The Issue The issue is whether Respondent discriminated against Petitioner based on his race and/or disability by terminating his employment in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent manufactures rubber hoses for the automotive industry. Petitioner is a black male who began working for Respondent on February 17, 1999. Petitioner's job as a molder required him to work with his hands and arms pinning rubber hoses onto metal pins and removing the hoses from the pins after they cooled down. The job was dangerous and physically stressful to Petitioner's hands and wrists. After working for Respondent for approximately three months, Petitioner suffered a job-related injury. Respondent sent Petitioner to a physician who diagnosed Petitioner as having sprained hand and wrist muscles. The physician prescribed anti-inflammatory medicine for Petitioner and recommended that he return to work on light duty. For the next several months, Petitioner worked as a molder in an area of Respondent's plant that caused less physical stress on the muscles and ligaments in Petitioner's hands and wrists. Petitioner had no problems working in that area. In time, Respondent began to experience a decrease in the number and type of orders that it received from its customers. The change in demand for Respondent's products resulted in a reorganization of the production line, a smaller number of available positions, and in some cases, layoffs of employees. Eventually, Respondent moved Petitioner's work station back to his original position which was physically more stressful. After a couple of months, Petitioner suffered another work-related injury. Respondent told Petitioner that he would have to continue working as assigned because there was no other work or lighter duty available. Petitioner continued to work in the more physically stressful area of Respondent's plant. On one occasion, Respondent took Petitioner to the hospital because he was experiencing pain. Petitioner did not go back to work until he saw a physician who specialized in treating Petitioner's type of injury. Petitioner eventually was diagnosed as having bi- lateral carpel tunnel syndrome. The doctor recommended that Petitioner work on light duty until he could have surgery. Respondent accommodated Petitioner's needs by allowing him to work on light duty pending the proposed surgery. Respondent has a substance abuse policy to maintain a work place that is free from the use of illegal drugs and the use of alcohol. The policy provides for assistance for employees who develop an addiction to drugs or alcohol and who voluntarily seek assistance before the company has knowledge of the problem. If an employee tests positive for illegal drugs or alcohol use while on the job, the employee is subject to immediate termination. Respondent's substance abuse policy provides for drug and alcohol screening under the following circumstances: after any injury that requires outside medical attention; after any incident that results in damage to other associates, company property, or a pattern of personal injuries; upon observance of abnormal or erratic behavior while at work or a significant deterioration in work performance; upon reasonable suspicion due to observable phenomena, direct observation of use, or a report of use by a reliable and credible source; and (e) pursuant to random drug screening. Petitioner never tested positive for illegal drugs or alcohol use while he was working for Respondent. He never even went to work under the influence of illegal drugs or alcohol. However, on August 22, 2000, Petitioner voluntarily advised Respondent that that he had a substance abuse problem and that he desired to participate in the assistance referral program. On August 23, 2000, Petitioner met with Respondent's human resource manager and occupational nurse. The nurse reviewed the company's substance abuse policy and assistance referral program with Petitioner. Additionally. the nurse advised Petitioner as follows: (a) he would have to enroll in a treatment program; (b) he would have to provide Respondent with weekly letters from the treatment program, furnishing information about Petitioner's progress in the program; and (c) he would be subject to random drug screens for two years. The human resource manager advised Petitioner that he would be discharged if he failed to comply with and successfully complete the treatment program. Petitioner indicated that he understood Respondent's requirements for participation in the assistance referral program. Petitioner elected to enroll in an outpatient substance abuse treatment program sponsored by Marion Citrus Mental Health. Petitioner missed his first appointment at the treatment center because he lacked transportation. Petitioner eventually began attending the treatment program three nights a week. He continued to work light duty at Respondent's plant during the day. Petitioner did not furnish Respondent with documentation showing that he had enrolled in the substance abuse treatment program. Instead, Petitioner advised Respondent's occupational nurse that he had signed a release at Marion Citrus Mental Health so that she could call his mental health counselor to verify his attendance in the program. Meanwhile, Respondent continued to reorganize and downsize its operations. When there were more employees restricted to light duty than light duty positions available, Respondent assisted the employees in filing workers' compensation claims and allowed them to stay at home on medical leave for up to 12 weeks. In time, Respondent could no longer accommodate Petitioner's physical injury with a light duty position. Petitioner filed a workers' compensation claim and began staying at home on medical leave on September 11, 2000. On September 11, 2000, Respondent's occupational nurse called Petitioner's mental health counselor at Marion Citrus Mental Health. The nurse learned that Petitioner had kept an appointment at the mental health facility on September 7, 2000. The nurse also learned that Petitioner had not signed a release of information form that would allow the counselor to share any other information about Petitioner's treatment program. On September 12, 2000, Respondent's occupational nurse sent Petitioner a letter. The purpose of