The Issue The issues in this case, which arises from Petitioner's application for an award of attorney's fees and costs pursuant to section 57.111, Florida Statutes, are whether Petitioner was a prevailing small business party in a disciplinary proceeding that Respondent initiated, and, if so, whether Respondent's decision to prosecute Petitioner was substantially justified or whether special circumstances exist that would make an award unjust.
Findings Of Fact On August 15, 2014, Respondent Department of Children and Families ("DCF") issued an Administrative Complaint against Petitioner Children's Hour Day School (the "School"), a licensed child care facility, charging the School with two disciplinable offenses, namely denial of food as form of punishment (Violation 1) and misrepresentation (Violation 2). The allegations of material fact in support of Violation 1 were as follows: During a complaint inspection on 8/6/14, the child care facility was cited for a Class I violation of Standard #12, Child Discipline, [because] a child, to wit, S.B., was denied a snack as a form of punishment when the child allegedly hit her sister, L.B. who is also enrolled at the child care facility. The allegations of material fact in support of Violation 2 were as follows: During a complaint inspection on 8/6/14, the child care facility was cited for a Class I violation of Standard #63, Misrepresentation, when it came to the Family Safety Counselor's attention that child care personnel, K.L. misrepresented and forged information, related to the child care facility when he utilized a notary stamp belonging to a former employee, namely Albarran and submitted the 2014 application for licensure to the Department with the forged notarization. The School, which requested a hearing, was found not guilty of the charges. See Dep't of Child. & Fams. v. Child.'s Hour Day Sch., Case No. 14-4539, 2015 Fla. Div. Adm. Hear. LEXIS 8 (Fla. DOAH Jan. 9, 2015; Fla. DCF Feb. 18, 2015). The Administrative Law Judge made the following findings of material fact with respect to Violation 1: S.B. and L.B. are young sisters who stayed at Respondent's day-care center in July 2014. On July 9, 2014, one of Respondent's employees gave S.B. and L.B. a small cup of Cheez-Its as a snack. [Kevin] Lennon was present when the two girls were sharing the cup of Cheez-Its. After S.B., who is the older and bigger child, finished her share of the Cheez-Its, S.B. began to hit her sister to take her sister's share of the Cheez-Its. Mr. Lennon separated the two girls and permitted L.B. to eat her share of the Cheez-Its. Mr. Lennon testified, credibly, that he did not take the Cheez-Its from S.B. to punish S.B. Id. at 3-4 (paragraph number omitted). The Administrative Law Judge made the following findings of material fact with respect to Violation 2: On March 25, 2014, Petitioner received from Respondent an "Application for a License to Operate a Child Care Facility" (the application). Mr. Lennon completed the application on behalf of Respondent. The application contained an attestation section that required Mr. Lennon's signature to be notarized. On March 25, 2014, Petitioner received an attestation section (first attestation section) signed by Kevin Lennon on February 28, 2014. The first attestation section contains Ivanne Albarran's notary seal and a signature dated February 28, 2014. Mr. Lennon testified, credibly, that he signed the first attestation section as Kevin Lennon. Mr. Albarran testified, credibly, that he signed the first attestation section as the notary public. The application package contains a second attestation section that was received by Petitioner on March 28, 2014. The second attestation section contains Mr. Lennon's signature and a date of March 26, 2014. The second attestation section contains Mr. Albarran's notary seal and a signature dated March 28, 2014. Mr. Lennon testified, credibly, that he signed the second attestation section as "Kevin Lennon." Mr. Albarran testified, credibly, that he signed the second attestation section as the notary public. Id. at 4-5 (paragraph numbers omitted). The School's owner is a corporation, Hamilton-Smith, Inc. ("HSI"), whose principal office is located in the state of Florida.1/ Kevin Lennon, who was referred to as "K.L." in the Administrative Complaint and is mentioned in the findings of fact quoted above, is HSI's sole shareholder. HSI employed fewer than 25 persons at the time DCF initiated the underlying disciplinary proceeding, and at all relevant times thereafter. Thus, HSI is a "small business party" as that term is defined in section 57.111(3)(d)1.b., Florida Statutes.2/ DCF agrees that HSI is a "prevailing" party as that term is defined in section 57.111(3)(c)1., inasmuch