The Issue Whether this cause is barred by a release of all claims.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioner, Jessica Miles', Petition for Relief from employment discrimination for lack of jurisdiction. DONE AND ENTERED this 9th day of December, 2010, in Tallahassee, Leon County, Florida. S ELIZABETH W. MCARTHUR Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 2010.
The Issue The issue is whether Petitioner's application for a child caring agency license should be denied for the reasons stated in the Department of Children and Families' (Department) letter dated September 25, 2018.
Findings Of Fact The Department is the state agency responsible for regulating the licensing of child caring agencies. A child caring agency is defined in section 409.175(2), Florida Statutes (2018), as an agency that "provides staffed 24-hour care for children in facilities maintained for that purpose, regardless of whether operated for profit or whether a fee is charged." Regulations governing this type of facility are found in Florida Administrative Code Chapter 65C-14. A child caring agency, also known as a foster care group home, serves extremely vulnerable children who have been removed from their parents' home for various reasons, such as physical abuse or substance abuse by the parent. Because the children are extremely traumatized, the operator of a facility must have a high degree of skill, training, and experience. For this reason, the Department reviews applications for a child caring agency in a careful and deliberative manner. The proposed child care agency will be owned and operated by Michaelle Streeter. She is a licensed registered nurse who works as a travel nurse throughout the United States.1/ If the application is approved, she will no longer accept travel nurse assignments. From 2013 until 2017, she was licensed by the Agency for Persons with Disabilities (APD) to operate a group home in Lakeland, Florida. In May 2017, Ms. Streeter filed an application with the Department seeking licensure to operate a child caring facility. After a lengthy review of the application, which included numerous discussions with Ms. Streeter, the Department denied the application on December 11, 2017, because she was unable to meet the financial requirements outlined in rule 65C-14.006(10). Resp't Ex. 5. Petitioner did not challenge that denial. After denying the application, the Department informally recommended to Ms. Streeter that she consider becoming a foster parent. However, Ms. Streeter opted to pursue her application for a child caring facility. On an undisclosed date in 2018, she filed a second application. On September 25, 2018, the Department again denied the application, this time for the following reasons: Compliance concerns noted while being licensed as a provider with a different licensing entity around the time frame of June 2016. [§] 409.175, Fla. Stat.; Concerns around the ability to show and maintain financial stability of an owned or rented property after a notice of foreclosure was filed in 2017. During the licensing process there were several concerns on the money that was being reported as viable income to meet the FAC financial requirements for license. (Florida Administrative Code 65C-14.006); [Y]ou were granted an exemption on a previous criminal charge which allowed you to continue but did not guarantee becoming a licensed provider. After reviewing the circumstances of this criminal charge, the Department is not comfortable moving forward with issuing you a child caring agency license. Resp't Ex. 16. Petitioner requested a hearing to contest the Department's decision. The Department's letter stated that the denial was not based solely on the concerns stated above. However, the letter was never amended, and, prior to the hearing, Petitioner was not given notice of any additional concerns. Therefore, only the reasons cited in the letter have been considered.2/ Compliance Concerns While Operating Another License Citing section 409.145, the Department asserts it has "[c]ompliance concerns" based upon the operation of an APD facility by Ms. Streeter "around the time frame of June 2016." Section 409.145 generally requires that children in foster care be provided "quality parenting." The essence of the charge is that Ms. Streeter failed to meet standards for operating a less- restrictive APD facility that had only two clients, and along with the other concerns cited in the letter, collectively, they support a determination that she is not qualified for licensure. As noted earlier, Ms. Streeter operated an APD group facility from 2013 until 2017. According to Ms. Streeter, the facility closed in 2017 when the "partnership ended" and her partner removed all clients from the home. Because APD facilities receive Medicaid funds, they are reviewed periodically by Qlarant, formerly known as the Delmarva Foundation (Delmarva), a state contractor, to determine if the facility is complying with APD standards. The results of the review are found in a Provider Discovery Review (PDR) Report, which assigns a score to each provider. The record is silent, however, as to what score is necessary in order to have a satisfactory review. Delmarva's review findings for the period June 1, 2015, through May 31, 2016, are found in Respondent's Exhibit 1. The PDR Report indicates that overall, the facility received a score of 65.1 percent and a compliance score of 75.4 percent. The PDR Report contains multiple health and safety concerns, such as improperly stored medication, lack of required oversight by a behavioral analyst, and billing discrepancies of $12,986.26, which represents a significant portion of total reimbursed funds of $46,597.39. Also, Ms. Streeter engaged in physical "takedowns" of clients without approval of a medical doctor, proof that she was trained to conduct takedowns, or documentation of when and why these takedowns occurred. Improperly used takedowns present a risk of physical injury to the client. Ms. Streeter disputed the findings in the PDR Report and requested reconsideration of the billing discrepancies. After Delmarva considered her objections, reconsideration was denied and all findings remain as originally reported. The criticisms noted in Delmarva's PDR Report are legitimate concerns and should be considered in the licensing process. Financial Concerns A second concern by the Department centers around the applicant's "ability to show and maintain financial stability of an owned or rented property after a notice of foreclosure was filed in 2017. During the licensing process there were several concerns on the money that was being reported as viable income to meet the FAC financial requirements for licensure." According to the Department's regional licensing manager, this concern is a very important piece of the Department's decision to deny the application. An applicant for licensure must demonstrate "[s]atisfactory evidence of financial ability to care for children in compliance with licensing requirements." § 409.175(5)(b)8., Fla. Stat. Also, rule 65C-14.006(10) requires an applicant to "provide written documentation that it has sufficient funds to meet all requirements for licensure. Facilities beginning operation shall provide evidence of sufficient funding for operation of the program for at least six (6) months." To satisfy the foregoing requirement, the Department requires an applicant to estimate the facility's first year operating expenses and to have on-hand cash or a line of credit that equals one-half of estimated annual operating expenses. Ms. Streeter estimated her first year operating expenses to be $292,200.00. Resp't Ex. 3. This meant she needed around $146,000.00 in cash or a line of credit to meet the Department's requirement. A bank statement was not provided, but Ms. Streeter submitted a letter from a lending institution stating that her application for a cash-out refinance (second mortgage) on her residence had been approved in the amount of $160,000.00. Resp't Ex. 4. However, the Department does not consider a second mortgage to be a source of capital. Besides a lack of an adequate source of capital to operate the facility, Ms. Streeter filed a Suggestion of Bankruptcy in June 2017 under chapter 13 of the United States Bankruptcy Code. Resp't Ex. 7. On December 1, 2017, the Bankruptcy Court issued an Order Granting [the Trustee's] Motion to Dismiss Chapter 13 Case on the ground Ms. Streeter failed to comply with the Trustee's Order. Resp't Ex. 8. At hearing, Ms. Streeter provided earnings statements for 2017 and 2018 related to her employment as a travel nurse. Although she was well paid for her services, the preponderance of the evidence shows that Petitioner has failed to satisfy the financial stability requirement. Prior Criminal Charges The denial letter states that after "reviewing the circumstances of [a previous] criminal charge, the Department is not comfortable moving forward with issuing [Petitioner] a child caring agency license." The specific criminal charge is not identified in the denial letter. Testimony by a Department licensing official indicates that the Department is concerned with "a domestic violence history" on the part of Ms. Streeter. On August 21, 2000, she pled nolo contendere to a charge of battery (domestic violence), a first degree misdemeanor at that time. Resp't Ex. 14. Adjudication was withheld by the court, and she was placed on 12 months' probation, which she successfully completed in August 2001. The details of the incident are unknown. There is no other evidence of "a domestic violence history." The record also contains evidence of several criminal charges in the State of Massachusetts, which occurred in the early 1980s, or almost 40 years ago, when Ms. Streeter was in her 20s. Resp't Ex. 13. These incidents are so dated that they should not play a role in the Department's decision. In November 2012, Ms. Streeter's name was submitted "for recognition of an honorable deed performed in the community's interest and for [her] assistance to the Hillsborough County Sheriff's Office." Pet'r Ex. C. On September 14, 2007, the Department of Health granted Ms. Streeter an exemption from disqualification for employment as a registered nurse. On January 19, 2011, the Florida Board of Nursing granted Ms. Streeter an exemption from disqualification to serve as a registered nurse. On January 30, 2012, APD granted Ms. Streeter an exemption from disqualification for employment/licensing in a caretaker position working with children or vulnerable adults. On February 5, 2018, the Department granted Ms. Streeter an exemption from disqualification for employment/ licensing in a caretaker position working with children or vulnerable adults. Although APD granted Ms. Streeter an exemption from disqualification to operate a facility licensed by that agency, the Department does not consider that exemption to be binding on its determination here. The Department did not explain or otherwise address the exemption that it granted her in February 2018.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Families enter a final order denying Petitioner's application for a child caring agency license. DONE AND ENTERED this 24th day of January, 2019, in Tallahassee, Leon County, Florida. S R. ALEXANDER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 24th day of January, 2019.