the letter was to remind Petitioner that he was required to furnish Respondent with a written statement from the substance abuse treatment facility each week. According to the letter, the written statement was supposed to include Petitioner's treatment plan schedule. The letter advised Petitioner that to remain employed, he would have to keep Respondent fully informed about his progress in and completion of the treatment program. On September 14, 2000, Petitioner called Respondent's occupational nurse to advise her that he could not keep his appointment at Marion Citrus Mental Health that week. Petitioner advised the nurse that he was taking medication that made him dizzy and that he had transportation problems, which made it difficult for him to attend the treatment program. On September 15, Petitioner went to Respondent's plant to see the occupational nurse. Because he claimed that he had not received the letter dated September 12, 2000, the nurse read the letter to him and gave him a copy of it. Once again the nurse explained Respondent's assistance referral program to Petitioner, advising him that Respondent would not tolerate future missed appointments at Marion Citrus Mental Health. The nurse also gave Petitioner a rapid drug screen, the result of which was negative. On November 15, 2000, Respondent sent Petitioner another letter regarding his failure to furnish Respondent with evidence of his attendance at and completion of a treatment program. The letter advised Petitioner that he had to furnish the information on or before November 27, 2000, or risk having his employment terminated. Petitioner received Respondent's November 15, 2000, letter but did not furnish Respondent with the requested information. Petitioner did not call Respondent to explain his failure to do so. In a letter dated November 27, 2000, Respondent advised Petitioner that he was discharged. Petitioner furnished Respondent with a letter dated December 4, 2000, from Marion Citrus Mental Health. The letter states that Petitioner had been enrolled in substance abuse outpatient counseling beginning August 31, 2000, and that he was progressing well. There is no evidence that Respondent applied its substance abuse policy to non-minority employees differently than it did to Petitioner or other minority employees. Additionally, there is no evidence that Respondent treated non-minority employees who had workers' compensation claims differently than it treated Petitioner or other minority employees who were home on medical leave due to a workers' compensation injury. In fact, Petitioner admitted during the hearing that he had no proof that Respondent discriminated against him based on his race. During the relevant time period, Respondent had approximately 52 employees (half black and half white) that suffered a workers' compensation injury. Employees with workers' compensation injuries were allowed to remain on family medical leave for 12 weeks. Employees who returned to work within the 12-week period were guaranteed a job. Subsequent to the 12-week period, employees with workers' compensation injuries were not officially terminated unless they were unable to return to work after 12 months.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 10th day of October, 2002, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 10th day of October, 2002. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Ray Mayo 708 Southwest Second Street Ocala, Florida 34471 Kade Spencer Dayco Products, Inc. 3100 Southeast Maricamp Road Ocala, Florida 34471 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Based on the Stipulation of the Parties, the following facts are found: Petitioners are the parents and legal guardians of Leina Gotay (Leina), and are the “Claimants” as defined by section 766.302(3). Leina incurred a “birth-related neurological injury” as that term is defined in section 766.302(2). At birth, Leina weighed 2,750 grams. B. Vereen Chithriki, M.D., rendered obstetrical services in the delivery of Leina and, at all times material to this proceeding, was a “participating physician” as defined in section 766.302(7). Baptist Medical Center South is a hospital located in Jacksonville, Florida, and is the “hospital” as that term is defined in section 766.302(6), where Leina was born. Petitioners filed a Petition for Benefits pursuant to section 766.305, seeking compensation from NICA, and that Petition for Benefits is incorporated by reference in its entirety, including all attachments. Any reference made within this document to NICA encompasses, where appropriate, the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
The Issue The issue for determination is whether Mr. Johnson is eligible for vocational rehabilitation services or whether, as proposed by the agency, his file should be closed.
Findings Of Fact Jefferson Johnson applied for services from the Division of Vocational Rehabilitation (agency) and on November 13, 1997, executed an "Agreement of Understanding" describing eligibility criteria and various client rights and responsibilities. More specifically, the agreement provides, in pertinent part: ELIGIBILITY The Division of Vocational Rehabilitation (DVR) provides employment-related services to those persons who are eligible. To be eligible: You must have a physical, mental or emotional impairment that interferes with employment. It must be determined that Vocational Rehabilitation (VR) services will benefit you in becoming employed or in keeping your job. You must require VR services to become or remain employed. YOUR RIGHTS You have the right to: an evaluation to determine if you are eligible for services; written notice if you are determined to be ineligible for services; appeal any decision concerning denial, provision, delivery, or change of service; participate fully in all decisions. YOUR RESPONSIBILITIES It is very important that you participate in decisions about your employment. Your responsibilities are to: Keep appointments or request in advance that they be changed; participate actively in the planning of your individualized Written Rehabilitation Program (IWRP); cooperate with your counselor in all parts of your rehabilitation; provide all available medical information related to your rehabilitation program. (Petitioner's