the course of ensuing months, these orders varied the amount of weight that Petitioner could be expected to lift with weight limits ranging from as low as 10 pounds to as much as 20 or 40 pounds upon occasion. Eventually, Petitioner was given doctor's orders that prescribed "light work" for Petitioner. Petitioner did not elaborate on the doctor's orders to his superiors. Petitioner's supervisors determined that his disability would be accommodated through a practice whereby Petitioner would simply tell his supervisor if Petitioner felt unable to perform a particular task. There is no evidence that Petitioner's race was considered by his supervisors in the assignment of tasks to him. John Stupka, an Other Personal Services (OPS) employee with Respondent was assigned to the pesticide laboratory in April or May of 1991. He was not used, however, as a substitute for permanent laboratory technician employees although he did on occasion perform certain work that they would have performed if he had not been employed. He was never assigned to a position in any permanent employee class, including the laboratory technician class. Stupka was a white male premed student who was attending college in addition to his sporadic work with Respondent. He had no formal description of duties and was utilized as a temporary addition to the overall laboratory operation. Stupka's strong background in and interest in various chemical procedures permitted his utilization to a significant degree in this area, although he did not perform sophisticated chemical procedures. Generally, since his daily work schedule varied and lacked predictability as to when he would be present, the OPS employee was assigned long term duration projects such as cataloging information for a library of pesticide standards. On or about June 30, 1992, Petitioner felt concerned about what he perceived to be discriminatory treatment in the assignment of job tasks received by him and, unknown to any of his supervisors, filed a complaint with the Florida Human Relations Commission. The evidence of record fails to indicate the disposition of this complaint. 1/ At any rate, supervisory personnel were unaware of the complaint when Gentry, King and Lucas met with Petitioner on July 10, 1992, to discuss what activities could be undertaken by Petitioner. The meeting was precipitated by Petitioner's note to Patty Lucas on July 8, 1992, stating he could not comply with an assignment given to him by Lucas. Lucas excused him from the assignment. In the course of the meeting, his supervisors reiterated to Petitioner that he should perform only those tasks that he could perform and inform his supervisors of tasks that he could not perform. His supervisors anticipated that Petitioner would eventually recover and return to full duties. A functional capacity examination was not taken by Petitioner until August 25, 1992, due to cancellation of an earlier appointment. On August 20, 1992, Petitioner submitted his voluntary resignation stating that he was unable to perform the duties of the laboratory technician II position. When Marshall Gentry learned of the resignation letter on that date, he approached Petitioner to give him the opportunity to rescind the resignation. Petitioner responded that he recognized that the laboratory had a "big job to do" and that they "need somebody else to do it."
Recommendation Based on the foregoing, it is hereby RECOMMENDED that a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 14th day of July, 1994, in Tallahassee, Leon County, Florida. DON W. DAVIS 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 14th day of July, 1994.
The Issue As to Case 93-6927, whether Respondent, a licensed physician, violated the provisions of Section 458.331(1)(m), (t), (v), and (dd), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed. As to Case 93-6928, whether Respondent violated the provisions of Section 458.319(5), 458.327(1)(a), and 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed. As to Case 93-6929, whether Respondent violated the provisions of Section 458.331(1)(x), Florida Statutes, as alleged in the Administrative Complaint and the penalties, if any, that should be imposed.
Findings Of Fact Petitioner is the agency of the State of Florida that regulates the practice of medicine. Respondent is a licensed physician in the State of Florida and has been issued license number ME 0028412 by the Petitioner. CASE NO. 93-6927 On December 12, 1990, Susan D. Bernhardt conducted an inspection for the Florida Department of Health and Rehabilitative Services (DHRS) of an abortion clinic named Miami International Esthetics Center (MIEC). Ms. Bernhardt was hired as a consultant by DHRS to conduct random inspections of MIEC pursuant to a stipulation between DHRS and MIEC. Ms. Bernhardt is a registered nurse and is experienced in surgical procedures. Ms. Bernhardt observed Respondent perform an abortion on a patient at MIEC on December 12, 1990. Also present in the operating room was a nurse anesthetist, to whom Respondent referred as Mr. Martin. Respondent, Mr. Martin, and Ms. Bernhardt were present in the operating room at all times during the procedure. Mr. Martin administered anesthesia and the patient lost consciousness. Shortly after losing consciousness, the patient began making sounds which Ms. Bernhardt described as "crowing noises" and to which Dr. Van Eldik referred to as "stridors". These sounds indicate that the patient's air passages are blocked, a condition that requires prompt action from the physician or from the person administering anesthesia since the condition can be life threatening. Ms. Bernhardt testified that she went to the patient and used her stethoscope to confirm that the patient was having breathing difficulties. She thereafter tilted the patient's head and restored her breathing. The amount of time that lapsed between the time the patient first experienced difficulties breathing and the time Ms. Bernhardt acted was not established. While it is clear that neither Respondent or Mr. Martin 1/ acted to provide the patient with any relief or to assure that her air passages were open so that she could receive adequate oxygen, it is not clear whether the action of Ms. Bernhardt obviated the necessity for either the physician or the nurse anesthetist to act. Consequently, it is found that Petitioner failed to establish by clear and convincing evidence that Respondent failed to properly supervise Mr. Martin by failing to order