The Issue Whether or not Respondent employer has committed an unlawful employment practice in violation of the Human Rights Act of 1977, as amended, by termination of Petitioner's employment on the basis of her sex (female) or by retaliatory discharge for Petitioner's participation in another female employee's Equal Employment Opportunity Claim.
Findings Of Fact Respondent Florida Power Corporation (FPC) is an electrical utility engaged in the generation, transmission, and distribution of electricity. At all times material, it qualified as an "employer" under the relevant statutes. Petitioner Karen Austin, a white female, was initially employed by FPC in May 1985 at its Crystal River, Florida, production site. The Crystal River production site consists of five generating units-- one nuclear unit and four coal-fired units. The coal-fired units are Units 1 and 2 located on the south side and Units 4 and 5 located on the north side. FPC maintains a five-shift rotation in coal handling with a shift supervisor responsible for each shift of employees. The five shift supervisors report directly to John Price, Site Operations Superintendent, who is responsible for all coal handling operations at the Crystal River site. Mr. Price reports to Ed Carnahan, Crystal River Coal Plant Site Support Manager, and Mr. Carnahan reports to R.C. Bonner, Site Director, Fossil Operations. Danny Douglas, Assistant Site Support Manager, is also a supervisor of Mr. Price. From June 1987 until her termination from employment on October 13, 1988, Petitioner worked as an assistant fuel handler, which is the entry level position in the coal handling department. She was the only female in this job description on her shift. Lynn Graves-Donaldson testified to overhearing some generalized adverse comments from unidentified male shift supervisors and coworkers about not wanting to train or work with a female when Petitioner was promoted in 1987 to assistant fuel handler. While employed as an assistant fuel handler, Petitioner reported directly to J. D. Stephens, who reported directly to John Price. Petitioner's employment relationship with FPC was regulated by the collective bargaining agreement between FPC and the International Brotherhood of Electrical Workers (IBEW). In January 1988, John Price and other management personnel began receiving telephone calls from local businesses complaining that Petitioner had written and given them bad checks. Writing bad checks is a violation of FPC policy. Section 7.3 of FPC's Human Resources Manual states, "Employees who do not handle their personal or financial affairs without reflecting discredit upon themselves and the company are not desirable employees, and are, therefore, subject to discharge." The codified policy does not facially discriminate, by sex or otherwise, against any employee or class of employee. As one of the largest employers in Crystal River, a small community, FPC attempts to maintain good community relations with its "clients." Due to its self-cast good neighbor/good utility role, FPC pays greater attention to the private, off-job site activities of its employees than many other employers would. In so doing, its management personnel regularly rely on hearsay in the nature of complaints, gossip, and newspaper articles in the administration of its policy codified in the FPC Human Resources Manual. FPC tries to follow a progressive discipline procedure, depending on the severity of the offense against its codified policy. With employee problems such as writing bad checks, the steps generally consist of an informal talk by the employee's immediate supervisor; a counselling session; an oral reprimand; a written reprimand; and suspension without pay and/or termination. On one occasion, John Price counselled a male employee (race not in evidence) concerning bad checks, and that employee paid up with no further disciplinary action. FPC has also discharged male employees for violations of its policy. Richard Brown (Black male) and Richard Frankie (white male) were discharged by FPC on February 6, 1985 and May 5, 1986, respectively, for failing to handle their financial affairs without reflecting discredit upon themselves and the company. The precise job status of these male employees is not in evidence, but all employees, regardless of job description, are subject to the rules and policy contained in the FPC Human Resources Manual, and so these employees may be considered employees who are "substantially similar" to the Petitioner for purposes of this proceeding. After receiving the initial complaints about Petitioner's financial affairs, John Price asked J. D. Stephens, Petitioner's immediate supervisor, to discuss the problem with Petitioner. Mr. Stephens subsequently reported back to Mr. Price that he had talked with Petitioner on February 23, 1988 and she agreed to take care of the debts occasioned by her bad checks. However, weighing the credible evidence as a whole, it is found unlikely that such a conversation ever occurred between Mr. Stephens and Petitioner or at least that it occurred on that date. In the course of his testimony, Mr. Stephens' candor and demeanor on this subject did not comport with that of a truthful person. Moreover, in the course of hearing, it became clear that Mr. Stephens had made false reports or had failed to transmit relevant employee information to Mr. Price on other occasions. Also, Petitioner was not regularly on the plant premises during this period of time due to her recuperation from a work-related hiatal hernia. Nonetheless, Mr. Price believed Mr. Stephens' representation at the time it was made in February or March of 1988. In February 1988, FPC had received a complaint from The Jeanery that Petitioner had written that business a check on a closed account. The Jeanery made a second complaint to FPC by letter dated March 3, 1988, and since Petitioner had failed to correct the problem, Mr. Price personally conducted a counseling session with Petitioner on March 31, 1988 to discuss the complaint from The Jeanery and the other complaints that FPC had received from local businesses. At their March 31, 1988 meeting, Mr. Price showed Petitioner Section 7.3 of FPC's Human Resources Manual which states that employees who fail to handle their financial affairs without reflecting discredit upon themselves and the company will be subject to discharge. Petitioner acknowledged to Mr. Price that she understood FPC's policy and would take care of the debt to The Jeanery. Following their March 31 meeting, Mr. Price received additional complaints from local businesses that Petitioner was continuing to write bad checks. On May 31, 1988, Mr. Price received a complaint from Jan's Uniforms that Petitioner had written that business a bad check. Mr. Price also received similar complaints from the Denim Patch, Cindy's Beauty Salon, Chest and Drawers, and Publix Supermarket. On July 6, 1988, FPC received a complaint from Joan's Consignment Boutique that Petitioner had written that business a check on an FPC credit union account which had previously been closed. Two days later, on July 8, 1988, Mr. Price received a bad check complaint from One Hour Photo. After receiving the call from One Hour Photo, Mr. Price called Petitioner, informed her of the complaint, and told her to go pay the debt. On July 9, 1988, Mr. Price received a complaint from Meineke Muffler that Petitioner had written that business a check on a closed account. Due to the number of bad check complaints since the March 31 meeting, Mr. Price determined that further disciplinary action against Petitioner was warranted. He scheduled a meeting with Petitioner, J. D. Stephens, and Sid Miller, Petitioner's union representative, on July 11, 1988 at 10:45 a.m. During this meeting, Mr. Price explained to Petitioner that FPC had received numerous complaints since their March 31 meeting, and he provided her copies of some of his notes detailing the complaints. Petitioner established that Mr. Price did not give Petitioner all of his notes, but that fact is not dispositive in this proceeding since it does not substantially affect the situation for which he ultimately held Petitioner responsible. (See, Findings of Fact 37-41, infra.) Mr. Price also issued Petitioner an oral reprimand and told her that her job was in jeopardy if she did not straighten out her bad check problem. Petitioner told Mr. Price during their July 11 meeting that she was not writing the bad checks and that the checks were being written by her husband or his girlfriend. Although Mr. Price told Petitioner that the checks were in her name and it was her responsibility to correct the problem, Mr. Price later the same day telephoned Claudia Keiser with One Hour Photo to verify whether Petitioner had written the bad check. Ms. Keiser described the Petitioner as the person who had written the check and also gave Mr. Price the driver's license number that had been given to her by the party who had written the check. Mr. Price confirmed to his satisfaction that the number given him by Claudia Keiser was Petitioner's driver's license number. Mr. Price also contacted Jan's Uniforms to verify that it was Petitioner who had actually written the bad check to that business and was satisfied after that telephone conversation that Petitioner had, indeed, given the foregoing businesses the bad checks they had complained about to FPC. Without making further inquiry, John Price also extended his disbelief of Petitioner's explanation concerning her husband and his girlfriend to all the other complaints against Petitioner of which he was aware, which disbelief contributed to his growing impression that Petitioner was not cooperating in resolving her bad check problem. Despite the issuance of the July 11 oral reprimand to Petitioner, FPC received additional complaints from One Hour Photo on July 11, Meineke Muffler on July 29, and Jan's Uniforms on August 1 that Petitioner had still not satisfied her debts. On August 4, 1988, Mr. Price prepared a written reprimand for Petitioner due to her failure to handle her financial affairs without reflecting discredit upon herself and the company. The written