Exhibit A) There is no dispute that Petitioner has an impairment that interferes with employment. Melissa Kirkland has a Master's degree in counseling and is experienced in working with individuals with mental and emotional impairments. She was assigned Mr. Johnson's case and reviewed his medical records. She also began working with him on developing an assessment of his work-readiness. Mr. Johnson, who has some paralegal training from Rollins College, desires placement in a legal office that does advocacy for disabled persons. He feels that a lawyer should be able to evaluate his work-readiness. Based on Mr. Johnson's interactions with her and on her review of his medical records, Ms. Kirkland recognizes in her client certain problems common to persons with mental health impairments: hostile or confrontational interactions with others, difficulty concentrating, punctuality problems, and lack of appropriate hygiene. Work-readiness requires that those problems be remediated. The remediation cannot be accomplished in a regular job placement but requires the intervention and involvement of skilled counselors and staff. Those counselors are available though the Seminole County Mental Health Center's "job store," a sheltered workshop setting that would provide evaluation and skills training that Mr. Johnson needs before he can benefit from the agency's placement services. The skills that he needs are not related to substantive knowledge in his chosen field or career, but rather are the more basic skills that would enable him to get to work on time, properly groomed, and able to get along with the supervisors and co-workers. The "job store" is the only resource available in Mr. Johnson's geographical area that can provide the assessment and training he needs to become work ready and able to benefit from further vocational rehabilitation services. Mr. Johnson, however, refuses to sign the individualized written rehabilitation plan prepared by Ms. Kirkland and he refuses to participate in the job store even for the few months that Ms. Kirkland recommends. It is this refusal to obtain essential services, and not his profanity over the telephone and in the agency office, that caused Ms. Kirkland to appropriately terminate the agency's services to Mr. Johnson.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: that the agency enter its final order terminating services to Petitioner without prejudice to his right to reapply. DONE AND ENTERED this 2nd day of November, 1998, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 2nd day of November, 1998. COPIES FURNISHED: Michael A. Greif, Senior Attorney Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle Tallahassee, Florida 32399-2189 Jefferson W. Johnson 4416 South Lake Orlando Parkway Orlando, Florida 32808 Douglas I. Jamerson, Secretary Department of Labor and Employment Security 303 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152 Edward A. Dion, General Counsel Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, Southeast Tallahassee, Florida 32399-2152
Findings Of Fact In 1984, petitioner, Louise Blair, visited the Miami office of respondent, Department of Labor and Employment Security, Division of Vocational Rehabilitation (Division), for the purpose of seeking vocational rehabilitation (VR) services. Through the use of federal funds, the Division provides such services to eligible persons. Although Blair indicated she received various services in 1984 and 1985, Division records produced at hearing reflect she was not formally enrolled as a client until October, 1986. To be eligible for VR services, a person must (a) have a physical or mental disability, (b) show that the disability is a substantial handicap to employment, and (c) show that VR services would reasonably be expected to render that person fit to engage in a gainful occupation. Once a person is certified as eligible for VR services, an individual written rehabilitation program (IWRP) must be prepared by a counselor and approved by the Division. The IWRP identifies, among other things, the determination and achievement of a vocational goal. The IWRP must be reviewed annually, and it remains in effect until services are terminated or the plan is changed. Services may include counseling, medical treatment and grant funds for training in a marketable skill. Blair was classified as eligible for Division assistance due to both physical and mental disabilities. Her IWRP was reduced to writing on October 12, 1986. The plan called for business and clerical training at United Business Institute (UBI) in Miami from October, 1986 through May, 1987. Funds for the UBI tuition had already been obtained by Blair through a student grant and a federal loan program. Blair's long-term goal was to obtain a marketable skill (typing) which could then be used as an employment tool. The specific VR services to be rendered Blair were counseling by a Division counselor, eyeglasses for her failing eyesight, and payment for medication for gastric ulcers. She was also sent on one occasion to Jackson Memorial Hospital in Miami to be examined by an internist. As it turned out, Blair only stayed at UBI for about three weeks. She left because the school furnished inadequate instruction. After Blair complained to the State Department of Education, UBI gave her a full refund of her money. Blair had the money transferred to Barry College (Barry) in Miami where she enrolled as a student for one semester. She reenrolled at Barry for a second semester (spring of 1987) but was late in filling out her application for a student loan. Even though she did not obtain a loan, Blair remained at Barry for the semester without paying tuition. Barry now wants the money owed for tuition and will not allow Blair to re-enroll until it is paid. Blair accordingly requested that the Division pay for her tuition as a VR service. However, applicable federal regulations, which are binding on the Division, do not allow an IWRP to be altered after the fact or for the Division to pay for services after they are rendered. In other words, the Division cannot authorize payment for an educational service after the student has already enrolled at the college. Since Blair was enrolled in Barry before she requested a modification of her IWRP, the Division is