The Issue The issue in this case is whether Respondent committed the allegations in the notice of intent to assign a conditional license and, if so, whether Petitioner should have changed the rating of Respondent's license from standard to conditional for the period June 14 through August 10, 2001.
Findings Of Fact Petitioner is the state agency responsible for licensing and regulating nursing homes inside the state. Respondent operates a licensed nursing home at 1120 West Donegan Avenue, Kissimmee, Florida (the "facility"). Petitioner conducted an annual survey of the facility from May 7, through May 10, 2001 (the "May survey"). Petitioner conducted a follow-up survey of the facility on June 14, 2001 (the "June survey"). The May survey cites one Class III violation. The June survey cites a repeat deficiency of a Class III violation. Subsection 400.23(8)(b) and (c), Florida Statutes (2000), refers to deficiency classifications as Class I-III deficiencies. All statutory references are to Florida Statutes (2000) unless otherwise stated. Section 400.23(8)(c) defines Class III deficiencies as those deficiencies . . . which the agency determines to have an indirect or potential relationship to the health, safety, or security of the nursing home facility residents, other than class I or class II deficiencies. The statutory definitions of Class I and II deficiencies are not relevant to this case because this case involves only a Class III deficiency. Florida Administrative Code Rule Rule 59A-4.1288 requires nursing home facilities licensed by the State of Florida to adhere to federal regulations in Section 483 of the Code of Federal Regulations ("CFR"). All references to rules are to rules promulgated in the Florida Administrative Code on the date of this Recommended Order. In relevant part, Rule 59A- 4.1288 provides: Nursing homes that participate in Title XVIII or XIX must follow certification rules and regulations found in 42 CFR 483, Requirements for Long Term Care Facilities, September 26, 1991, which is incorporated by reference. Applicable federal regulations require Petitioner to assign a scope and severity rating to the deficiencies alleged by Petitioner. Petitioner assigned a "D" rating to the deficiencies alleged in the May and June surveys. A “D” rating means that there is no actual harm with potential for more than minimal harm that is not actual jeopardy. When Petitioner alleges that the Class III deficiency from the May survey was not corrected within the time established by the agency, the agency may change the rating of the facility license from standard to conditional. Petitioner determined in the June survey that the facility had not corrected the deficiency alleged in the May survey. Effective June 14, 2001, Petitioner changed the rating of the facility's license from standard to conditional. Petitioner noted the results of the May and June surveys on a Health Care Federal Administration form entitled "Statement of Deficiencies and Plan of Correction." The parties refer to the form as the HCFA 2567-L or the "2567". The 2567 is the document used to charge nursing homes with deficiencies that violate applicable law. The 2567 identifies each alleged deficiency by reference to a tag number (the "Tag"). Each tag on the 2567 includes a narrative description of the allegations against Respondent and cites a provision of relevant state rules violated by the alleged deficiency. There is only one tag at issue in the May and June surveys. It is Tag F282. In order to protect the privacy of nursing home residents, Tag F282, the 2567, and this Recommended Order refer to each resident by a number rather than by the name of the resident. Tag F282 alleges in the May and June survey that the facility failed to satisfy the requirements of 42 CFR Section 483.20(k)(ii). In relevant part, the federal regulation provides: Comprehensive Care Plans. (3). The services provided or arranged by the facility must— (ii) Be provided by qualified persons in accordance with each resident’s written "plan of care." This standard is made applicable to nursing homes in Florida pursuant to Rule 59A-4.1288. Tag F282 does not allege that the facility provided care to residents by unqualified persons. Rather, Tag F282 alleges that Respondent failed to follow the plan of care for two residents. Tag F282 alleges in the May survey that the facility failed to provide care and services in accordance with the plan of care for Residents 3 and 1. Tag F282 alleges in the June survey that Respondent failed to follow the plan of care for Resident 1. The resident identified as Resident 1 is not the same resident in the May and June surveys. Before proceeding to the merits of the allegations in Tag F282, two policy issues must be resolved in order to make findings of fact in a manner that is consistent with Petitioner's officially stated agency policy. One issue is procedural and the other involves the definition of terms. Petitioner promulgates an officially stated policy in written guidelines entitled the State Operations Manual (the "Manual"). The Manual states agency policy regarding the interpretation and application of the regulatory standards surveyors must enforce. The Manual authorizes surveyors to determine whether a facility has complied with Tag F282 only after surveyors have identified violations of standards relating to: quality of care, defined in 42 CFR Section 483.25(a)–(m); quality of life, defined 42 CFR Section 483.15(a)–(h); or residents rights, defined 42 CFR Section 483.10(a)–(o). The state agency's written policy set forth in the Manual requires its surveyors to identify an issue of quality of care, quality of life, or residents’ rights before proceeding to a determination of whether the facility has violated Tag F282. The second issue involves the interpretation of the terms "inadequate", "incorrect", and "consistent." The Manual indicates that violations occur if surveyors can demonstrate inadequate or incorrect implementation of the care plan. The Manual does not define the term “inadequate.” The common meaning of the term suggests that something less than perfect implementation satisfies the requirements of the regulatory standard. That construction is consistent with other provisions in the Manual. The Manual further provides that violations of standards occur only if a facility fails to “consistently” implement the plan of care for a resident. Petitioner's surveyors acknowledged in their testimony that the goal for the quality of care regulations is to achieve positive resident outcomes and is identical to the goal of Tag F282. Petitioner offered no credible reason, within the meaning of Section 120.68(7)(e)3, why the standard for implementation of a resident’s care plan under Tag F282 should be stricter than that required by the quality of care regulations. Resident 3 had many compromising conditions and was near death at the time of the May survey. Resident 3 had 10 to 12 care plans to address his various medical problems and conditions. Each care plan contained an average of 15 separate interventions. One of the care plans for Resident 3 addressed the risk of developing pressure sores and contained 20 separate interventions for staff to implement. One intervention required staff to turn and reposition the resident every two hours. On May 7, 2001, a surveyor stationed herself outside of Resident 3’s room from 1:00 p.m. to 4:00 p.m. in the afternoon to observe who entered the resident’s room and what care was given to the resident. During that time, the surveyor observed that no staff member entered the room to turn and reposition the resident. The care plan required staff to turn the resident once during the three-hour period. The allegations in Tag F282 pertaining to the failure to reposition Resident 3 during a three-hour period on May 7, 2001, deviate from Petitioner's written agency policy in two respects. First, Petitioner did not cite the facility for any violation relating to quality of care, quality of life, or resident rights. Second, a single isolated failure to implement one intervention prescribed in one of 12 care plans for Resident 3, during a three-hour period, on one of four days of a survey, does not demonstrate inadequate care by failing to consistently implement a care plan. Petitioner failed to explain by a preponderance of the evidence why it deviated from its official written policy in its determination that Respondent violated the standard prescribed in Tag F282. The surveyor provided no credible explanation to justify a deviation from agency policy with respect to Resident 3. Nor did Petitioner present any evidence that Resident 3 developed any pressure sores or had any pressure sores worsen as a result of the failure to turn and reposition the resident on May 7, 2001. The evidence shows that the failure to turn and reposition Resident 3 presented nothing more than a minimal chance of negative impact. Tag F282 alleged in the May survey that the facility failed to provide care for Resident 1 in accordance with the care plan. Resident 1 suffered from a condition that caused his chin to droop toward his chest. The condition caused positioning problems for the resident while he was in his wheelchair. The physical therapist for the facility examined Resident 1 and recommended periodic placement of a Futuro cervical collar while the resident was in his wheelchair in order to elevate the resident's chin. The recommendation required staff to place the collar on the resident when he was in his wheelchair for two hours and then to remove it for two hours. Staff was not to place the collar on the resident during meals or while the resident was in bed. The resident would sometimes remove the collar after it was placed on him. On May 8, 2001, Petitioner’s surveyor made five observations of the resident between 10:45 a.m. and 1:50 p.m. The surveyor did not see the resident wearing the collar during any of the observations. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:45 a.m. until 1:50 p.m. The surveyor did not know if or when the collar should have been placed on the resident during the observations on May 8, 2001. It is uncontroverted that the resident would have eaten lunch for one hour during the time that the surveyor observed the resident and that the care plan did not require staff to place the collar on the resident during meals. Petitioner offered no evidence that the failure to put the collar on the resident during the observed instances presented potential for any harm to the resident. Petitioner failed to show by a preponderance of the evidence that the facility failed to implement Resident 1’s care plan. Even if it were determined that the facility failed to consistently implement the care plan or inadequately implemented the care plan, Tag F282 deviates from Petitioner's officially stated agency policy because the tag does not charge the facility with any violation of quality of care, quality of life, or resident rights. Petitioner failed to explain why it deviated from its policy. Finally, the observed circumstances presented no more than a minimal chance of minor negative impact to Resident 1. On May 9, 2001, Petitioner's surveyor observed Resident 1 on three different occasions between 10:00 a.m. and 11:05 a.m. without the collar. The surveyor did not know if or when the collar should have been placed on the resident during that time-period. The observations of the surveyor were intermittent. The surveyor did not observe Resident 1 continuously from 10:00 a.m. until 11:05 a.m. The preponderance of the evidence failed to sustain the charge that the facility did not implement Resident 1’s care plan on May 9, 2001. The observations are insufficient to demonstrate a consistent failure to implement the care plan. Petitioner provided no credible explanation for deviating from its officially stated agency policy. Finally, the circumstances presented no chance of any harm other than minimal negative impact to the resident. Tag F282 alleges in the June survey that the facility failed to follow doctor’s orders for Resident 1 that required multi-podus boots to be applied every shift. Resident 1 in the June survey is not the same resident identified as Resident 1 in the May survey. Resident 1 in the June survey had pressure sores on his feet, and one of the interventions prescribed in the care plan required Resident 1 to wear multi-podus boots. On June 13, 2001, at 2:45 p.m., Petitioner's surveyor observed Resident 1 lying in bed without the required multi- podus boots. Resident 1 was lying on a pressure-relieving mattress so that his heels were receiving pressure relief without the need for multi-podus boots. On June 14, 2001, Petitioner's surveyor observed Resident 1 in his wheelchair in the activities room with black, hard-soled shoes on his feet instead of the multi-podus boots. The resident had dressings on his heels that protected them and was sitting so that his heels bore no weight. The facility maintained medical records that described the size and appearance of the pressure sores on Resident 1's heels. The records indicated that the pressure sores healed progressively after Respondent admitted Resident 1 to the facility. The area on the right heel was completely healed by June, 2001, and the area on the left heel was closed by July 2001. Petitioner deviated from its officially stated policy in two respects. First, Petitioner did not charge the facility with any violation of a quality of care, quality of life, or residents rights. Second, the instances observed by the surveyor do not demonstrate a failure to consistently implement the plan of care or a failure to provide adequate care. Petitioner offered no credible explanation for deviating from its policy. The events observed by Petitioner's surveyor, at most, presented the potential for causing no more than a minor negative impact on the resident.
Recommendation Based on the forgoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration should enter a final order revising the May 10 and June 13, 2001, survey reports to delete the deficiency described under Tag F282, and replace the previously issued Conditional rating with a Standard rating. DONE AND ENTERED this 5th day of March, 2002, in Tallahassee, Leon County, Florida. DANIEL MANRY 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 5th day of March, 2002. COPIES FURNISHED: Dennis L. Godfrey, Esquire Agency for Health Care Administration 525 Mirror Lake Drive North, Room 310L St. Petersburg, Florida 33701 R. Davis Thomas, Jr. Broad & Cassel 215 South Monroe Street, Suite 400 Post Office Box 11300 Tallahassee, Florida 32302-1300 Diane Grubbs, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
Findings Of Fact Respondent is licensed to operate an adult congregate living facility known as People's Palace, which is located at 85 Carib Drive, Merritt Island, Florida. On October 8, 1986, James L. Haas, Human Services Program Analyst for Respondent, conducted an inspection of Respondent's facility. As a result of this inspection, Mr. Haas reported numerous violations, including 11 Class III violations. He re- inspected the facility on February 2, 1987, and reported that three Class III violations remained uncorrected. The relevant Class III violations were: a new live-in staff member had not had a first-aid course and the same employee did not have a medical statement certifying that she was free of any communicable diseases. Mr. Haas discussed the violations with Respondent at the time of the October 8 inspection. They agreed that she would have until November 8, 1986, to correct the violations that were the subject of the Administrative Complaint. The position in question was that of a live-in housekeeper who was the only caretaker of the adult residents, except when Respondent took her place on days off. The housekeeper at the time of the October 8 inspection quit shortly thereafter. Respondent employed approximately three other persons as housekeeper between October 10, 1986, and February 2, 1987. At the time of the February 2 re-inspection, the housekeeper was Betty Casper, who had started working at the facility one day earlier. Like the housekeeper present on October 8, 1986, Ms. Casper lacked certification in first aid and documentation that she was free of any communicable diseases. Respondent was unaware whether the other housekeepers in the interim had had these certifications, but admitted that the housekeeper on October 8, 1986, lacked them. Noting that the two Class III violations had not been timely corrected, Mr. Hess initiated the procedure that resulted in a Recommendation for Sanction on March 16, 1987. In the Recommendation for Sanction, Mr. Haas described the serious impact of these deficiencies. The absence of a staff member with qualification in first aid could result in a resident receiving improper or no treatment in the event of an emergency. A staff member having a communicable disease exposed residents to the possibility of contracting a disease from the employee. Respondent testified that there was considerable turnover of housekeepers. She testified that the eight-hour first-aid course necessary for first aid certification was infrequently available. Ms. Casper was ill when the course was offered in March, 1987, and was only able to attend the course on September 1, 1987, at which time she was certified. On February 24, 1987, Ms. Casper obtained certification that she was free of communicable diseases.