reprimand was presented to Petitioner on August 10, 1988. The written reprimand specified that Petitioner had fourteen days, until August 24, in which to make restitution to the businesses that had registered complaints and to provide FPC proof of restitution. The letter also notified Petitioner that any further complaints or failure to comply with the letter would result in termination of her employment. As of August 10, 1988, Mr. Price understood "further complaints" to mean any complaints regarding checks that were written after August 4, the date of the written reprimand. At some point, a misunderstanding occurred between Petitioner and Mr. Price as to whether he had required her to show him receipts for payment of her debts. At some point, Petitioner explained to Mr. Price that she could not pay off all her debts immediately and in full. On August 23, Petitioner again met with Mr. Price and provided proof that she had made payments to five of the 10 businesses to whom he had required she make restitution by August 24. One or more of the 10 businesses were closed or the accounts were closed out. Petitioner told Mr. Price that she was unable to contact the remaining businesses because her car was in the shop. At that point, Mr. Price orally altered the written reprimand and told Petitioner that he would accept a telephone call from the remaining businesses or other proof from her that she was attempting restitution to the remaining businesses rather than proof of full, immediate restitution to all the businesses. Petitioner also questioned Mr. Price during the August 23 meeting as to what "any further complaints" meant. As of that date, Mr. Price explained to Petitioner that from that point on he understood the questioned term to mean a complaint regarding a new bad check that had been written after August 4 or a complaint that Petitioner was not making restitution pursuant to the payment schedule that she had arranged with each business concerning the old bad checks written prior to August 4. Mr. Price told Petitioner that he considered complaints from businesses on those grounds to constitute a "further complaint," for which Petitioner could be discharged. Mr. Price initiated an August 24 meeting by asking to see Petitioner's receipts. Petitioner submitted proof on August 24 that she had arranged payment schedules with three businesses. At their August 24 meeting, Petitioner also raised her safety concerns about male employees arriving at work intoxicated. Mr. Price regarded her accusations concerning safety hazards to be digression or distraction, refused to discuss the safety issues raised by Petitioner at that time, and concentrated the conversation on her bad checks. At that time, Mr. Price still doubted Petitioner's credibility and resented that Petitioner had not initiated an earlier meeting to show him her receipts. The discussion between Petitioner and Mr. Price became very heated on this occasion, and each screamed at the other. At some point in the conversation, Mr. Price said, "You are doing just fine for a single woman working full-time with two children to raise." Petitioner's perception of this comment was that it was derogatory or discriminatory of her as a working woman. Mr. Price's perception was that the comment was either conciliatory or innocuous. At the August 24 meeting, Petitioner also presented extenuating circumstances why she had not finalized arrangements with the remaining two businesses. Within a few days, she submitted proof for the remaining two businesses. This late compliance by Petitioner substantially met the terms of Mr. Price's prior requirements, and he accepted Petitioner's slightly late compliance as fulfilling her obligations at that point. Although it was not specifically put into words by Mr. Price, it was intended by him that any failure on Petitioner's part to complete her restitution schedules would result in her termination. He did not specifically request her to bring receipts for each payment she made but he expected her to make a fair attempt at restitution and be able to prove it. Mr. Price later asked Mr. Stephens to get further receipts from Petitioner. It is undisputed that Mr. Stephens asked Petitioner if she had her receipts. Apparently a further misunderstanding arose between Petitioner and Mr. Price as to whether Mr. Price was going to pick up the receipts from her in the coal yard or whether he was requiring Petitioner to bring them to him in his centralized office. This misunderstanding was occasioned by the principals relaying their positions through the conduit of Mr. Stephens. Whether Mr. Stephens intended to picture Petitioner in a bad light for Mr. Price or whether it was Petitioner's mere lack of initiative in voluntarily taking receipts to Mr. Price which fueled Mr. Price's perception that Petitioner was uncooperative and was avoiding him is not entirely clear from this record, but, in fact, Petitioner did not bring any receipts to Mr. Price when J. D. Stephens merely asked her if she had them. Mr. Price felt her behavior confirmed his belief that Petitioner was not credible and that she also was resisting his authority. FPC received a telephone call from Don's Pharmacy on September 21 regarding Petitioner's failure to make her payment on September 14 pursuant to the agreed-upon payment schedule. Subsequent to August 24, Mr. Price also received complaints that Petitioner was not paying other businesses as she had agreed to do. Mr. Price then contacted other businesses with whom Petitioner had made payment arrangements and was told that she had not made any payments since the first one. Most businesses had been paid something on September 15. Mr. Price regarded these telephone conversations, whether initiated by the businesses or by himself, as "complaints" under the terms of his last understanding with Petitioner and as coming from businesses that were "more or less clients of FPC." (TR 153-156) After receiving this hearsay information, Mr. Price formed the conclusion that Petitioner had shown him receipts or had had creditors telephone him to indicate their acquiescence in a repayment schedule but that thereafter she simply did not faithfully make the scheduled payments. Prior to her termination, Petitioner never gave Mr. Price a repayment schedule for every business she owed, and he never knew for sure what those repayment schedules might be. No exhibit in evidence discloses what the payment schedules really were. No creditor testified to any due date for Petitioner's payments under their restitution schedule. In September and October 1988, Mr. Price and other managers simply relied on the hearsay statements of business people in the community whom they contacted or who contacted them. Some of their information could have been inaccurate or could have related to accounts that did not fit Mr. Price's final August 23-24 definition of "complaints." However, Petitioner did not testify and did not otherwise refute any of Mr. Price's expressed motivations for her termination, and the evidence is insufficient to establish that she had actually timely met all her payments to all of the businesses which had been contemplated by Mr. Price's final definition of "complaints." It is also clear that some of FPC's managers' time was still being taken up with some complaints from the community about Petitioner. Mr. Price and Danny Douglas, Assistant Site Support Manager, determined to their satisfaction that Petitioner was not complying with her payment schedules and that further counselling sessions or ultimatums from FPC's management to Petitioner would be useless. Likewise, they concluded that assigning Petitioner a suspension without pay would not help her pay her creditors or resolve the problem of complaints to FPC management about her bad checks or relieve the impression she was creating in the business community. Accordingly, with the concurrence of Ed Carnahan, Petitioner was terminated from her employment with FPC on October 13, 1988 for violating company policy, which requires all employees to handle their financial affairs in a manner which does not reflect discredit upon themselves and the company. Sometime between September 20, 1988 and her discharge on October 13, 1988, Petitioner was interviewed by FPC Human Resources Representative Dotty Wertz. Ms. Wertz interviewed Petitioner and approximately eight or nine other female employees as part of an internal company equal employment opportunity (EEO) investigation into a sexual harassment complaint filed by a female employee, Talesa Lloyd, against her supervisor, Jimmy Hitson. Ms. Wertz interviewed Petitioner at the request of Talesa Lloyd. Petitioner was formerly a subordinate of Mr. Hitson, but did not work for him in September or October of 1988. Four or five of the eight or nine female employees interviewed by Dotty Wertz made negative comments about Mr. Hitson. Petitioner was one of those who made such negative comments. FPC ultimately took disciplinary action against Mr. Hitson. The nature of FPC's internal discipline against Mr. Hitson is not in evidence, but apparently it was something short of termination. Talesa Lloyd had been a temporary worker at FPC when she lodged her sexual harassment claim, and she was invited back to work by FPC despite her claim. However, Mrs. Lloyd told FPC that she chose not to go back to work until she heard the outcome of her claim. That information was never reported to her, and she testified at formal hearing herein that she considered the outcome of her claim to be unfavorable to her and the internal complaint procedure in general to be unsatisfactory because no one had ever revealed the outcome of her claim to her, because Ms. Wertz refused to show her Ms. Wertz' report, and because Ms. Wertz told her that Ms. Wertz had been required by the company to rewrite her report. After her interviews, Ms. Wertz disclosed the results of her investigation to management, but did not orally identify to John Price, Ed Carnahan, R. C. Bonner, or J. D. Stephens those female employees she had interviewed or what information each individual had provided to her. Ms. Wertz also did not discuss the