prohibited from reimbursing Blair for her tuition. Besides needing prior authorization for a service, a client must also have a psychological evaluation performed to determine if the client would benefit from a college education. In Blair's case, an after-the-fact evaluation was made on May 4, 1988, presumably to assist the Division in countering Blair's claim. The results of the evaluation were not made a part of the record, and the counselor's testimony as to what it said is inadmissible hearsay. However, after meeting with Blair and reviewing her file, Blair's counselor made a recommendation that Blair would not benefit from a college education. At hearing Blair contended that she had a difficult time arranging an appointment to see a counselor and then having a meaningful session to develop an IWRP. This was probably attributable to the fact that her counselor was carrying a case load of 100 active clients at the time. In any event, an IWRP was prepared and signed on October 12, 1986, and was binding on the client. She also contended that she told the counselor that she was attending Barry University before her plan was prepared. Even if this was true, it was still necessary to obtain approval for tuition payment prior to enrolling at the college. Blair did not do this. Therefore, the agency properly denied her request.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that petitioner's request for modification of her IWRP or approval for college tuition payments be denied. DONE AND ORDERED this 20th day of June, 1988, in Tallahassee, Leon County, Florida. DONALD R. ALEXANDER 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 20th day of June, 1988. COPIES FURNISHED: Ms. Louise Blair 652 Northwest 100th Street Miami, Florida 33150 E. Ellen Winslow, Esquire 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152 Hugo Menendez, Secretary Department of Labor and Employment Security 206 Berkeley Building 2590 Executive Center Circle East Tallahassee, Florida 32399-2152 Steve Barron, Esquire General Counsel 131 Montgomery Building 2562 Executive Center Circle East Tallahassee, Florida 32399-2152
Findings Of Fact Josue A. Solis was born on December 12, 2013, at Plantation General Hospital in Plantation, Florida. Josue weighed in excess of 2,500 grams at birth. NICA retained Donald C. Willis, M.D. (Dr. Willis), to review Josue’s medical records. In a medical report dated August 17, 2016, Dr. Willis made the following findings and expressed the following opinion: In summary, labor was induced at 39 weeks. There was no fetal distress during labor. The baby was delivered by spontaneous vaginal birth without complications. The baby was not depressed and had normal Apgar scores of 9/9. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post delivery period. Dr. Willis reaffirmed his ultimate opinion in an affidavit dated February 24, 2017. Dr. Willis’ opinion that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical injury to the baby’s brain during labor, delivery or the immediate post-delivery period is credited. Respondent retained Michael Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to evaluate Josue. Dr. Duchowny reviewed Josue’s medical records and performed an Independent Medical Evaluation on him on February 1, 2017. In a medical report dated February 7, 2017, Dr. Duchowny made the following findings and summarized his evaluation as follows: IN SUMMARY Josue’s physical examination reveals evidence of hypotonia and ataxia with delayed language development. I believe his presentation is most consistent with ataxic hypotonic cerebral palsy. I believe his motor skills will improve in the future and it is unlikely that he will ultimately have a substantial motor impairment. In all likelihood, Josue will continue to have a delayed language development. Ataxic cerebral palsy is a prenatally acquired syndrome and there is no evidence from the records that Josue’s neurological difficulties were acquired in the course of labor or delivery. Furthermore, there is no support for either mechanical injury or oxygen deprivation as contributing factors. I am therefore not recommending Josue for inclusion in the NICA program. Dr. Duchowny reaffirmed his ultimate opinion in an affidavit dated February 27, 2017, in which he opined, “it is my opinion that IME and record review do not provide a basis to find that Josue’s neurological difficulties were acquired in the course of labor, delivery or resuscitation in the immediate postdelivery period. I therefore do not recommend consideration for inclusion within the NICA program.” Dr. Duchowny’s opinion that ataxic cerebral palsy is a prenatally acquired syndrome and that there was no basis found in the records or in his Independent Medical Evaluation that Josue’s neurological difficulties were acquired in the course of labor, delivery or resuscitation in the immediate post-delivery period is credited. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby’s brain during labor, delivery or the immediate post- delivery period. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that ataxic cerebral palsy is a prenatally acquired syndrome and that there is no indication that Josue’s neurological difficulties were acquired in the course of labor, delivery or resuscitation in the immediate post- delivery period.
The Issue May Petitioner terminate vocational rehabilitation services to Respondent, specifically, vocational rehabilitation benefits under Chapter 10, F.A.C., for a two year program to become a newspaper writer? HEARING AND PROCEDURE At hearing, Petitioner presented the oral testimony of Kay Nelson and had admitted two exhibits. Respondent testified on her own behalf and presented the oral testimony of Tom Hawkins. Respondent had no exhibits admitted in evidence. Petitioner filed transcript of the formal hearing but has filed no proposed findings of fact and conclusions of law. Respondent timely filed, within the extended time limits stipulated by the parties, a five page letter with various exhibits attached. Leave was not sought by motion for the submission of these after-filed exhibits and they have not been considered. A ruling in compliance with Section 120.59(2), Florida Statutes is contained within the CONCLUSIONS OF LAW portion of this recommended order.