The Issue Whether or not Petitioner's application for an emergency shelter care home license should be approved.
Findings Of Fact Petitioners received a respite care license from Respondent on February 23, 1990 which allowed Petitioners to babysit foster children for short periods of time. This license expired by its terms on February 23, 1991. On January 20, 1991, Petitioners applied for a license to provide emergency shelter family home care for dependent children. Petitioners have a son, approximately 23 years of age, who lives with them and who has certain psychiatric problems. Respondent denied Petitioners' application on April 5, 1991 on the basis that Petitioners lacked the ability to provide for the psychological development of foster children due to the emotional instability in their home. Respondent reached that conclusion based on the medical opinion of Dr. Horatio Arias, M.D., a psychiatrist who was employed by Respondent and who provided psychological treatment to Petitioners' son. Petitioners' son, while under Dr. Arias' medical attention, was administered psychotropic medication for a mental disorder. Dr. Arias opined that Petitioners should not be given the responsibility of caring for foster children as such children are often from abused, neglected, or abandoned families and they are, at times, aggressive. Dr. Arias related instances wherein Petitioner, Mr. French, shouted and hollered at his son and there were often shouting and screaming matches between Mr. French and his son. The son felt threatened by Mr. French "because the patient (the son) didn't agree with him on certain things. (Deposition of Arias pp. 32-33). Based on the relationship between Mr. French and his son, Respondent ran away from home and went to a crisis center supervised by Respondent. He stayed in the center for a short while and was thereafter admitted to a state psychiatric hospital. He was released from the hospital and now lives with Petitioners. Mr. French admits that he has, at times, had shouting matches with his son and that he talks louder than normal because he is hard of hearing. He also acknowledged that he should be wearing two hearing aids based on his hearing impairment. The placement of foster children in Petitioners' home could cause stress which would negatively impact on their son who lives with them. This could result in behavior regression (by the son). Such placement could also cause psychological regression for the foster children which would negatively impact their psychological development. Dr. Arias opined that if Petitioners were allowed to care for foster children in their home, that such be done on a temporary basis in a trial manner. Children tend to tease and upset persons who suffer from psychiatric problems such as Petitioners' son. (Respondent's Exhibit 2, p. 8) It is not feasible for Petitioners to be licensed to provide emergency shelter care on a trial basis as it is impossible to determine how long the placement will last or how many children will need to be placed with the Petitioners at any given time.
Recommendation Based on the foregoing findings of fact and conclusions of law it is RECOMMENDED that: Respondent enter a final order denying Petitioners' application for a license to provide emergency shelter family home care at this time. DONE AND ORDERED this 15th day of December, 1993, in Tallahassee, Florida. JAMES E. BRADWELL 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 15th day of December, 1993. COPIES FURNISHED: Robert Powell, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Kim Tucker, General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Wendell and Alta French, pro se 6133 Shirley Avenue Gibsonton, Florida 33534 Raymond R. Deckert, Esquire Department of Health and Rehabilitative Services 4000 West Dr. Martin Luther King Jr. Blvd. Tampa, Florida 33614
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: In August of 1987, the petitioner submitted an initial application for licensure as an adult congregate living facility. With advance notice to the petitioner, a survey team from the Department of Health and Rehabilitative Services' Adult Congregate Living Facility Program went to the petitioner's facility on September 28, 1987, to conduct a survey to ensure that the facility was in compliance with the minimum standards for licensure. The then- administrator, Kevin Nance, and the owner of the facility, Minnie Nance, were present while the survey was being conducted. The survey conducted on September 28, 1987, resulted in a finding of some 44 Class III deficiencies. A Class III deficiency or violation is defined as a condition or occurrence related to the operation and maintenance of a facility or to the personal care of residents which the Department determines indirectly or potentially threatens the physical or emotional health, safety or security of facility residents. The deficiencies found related to administration, management and staffing standards, admission criteria and resident standards, food service standards, resident and personnel records and fire safety standards. Prior to leaving the facility on September 28, 1987, the HRS survey team conducted an exit interview with Kevin and Minnie Nance, discussed the deficiencies found during the survey, and mutually arrived at dates upon which the deficiencies were to be corrected. It was agreed that the deficiencies should and would be corrected on or before various dates, ranging from October 1, 1987, to November 28, 1987, depending upon the nature of the particular deficiency. The Nances were requested to write down the deficiencies found, as well as the times for correction, and they were informed that a written report of the survey would be received in several weeks. They were informed that additional time could be granted to correct specific deficiencies if a written request were received by HRS prior to the original date set for the correction. They were further informed that an unannounced revisit would be conducted after the dates of correction to determine if the deficiencies had been corrected. In the early part of November, 1987, the written report of the survey was sent to the petitioner. This report listed each of the deficiencies found, as well as the required date of correction. A Statement of Acknowledgement of Receipt, dated November 11, 1987, and signed by Charles W. Nance as the Administrator, was returned to HRS on November 13, 1987. The HRS survey team revisited the facility on January 7, 1988, and found that some thirty deficiencies previously cited on September 28, 1987, had not been corrected and that three or four more had been only partially corrected. At that time, petitioner was informed that its application for initial licensure as an adult congregate living facility would be denied. Petitioner does not dispute the existence of the deficiencies initially found on September 28, 1987, nor did petitioner offer testimony to rebut the respondent's testimony regarding the uncorrected deficiencies. Instead, petitioner attempted to explain the still uncorrected deficiencies with testimony that the Administrator of the facility on September 28, 1987, was no longer the Administrator in January of 1988, that Minnie Nance and Charles Nance did not become aware of the specific nature of the deficiencies until late November of 1987, and that the holiday season prevented them from securing the necessary labor and assistance to correct the physical deficiencies. Petitioner also presented testimony that on the date of the unannounced revisit, January 7, 1988, Charles Nance was not present and that all the administrative paperwork was in his locked apartment and thus unavailable for review by the survey team. In light of the facts that at least Minnie Nance was present during the initial September survey and the exit interview, that Charles Nance signed as the Administrator on November 11, 1987, and acknowledged that he received the written report of the survey from HRS, and that petitioner never requested an extension of the time required for correction of the deficiencies, these explanations by the petitioner are neither credible nor sufficient. Also, no documentation was offered at the hearing concerning the existence of records contained in the locked apartment of Charles Nance on January 7, 1988.