contents of any of her interviews with John Price, Ed Carnahan, R. C. Bonner, or J. D. Stephens, but Mr. Price admitted that he knew before he fired Petitioner that Ms. Wertz had interviewed Petitioner. Mr. Price denied knowing what Petitioner had said to Ms. Wertz. Given the physical layout of the employer's plant and the way in which Ms. Wertz made contact with the Petitioner, it may be reasonably inferred that one or more of her other supervisors also knew that Petitioner had been interviewed by Ms. Wertz and for what reason and further knew that several interviewees had commented unfavorably on Mr. Hitson. Ms. Wertz testified that Mr. Hitson himself could have seen her report and figured out who said what about him, but since Ms. Wertz' report did not attribute comments by name of interviewee, probably only Mr. Hitson or Ms. Wertz could have been sure who said what from reading the report. Mr. Price denied reading the report. There is no evidence that any of Petitioner's other supervisors read the report. Therefore, it is pure speculation that any affected manager knew, prior to her termination, that the Petitioner's comments about Mr. Hitson had been unfavorable. Todd Lemieux is employed by FPC as an assistant fuel handler (as was Petitioner) at its Crystal River site and has held that position approximately five years. In June 1988, Mr. Lemieux came to Mr. Price and reported that he had been arrested for driving under the influence of alcohol (DUI) and would have to serve some time in jail. At that time, Mr. Lemieux' work performance was excellent; he had never missed a day from work or taken any time off, and he had never been the subject of any FPC disciplinary action. Since this was the first community offense made known to FPC, Lemieux was allowed to use all of his accrued vacation and holiday time and a two-week job suspension without pay to serve his jail sentence. Lemieux was not terminated because he had an excellent work record, because he took the initiative of approaching his supervisor to report the violation, and because it was his first disciplinary offense with the company. However, in Lemieux' case, FPC's progressive discipline system of talk, counselling, oral reprimand, and written reprimand was not used, and Lemieux was given a written reprimand letter informing him that any further incidents of that nature would result in termination. Petitioner attempted to show that FPC had accommodated Mr. Lemieux despite a driver's license suspension which affected his work and two prior DUI convictions. Ed Carnahan testified that although he knew about Mr. Lemieux' two prior DUI charges as of the date of formal hearing, he did not know about them when Mr. Lemieux was disciplined in 1988. John Price was under the impression Mr. Lemieux received a permit to drive for employment purposes during his license suspension. John Argernon was employed by FPC as a fuel handler at its Crystal River site. Mr. Argernon was counselled by Mr. Price about his off duty alcohol abuse because Mr. Argernon was frequently tardy arriving at work and because he often used sick leave due to his drinking problem. Mr. Argernon subsequently participated in the FPC Employee Help Program for alcoholism, which FPC offers only one time to all employees at company expense while that employee draws full pay. Mr. Argernon quit the FPC Help Program before graduation, and thereafter, when FPC discovered further evidence of Argernon's alcohol abuse, he was terminated. Several managers, including John Price, had heard gossip that Petitioner was "at Charter" (a rehabilitation facility) during part of the spring of 1988 when the complaints concerning her bad checks reached crisis proportions, but they regarded that situation as confidential and did not probe behind the gossip. No evidence established that Petitioner specifically requested and was denied admission to the FPC Help Program for stress or bad check writing. Mr. Carnahan counselled with Mr. Argernon regarding spouse abuse after reading in the newspaper that Argernon's wife had brought such charges against him but did not pursue the issue since Mr. Carnahan was later informed either by Mr. Argernon or by another supervisor that the spouse abuse charges against Mr. Argernon had been dropped. Mr. Carnahan admittedly did not personally follow up on the matter to verify Mr. Argernon's truth and veracity or lack thereof on the subject of spouse abuse. Mr. Price did not discipline Mr. Argernon for spouse abuse because at the time he did not have any evidence that Argernon was guilty of spouse abuse. At the time Mr. Price recommended Petitioner's termination, he had been warned by Petitioner about intoxicated employees (see Finding of Fact 34) but he had no specific knowledge that Fred Fluchel, a white male fuel handler, had violated any company policy. Mr. Price first learned of a possible rule violation by Mr. Fluchel when Petitioner alleged in her initial charges, dated November 14, 1988, that on one occasion, Mr. Fluchel had come to work drunk and had driven his own pickup truck, containing two underage passengers, into a coal pile on the plant site. At that time, Mr. Price had questioned J. D. Stephens about Petitioner's allegation and Mr. Stephens had told Mr. Price that he was not aware that Mr. Fluchel had violated company policy as alleged. Mr. Price thereafter relied on Mr. Stephens' representation without further investigation. However, two days prior to the formal hearing herein, Mr. Price determined, contrary to Mr. Stephens' prior representations, that Mr. Fluchel had, indeed, violated company policy in such a drunken truck-driving incident on the job site, and Mr. Price testified at formal hearing that appropriate disciplinary action will now be taken against Mr. Fluchel. Such disciplinary action against Mr. Fluchel had not been taken by FPC as of the date of formal hearing herein. Messrs. Lemieux, Argernon, and Fluchel constitute employees "substantially similar" to Petitioner. Jim DeNicola, a white male, is employed as a Senior Maintenance Supervisor at FPC's Crystal River facility. He is not in a union bargaining unit like Petitioner. Also, his job description is supervisory and dissimilar in substance and authority to Petitioner's, but since FPC's Human Resource Manual applied to him as it did to all other FPC employees, including Petitioner, he may be considered an employee who is "substantially similar" to Petitioner for purposes of this proceeding. In 1985, before Petitioner was promoted to assistant fuel handler, Mr. DeNicola borrowed some furniture from FPC for his personal use. In so doing, he required at least two female employees, Petitioner and Lynne Graves-Donaldson, to assist in moving the furniture from the FPC plant site to his home. Both Mrs. Graves-Donaldson, who testified, and Petitioner, who did not testify, perceived that Mr. DeNicola's actions were stealing at worst, and at best, were done without permission of appropriate supervisors. Mrs. Graves-Donaldson expressed no concerns that she was asked to do heavy labor or that moving the furniture amounted to FPC employees doing Mr. DeNicola's personal business on company time. Mr. DeNicola returned the furniture to the FPC site after he no longer needed it. Mr. DeNicola was not disciplined by FPC for borrowing the furniture. Although some of Mr. DeNicola's middle management peers and some superiors apparently "looked the other way" over the furniture borrowing episode because Mr. DeNicola was going through a divorce, and although others did not know that he was borrowing the furniture at all, the evidence as a whole also does not reveal that FPC has any specific policy on such a subject or that the incident got any publicity in the community or had any effect on community perception of FPC.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enter a final order dismissing Petitioner's Petition for Relief and denying the relief sought thereby. DONE and ENTERED this 20th day of June, 1991, 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 20th day of June, 1991.
The Issue This is a license discipline case in which the Petitioner, by means of a three count Administrative Complaint, seeks to take disciplinary action against the Respondent on the basis of alleged violations of subsections (2), (14), and of Section 475.624, Florida Statutes.
Findings Of Fact The Petitioner is a state government licensing and regulatory agency charged with the responsibility and duty to prosecute Administrative Complaints pursuant to the laws of the State of Florida, in particular Section 20.165, Florida Statutes, Chapters 120, 455, and 475, Florida Statutes, and the rules promulgated pursuant thereto. Respondent Beverly J. Merchant is currently a Florida state certified general appraiser, having been issued license number 000141 in accordance with Chapter 475, Part II, Florida Statutes. The last license issued to Respondent was as a state certified general appraiser with a home address of 548 San Esteban Avenue, Coral Gables, Florida 33146. On January 14, 1994, Graimark/MIG Joint Venture and/or Crown Revenue, Inc., ordered Respondent to perform an appraisal of Sunrise Gardens, an adult congregate living facility (ACLF), in Miami, Florida. On March 31, 1994, the Respondent completed the appraisal of the property. The Respondent's appraisal report made several references to zoning "variances." The use of the term "variances" was reasonable under the circumstances of the subject appraisal. The Respondent's appraisal report stated that the highest and best use of the property was not as an adult congregate living facility (ACLF), but as some other institutional use. Under the circumstances of the subject appraisal, the Respondent provided adequate support to indicate that under the applicable zoning provisions "another institutional use" was probably permissible by variance. The Respondent's appraisal report included a cost approach that utilized a cost factor for "convalescent hospital space," even though the highest and best use was a use other than an ACLF. The use of that cost factor was reasonable under the circumstances of the subject appraisal.