Findings Of Fact Respondent, Marilyn McFadden, is an adult Caucasian female with a history of marital, familial, and emotional problems. Her past work history is unskilled and non-specific except for assisting a former husband who was a pentecostal preacher and evangelist and for working in her own creative jewelry business. In 1983, Respondent was referred by the federal Social Security Administration to Petitioner State of Florida, Department of Health and Rehabilitative Services vocational rehabilitation unit (DHRS), in Sarasota, Florida. On March 14, 1983, Respondent made application for vocational rehabilitation services and funds.1 An extensive "work-up" was prepared by Kay Nelson, a DHRS employee who was a vocational rehabilitation counselor at the time. In the course of this "work-up," medical advisors to Petitioner verified to the satisfaction of Ms. Nelson that Respondent had sufficient physical disability or physical vocational handicap in her neck, shoulders, and upper back2 to qualify for DHRS vocational rehabilitation client services on the basis of a physical handicap and that Respondent would require preparation or re-training for semi-sedentary work on the basis of her past limited work history and present physical disability/handicap. At that time, Respondent did not confide in Ms. Nelson or the psychological evaluator that she had undergone prior psychiatric treatment with regard to her first divorce. Therefore, Ms. Nelson's initial assessment of Respondent's eligibility for vocational rehabilitation services did not take into account that Respondent might qualify for benefits due to a mental or emotional disability. Likewise, it did not take into consideration that her psychological makeup might present a barrier to successful vocational rehabilitation or future employability. Indeed, Ms. Nelson's assessment concluded that Respondent was then psychologically fit to embark on a two year college course so as to enter the occupational grouping of "Newswriter 131.267-214." In order to achieve the goal of rendering Respondent employable, Respondent on her own behalf and Kay Nelson on behalf of DHRS entered into a written individualized written client services program set out in a three page document-dated July 12, 1983. (P-1) Before entering into the written program, Respondent and Nelson orally agreed that the services set forth in the written program had a reasonable expectation of getting Respondent back to work. In addition to counseling, guidance, assistance with placement, and other services to help Respondent achieve employability, the written program specifically provided for Respondent to pursue a Mass Communications "Journalism) AA [Associate of Arts] degree at Manatee Junior College by completing 60 semester hours at 517.00 per hour for a total of $1,020.00. In the "Counseling and Guidance Goals" portion of the written program it states as goals, "1. To encourage Marilyn's participation in New Option Program. To assist her to see her strong point-- positives. To assist her to view things as a whole and not dwell on detail." Elsewhere in the program the parties agreed, in pertinent part, to "Counselling & Guidance provided by V. R. Counselor, Double Your Opportunity Program at MJC,3 & Displaced Homemaker Programs. N/C to V.R."4 and "Placement Services provided by V.R. 9 Counselor, V.R. Placement Specialist, F.S.E.S.; and M.J.C. n/c to V.R." These services had the extensive objective of emotional support, teaching assertiveness, guiding course selection and vocational choices, and preparing Respondent for return to employment including resume preparation, job interview techniques, and proper vocational attitudes. In the "Statement of Client Agreement and Participation" portion of the written program it is spelled out that: "I, Marilyn J. McFadden; will cooperate in all phases of my Vocational Rehabilitation. I will attend all classes regularly and give my best effort in all classwork. I understand that in order for V.R. to continue at MJC, I must maintain a 2.0 GPA, keeping my counselor advised monthly of my progress at MJC in training and any expected changes in my V.R. plan. Prior to the end of each term, I will provide my counselor a written list of my expected course grades, initialed by the respective professors, as well as a listing of classes and books for the next term. I also understand that I am expected each term to contact the financial aid office and apply for any financial aid that it is determined I may be eligible to receive. Any scholarships or grant moneys I receive in addition to my PELL Grant are to be reimbursed to V.R. unless my counselor deems otherwise. I will be expected to assume financial responsibility for all my medical, therapy, and maintenance expenses. If personal or financial needs arise that would create undue hardship on my completing this training program I-am to advise my counselor prior to initiating any program changes. Any plans to continue on with a Baccalaureate degree in my ma]or field will not be considered until I have completed my two year degree and then will be dependent upon my successful completion of this training, my final G.P.A., and if my counselor and I agree that this prescribed course of action is in my best vocational interest. I understand that at the present time there is no financial obligation on the part of V.R. to fund me in a 4 year training program nor is my counselor or V.R. recommending such a program. Any major changes to my program such as change in vocational goal or additional training will require a supplemental plan. At the completion of my training program, I understand that I will be expected to work closely with those placement resources listed in my plan, keep scheduled job interviews, seek employment myself, and when appropriate employment is offered to me, return to work. "Emphasis supplied) Respondent signed and dated this program agreement. (P-1) From August 1983 until January 1984, DHRS provided Respondent with money for some tuition costs until she received a Pell education grant, provided her with funds for books, transportation, and child care for her daughter, and provided her with on-going guidance and counselling. During this period, Respondent fully complied with the signed, written program. Respondent took some remedial courses in math and English. It is not clear whether these courses were strictly remedial or are basic to an AA degree