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that petitioner's application for licensure as an adult congregate living facility be DENIED, without prejudice to petitioner to submit a new application at such time as compliance with the relevant standards and criteria for licensure can be established. Respectfully submitted and entered this 18th day of November, 1988, in Tallahassee, Florida. DIANE D. TREMOR 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 18th day of November, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 88-1677 The proposed findings of fact submitted by the parties have been carefully considered and are accepted, incorporated and/or summarized in this Recommended Order, with the following exceptions: Petitioner 5 - 7. Rejected as contrary to the greater weight of the evidence. 8. Rejected as not established by competent, substantial evidence. 10 and 11. Rejected as not established by competent substantial evidence. COPIES FURNISHED: Gregory L. Fisher, Esquire 149 Central Avenue St. Petersburg, Florida 33701 Edward A. Haman, Esquire Senior Attorney Department of Health and Rehabilitative Services 7827 North Dale Mabry Highway Tampa, Florida 33614 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 R. S. Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact Cirilo Alvarez, at all times pertinent to the allegations in the complaint, operated an adult congregate living facility in Lake City, Columbia County, Florida, Briar's Haven Adult Care Center, under license number 03-12- 0128-BPS, issued by the Florida Department of Health and Rehabilitative Services. In late July or early August, 1982, Respondent, who is a psychiatric nurse specialist and who works full time at North Florida State Mental Hospital (Hospital) at Macclenny, Florida, took Woodrow Harrison, an elderly patient at that institution, into his home, Briar's Haven Adult Care Center, on pass status from the Hospital for periodic short visits. Ultimately, on July 30, 1982, Harrison was released from Macclenny and began living full time at Respondent's facility. On August 3, 1982, Sharon Stucky, a registered nurse case manager for the North Florida Mental Health Center (Center) in Lake City, Florida, did an intake interview with Harrison, who had just been released from the Hospital and who was living at Respondent's facility. Mr. Harrison was brought into the Center by Respondent's wife. Records from the Hospital pertaining to Harrison, which came to the Center, reflected that he suffered from a seizure disorder and a diabetic condition. His medication consisted of 300 mg. of Dilantin daily and 30 mg. of phenobarbital daily, and he was to receive a daily insulin injection. At the time of his release from the Hospital, he was furnished with a thirty-day supply of these medications. On the afternoon of August 13, 1982, Mr. Alvarez went into the Center with Mr. Harrison and asked to see Ms. Stucky. Respondent indicated that Mr. Harrison was having many physical problems. Earlier in the day, he had taken Harrison back to Macclenny to have him readmitted for seizures, incontinence, etc., even though he was taking his medications, but officials at the Hospital refused to admit him. Mr. Alvarez wanted him admitted to some facility in Lake City. Stucky, indicating she would have to talk with Harrison before taking any action, did so and felt she could see no change in his condition since her first interview of him on August 3, and she decided she could not justify having him recommitted to the mental hospital. Since Stucky wanted to find out if the seizures were the result of a physical problem, and she could not do a physical herself, she requested that Respondent take Harrison to a doctor for an examination. The Respondent again demanded that Harrison be admitted and, when Ms. Stucky refused, stated he would take Harrison to the hospital and leave him. Ms. Stucky talked with her supervisor to see if there was any way that Harrison could be readmitted to Macclenny, and it was determined there was not. When the information was related to Mr. Alvarez, he departed with Mr. Harrison. Respondent then took Harrison to the emergency room at Lake City's Lake Shore Hospital. After a chart was prepared on Harrison, Alvarez departed, leaving Harrison there without his medications. When Alvarez first took Harrison in, he was told there would be an hour wait before Harrison could be seen. Alvarez asked if Harrison could sit there and wait, and the person on duty said, "Yes." Once that was arranged, Respondent left without Harrison. According to a report of the doctor on duty, Harrison was confused and incapable of giving a complaint or history. As a result, evaluation of him was difficult, and his well-being was compromised. Respondent subsequently made no effort to get Harrison's drugs to him by delivering them to Ms. Stuckv, nor did he inquire where Harrison was. Respondent's actions in dropping Mr. Harrison off at the Lake Shore Hospital unsupervised, and only calling to check on his status somewhat later, constitute an intentional abandonment which could have seriously affected Harrison's health, safety, and welfare. Somewhat later the same day, Respondent called Lake Shore Hospital to find out what Harrison's status was, but Harrison had already been placed in another adult care facility by Ms. Stucky when the hospital called her and told her of Harrison's situation. Respondent did not make any other calls. Ms. Stucky visited Harrison daily at this new facility and administered his insulin shot. He appeared to be doing well there and wanted to remain, but on August 17, 1982, he was readmitted to Macclenny, where he currently resides. Harrison is incapable of taking care of himself. He has a poor memory and is somewhat retarded and childlike, according to Stucky. He has no concept of time and could not administer his medicines to himself. He could not understand the need to take his medicine or remember to take it if he could. Since Mr. Harrison was dropped off at Lake Shore without either his medicines or a change of clothing, Stucky made several telephone calls to the Respondent to retrieve them. Mr. Alvarez was always out when she called, and Stucky talked with several different females who answered the phone and with whom she left messages requesting him to call her back. Alvarez did not return any of the calls, but he states he never received them. This is rossible since, he says, neither his mother nor his wife, two of the people at home who may have received the original calls from Stucky, speaks much English. Respondent provided Mr. Harrison with all the clothes he had except those he was wearing when he came from Macclenny. Upon the advice of individuals at Macclenny who he could not remember to identify, Respondent applied for Social Security benefits to support Harrison while he was at Respondent's facility. Because Harrison had no family, Respondent sought the counsel of the legal aid office in Lake City to see if he could be appointed Harrison's legal guardian and was told he could not. In late January or early February, 1983, Respondent received one Social Security check in the amount of $1,900 made out to Harrison and Mrs. Alvarez. This check was not cashed because Harrison was no longer with the Respondent, but was returned to the Social Security Office. Harrison's medicines that were in Respondent's possession when Harrison was taken to the hospital were discarded. Respondent worked with Harrison at Macclenny for about a year before taking him to his own facility. During that time to his knowledge, Harrison never had any seizures. Respondent gave him his medications at Macclenny and knew he needed drugs. When he took Harrison to his facility, he took Harrison's drugs as well.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Secretary of the Department of Health and Rehabilitative Services enter a final order revoking the Adult Congregate Living Facility License of Cirilo Alvarez, doing business as Briar's Haven Adult Care Center. RECOMMENDED this 1st day of April, 1983 in Tallahassee, Florida. ARNOLD H. POLLOCK 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 1st day of April, 1983. COPIES FURNISHED: James A. Sawyer, Jr., Esquire District III Legal Counsel Department of Health and Rehabilitative Services 2002 NW 13th Street, 4th Floor Gainesville, Florida 32601 Mr. Cirilo Alvarez Post Office Box 2392 Lake City, Florida 32055 Mr. David H. Pingree Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32301
The Issue Whether or not Respondent has committed an unlawful employment practice by terminating Petitioner due to the "handicap" of manic depression and/or bipolar disorder.