Recommendation On the basis of all of the foregoing, it is RECOMMENDED that a Final Order be entered in this case dismissing all charges against the Respondent. DONE AND ENTERED this 5th day of September, 1996, at Tallahassee, Leon County, Florida. MICHAEL M. PARRISH, 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 5th day of September, 1996.
The Issue The issue is whether Respondent discriminated against Petitioner by committing an unlawful employment action contrary to Section 760.10, Florida Statutes.
Findings Of Fact Respondent is an employer within the meaning of the Florida Civil Rights Act of 1992. Petitioner, an African-American female, began working in the Financial Aid Office at Florida State University as a student from 1978 to 1983. After receiving her undergraduate degree, Petitioner worked for Florida State University as a Financial Aid Specialist, administering Pell Grants from 1983 to 1989. In September of 1989, Respondent hired Petitioner to work in its Financial Aid Office as a Financial Aid Specialist. In July 1991, Petitioner became Respondent's Director of Financial Aid; she worked in that capacity during the 1996-97 school term. Mr. Tom Hanna, Respondent's Vice President for Administrative Services, was Petitioner's supervisor after she became Director of Financial Aid. From July 1991 through June 1996, Mr. Hanna gave Petitioner an overall performance rating of "above satisfactory." During the 1996-97 school year, Respondent's President, T. K. Wetherell, became concerned that students were not receiving timely notice of their financial aid awards. Untimely receipt of financial aid awards was a problem for Respondent because many students received financial aid. Respondent formed the Enrollment Retention Committee in the Spring of 1997. The purpose of the committee was to consider issues impacting student retention, such as financial aid. Mary Coburn, Respondent's Assistant Vice President for Student Services, was the Chairperson of the Enrollment Retention Committee. From the beginning, Ms. Coburn was concerned about problems with the delivery of financial aid to students. She received complaints from students about the Financial Aid Office losing documents and the inability of the staff to answer questions. The Enrollment Retention Committee formed a subcommittee to review financial aid operations. Dr. Marge Banocy-Payne was a member of the subcommittee. Dr. Banocy-Payne also was concerned about complaints from students about delays in receiving financial aid payments and problems with the attitudes of the financial aid staff. Petitioner worked with the subcommittee to find ways to improve financial aid services. In April 1997, the committee made 30 recommendations on ways that Petitioner could improve the Financial Aid Office. Mr. Hanna met with Petitioner at least five times during the 1996-97 school year to discuss multiple issues in the operations of the Financial Aid Office. Mr. Hanna meant for these meetings to serve as counseling sessions regarding Petitioner's ineffective performance. Mr. Hanna did not memorialize these meetings in writing because he believed Petitioner had been a loyal employee. Instead, Mr. Hanna felt that the problems in the Financial Aid Office were temporary and that Petitioner's job performance would improve. In June 1997, President Wetherell and Mr. Hanna requested Ms. Carmelita Tudor, Respondent's Director of Human Resources, to investigate allegations of improprieties in the Financial Aid Office. Ms. Tudor found no evidence to support these allegations. However, Ms. Tudor concluded in a June 12, 1997, written report that Petitioner was no longer an effective director of the Financial Aid Office and that Respondent should remove Petitioner from her position immediately. Ms. Tudor's recommendations were based in part on Petitioner's procrastination in filling vacant positions in the Financial Aid Office. The failure to promptly fill the positions compounded the workload and delayed the processing of Student Aid Reports for students who were waiting for financial aid. For example, an employee in a Veteran Affairs Specialist position gave Petitioner oral notice in June 1996 that the employee intended to retire. In August 1996, the employee gave Petitioner written notice that the employee would retire in January 1997. Mr. Hanna gave Petitioner authority to hire a replacement for the Veteran Affairs Specialist before January 1997 so that the retiring employee could train the new employee. Petitioner did not request that Respondent advertise for the vacant position until May 1997. The position was re-advertised in July 1997. The position was finally filled in September 1997. Mr. Hanna decided that Respondent should be transferred from her position as Director of Financial Aid. The decision was based on Petitioner's ineffective performance during the 1996-97 school term. The office had become dysfunctional and appeared to be incapable of providing financial aid to a significant number of students in the next school year. The decision to transfer or demote Petitioner was based on the following management issues: (a) Petitioner's failure to remain current with the job knowledge that was necessary to perform her duties, specifically in the areas of staff workload and staff morale; (b) Petitioner's failure to timely fill two full-time job vacancies in the office, adversely impacting the ability of the office to function adequately; (c) Petitioner's failure to ensure that the office produced a satisfactory quantity of work, evidenced by the volume of unprocessed aid requests; (d) Petitioner's failure to establish a dependable management style, requiring only minimum supervision; (e) Petitioner's failure to establish office management practices to eliminate unnecessary stress on staff and to ensure the respect of her staff; (f) Petitioner's failure to demonstrate initiative, making it necessary for the Enrollment Management Committee and other college personnel to examine the office in order to suggest ways to improve overall office performance; and (g) Petitioner's failure to exercise management judgment to discern problems and develop solutions or to implement plans of action developed by her colleagues and Mr. Hanna. By letter dated June 16, 1997, Mr. Hanna notified Petitioner of Respondent's intention to demote Petitioner to another position. Respondent scheduled the predetermination conference for June 25, 1997, so that Petitioner could respond in writing and orally to Respondent's proposed action. Petitioner's husband subsequently informed Mr. Hanna that Petitioner had been advised by her medical doctor to avoid any activities that might engender stress, tension, or anxiety for a period of 30 days. On July 1, 1997, Respondent increased the salary of the Financial Aid Director from $45,770.50 annually to $48,059.02 annually. This raise was not related to Respondent personally or to her performance. Instead, it was the result of an effort to standardize the salary for the position compared to the salary of financial aid directors at other institutions and the salaries of peer positions. Respondent's staff insisted that the pay grade for the position of financial aid director be changed even though Petitioner's job performance was substandard. By letter dated July 2, 1997, Petitioner's medical doctor advised Mr. Hanna that Petitioner was being treated for depression and would be unable to attend a July 15, 1997, predetermination conference. Respondent conducted the conference on July 31, 1997. Petitioner authorized her husband to speak on her behalf at the conference. On or about August 4, 1997, Respondent advised Petitioner that she was being transferred to a position with the Big Bend Job and Educational Council, effective August 11, 1997. Petitioner's new job as a WAGES Administrative Assistant had a salary rate of $36,000 annually. Respondent elected to transfer Petitioner to another position rather than terminate her or offer her a probationary period in her position as director of financial aid. Respondent did not want to damage Petitioner's career or cause her to lose benefits. Respondent did not believe that Petitioner could successfully complete a probationary period in her position as director of financial Aid in which she would have been required to show significant progress. On August 13, 1997, Petitioner filed her Charge of Discrimination with FCHR. On August 15, 1997, Petitioner filed a grievance claiming that Respondent's decision to transfer her was "inappropriate and unfair." This complaint initiated the grievance process set forth in the classified staff manual. On August 28, 1997, Ms. Coburn upheld Mr. Hanna's decision to transfer/demote Petitioner. Ms. Coburn handled Petitioner's grievance at Step III because Mr. Hanna was Petitioner's direct supervisor. Mr. Hanna conducted Petitioner's annual employee evaluation for the period of July 1, 1996, through June 30, 1997. In preparing the evaluation form, Mr. Hanna noted the deficiencies in Petitioner's job performance. Mr. Hanna gave Petitioner an unsatisfactory rating regarding her knowledge of her job, the quality of her work, the quantity of her work, dependability, responsibility, initiative, judgment, attitude and attendance. Mr. Hanna attempted to furnish Petitioner with the evaluation personally but was unable to arrange an interview with Petitioner. Mr. Hanna eventually mailed the evaluation to Petitioner on or about September 4, 1997. On September 8, 1997, Petitioner filed her Step IV grievance with President Wetherell. On September 16, 1997, President Wetherell upheld the decision to transfer/demote Petitioner and denied her grievance. On October 9, 1997, Petitioner filed her Step V grievance, seeking review by the Board of Trustees. President Wetherell responded to the Step V grievance on November 14, 1997. On or about November 26, Petitioner received copies of documents to be presented to the Board of Trustees. On December 1, 1997, Petitioner and Respondent's representatives addressed the Board of Trustees. After reviewing the matter, the Board of Trustees approved the decision to transfer/demote Petitioner from her position as financial aid director to WAGES Administrative Assistant. Respondent