which may be used as the basis of a 4 year Baccalaureate degree, but these courses were apparently necessary to allow Respondent to remain in other courses required to qualify for an "AA" toward achieving "newswriter" employment. There is therefore insufficient evidence to support a finding that Respondent deliberately took unauthorized courses at Manatee Junior College during this period or during subsequent grading periods. On January 18, 1984, Ms. Nelson counselled with Respondent and concluded Respondent had severe emotional problems. Except for her formal job title, little information was provided concerning Ms. Nelson. No evidence of education, training or experience of Ms. Nelson was offered as a predicate for her reaching this conclusion, and indeed, Ms. Nelson personally testified that she was "not a doctor". However, upon Ms. Nelson's testimony concerning her direct, personal observations of Respondent on that date and shortly thereafter that Respondent was behaving erratically and talking incoherently and upon Respondent's reference to this period as "the breakdown," it is found that for an unspecified period of time in early 1984 Respondent was unable to comply with the written vocational rehabilitation program due to severe emotional problems. Ms. Nelson and a person named Jeanne Hinton transported Respondent to a psychiatric hospital and attempted to have her commit herself voluntarily. When Ms. McFadden refused to commit herself voluntarily, Ms. Nelson and others appeared in some type of legal proceeding in an attempt to involuntarily commit Respondent for psychiatric care. Inevitably, these incidents resulted in considerable animosity and distrust on Ms. McFadden's part toward Ms. Nelson and toward DHRS. There is no evidence that Ms. McFadden is currently under any court or Division of Administrative Hearing Order of incompetency or involuntary commitment.5 Nonetheless, based on hearsay and her own observations, Ms. Nelson, as counsellor in charge of Ms. McFadden's vocational rehabilitation benefits, determined that Ms. McFadden was ineligible for vocational rehabilitation benefits under the existing program. In large part, Ms. Nelson's decision was based upon Ms. McFadden's expressed belief that God would heal her without counselling by DHRS or a psychologist and Ms. McFadden's refusal of counselling by Ms. Nelson or any other human being. Ms Nelson appears to have concluded that such reliance on God is evidence of emotional instability. Ms. Nelson closed Respondent McFadden's file and terminated her vocational rehabilitation benefits upon grounds Respondent was "ineligible." Ms. Nelson is emphatic that the determination of ineligibility is that of the vocational counsellor and as that counsellor, she does consider Respondent ineligible because of what Ms. Nelson perceives as Respondent's emotional problems interfering with Respondent's ability to complete the agreed program and interfering with Respondent's employability. Ms. Nelson elected not to close the file upon grounds-the Respondent was "uncooperative." Respondent denies any type of mental handicap requiring remediation as of the date of formal hearing. She maintains that although she first signed the contract program which DHRS has now terminated, she thereafter decided unilaterally that her acceptance of the benefits provided thereunder was dishonest within her personal moral code because she had no intention of becoming a newswriter; that she did not intend to ever accept employment in such a field but intended to "piggyback" a four year Baccalaureate degree in journalism and possibly a Master's degree on top of the "AA" degree if she successfully completed the "AA" degree. At hearing, Respondent initially refused to comply with the terms of the program and then offered to comply with the requirements of the program as far as achieving the "AA" degree but refused to progress toward employability as a newswriter and indicated she would still reject counselling. The mutual hostility, mutual mistrust, and lack of respect for each other's point of view of Ms. Nelson and Respondent McFadden was an observable situation clearly evident throughout the entire hearing.
Recommendation That the Department of Health and Rehabilitative Services enter a final order affirming the administrative termination of the vocational rehabilitation benefits entered into by the July 12, 1983 written client services program. DONE and ORDERED this 19th day of August, 1986, in Tallahassee, Florida. ELLA JANE DAVIS, 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 19th day of August, 1986.
The Issue Whether Respondent violated Section 760.10(1), Florida Statutes, when it discharged Petitioner.
Findings Of Fact Respondent, Cardio-Pulmonary Center of Bethesda, Inc. (Center), operates a Health and Fitness Center in conjunction with Bethesda Memorial Hospital located in Boynton Beach, Florida. On or about December, 1988, three separate business entities operated at the Health and Fitness Center: the Cardio-Pulmonary Center, a Fitness Department open to the general public, and a Sports Medicine and Back Care Center. Petitioner, Diane H. Cramer (Cramer), was hired by the Center as a secretary/receptionist on or about December 19, 1988. Cramer suffers from chronic depression caused by a chemical imbalance. When she is not in crisis she is highly functional; however when she is in crisis, there is criteria for a major depressive disorder which affects her ability to function normally in her day-to-day activities. For the entire length of Petitioner's Employment with the Center, Randy Colman (Colman) held the position of Director of the Cardio-Pulmonary Center. Colman was Cramer's immediate supervisor from December 1988 through September, 1991. In approximately August 1989, Cramer was promoted to the newly-created position of Office Manager based on her good job performance. Her duties included supervision of the office staff of the Cardiac Rehabilitation Department and the Sports and Back Care Center. Cramer's work performance continued to be satisfactory until early January, 1990. She broke up with her boyfriend and began to experience bouts of depression in which she would feel sad and angry and would isolate herself from others. She had contemplated suicide and told her co-workers about her suicidal thoughts. She would put her head down on her desk. When Colman would ask her to do something, she