him to assist the patient when Ms. Bernhardt acted promptly to relieve the patient. Emergency equipment was maintained on a crash cart that was in the operating room during the procedure Ms. Bernhardt observed. As the operating surgeon, Respondent was responsible for making sure that appropriate emergency equipment was readily available. Appropriate emergency equipment would include emergency drugs on the crash cart. Throughout the procedure there were no emergency drugs present on the crash cart. Respondent failed to adequately supervise Mr. Martin to ensure that appropriate emergency equipment was readily available. As part of her inspection of MIEC, Ms. Bernhardt reviewed medical records at the clinic pertaining to patients of the Respondent. Some of the records that were reviewed by her are contained in Petitioner's Exhibit 5. Respondent's records reviewed by Ms. Bernhardt were of overall poor quality. Documentation concerning physical examination was scanty and often failed to include the size of the patient's uterine and a description of the presumptive signs of pregnancy. Anesthesia records were not filled out. Documentation concerning the recovery room period was virtually nonexistent. No vital signs or progress notes were charted. There was no follow-up documentation evidencing a pelvic examination and no notation of patient complaints or symptoms. The records reviewed by Ms. Bernhardt during her inspection did not justify or adequately document the course of treatment for the respective patients. A subpoena was served on Respondent by one of Petitioner's investigators that required him to turn over all medical records pertaining to certain named patients. A similar subpoena was served on Mr. Angel Caso, the owner of MIEC. In response to the subpoena that was served on his client, Respondent's attorney informed the investigator that Respondent did not have any medical records other than those that would have been maintained at the MIEC. In response to the subpoena that was served on him, Mr. Caso turned over medical records pertaining to 45 patients. These records reflect that the Respondent was their attending physician. Mr. Caso could not be subpoenaed by Petitioner to compel his attendance at the formal hearing because he could not be located. The medical records that were turned over to Petitioner pursuant to subpoena were admitted into evidence as Petitioner's Exhibit 5 as records received by Petitioner during the course of an official investigation. There was no evidence that any other medical records pertaining to these patients exist. The medical records that constitute Petitioner's Exhibit 5 do not justify or adequately document the course of treatment of the respective patients. CASE NO. 93-6928 Section 458.319(5), Florida Statutes, provides, as follows: (5) The licensee must have on file with the department the address of his primary place of practice within the state prior to engaging in that practice. Prior to changing the address of his primary place of practice, whether or not within this state, the licensee shall notify the department of the address of his new primary place of practice. The Petitioner maintains the addresses of physicians by computer. There is no statute or rule that requires a physician to notify the Department in writing as to a change of address, but the Department's policy is to require that address changes be in writing and that the request for a change of address come from the physician. There was no written notification from Respondent to the Petitioner that his business address had changed prior to September 1992. At the time of the formal hearing, Respondent's business address was 102 East 49th Street, Hialeah. His former business address was 4821 West 4th Avenue, Hialeah, Florida. At the times pertinent to this proceeding, Respondent's home address was 14710 Day Pine Avenue, Miami, Florida. As of December 17, 1990, Petitioner had been informed of that address. Petitioner's investigator, Diane Robie, interviewed Respondent at his business address on East 49th Street on August 22, 1991. Respondent had been at this address for approximately eight months as of August 22, 1991. This new business address was reflected by Ms. Robie's report, which was filed with Petitioner on October 8, 1991, but that report did not trigger a change of the business address Petitioner maintained for Respondent in its computers. Respondent's license to practice medicine was scheduled to expire on December 31, 1991. In mid October 1991, the Department of Professional Regulation (Department) mailed a renewal notice to Respondent's former business address on West 4th Avenue. As required by Section 458.319(4), Florida Statutes, the Department routinely mails to the physician a renewal form that the physician must use to renew his license. This mailing takes place 60 days before the physician's license is scheduled to expire. This renewal form is generated by computer and is sent to the mailing address that is on record with the Department and maintained by computer. It was the Department's policy to try to notify a physician at his home address if a renewal notice is returned from a stale office address. There was no evidence that the renewal notice and the renewal form that was mailed to Respondent at his former address in October 1991 was returned to the Department as being an incorrect address. The evidence failed to establish what happened to the renewal notice that was mailed to Respondent in mid-October 1991. There was no further attempt by the Department following the mid-October 1991 mailing to notify the Respondent at his home address or business address that his license was about to expire. Respondent's license expired on December 31, 1991, and his licensure automatically reverted to inactive status pursuant to Section 458.319(3), Florida Statutes. Respondent made no effort to contact the Department until June 1992 at which time his secretary/office manager contacted the Department by telephone and advised that Respondent had not received the renewal documentation. On August 10, 1992, the Petitioner wrote to Respondent at his home address. This was the first written communication between the parties since the mid-October 1991 mailing. Respondent mailed a check in the amount of $500.00 for the renewal of his license to the Department in September 1992. On October 6, 1992, the Department wrote Respondent at his former address on West 4th Avenue and advised that prior to