employed Petitioner at the Big Bend Job and Education Council until May 10, 2000. During that time, Petitioner received employment promotions and salary increases. On May 10, 2000, Respondent concluded its administration of the Big Bend Job and Education Council. As of the time of the final hearing, Petitioner continued to be employed as the One-Stop Coordinator for the Big Bend Job and Education Council. The program is now administered by a private, non-profit organization. In the 1994-95 school term, Carlotta Appleman was employed as Respondent's Computer Systems Manager. She was responsible for all of Respondent's information technology services. In the 1994-95 school term, Respondent employed Norm Cave, an American Indian/Alaskan Native male, as a programmer analyst. Mr. Cave had no supervisory responsibilities or direct contact with Respondent's students. Ms. Appleman was Mr. Cave's supervisor. In the last half of 1994, Ms. Appleman placed Mr. Cave on probationary status because of issues involving interpersonal relations and insubordination. Ms. Cave's probation was not based on the quantity and quality of his work or job performance. Mr. Cave failed to resolve the issues of interpersonal relations and insubordination during his probation. Mr. Cave resigned his position effective August 31, 1995. As director of financial aid, Petitioner had supervisory responsibilities over employees and was charged with direct student contact. Petitioner was transferred/demoted because of her job performance deficiencies. There are no similarities in the employment situation involving Mr. Cave compared to the employment situation involving Petitioner.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is
The Issue Whether the Statewide Nominating Commission for Judges of Compensation Claims’ “Guidelines of Operation of the Statewide Judicial Nominating Commission” constitutes an unadopted rule, as defined in section 120.52(2), Florida Statutes, in violation of section 120.54(1), Florida Statutes. Filed January 10, 2018 4:52 PM Division of Administrative Hearings
Findings Of Fact 1. Judges of Compensation Claims are appointed by the Governor and charged with conducting administrative proceedings on petitions for benefits filed under Florida’s “Workers’ Compensation Law,” Chapter 440, Florida Statutes. See § 440.45(2) (a) & (c), Fla. Stat.; Fla. Admin. Code R. 600Q-6.105. These Judges are appointed for four-year terms, with the Governor having the discretion —- as qualified below - to reappoint a sitting Judge for a subsequent term. § 440.45(2) (c), Fla. Stat. The statute does not limit the number of times the Governor may reappoint a Judge of Compensation Claims, and does not prohibit the Governor from appointing a qualified person to serve non-consecutive terms as a Judge. 2. The Statewide Nominating Commission for Judges of Compensation Claims (“Commission”) is charged with making a threshold eligibility determination as part of the reappointment process. Prior to the expiration of a judge’s term of office, the statewide nominating commission shall review the judge's conduct and determine whether the judge’s performance is satisfactory. Effective July 1, 2002, in determining whether a judge’s performance is satisfactory, the commission shall consider the extent to which the judge has met the requirements of this chapter, including, but not limited to, the requirements of ss.440.25(1) and (4) (a)-(e), 440.34(2), and 440.442. If the judge’s performance is deemed satisfactory, the commission shall report its finding to the Governor no later than 6 months prior to the expiration of the judge’s term of office. The Governor shall review the commission’s report and may reappoint the judge for an additional 4-year term. If the Governor does not reappoint the judge, the Governor shall inform the commission. The judge shall remain in office until the Governor has appointed a successor judge in accordance with paragraphs (a) and (ob). If a vacancy occurs during a judge’s unexpired term, the statewide nominating commission does not find the judge’s performance is satisfactory, or the Governor does not reappoint the judge, the Governor shall appoint a successor judge for a term of 4 years in accordance with paragraph (b). § 440.45(2)(c), Fla. Stat. (emphasis added). Without a reported determination of “satisfactory” from the Commission, the Governor is required to appoint a successor Judge. In such an instance, the Governor has no legal authority to reappoint the incumbent. 3. Other than reporting on whether a sitting Judge’s performance has been satisfactory, the Commission is not statutorily authorized to make a recommendation on reappointment. 4. The Office of the Judges of Compensation Claims (“Office”) is a unit within the Department of Management Services comprised of all Judges of Compensation Claims and headed by a Deputy Judge of Compensation Claims. § 440.45(1) (a), Fla. Stat. The Office has the duty to adopt rules, including those for the Commission to follow in reviewing the performance of incumbent Judges.} The Office of the Judges of Compensation Claims shall adopt rules to carry out the purposes of this section. Such rules must include procedural rules applicable to workers’ compensation claim resolution, including rules requiring electronic filing and service where deemed appropriate by the Deputy Chief Judge, and uniform criteria for measuring the performance of the office, including, but not limited to, the number of cases assigned and resolved, the age of pending and resolved cases, timeliness of decisions, extraordinary fee awards, and other data necessary for the judicial nominating commission to review the performance of judges as required in paragraph (2) ({c). [emphasis added] § 440.45 (4), Fla. Stat. This statutory mandate was passed sixteen (16) years ago and has remained essentially unchanged since. See Ch. 2001-91, § 26, Laws of Fla. (2001) .? 5. Pursuant to this mandate, the Office adopted the “Rules of Procedure for Workers’ Compensation Adjudications,” Chapter 600-6, Florida Administrative Code, which became effective February 23, 2003. The Chapter contains individual rules that address initial pleadings, discovery, mediation, hearings, and other procedural matters. 6. None of the rules in this Chapter contain uniform criteria for measuring performance. None of the rules cite section 440.45(2) (c), Florida Statutes, as a “law implemented.” There are no rules in this Chapter or adopted elsewhere for the Commission to follow in determining whether an incumbent Judge’s performance has been satisfactory and reporting this determination to the Governor. 7. In the absence of rules, the Commission follows a document titled “Guidelines of Operation of the Statewide Judicial Nominating Commission” (“Guidelines”) in “review[ing] the applications of Judges of Compensation Claims who seek reappointment.” Guidelines, § I.3 The Guidelines require applicants to complete an application form by a specified deadline, establish procedures for public comment, and allow the Commission to pose “questions deemed pertinent to each applicant’s fitness and qualifications to hold the judicial office.” Id., §§ I & IV. Section V of the Guidelines, titled “Standards and Qualifications; Criteria,” provides that [n]o nominee shall be recommended to the Governor for appointment unless the Commission finds that the nominee meets all constitutional and statutory requirements and is fit for appointment after full and careful consideration which consideration may include, but [is] not necessarily limited to, the following criteria: (a) Personal attributes (1) Personal integrity (2) Standing in community (3) Sobriety (4) Moral conduct (5) Ethics (6) Commitment to equal justice under law (b} Competence and experience (1) General health, mental and physical (2) Intelligence (3) Knowledge of law (4) Professional Reputation (5) Knowledge of and experience in the court involved (c) Judicial capabilities (1) Patience (2) Decisiveness (3) Impartiality (4) Courtesy (5) Civility (6) Industry and promptness (7) Administrative ability (8) Possible reaction to judicial power (9) Temperament (10) Independence 8. The Guidelines do not contain uniform criteria or a procedure for the Commission to report whether a judge’s performance has been satisfactory. Rather, the Guidelines direct the Commission to take the following action at the conclusion of the review process: When considering a Judge for reappointment, by majority vote, the Commission shall vote upon whether to recommend each particular judge for reappointment. The names of each judge considered by the Commission shall be certified to the Governor in writing, which shall include only the judge’s name and whether recommended or not. 9. The Guidelines bear an effective date of November 22, 2013, and provide that they “may be amended by majority vote of the Nominating Commission” and “may be readopted periodically at the discretion of the Commission members.” Id., § XII. The Guidelines contain no mention of the rulemaking process under Chapter 120, Florida Statutes. 10. The Guidelines have not been adopted by the Office or the Commission as a rule pursuant to the rulemaking procedures in section 120.54, Florida Statutes. The Commission has no rulemaking authority. See Fla. Att’y Gen. Op. 92-72 (1992). 11. Petitioner Gerardo Castiello is a resident of Dade County, Florida. Petitioner was appointed as a Judge of Compensation Claims for the Miami District of the State of Florida, Office of the Judges of Compensation Claims, at some point prior to 2013. In November 2016, Petitioner was serving as a Judge and seeking reappointment for another four-year term. 12. On November 1, 2016, the Commission conducted a hearing to consider Petitioner’s application for reappointment. The Commission did not vote or otherwise make a determination of whether Petitioner’s performance was satisfactory. Instead, the Commission applied the Guidelines in reaching its decision. This decision is memorialized in a letter sent by the Commission to the Governor on November 14, 2016, which contains the following statement regarding Petitioner: “The Commission did not nominate Hon. Gerardo Castiello (MIA) for reappointment.” 