would look at him as if to say "why are you asking me to do this." Her emotional behavior had escalated to the point that it was affecting the performance of her co-workers. On January 19, 1990, Colman gave Cramer a memorandum outlining his concerns. He suggested that she speak to someone who was qualified in crisis management and depression and that she take a few days off. In response to Cramer's complaints to Colman that she lacked private space and private time at work, he suggested that she try a different work schedule which would allow her some privacy in her current work space. Additionally, he advised her that if she could not become more considerate and cordial to her co-workers that he would require her to take some time off and visit the employee health nurse before returning to work. Colman discussed these concerns as well in a conversation with Cramer on January 19, 1990. Cramer followed Colman's suggestion and took some leave time. When she returned from leave, she had improved and her work performance was satisfactory. Cramer did try the different work schedule suggested by Colman in his January 19, 1990 memorandum but she went back to her old work schedule. She did not seek any counseling in January, 1990. In June, 1990, Cramer experienced another bout of depression. On June 25, she had told Ken Goby (Goby), a co-worker, that she was depressed and that if she did not come into work the next day, it would be because she had killed herself. Goby relayed his conversation with Cramer to Colman. On June 26, Colman met Cramer at the entrance of the building and told her that he was concerned about her well-being. He gave her a memorandum which outlined his expectations of her work performance. Additionally, he advised her that she was suspended without pay until such time as she saw the employee health nurse, Ruth Tillman. He gave her an appointment time with Ms. Tillman. If she chose not to see the nurse, she was advised to sign the resignation form which was included with the memorandum. Cramer did see Nurse Tillman. As a result of her conversation with the nurse, Cramer went to see her endocrinologist, who referred her to Dr. Tomelleri. She saw Dr. Tomelleri on July 5. Cramer began taking medication and returned to work. Colman spoke with Nurse Tillman after her visit with Cramer and he was satisfied that Cramer could return to work. Having judged the credibility of the witnesses, I find that when Cramer returned to work she did not advise either Colman or Kathy Vredenburgh that she had seen a doctor, that she was diagnosed as being depressed, or that she was taking medication. However, the evidence is clear that Colman knew that Cramer was having emotional problems, which he judged to be depression. From the time she returned to work in July, 1990 until the early part of January, 1991, Cramer's work performance was satisfactory. Her mood swings were no different from any of the other employees at the Center. In the fall of 1990, Cramer received a seven percent merit increase and a .5 percent bonus raise. Beginning in January, 1991, Cramer began to come to work in a bad mood several times a month. She had a "snitty" way of dealing with her co-workers and the patients. She did not make any suicide threats. 15 In January, 1991, Cramer complained to Ken Goby that Colman was giving all his work responsibilities away and that they were doing all his work. Mr. Goby told Colman what Cramer had said. Based on Dr. Tomelleri's notes, Cramer had quit taking her medication sometime in January, 1991. She went back on her medication in late January, 1991. She was doing well when she next saw Dr. Tomelleri in March, 1991. Based on Dr. Tomelleri's notes, Cramer would do well as long as she continued to take her medication. In September, 1991, Colman was granted additional managerial responsibilities at the Center, and Kathy Vredenburgh was made Cramer's immediate supervisor. Colman and Ms. Vredenburgh conducted a performance evaluation of Cramer in September, 1991. Cramer was given a low rating. In November, 1991, one of Cramer's co-workers was having personal problems and asked Cramer if she could use the telephone in Cramer's office for a personal phone call. Cramer let her use the telephone; however, the co- worker's conversation dragged on and Cramer asked her to get off the phone so that Cramer could get back to her desk. Cramer got angry and threw a piece of paper. On November 29, 1991, Cramer received a reprimand for the incident and was cautioned that emotional outbursts, visible sulking, and performance of non- work related functions was not acceptable behavior and would not be tolerated. Prior to the issuance of the reprimand, Colman and Ms. Vredenburgh discussed Cramer's behavior. Based on Ms. Vredenburgh notes, it is clear that she was not aware that Cramer was currently being seen by a psychiatrist. In December of 1991 or January of 1992, Cramer got into an argument with a patient over some medical records. Cramer raised her voice at the patient. In April of 1992, Kent Goby became Cramer's immediate supervisor. Cramer was certified to teach SALSArobics, which is modified low impact aerobic exercises set to Latin music and movements. In October, 1991, she approached Colman with a proposal to introduce the program at the Center. By memorandum dated November 15, 1991, she followed up a meeting with Colman concerning her proposal and addressed several questions that he had concerning the program. Colman gave her his written comments on November 25, 1991. Cramer wanted to be the instructor of SALSArobics. On June 5, 1992, Goby and Cramer had a conversation concerning the SALSArobics. Cramer told Goby that Colman had been very negative about the program. She stated that if Colman did not appreciate all the work and research that she had done then, "The hell with him." On the following Monday, June 8, Goby again spoke with Cramer about SALSArobics. Goby told Cramer that he would be meeting with the Center's exercise instructor to discuss the possibility of starting the program. Cramer told Goby that she felt that the fitness center probably was worried about her influencing members from existing aerobic classes and that she would not want anyone else to teach SALSArobics. She told Goby "screw them." On June 9, Goby relayed his conversations with Cramer about SALSArobics to Colman. Based on the Center's records, and notes of Goby, Cramer was late