Findings Of Fact Petitioner suffers from bipolar disorder, a psychiatric disorder manifested by mood swings from elation to depression. When experiencing an episode of mania, the Petitioner is incapable of attending to a task for any length of time. She is also overly excited and exercises poor judgment. Dependent upon how expert medical physicians characterize this condition at various stages, it is either a type of manic depression or a psychiatric condition very similar in symptomatology to classic manic depression. Petitioner began working for Respondent Mark III on March 20, 1985 as a seamstress. Her primary job function was running an industrial grade sewing machine for van conversions. She was a very good employee except for the occasions when she suffered bouts of mania. She was never subject to discipline, and during the periods of mania she experienced, her work-related problems were treated by the employer as a disability. The first episode of mania occurred in April 1986. Prior to her hospitalization for mania, the Petitioner was drinking excessively and staying out from work. She was hospitalized in Monroe Regional Hospital from April 22, 1986 to April 29, 1986. Thereafter, she returned to work, but again began to experience problems and had to be hospitalized again from June 7, 1986 to June 13, 1986. After she came-out of the hospital, Respondent employer permitted her to work part-time (that is, fewer hours) for a period of several months until she was able to resume full-time responsibilities. The employer's providing Petitioner part-time employment in 1986 was prompted by several factors. First, Petitioner was accorded the same accommodation any of Respondent's employees would receive under Respondent's general policy of allowing persons who have left for medical reasons to return to work if work is available. Second, this was also done personally and specifically for Petitioner at this time to accommodate her individual situation at that time. Third, the cyclical nature of Respondent's business of van conversions is such that June and July are a wind-down period toward the month of August when Respondent either closes down or lays off personnel for one to three weeks' duration. Fourth, Petitioner's team position had not been filled because "many girls," in the words of Respondent's representative Joe Krim, "float regularly." Respondent's method of payment of seamstresses in Petitioner's category bears some discussion because it does not equate in every respect with the street definition of "full-time" and "part-time" labor. Petitioner worked as part of a group or team on production work. Teams are paid when each van is completed, and payment for each van is then divided among the whole sewing room, based upon hours individually worked. The entire team is needed to construct each vehicle and in Petitioner's absence, if they did not replace her, the rest of the team had to pick up her slack. Petitioner's rate of pay was determined on a weekly basis depending upon the amount of work produced by the team/group she worked with. During her period of full-time employment just prior to November 1987, Petitioner's weekly net pay, if averaged, would be $534.74. Pursuant to the foregoing arrangement, Petitioner received no pay during any of the periods that she was out of work. The Respondent provided no sick leave or disability benefits and did not have a formal procedure for requesting a leave of absence. After the manic episode(s) in 1986, the Petitioner returned to work full-time on or about July 1986 and experienced no problems for over a year. In November 1987, Petitioner again experienced an episode of mania. She began staying away from her job and disrupting her coworkers with overt sexual solicitation and lewd remarks when she was present. Her immediate supervisor, Jon Lanning, requested a meeting with her sometime shortly before December 1, 1987. Petitioner's friend, Mark Wagner, accompanied her to that meeting. At that meeting, Mr. Lanning urged Petitioner to seek hospital treatment for her psychiatric problems. Mr. Lanning was unavailable to testify at formal hearing, having left Respondent's employment in October 1988. Petitioner's impression of Mr. Lanning's representations on behalf of Respondent were that her job would be held for her if she would seek medical help. Mr. Wagner's impression of this so-called "admission" on behalf of Respondent by its agent Lanning was that Lanning was saying Petitioner was a good worker and would be welcome to come back to work when she was able to work. It was obvious to Wagner from this meeting that "if [Petitioner] did not get the situation under control, they would have to let her go." Petitioner was hospitalized from December 1, 1987 to December 6, 1987 at Charter Springs Hospital. Upon her discharge, she continued to take Loxitane, a prescription medication which can cause drowsiness if taken in excess, at the wrong times of day, or with alcohol. The use of alcohol is contraindicated in the presence of Loxitane. Although Respondent established alcohol and drug mixing by Petitioner back in 1986, the uncorroborated hearsay and inconclusive and uncredible repetition by witnesses of so-called "admissions" by Petitioner do not permit or support a finding that Petitioner was abusing alcohol or mixing alcohol with prescription medications in 1987- 1988. Dr. Fred Miley, Petitioner's psychiatrist, signed a release permitting the Respondent to return to work on December 21, 1987. Petitioner returned to work on December 22, 1987 but exhibited signs of drowsiness around the heavy sewing machinery she had to operate and was told by a superior to go home. At formal hearing, Petitioner acknowledged that she "did not need to be on the machine" in that condition. Petitioner stated that after her December 22, 1987 work attempt she had decided that the decision to go back to work was one, "I and I alone would have to make." Petitioner did not report the problem of drowsiness to her psychiatrist at the time she had the Loxitane prescription renewed by him December 30, 1987 or at the time of her next office visit to him on January 12, 1988 except that she did complain to him on that date of being drowsy in the mornings. At formal hearing, Dr. Miley opined that there was really no reason physically or psychiatrically why Petitioner could not have returned to work for Respondent on January 12, 1988; he merely felt pressured by the patient to defer her return-to-work date since she did not want to go back to work then and therefore he felt she could not return to work successfully. Dr. Miley did not know prior to formal hearing in this case that Petitioner's inability to work precluded an award to her of unemployment compensation benefits. On January 12, 1988, Petitioner advised Dr. Miley she wanted to draw unemployment compensation and would receive it until June 1988; that Petitioner did not want to return to work at that time because Respondent had only part- time employment; and that Petitioner was working for herself, sewing free lance. In fact, Petitioner had filed an application for unemployment benefits on December 15, 1987, effective December 13, 1987. She had been denied unemployment benefits on January 4, 1988 because she was deemed by the unemployment compensation reviewer to be unable to work. "Unavailability for work" precludes the award of unemployment compensation benefits pursuant to Chapter 443 F.S. On January 15, 1988, Dr. Miley filled out an unemployment compensation form stating that Petitioner had been unable to work from December 1, 1987 to January 15, 1988 and with the equivocal statement that Petitioner "may possibly be able to return to work in early February 1988" and it should be halftime (20 hours). Petitioner took the January 15 statement by Miley to Jon Lanning because Lanning had advised her he could not hold her job without a statement from her doctor. Sometime in January 1988 Petitioner approached Joe Krim, Mr. Lanning's superior, for help with Mr. Lanning about "getting on up." At some time between the December 1987 hospitalization and February 3, 1988, Petitioner sent her employer a note asking to work night shift instead of day shift. On February 3, 1988, the Petitioner initiated a meeting with Mr. Lanning