the renewal of his license, Respondent had to pay an additional fee in the amount of $350.00 for the processing of his renewal application and that he would also have to submit proof that he had earned required continuing medical education credits. On February 15, 1993, the Department sent to Respondent a letter at his East 49th Street address that provided as follows: This letter is in response to your (sic) to your submission to renew your Florida medical license which was received in the Board office on 9-15-92. Unfortunately the Board of Medicine cannot comply with your request until the follow- ing is received: $350.00 renewal fee. (in addition to the $500 already submitted) You did not fill out the Financial Respon- sibility portion of the renewal application, therefore, you will need to fill out a new form, and have it properly notarized. Please submit an affidavit for your active practice activities between January 1, 1992, and the present date. Any person applying for reactivation of a license must show either that such licensee main- tained tail insurance coverage which provided liability coverage for incidents that occurred on or after January 1, 1987, or the initial date of licensure in this state, whichever is later, and incidents that occurred before the date on which the license became inactive; OR that such licensee MUST SUBMIT A NOTARIZED AFFIDAVIT STATING THAT SUCH LICENSEE HAS NO UNSATISFIED MEDICAL MALPRACTICE JUDGMENTS OR SETTLEMENTS AT THE TIME OF APPLICATION FOR REACTIVATION. After July 1, 1992, you will need to submit copies of at least 40 hours of Category I CME earned between January 1, 1990, and the present date. Five of these hours must be in Risk Management. Also one hour of HIV/AIDS Category I CME needs to be submitted. Once the above items are received, we will proceed with the issuance of an active Florida medical license. (Emphasis is in the original.) Respondent met all requirements for the renewal of his medical license on March 16, 1993, the date on which his license was reactivated. Between January 1, 1992, and March 15, 1993, Respondent engaged in the practice of medicine in the State of Florida without an active license. Case 93-6929 Petitioner filed an Administrative Complaint against Respondent on April 27, 1988, which was subsequently referred to the Division of Administrative Hearings and assigned DOAH Case No. 88-5546. On February 28, 1989, the parties to that proceeding executed a "Stipulation" which settled the dispute. On April 19, 1989, the Board of Medicine entered a Final Order that accepted the Stipulation and ordered the parties to abide by its terms. Pertinent to this proceeding, Paragraph 4 of the Stipulation required the following: 4. Within one (1) year of the date of filing of the Final Order incorporating the terms of this stipulation, Respondent shall complete twenty-five (25) hours of Category I Continuing Medical Education in the areas of Risk Management and/or Medical Records Keeping. Such continuing education shall be in addition to that amount required for renewal of licensure. Category I Continuing Medical Education is a course approved by the American Medical Association as a top level course. In March 1990, Respondent completed a 25 hour course sponsored by Jackson Memorial Hospital in the area of "Medical Records Keeping". Respondent notified Petitioner on March 21, 1990, that he had completed this course. This was the only course that Respondent claimed to have taken in satisfaction of the Final Order entered in DOAH Case 88-5546. This course has not been designated as a Category I Continuing Medical Education course by Jackson Memorial Hospital. The Petitioner advised the Respondent that the course he had taken did not satisfy its order. Respondent thereafter requested that the matter be reviewed by Petitioner's Probation Committee. This request was granted, but the Probation Committee determined that the course was not acceptable. Respondent did not comply with the order until March 16, 1993.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner enter a final order that adopts the findings of fact and conclusions of law contained herein and which incorporates the following: Find Respondent not guilty of practicing beyond the scope of his competence in violation of Section 458.331(1)(v), Florida Statutes, as alleged in Count One of Case 93-6927. Find Respondent not guilty of practicing below the standard of care in violation of Section 458.331(1)(t), Florida Statutes, as alleged in Count Two of Case 93-6927. Find Respondent guilty of failing to keep proper medical records in violation of Section 458.331(1)(m), Florida Statutes, as alleged in Count Three of Case 93-6927. For this violation, Respondent should be reprimanded, assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent. Find Respondent not guilty of failing to properly supervise the nurse anesthetist when the patient experienced breathing difficulties in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93- 6927. Find Respondent guilty of failing to ensure that the crash cart was appropriately equipped, thereby failing to properly supervise the nurse anesthetist in violation of Section 458.331(1)(dd), Florida Statutes, as alleged in Count Four of Case 93-6927. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. Find Respondent guilty of violating the provisions of Section 458.319(5), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by failing to timely notify Petitioner of his change of business address as alleged in Count One of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. Find Respondent guilty of violating the provisions of Section 458.327(1)(a), Florida Statutes, and thereby violating Section 458.331(1)(x), Florida Statutes, by practicing medicine in the State of Florida after his license expired as alleged in Count Two of Case 93-6928. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $1,000.00, and placed on probation for a period of two years, to run concurrently with any other period of probation imposed on Respondent. Find Respondent guilty of violating the provisions of Section 458.331(1)(x), Florida Statutes, by failing to timely comply with an order of the Board of Medicine alleged in Case 93-6929. For this violation, Respondent should be reprimanded and assessed an administrative fine in the amount of $250.00. DONE AND ENTERED this 31st day of January, 1995, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 31st day of January, 1995.