three times in March, 1992, and twice in May, 1992. It is not clear why she was late in March. Her tardiness in May resulted from oversleeping on one occasion and a back ache caused by her bed on the other occasion. Cramer came to work late on June 9, 10, and 11. The evidence did not establish that she was late on these days because of her depression. Sometime during the week of June 9, 1992, Cramer made comments to Colman regarding her tardiness. Once she told him that she could not understand "how people get to work on time." On another occasion, when he observed her walking in late, she told him that she was "always" late. She did not advise Colman that her tardiness was due to her depression. Cramer's employment was terminated on or about June 11, 1992, due to "inappropriate job performance, i.e. tardiness, emotional outbursts, and general attitude towards the center and [her] co-workers." Cramer was not in a crisis situation during the time of the occurrence of the circumstances which led to her discharge. Based on the medical records prepared by Dr. Tomelleri, Cramer saw him in March, 1992 and did not visit him again until July 17, 1992. Cramer's claim for unemployment compensation benefits was refused by an Appeals Referee. The Appeals Referee concluded that Cramer was terminated for misconduct connected with her work. The decision of the Appeals Referee was affirmed by the Florida Unemployment Appeals Commission and by the Florida Fourth District Court of Appeal. Cramer filed a timely charge of discrimination with the Florida Commission on Human Relations. Cramer's charge alleged that she was "laid off" because of a perceived handicap, severe depression.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered finding that Cardio-Pulmonary Center of Bethesda, Inc. did not commit an unlawful employment practice and that Diane H. Cramer's Petition for Relief from an Unlawful Employment Practice be dismissed. DONE AND ENTERED this 17th day of November, 1994, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 17th day of November, 1994. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-1260 To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact: Petitioner's Proposed Findings of Fact. Paragraphs 1-3: Accepted. Paragraphs 4-5: Accepted in substance. Paragraph 6: The second half of the first sentence is rejected as subordinate to the facts actually found. The remainder of the paragraph is accepted in substance. Paragraphs 7-12: Accepted in substance. Paragraph 13: The first sentence is accepted in substance. Having judged the credibility of the witnesses, I reject the second sentence. Paragraphs 14-17: Accepted in substance. Paragraph 16: Rejected as subordinate to the facts actually found. Paragraph 17: Rejected to the extent that it implies that Cramer was deliberately excluded by her co-workers. Having judged the credibility of the witnesses, the evidence established that Cramer had been invited to go to lunch but had declined because of lack of money. Paragraphs 18-20: Rejected as subordinate to the facts actually found. Paragraph 21: Having judged the credibility of Cramer, I reject the first part of the sentence as not credible. The second part of the sentence is accepted in substance to the extent that Cramer did have episodes of depression. Paragraph 22: Having judged the credibility of Cramer, I reject this paragraph as not supported by credible evidence. Paragraph 23: Rejected as subordinate to the facts actually found. Paragraph 24: Accepted in substance to the extent that it refers to the time of discharge. The evidence is clear that Cramer had received warnings during her employment with the Center concerning her tardiness and her dealings with co-workers and clients. Paragraphs 25-31: Accepted in substance. Paragraphs 32-41: Rejected as subordinate to the facts actually found. Paragraphs 42-44: Accepted in substance. Paragraph 45: Accepted to the extent that the statement is generally true. Rejected to the extent that it implies that the tardiness that resulted in part in Cramer's discharge were caused by her depression. Paragraphs 46-48: Accepted in substance. Paragraphs 49-53: Accepted in substance to the extent Ms. Vredenburgh felt that Cramer had emotional problems which should be addressed in counseling. Paragraph 54: Accepted in substance. Paragraphs 55-61: Rejected as subordinate to the facts actually found. Paragraph 62: Accepted in substance. Paragraph 63: Rejected as subordinate to the facts actually found. No Paragraph 64 Paragraphs 65-71: Accepted in substance. Paragraph 72: The first sentence is accepted in substance. The remainder is rejected as subordinate to the facts actually found. Paragraphs 73-75: Rejected as subordinate to the facts actually found. Respondent's Proposed Findings of Fact. Paragraph 1: Accepted. Paragraph 2: Accepted in substance. Paragraph 3: Rejected as unnecessary. Paragraphs 4-8: Accepted in substance. Paragraph 9: The second sentence is rejected to the extent that it implies that Colman did not perceive that Cramer had emotional problems. The remainder is accepted in substance. Paragraph 10: Accepted in substance. Paragraph 11: Rejected as unnecessary. Paragraphs 12-19: Accepted in substance. Paragraphs 20-21: Rejected as recitation of testimony. Paragraphs 22-28: Accepted in substance. Paragraph 29: The first two sentences are accepted in substance. The last sentence is rejected as constituting argument. Paragraph 30: Accepted in substance. Paragraph 31: Rejected as unnecessary. Paragraphs 32-39: Accepted in substance. Paragraph 40: The first and third sentences are rejected. Based on Colman's memoranda, I find that he did know that she had some emotional problems. The second sentence is accepted in substance. The last sentence is accepted in substance to the extent that there was no competent substantial evidence to indicate that Goby did have knowledge of Cramer's condition, psychiatric visits or medication. Paragraph 41: Accepted. COPIES FURNISHED: Elizabeth S. Syger, Esquire Michael W. Casey, III First Union Financial Center, Suite 3600 200 South Biscayne Boulevard Miami, Florida 33131-2338 Gary A. Isaacs, Esquire One Clearlake Centre 250 Australian Avenue South Suite 503 West Palm Beach, Florida 33401 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird General Counsel Commission on Human Relations 325 John Knox Road, Building F, Suite 240 Tallahassee, Florida 32303-4149