for the purpose of inquiring whether she could return to work halftime. Mr. Lanning responded that she had been terminated the day before, February 2, 1988. Petitioner had received no prior notice of her impending termination, and Barbara Boos' and Joe Krim's direct testimony confirm Petitioner's understanding that her team position had not yet been filled as of February 3, 1988. At Petitioner's specific request, motivated by her intent at that time to pursue a social security disability claim, Mr. Lanning supplied her with a document dated February 3, 1988 stating: Due to health reasons, [Petitioner] was unable to perform her duties and has not returned to work since late November 1987. Petitioner later abandoned the social security appeal plan. According to Mr. Krim's testimony, Petitioner was actually not rehired because she had not returned to work between November 1987 and February 1988. He was apparently unaware at the time of her termination by Mr. Lanning on February 3, 1988 that she had tried to work for a few hours on December 22, 1987. Nonetheless, he emphasized that although December and January are not heavy production months, February is the month the Respondent must "gear up" for its heaviest production of the season and that he had to "get production up" at that time for that reason. Further, the purpose of Respondent's recent move to new quarters had been partly to eliminate a night shift which in 1986 had done little real production work and did mostly clean up and preparation for the day sewing teams. In February 1988, he had put all teams on full-time day work. He did not, therefore, have available part-time work (fewer hours) with which to accommodate Petitioner as he had in 1986. Respondent had full-time work available for Petitioner in January and February of 1988. By February of 1988, the new "season" had commenced, Respondent had moved into a new plant, and Respondent could no longer accommodate halftime or part-time work arrangements. On March 15, 1988 Dr. Miley completed an additional form stating that the Petitioner had been unable to work from December 1, 1987 to February 14, 1988. Petitioner admitted that in February 1988, she wanted to go back to work only part-time but that Respondent had not established a part-time crew, as such. Petitioner also admitted not knowing if there were any part-time work available then. In light of her several conflicting representations under the circumstances related supra., the undersigned is not persuaded by Petitioner's representations at the formal hearing in the instant case that if she had been told by Mr. Banning directly that part-time employment was unavailable, she would have agreed to full-time employment on February 3, 1988. Petitioner eventually received unemployment compensation from approximately March 1988 until September 1988. In November 1988, Petitioner secured employment very similar to that she previously held with Respondent, which employment she has continuously held with no further episodes of mania requiring psychiatric treatment.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's charge of discrimination against Respondent DONE and ENTERED this 4th day of January, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 4th day of January, 1990. APPENDIX TO RECOMMENDED ORDER CASE NO. 89-0985 The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1, 2, 3, 5, 6, 7, 8, 9 and 10 are accepted. 4 is accepted with the exception of the last sentence, which rejected as not supported by the record. See FOF 7. 11 is rejected. This is legal argument which mischaracterizes both the burden to go forward and the burden of proof in this type of case. Except for sentence 1 of 12 which is rejected as not supported by the record for the reasons set forth in the Findings of Fact and Conclusions of Thaw, 12 and 13 are accepted as modified to more clearly reflect the record evidence as a whole. Respondent' s PFOF: 1, 2, 4, 5, 6, 8, 10, 11, 14, 15, 16, 17 and 18 are accepted. 3 and 9 are rejected as stated as not supported by the record as a whole. 7 is immaterial. See FOF 8. 12 and 13 are subordinate and unnecessary to the facts as found. COPIES FURNISHED: Frank C. Amatea Attorney at Law 500 Northeast Eighth Avenue Ocala, Florida 32670 Carla Franklin Attorney at Law Post Office Box 694 Gainesville, Florida 32601 Donald A. Griffin Executive Director Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570 Dana Baird, General Counsel Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32399-1570
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner was subjected to a discriminatory employment action based upon his having a disability and, embodied within that question, whether he has a physical impairment which meets the legal definition of disability.
Findings Of Fact The Petitioner was employed by the Respondent, Florida Parole Commission, from July 2003 until January 29, 2007, when the Petitioner resigned. He had worked for the Respondent as a clerk on a part-time basis preparing inmate files for imaging. In October of 2003 he was promoted to records technician in charge of the imaging section. He was again promoted in 2004 to the position of Operations and Management Consultant II. He provided supervision for other employees and coordinated the work-load of the part-time workers (OPS workers) employed in the imaging section. The Respondent is an Agency of the State of Florida that determines which convicted criminals receive parole, the setting of the policies and conditions of parole and other supervised inmate release programs. It also investigates violations of supervision, establishing the terms and conditions of an inmate's release and has a reporting function to the Florida Board of Executive Clemency. On March 1, 2005, the Petitioner experienced the first of a serious of incapacitating physical episodes at work. He had to be removed from the office by ambulance for medical attention. Soon thereafter he was diagnosed as having acute dysautotonomia. Dysautotonomia is an incurable dysfunction of the autonomic nervous system, believed to be caused by a virus. The ailment include symptoms of gastrointestinal dysfunction, significant loss of blood pressure, extreme fatigue, panic attacks, as well as clinical depression. The Petitioner received emotional counseling for his depression and, according to Dr. Kepper, his treating physician, his incapacity is "intermittent and unpredictable." The Petitioner adopted a practice of sitting in his chair and elevating his feet when he had a relatively minor episode. The episodes might last for up to an hour. During a minor episode he would become extremely fatigued and dizzy, was unable to eat or speak coherently and could only lie down to rest until the episode has passed. In the event of a major episode he might experience blackouts, was unable to care for himself and required emergency medical assistance in order to receive intravenous fluids. During major episodes he would summon an ambulance, his girlfriend, or his father to take him to an emergency room for medical attention. The Petitioner's supervisor, Linda Summers, knew that the Petitioner was having these episodes and was resting in his office, prior to July 1, 2006. She allowed him to rest in his office with the door closed when he experienced a minor episode. On June 5, 2006, the Petitioner begin feeling badly and felt that he was about to "pass out." His supervisor, Ms. Summer, asked him if she needed to call an ambulance, as had been done in the past, and he declined. She was concerned about him and suggested that he sit in his office with the door closed until he felt better. Sometime between 3:30 and 4:00 p.m., that day he begin feeling better and said he was going to attempt to drive to the emergency room. Ms. Summers was concerned about his safety and tried to dissuade him. He left, however, but shortly thereafter returned and an ambulance was called to take him to the emergency room. After this, during his episodes, he adopted a practice of closing his office door and putting up a "do not disturb" sign. The Respondent accommodated the Petitioner in this practice, although he had not made a formal request for accommodation, over a period of approximately one and one-half years. The Department