as a final order dismissing the charges against the School was entered in DOAH Case No. 14-4539. It is determined, as a matter of ultimate fact, that HSI is a "prevailing small business party" entitled to recover its reasonable attorney's fees and costs from DCF "unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust." § 57.111(4)(a), Fla. Stat. In defending against the administrative charges, HSI incurred attorney's fees in the amount of $4,515.00 and costs totaling $434.50, for which it now seeks to be reimbursed. DCF does not contest the amount or reasonableness of either sum. DCF contends, however, that an award of attorney's fees and costs is unwarranted because its actions were substantially justified. It is therefore necessary to examine the grounds upon which DCF made its decision to charge the School with the offenses alleged in the Administrative Complaint. The disciplinary action had its genesis in an anonymous complaint that, on August 6, 2014, was phoned in to the local DCF licensing office in the School's vicinity. DCF counselor Michaelyn Radcliff went out that same day to investigate, and she met Tajah Brown at the School. Ms. Brown, an employee of the School, revealed to Ms. Radcliff that she had made the complaint, which involved the ratio of staff to children. Mr. Lennon, who was Ms. Brown's boss, happened to be out of town at the time and hence was not present for Ms. Radcliff's inspection. For the next six hours or so, Ms. Brown described for Ms. Radcliff every regulatory violation or offense she could think of, which she believed the School might have committed. One such offense was the alleged withholding of S.B.'s snack. Ms. Brown had not witnessed this incident, but she knew the child's mother, E.B., and offered to ask the mother to give a statement about it, which Ms. Radcliff agreed was a good idea. E.B. met Ms. Radcliff at the School, accompanied by her daughter S.B., who was then two years old. E.B. did not have personal knowledge of the alleged denial-of-snack incident, but she had been told about the event by her sister (S.B.'s aunt) who had picked S.B. and L.B. up from day care the evening of its alleged occurrence. The aunt did not have personal knowledge of the matter either, having arrived afterward. Rather, according to E.B., the aunt had told E.B. that Mr. Lennon had told her (the aunt) that S.B. had hit L.B. and thrown a tantrum. Ms. Radcliff did not speak to the aunt, however, whose testimony about what Mr. Lennon told her actually might have been admissible at hearing under an exception to the hearsay rule3/; instead, she accepted E.B.'s statement about the incident, which was based on hearsay (Mr. Lennon's declaration) within hearsay (the aunt's declaration) and had no evidential value on its own. Ms. Radcliff did question one eyewitness: two-year- old S.B., who denied hitting her sister, complained that Mr. Lennon would not give her a snack, and accused Mr. Lennon of hitting her. S.B.'s statement, such as it was, was the only independently admissible evidence Ms. Radcliff had. She never spoke with Mr. Lennon, who was the only adult eyewitness to the alleged denial-of-snack incident.4/ As for the alleged misrepresentation, Ms. Brown informed Ms. Radcliff that she (Ms. Brown) had observed Mr. Lennon using a notary stamp belonging to Ivanne Albarran, a former employee of the School, to "notarize" signatures in Mr. Albarran's name when he was not around. Ms. Brown did not, however, identify any specific documents that she claimed to have seen Mr. Lennon fraudulently notarize in this fashion.5/ Nor, apparently, was she asked whether she was familiar with either Mr. Albarran's or Mr. Lennon's signature or if she could identify anyone's signature on any document. Ms. Radcliff herself compared the signatures on documents purportedly signed by Mr. Albarran during the time when Mr. Albarran was an employee of the School with some of his purported signatures on documents executed after his employment had ended. She concluded that the signatures looked different. Ms. Radcliff is not a forensic document examiner, however, and she has no discernable expertise in handwriting analysis. Based on her layperson's opinion about the signatures, Ms. Radcliff determined that Mr. Albarran had not executed some notarized documents that the School had submitted with its recent application for renewal licensure, even though his stamp, seal, and purported signatures appeared on them. Based on Ms. Brown's claim to have seen Mr. Lennon use Mr. Albarran's notary stamp, Ms. Radcliff concluded that Mr. Lennon had forged these signatures. Ms. Radcliff never asked Mr. Albarran whether he had signed the documents in question, nor did she speak with Mr. Lennon about the matter.