13. Petitioner commenced this proceeding on January 20, 2017, when, by and through counsel, he filed a Petition Challenging Agency Statements Defined as Undaopted Rules with the Division of Administrative Hearings (“DOAH”). The Petition alleges that the Guidelines meet the definition of “rules,”4 have not been adopted as rules as required by statute,® and have been relied upon by the Commission as “the basis of its denial and rejection of the Petitioner’s reappointment application.” Petition { 38. Petitioner requested a formal administrative hearing, a determination that the Guidelines are unadopted rules, and related relief. Id. @ 42. 14. DOAH did not assign an administrative law judge to preside over this proceeding within ten days after receipt of the petition as required by section 120.56(1) (c), Florida Statutes. On February 22, 2017, Petitioner filed a Motion for Appointment of Administrative Law Judge, and Notice of Objection to Consideration by Administration Commission. 15. Petitioner then filed petitions with the First and Third District Courts of Appeal beginning in February 2017 to address this issue and related matters. Among other relief, these petitions sought to compel DOAH to appoint an administrative law judge. The Commission objected to this relief, in part, on the basis that “DOAH is the real party in interest,” and this matter has “been referred to the Administration Commission for appointment of an attorney to hear the case pursuant to § 120.80(1), Fla. Stat.” Respondent’s Response to Petitioner’s Petition, Third DCA Case No. 3D17-0341 (March 8, 2017). 16. The Third District Court of Appeals ultimately denied Petitioner’s petition for writ of prohibition, writ of mandamus, and/or alternative writs and remedies. Order, Third DCA Case No. 3D17-0341 (March 29, 2017). The Court subsequently denied Petitioner’s motion for written opinion, clarification, rehearing, certification, and/or rehearing en banc. Order, Third DCA Case No. 3D17-0341 (May 3, 2017). 17. Approximately four months later, without any action by the Administration Commission, undersigned was designated by DOAH Chief Judge Cohen as the “hearing officer to conduct the hearing” in this matter under the authority of section 120.65(5), Florida Statutes. Order of Assignment at 1 (September 18, 2017). That section allows DOAH to assign a full-time state employee as a hearing officer “[i]f the division cannot furnish a division administrative law judge promptly in response to an agency request.” § 120.56(5), Fla. Stat.® 18. Based on the assignment of undersigned, the First District Court of Appeals dismissed Petitioner’s petition for writ of mandamus as moot. See Castiello v. Florida Div. of Admin. Hearings, 229 So. 3d 861 (Fla. lst DCA 2017), reh'g denied (Nov. 8, 2017). 19. After filing the petition that commenced this proceeding and while the petitions for various writs were pending before the District Courts of Appeal, Petitioner propounded discovery to Respondent. On February 13, 2017, Petitioner served on Respondent and filed with DOAH a request for admissions. Respondent did not timely answer or object to this request. 20. On September 20, 2017, after undersigned was assigned as the Hearing Officer, counsel for Petitioner sent to counsel for Respondent an e-mail stating that the request would be deemed admitted due to the failure to respond. The Commission did not respond to this e-mail, answer the request, or file an objection. 21. On December 5, 2017, Petitioner filed a Motion for Summary Order. As support for the Motion, Petitioner asserts 10 that the material facts in this proceeding are undisputed because of Respondent’s failure to respond to the February request for admissions. More than 30 days (indeed, over 9 months) have passed since the request for admissions was serviced on the SNC, and the SNC has never responded to Castiello’s request for admissions. The SNC has never moved for additional time to respond, and has not attempted to demonstrate any excusable neglect for failing to timely respond. Nor is there any possibility of any excusable neglect for the SNC’s failure to respond -— especially after the Petitioner reported the SNC’s failure to response at least three different times. 22. Respondent did not file a response to the Motion for Summary Order as allowed under Rule 28-106.204, Florida Administrative Code, and the time for doing so has expired. Respondent has not answered or objected to the request for admissions.
Other Judicial Opinions A party who is adversely affected by this Summary Final Order is entitled to judicial review pursuant to section 120.68, Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceeding are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy of the notice, accompanied by any filing fees prescribed by law, with the clerk of the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides or as otherwise provided by law. 21
The Issue The issue is whether Petitioners are entitled to an award of attorney’s fees, costs, and/or interest related to the hearing officer’s award of corrective payments on remand after the decision in French v. Department of Children and Families, 920 So. 2d 671 (Fla. 5th DCA 2006).
Findings Of Fact Parties Sarah is almost 23 years old, and she is severely disabled. Her disabilities include quadriplegic cerebral palsy, developmental delay, severe osteoporosis, severe muscle spasms, scoliosis, incontinence, kidney stones, and frequent urinary tract infections. Sarah requires 24-hour assistance with all daily living functions, including bathing, feeding, dressing, brushing her teeth, and changing her diapers. Ms. French is Sarah’s mother. She is approved by the Agency to provide personal care assistance (PCA) services to Sarah under the CDC+ program. The Agency has administered the CDC+ program since October 1, 2004. Prior to that, the program was administered by DCF. Background Sarah applied for the CDC+ program in July 2002, and was enrolled in the program in October 2002. Prior to that, Sarah was enrolled in the Home and Community Based Developmental Services (HCBS) program pursuant to which she received PCA services from outside providers, rather than her mother. Sarah’s initial support plan under the CDC+ program funded only six hours per day of PCA services. The plan was increased to 12 hours per day of PCA services in August 2003 after Sarah successfully appealed her initial support plan to a DCF hearing officer. On October 31, 2003, DCF unilaterally disenrolled Sarah from the CDC+ program based upon its determination that Ms. French had a back condition that prevented her from providing PCA services to Sarah. Thereafter, Sarah was reenrolled in the HCBS program, which required her to hire someone other than her mother to provide her PCA services. Ms. French was paid for the period of November 1-15, 2003, even though Sarah was no longer enrolled in the CDC+ program at the time. For that period, however, Ms. French was paid for only six hours per day of PCA services (at $17.50 per hour) rather than the 12 hours per day required by Sarah’s support plan. Ms. French stopped receiving payment under the CDC+ program on November 16, 2003. She began receiving payment again on April 1, 2005, when, as discussed below, Sarah was reenrolled in the CDC+ program. Ms. French has been paid for 12 hours per day of PCA services (at $17.50 per hour) since April 1, 2005. Sarah timely filed an appeal of DCF’s decision to disenroll her from the CDC+ program, but the appeal was not docketed and referred to a DCF hearing officer until January 2004. The hearing officer held a hearing on the appeal over a period of eight days between March 22 and August 5, 2004. The length of the hearing was attributable, at least in part, to the fact that the hearing officer was not a lawyer, and she allowed both parties to present extensive testimony and evidence on matters seemingly unrelated to the central issue in the appeal, i.e., whether Ms. French had a back condition that prevented her from providing PCA services to Sarah. The hearing officer’s Final Order, dated November 22, 2004, concluded that Sarah should not have been disenrolled from the CDC+ program because DCF failed to prove that Ms. French had a back condition that prevented her from providing PCA services to Sarah. The Final Order did not award retroactive corrective payments to Sarah for the period that she was wrongfully disenrolled from the CDC+ program, and it denied Sarah’s request for an award of attorney’s fees and costs. Sarah appealed the Final Order to the Fifth District Court of Appeal. DCF did not cross-appeal. Sarah was reenrolled in the CDC+ program on April 1, 2005, while the appeal was pending. The record does not reflect why Sarah was reenrolled on that date, which is more than four months after the hearing officer’s Final Order. The appellate court issued its opinion on January 6, 2006, and held that Sarah was entitled to corrective payments from DCF1 retroactive to the date that she was disenrolled from the CDC+ program. The court remanded the case to the DCF hearing officer to determine the amount of corrective payments due to Sarah. The court was clear as to the scope of the remand; it held: In summary, both [federal and state law] require remand for the hearing officer to order corrective payments retroactive to October 31, 2003. We believe the amount of corrective payments can be determined based upon the evidence provided at the original hearing, but the hearing officer may take additional evidence on the issue, if necessary. (Emphasis supplied) The court also awarded attorney’s fees against DCF for the appeal. The court remanded the issue of the amount of appellate fees, and the issue of Sarah’s entitlement to attorney’s fees for the underlying DCF hearing, to DOAH for determination because, according to the court, the hearing officer did not have jurisdiction over those issues since the applicable attorney's fee statute refers only to Administrative Law Judges. DCF filed a motion for rehearing, which was denied by the court on February 10, 2006. The mandate was issued by the court on March 1, 2006. Sarah was the prevailing party in the proceedings that culminated in the appeal. The Agency paid Sarah $129,595 in attorney’s fees and