of Management Services (DMS) has a rule which was in effect prior to the Petitioner's hiring, which requires that an employee be absent for five consecutive days in order to be eligible to receive donated sick leave. The Respondent has followed this rule since before the Petitioner was hired and applied its standard to all employees. The only occasions when the Respondent has waived this rule-based policy for an employee, was twice in favor of the Petitioner in July and in August of 2006. On those occasions he received 132 donated sick leave hours. Even though the Respondent consistently followed this DMS requirement, it did not actually update its procedure in its personnel handbook to reflect the rule. The Respondent takes the position that if there is a discrepancy between its personnel handbook and the adopted administrative rule, then the rule controls. In any event, on October 10, 2006, the Respondent issued a Revised Procedure Directive, Number 2.02.15, entitled: Attendance and Leave. This directive updated the Respondent's sick leave policy to correspond with its actual policy and with the current DMS rules. It updated the Respondent's Americans With Disabilities Act Policy to reflect established agency policy. Pursuant to this policy (or rule interpretation) the Petitioner received donated sick leave from 18 Respondent employees, including donations from the general counsel, and from the Petitioner's supervisor, in a total amount of 273 hours. The Respondent requires a note from a physician if an employee is absent due to illness for three days in a 30-day period. The Respondent does not deem it a good business practice to waive that requirement nor did it choose to waive it as a reasonable accommodation. On June 16, 2006, the Petitioner suffered a debilitating episode at his office at around 9:00 a.m. He went into his office and put up a "do not disturb" sign for about 30 minutes. A birthday party was occurring in the office at that time and several employees commented concerning their wish to go into their offices put up such a sign and take a nap. Ms. Summers discussed this with the Respondent's Chairman, the former Director of Operations, and the former Human Resources Administrator, Beatriz Caballero. Ms. Summers was thus advised that this could not continue. She therefore talked to the Petitioner and told him that she was sorry that he felt badly but that she could no longer allow him to put up a do not disturb sign as other employees were negatively affected by it and, inferentially, she felt that it affected employee morale. Ms. Summers also established that she and the Petitioner had discussed the Petitioner's doctor's note and what it stated concerning the intermittent nature of his episodes. She told him that the doctor needed to make suggestions about what he should do when he suffers one of the episodes. She also suggested to Mr. Duncan that he probably should go home when he has one of the sick episodes. His response was that as long as he could sit down for a while and be quiet he would start feeling better and that he would hate to drive all the way home and then have to come back. He then said that he would simply go out to his truck in the parking lot and recover from an episode if one occurred. Ms. Summers told him that was an acceptable option and that it was a matter for his own decision. She also told him to be sure to tell her where he was going so that if he did not come back within a reasonable time she could go look for him. She was concerned about his condition and safety. She also told him to leave her a note telling where he had gone and the appropriate time when he left. He indicated that he would do so. At the end of June 2006, Ms. Summers informed the Petitioner that his absences were affecting his productivity and negatively affecting his supervision of the imaging section. This was because the OPS staff, mostly college students, were observed sitting around talking, talking on cellular phones, coming in late and leaving early because of a lack of supervision. It was the Petitioner's responsibility to supervise them and the situation had been deteriorating, in relation to the Petitioner's absences. Director of Operations Gina Giacomo found that the imaging section was not operating at an optimal level because the OPS employees, were undisciplined, and good productivity was not being achieved because of a lack of oversight. She attributes this, in part, to the Petitioner's habit of arriving at work at 7:00 a.m. but leaving at 3:30 p.m. After 3:30 p.m. to the end of the day his employees were unsupervised. The OPS employees were taking very long lunch breaks, leaving early and coming in late and not accounting for their work hours properly. It was the Petitioner's duty to approve the employee's time cards. As a result of the Petitioner's lack of oversight, three of the four employees were under-paid. Also, there were over expenditures as to OPS employees, resulting in a deficiency in the Agency's OPS budget, because the Petitioner allowed some OPS employees to work 35-40 hours per week when they were only supposed to work around 20 hours per week. This had an obvious adverse impact on the Agency's budgeting operations. Because of the employee attendance problems and time- keeping problems, the Respondent Agency initiated a time clock procedure for the imaging section around the end of September 2006. On August 1, 2006, the Petitioner sent the Respondent a written request entitled "Request for Reasonable Accommodation Under the Americans With Disabilities Act", requesting that: 1) he not be required to provide a physician's note when sick as it related to his pertinent disorder; 2) that he be permanently exempt from the five-day rule for sick leave donation as it related to his current disorder; and 3) that he be allowed to close his door while having a minor episode. The Respondent's Human Resources Administrator responded to this request by a memo dated August 8, 2006, declaring that the Petitioner's request to receive a permanent exemption from the five-day rule for sick leave donation eligibility was not a reasonable accommodation request and would not be granted. The Respondent also declared, through the Human Resources Administrator, that the sick leave donation policy is designed for all State of Florida employees to follow. The Respondent contends that the Petitioner's request for the Respondent to exempt him from a medical inquiry (i.e. the provision of a doctor's note or explanation for his illness and/or absence) is also unreasonable. The Respondent took the position that requiring the provision of a physician's note, as it relates to the Petitioner's current disorder, is job-related and consistent with business necessity concerning an employee's ability to perform essential job functions and whether he will be impaired by a medical condition. It is therefore important for an employee's physician to document the employee's need to be absent from work, as well as his ability to return to work and his ability to perform his job functions. The Respondent in essence took the position that while the ADA requires reasonable accommodation to enable qualified disabled persons to perform the essential functions of their jobs, that donated sick leave is not related to ADA requirements, but rather is a benefit provided under state personnel rules. The Respondent did however suggest to the Petitioner that he confer with his supervisor and work with her in trying to make up his missed hours so that he would not have to suffer so many leave-without-pay hours. The Respondent informed the Petitioner that the DMS rule involved clearly states that there is a five-day waiting period before donated sick leave can be used. It acknowledged that the Respondent's internal procedure directive did not specify the five-day rule because it was inadvertently omitted. Because of that oversight the Petitioner's last request dated July 28, 2006, was honored. Thereafter, the internal procedure directive was to be corrected by the Respondent in order to reflect enforcement of the five-day rule for sick leave donation. The Respondent informed the Petitioner that he must follow the requirement for sick leave donation requests in the future. Concerning the