The Issue The issue for determination is whether Petitioner was subjected to an unlawful employment practice by Respondent due to Petitioner's race, age, sex, or as retaliation in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent employed Petitioner, a 56-year-old African- American female, as a Food Support Worker at Florida State Hospital in Chattahoochee, Florida, at all times relevant to these proceedings. Petitioner was promoted to the position of Food Service Worker on May 10, 2002, with probationary status until May 10, 2003. On February 12, 2003, Petitioner was terminated from her employment for failure to satisfactorily complete her probationary period in the career service. In the course of her employment with Florida State Hospital, Petitioner was aware of the strict safety guidelines implemented by Respondent to protect employees from injury. Petitioner also knew that violation of the safety rules could result in dismissal of an erring employee. Violations of these policies had resulted in dismissal of both non-minority and minority employees in the past. On February 9, 2003, due to an unsafe act and violation of Respondent’s safety rules, Petitioner proceeded to cut the tip of her left thumb in the process of slicing cabbage. Petitioner was not using a cutting glove, a mandatory requirement of the safety rules. As a result of this rule violation, Respondent terminated Petitioner’s employment on February 12, 2003. At final hearing, Petitioner admitted the cutting injury to her finger, but contended that termination of employment had not been effected for other younger white employees for similar offenses in the past. These allegations of Petitioner were non-specific and uncorroborated; they are not credited.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a Final Order be entered dismissing the Petition for Relief. DONE AND ENTERED this 3rd day of November, 2004, in Tallahassee, Leon County, Florida. S DON W. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 2004. COPIES FURNISHED: Annette Carroll 10202 Northwest Third Street Bristol, Florida 32321 Kathi Lee Kilpatrick, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Jacqueline H. Smith, Esquire Department of Children and Family Services Post Office Box 1000 Chattahoochee, Florida 32324-1000 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact The Agency seeks to revoke the Respondents' Adult Family Care Home (AFCH) license pursuant to an Administrative Complaint dated March 24, 1999, because the Respondents are named as confirmed perpetrators of adult neglect in FPSS Abuse Report No. 1998-023542. This report was uncontested and, therefore, upheld pursuant to Chapter 120, Florida Statutes. The Department of Children and Family Services administers the abuse registry pursuant to the authority confirmed in Chapter 415, Florida Statutes, and is a separate and distinct agency of the State of Florida from the Petitioner. The Respondents are the owners and operators of the subject AFCH named the Bucknor Adult and Foster Home and reside therein. The Petitioner sought to suspend the Respondents' AFCH license in 1998 following the incident that formed the basis of FPSS Abuse Report No. 1998-023542. The parties resolved the suspension in DOAH Case No. 98-1947, ACHA No. 7-98-400-AFCH, through an agreement wherein the AFCH closed until the Agency verified that construction activity on the premises of the AFCH no longer presented a danger to residents. The parties did not contemplate that the Respondents would fail to contest their status as confirmed perpetrators of neglect so the agreement does not address the present circumstance. There is no dispute that the Respondents are the persons named as confirmed perpetrators of neglect in FPSS Abuse Report No. 1998-023542. The Respondents have not received an exemption from disqualification in order to operate an AFCH.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that a final order be entered revoking the Respondents' license to operate as an Adult Family Care Home. DONE AND ENTERED this 22nd day of October, 1999, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of October, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway, Suite 220 Tampa, Florida 33614 Robert Mike, II, Esquire 1801 Lee Road, Suite 120 Winter Park, Florida 32789 Sam Power, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308 Julie Gallagher, General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308
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 The abuse incident central to the underlying proceeding in this case was a sexual assault against a female child by an older male child, both of whom were residents at the Lee County Children's Home where L. T. was employed as a caregiver. The abuse occurred while the residents were on a trip to the beach with other residents of the facility. Three adults, one male and two female, accompanied a total of 19 residents to the beach. The residents did not remain together once at the beach. The males residents went with the male adult and the females remained with the females. A series of events resulted in L. T. being the only one of the three who was able to visually locate the residents. She became aware that not all the residents were accounted for and began to search for the missing children. She discovered that a sexual assault had taken place. Subsequent to the abuse incident, the DHRS received an abuse report related to the matter. The investigative report in this matter incorrectly indicates that an investigation was performed by Michael B. Gregory. Another investigator, Mike Hally, investigated the incident, and apparently forwarded the materials to his supervisor for review prior to closing the case. A substantial period of time passed without DHRS action on the matter, during which time Mr. Hally transferred to another DHRS job. Agency officials eventually decided to classify the case as "proposed confirmed." Because Mr. Hally was, for technical reasons, unable to close out the case file, the matter was brought to Mr. Gregory by Jane Pigott, a DHRS official, who directed Mr. Gregory to close the case as "proposed confirmed." L. T. was apparently notified of the matter and requested that the report be expunged. By letter dated November 21, 1991, the Department of Health and Rehabilitative Services informed Respondent L. T. (through counsel) that her request to expunge the report of abuse was denied. The letter stated, "[o]n August 20, 1990, the department received a report that your client failed to ensure proper supervision resulting in injury to a child. A child protective investigation took place and was classified as proposed confirmed. As a result of your request, the record was reviewed and determined to be classified correctly." Respondent L. T. requested an administrative hearing to challenge the classification of the report. The Department forwarded the case to the Division of Administrative Hearings, which scheduled and noticed the proceeding. At hearing, the evidence failed to establish that the injury to a child was a result of any failure by L. T. to ensure proper supervision of the child.