costs related to the proceedings that culminated in the appeal.2 Remand Proceeding On April 7, 2006, over a month after the mandate was issued by the appellate court, the DCF hearing officer entered an Order accepting the remand and directing the parties to advise her if the retroactive payments mandated by the court had been made. The Order required Sarah to provide invoices to the Agency reflecting the monthly timesheets for the “retroactive periods,” and required the Agency to respond to the invoices and identify any disputes. The Order stated that a hearing would be set if necessary to resolve any dispute regarding the amount of the retroactive payment. On April 19, 2006, in compliance with the hearing officer’s Order, Sarah filed monthly invoices and a demand for payment totaling $211,312.50, “exclusive of interest and attorney’s fees.” The invoices sought payment for an additional six hours per day of PCA services from July 2002 (when Sarah applied for the CDC+ program) to November 15, 2003 (when Ms. French stopped receiving payment for six hours per day of services); payment for 12 hours per day of PCA services from November 16, 2003, to March 31, 2005 (the period during which Ms. French received no payment); and payment of half of those hours at the overtime rate of $26.25 per hour instead of the standard rate of $17.50 per hour. The Agency responded to the demand for payment in a status report filed with the DCF hearing officer on May 26, 2006. In the status report, the Agency took the position that, consistent with the appellate court’s decision, the amount of corrective payments owed to Sarah is limited to the period of disenrollment -- October 31, 2003 through March 31, 2005 -- and that the amount should be calculated based upon the approved hourly rate of $17.50 with no overtime pay. The Agency, therefore, requested the DCF hearing officer to “enter an order finding $97,230 as the appropriate amount of compensation due as the corrective action ordered by the Fifth District Court of Appeal.” Sarah filed a reply to the Agency’s filing on June 26, 2006, in which she continued to assert that the corrective payments were not limited to the disenrollment period and that overtime pay was due. The reply also claimed that the Agency “is proving itself to be the scofflaw that the general public believes it to be,” and it requested imposition of attorney’s fees against the Agency because of its “continued delays and its attempts to starve out Ms. French.” The hearing officer set the matter for hearing because the parties were not in agreement regarding the amount of corrective payments owed. The hearing was scheduled for and held on July 17, 2006. The transcript of the July 17, 2006, hearing is not part of the record of this DOAH proceeding. Therefore, the record does not reflect the substance of the testimony presented or the nature of the evidence received at that hearing. The hearing officer entered the Remand Order on September 29, 2006. The Remand Order rejected the argument that Sarah is entitled to corrective payments for periods prior to October 31, 2003; rejected the argument that Ms. French is entitled to overtime pay; implicitly rejected the argument that “prejudgment interest” is to be included as part of the corrective payments to Sarah; concluded that DOAH (and not the DCF hearing officer) has jurisdiction to consider Ms. French’s request for interest based upon “the failure of [DCF] to process payment in a timely manner”; and awarded $105,420 in corrective payments to Sarah. The Remand Order was not appealed by either party. It was not until entry of the Remand Order that the amount of corrective payments due to Sarah was established with certainty. The Agency worked diligently after entry of the Remand Order to process the payment due to Sarah. The payment was made through a check dated November 8, 2006, which is 40 days after the date of the Remand Order. Petitioners did not prevail in the Remand Proceeding because the hearing officer rejected each of the substantive arguments they presented in the Remand Proceeding. The fact that the hearing officer awarded Sarah approximately $8,000 more than the Agency calculated that she was due in its pre-hearing status report does not make Sarah the prevailing party in the Remand Proceeding. The award was approximately half of what Sarah claimed she was due, and the difference in the amount calculated by the Agency ($97,230) and the amount awarded in the Remand Order ($105,420) was not the result of the hearing officer using the calculation methodology advocated by Sarah. Instead, the difference resulted from the hearing officer using the actual number of calendar days that Sarah was disenrolled, rather than calculating the number of days by multiplying the number of months Sarah that was disenrolled by the 28 days of service per month that were approved in Sarah’s support plan. There is no persuasive evidence that the Agency participated in the Remand Proceeding for an improper purpose, as alleged by Petitioners. Indeed, the evidence establishes that the primary reason that it was necessary for an evidentiary hearing to be held in the Remand Proceeding was the excessive and unreasonable demand made by Sarah in her initial response to the hearing officer’s Order accepting the remand from the appellate court. The Agency’s refusal to pay that amount was clearly reasonable and appropriate under the circumstances. To the extent that Petitioners are complaining about having to go through additional proceedings on remand at all when the appellate court observed that the amount of corrective payments could likely be determined based upon the evidence provided at the original hearing, that complaint focuses on the conduct of the DCF hearing officer, not the Agency. It is noted, however, that the appellate court stated that “the hearing officer may take additional evidence on the issue, if necessary.” This DOAH Proceeding Petitioners initiated this proceeding by filing the Petition with the Agency. The Agency referred the Petition to DOAH because according to the referral letter, “the Agency is without authority to determine or award attorney’s fees available under Chapter 120, Florida Statutes.” The Petition requests an award of attorney’s fees and costs, both for the Remand Proceeding and for this DOAH proceeding. The Petition also requests an award of prejudgment interest as part of the corrective payments as well as post- judgment interest on the corrective payments ordered in the Remand Order. The Agency disputes Petitioners’ entitlement to attorney’s fees and costs for this proceeding or the Remand Proceeding. The Agency also disputes Petitioners’ entitlement to interest, either as part of or on the corrective payments. There is no evidence that the Agency participated in this DOAH proceeding for an improper purpose. The Agency had a legitimate basis for its opposition to the Petition giving rise to this proceeding, as shown by the fact that the Agency prevailed in this proceeding. The unreasonable demands made by Petitioners at the outset of the Remand Proceeding (and at the outset of the prior attorney’s fee case, see Endnote 2) did little to bring the litigation between the parties to an just and speedy end and, indeed, likely had the opposite effect. That said, the evidence is not persuasive that Petitioners participated in this DOAH proceeding for an improper purpose.
The Issue Whether Petitioner's application for licensure as a real estate sales associate should be denied on the ground set forth in the Florida Real Estate Commission's August 14, 2006, Notice of Intent to Deny.
Findings Of Fact Based on the evidence adduced at hearing, and the record as a whole, the following findings of fact are made: Petitioner recently turned 36 years of age. He currently resides in Miami-Dade County, Florida, where he is employed by a real estate development company in a position of trust, performing various administrative duties, including website maintenance, data entry, and delivery of payroll. Before moving to Florida, Petitioner resided, and owned a business, in the Lake George area of New York State. In 2002, Petitioner was arrested, along with his roommates with whom he had shared a Lake George home rented in his name, and charged in the United States District Court for the Northern District of New York with having, "[i]n or around March 2002, in the State and Northern District of New York, . . . knowingly and intentionally combined, conspired, confederated and agreed with others [his roommates] to possess with intent to distribute and to distribute a quantity of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Section 841(a)(1) [and] [i]n violation of Title 21, United States Code, Section 846." On June 12, 2003, after having entered a guilty plea, Petitioner was adjudicated guilty of the criminal conduct charged3 and sentenced to six months' house arrest and five years' probation. In addition, he was ordered to pay a fine of $10,000.00. Prior to his sentencing, Petitioner had cooperated with the government. Consequently, he received a more lenient sentence than he otherwise would have been given. Unlike Petitioner, Petitioner's roommates received prison time for their role in the conspiracy. Petitioner has successfully completed the house arrest portion of his sentence. He has also paid his fine in full. He is still on probation, however. His probation is scheduled to end June 1, 2008. So far, he has been compliant with the terms and conditions of his probation. His probation officer has expressed to him her support of his efforts to obtain licensure as a real estate sales associate. Petitioner moved to Florida because he wanted a "new start." He is trying to "build a reputation" as a solid citizen. He is a member of a local church and is involved in civic and charitable activities in the community.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Florida Real Estate Commission issue a Final Order denying Petitioner's application for licensure as a real estate sales associate. DONE AND ENTERED this 20th day of December, 2006, in Tallahassee, Leon County, Florida. S STUART M. LERNER 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 20th day of December, 2006.