Petitioner's request for the accommodation of closing his door while he was having a minor episode, the Respondent told the Petitioner that the request would be reviewed further, but that the Respondent needed information from the Petitioner's physician specifying how the accommodation would assist the Petitioner in performing his essential job functions. The Respondent informed the Petitioner that the documentation needed from his physician should specify the duration the door should be closed, as well as providing any useful accommodation suggestion the doctor might have as it relates to the Petitioner's condition and his request. The general counsel for the Respondent made a determination that the Respondent should not allow the Petitioner to shut his door and remain on the premises due to liability concerns as well as concerns for the Petitioner's health. Instead of providing the requested documentation from the physician to support his accommodation request, on August 17, 2006, the Petitioner filed a Complaint of Discrimination with the Florida Respondent on Human Relations. Before filing that Complaint he never made any complaint to his supervisor concerning any perceived discrimination, or as to being treated differently due to his alleged disability. The Petitioner provided a note from Dr. Kepper, his physician, on August 21, 2006, in which the physician stated that the Petitioner was unable to perform his job from August 16, 2006 to August 30, 2006. There were multiple absences from work during that period of time, as well as abbreviated work days due to the Petitioner's medical condition and other reasons. A meeting was held on December 7, 2006, between Linda Summers the Petitioner's supervisor, the Petitioner, and the Director of Operations, Gina Giacomo. Ms. Giacomo discussed with the Petitioner the need for him to communicate better with his supervisor and for him to come to a better understanding about the importance of the "system" and people not being informed of it. She also addressed the fact that his unit was a very undisciplined unit and that the productivity was not what it should be due to lack of oversight. She attributed much of this problem to the fact that the Petitioner came into work at 7:00 a.m. and left at 3:30 p.m. She determined that there was no reason why he had to start his duties at 7:00 a.m. and changed his work hours so that thenceforth he would work from 7:30 a.m. to 4:30 p.m. with an hour for lunch. She did this in order that he might more closely supervise the part-time, OPS, college-student employees who needed more structure and oversight in the work place. Ms. Giacomo also discussed the fact that the Petitioner's supervisor, Ms. Summers, was frustrated concerning his attendance. It caused difficulty when he was absent for frequent days or partial days because it is such a small agency that it was difficult for other staff members to perform his duties with full-time duties of their own to perform as well. She therefore discussed his schedule changing, her concerns about his working more closely with his supervisor, and his need to inform all of his staff that their schedules were going to change. They were going to thereafter perform all their OPS hours between 7:30 a.m. and 4:30 p.m. and to function more as a team. She also informed the Petitioner that the time-sheets which had been used to account for his employee's work hours were not accomplishing their purpose and that all but one of the time-sheets that he had approved were incorrect. Consequently, she announced the inauguration of a punch-clock procedure for people arriving at and leaving work, so that an accurate accounting of work hours and employees' pay could be accomplished. During the discussion at the December 7th meeting, the Petitioner informed Ms. Giacomo concerning when he could address the time sheet problem, the OPS staff schedule change, and certain other issues. She wanted a time period from him as to when the matters could be cleared up and corrected. That meeting lasted approximately 45 minutes. She remained in the building except during the lunch time period that day but carried two cell phones with her at all times, her personal one and an agency-issued phone. When she got back to her office by mid-afternoon, however, the Petitioner had left with her executive assistant a medically-related form that he had to have already had in his possession before the meeting, which indicated that he would not be able to work from approximately December 4th, to January 9th. He had been present at the meeting and talked about the above-referenced issues without ever mentioning to his supervisor or to the director his need to be off from work for more than a month. He never addressed the issues he was instructed to handle with regard to the OPS employee schedule, etc., all of which finally had to be handled by Ms. Giacomo and Ms. Summers. Upon assuming her duties in September 2006, Ms. Giacomo became very concerned with the lack of professionalism and the management of the imaging section under the Petitioner's supervision. She had four different meetings to try to determine a division of the duties of the Petitioner's position which could be performed by other persons in the office who also had their own full-time duties, because of the Petitioner's absences. Over the course of four or five meetings she re-arranged and re-assigned the functions of the office, on an informal basis, so the functions the Petitioner normally would be responsible for were being taken care of by other staff members. The Petitioner never actually requested assignment to other duties in the Agency as an accommodation. Ms. Giacomo, however, as found above re-assigned functions of his position to other people. She had a meeting with all OPS workers and the permanent, full-time staff and announced that she wanted the Petitioner to be able to be at the meeting, but that it had already been delayed for two weeks because of his absence, and that she needed to proceed and restore the full functioning of the office. She announced that he would not be coming back to his supervisory position but would be greeted "with open arms." She also announced that the Petitioner would be given the same amount of pay, with the same job title, but would be re-assigned to as yet undetermined duties with the Agency. She then informed everyone what each person was going to be doing in terms of performing parts of the functions of the Petitioner's position, so that the office and Agency could function better. On January 16, 2007, the Petitioner provided a note from Dr. Kepper excusing him from work beginning January 10, 2007, stating in effect that he should be excused from work from that date forward until Dr. Kepper could determine whether he was fit enough to resume his normal duties. Due to his medical condition and treatment the doctor stated that the Petitioner was unable to perform his regular duties and would continue to be treated. The doctor stated that the Respondent would continue to be provided updates on the Petitioner's work status, but that the Petitioner, at that time, would have to be placed on out-of-work employment status. Thereafter, on January 29, 2007, the Petitioner submitted his resignation letter. The Petitioner was never terminated nor was he asked to resign by the Respondent. No disciplinary action had ever been taken against him. The Petitioner never asked the Respondent concerning the possibility of being moved to another job or position within the Agency. The evidence shows that between March 2005 and January 2007, the Petitioner worked 3,674.25 hours out of 4,064 regularly scheduled work hours.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witness, and the pleadings and arguments of the party, it is, therefore, RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing the Petition in its entirety. DONE AND ENTERED this 21st day of September, 2007, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 21st day of September, 2007. COPIES FURNISHED: Wilton B. Duncan, III 2728 Oakleigh Court Tallahassee, Florida 32399-2350 Bradley R. Bishoff, Esquire Florida Parole Commission 2601 Blair Stone Road, Building C Tallahassee, Florida 32399-2450 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
