Findings Of Fact In December, 1984, Petitioner, a black female, began employment with the Respondent. The Petitioner was hired for two positions. In one position, the Petitioner was employed as a (40 percent FTE) Cook, working 40 percent of a full time 40 hour work week, or 16 hours weekly. In the other position, the Petitioner was employed as an "on-call" Mental Health Technician I. The Mental Health Technician employment was an OPS (other personnel services) position with no regularly scheduled working hours. Her place of employment was the geriatric residential treatment system (GRTS) center at Bristol, Florida. On July 11, 1986, the Petitioner was transferred from the OPS Mental Health Technician position to a (50 percent FTE) Mental Health Technician position. In the new position, which entailed completion of a six month probationary period, the Petitioner worked 50 percent of a full time 40 hour work week, or 20 hours weekly. Combined with the job as Cook, Petitioner was employed for 36 hours weekly. At some point prior to the end of 1986, the Petitioner wrote to Ronald Kirkland, executive director for the Respondent. The Petitioner apparently felt that she was the subject of discrimination. The Petitioner demanded that Mr. Kirkland meet with her. She was advised to proceed in accordance with the Apalachee Center's personnel grievance procedure. Assistance in filing a grievance was offered to her, but she refused and continued to demand that Mr. Kirkland personally meet with her. The demand was rejected. In January, 1987, the Petitioner was informed that her job performance in the Mental Health Technician position was not satisfactory. At a meeting, held January 20, 1987, the Petitioner was given a memorandum (dated January 12, 1987) detailing a number of issues which were the basis for her unsatisfactory evaluation. (R-1) Such issues generally included disagreements over working hours, noncooperation with coworkers and abusiveness towards the Program Supervisor. The Petitioner acknowledged the memorandum, and stated that she believed it to be "unreasonable." Due to the unsatisfactory nature of her performance, the probationary period was extended for three months. At the end of the three month extension, in April, 1987, she was again evaluated. She received an above satisfactory evaluation in all categories except attitude, which was satisfactory. By March, 1987, the Respondent had determined that problems existed with the day treatment program at the Bristol GRTS facility and began planning to fully evaluate the operation. The Petitioner was working in the day treatment program. Laura Harris, Day Treatment Coordinator for the Respondent, was assigned to perform the review by Dr. William Perry, Respondent's Director of Geriatric Services. The process began in April, 1987. The staff of the Bristol GRTS facility was notified that the review was being performed and that Ms. Harris would be visiting at specific times to observe their performance. Ms. Harris requested that each day treatment staff person prepare four activities for GRTS clients and attempted to schedule times to observe the staff's presentation of the activities. The Petitioner failed to respond to Ms. Harris' request and did not schedule activity observation sessions. Eventually, Ms. Harris attended one of the Petitioner's activities periods without providing advance notice. Other day treatment staff were responsive to Ms. Harris' requests and cooperated with her suggestions. The Petitioner was not cooperative. The review period continued through August, 1987. On May 5, 1987, the Petitioner resigned from her position as Cook, effective May 18, 1987, and advised her program supervisor that she was available for additional employment as an OPS Mental Health Technician. The Petitioner's requested additional employment would have been during the evening, night and weekend shifts. The request was based on the departure, several weeks earlier, of the person employed as the 11:00 p.m. to 7:00 a.m. Mental Health Technician. The 11:00 p.m. to 7:00 a.m. shift is less popular and more difficult to staff than other work periods. Janey Hall, a black female, is the Bristol GRTS supervisor responsible for securing staff coverage for the evening shifts. The OPS evening shift assignments were generally rotated among staff members. However, due to the difficulty in staffing the 11:00 p.m. to 7:00 a.m. shift, Ms. Hall proposed assigning the coverage to a single individual. The proposal was approved by the Bristol GRTS program supervisor and by Dr. Perry. Ms. Hall selected Penny Mize, a white female, to work the 11:00 p.m. to 7:00 a.m. shift until a permanent employee was hired for the shift. Ms. Mize began working the shift immediately upon the departure of the former employee. There were occasions when black employees filled in for Ms. Mize. As to the Petitioner's request for additional employment hours, the Respondent's supervisory staff was concerned about the Petitioner's ability to successfully respond to the demands of evening, night and weekend shifts. Those shifts provide less supervision of employees than does the day shift. Due to previously noted problems with the Petitioner's job performance, as reported to Dr. William Perry, it was determined that the Petitioner required greater supervision than was available to her on the OPS shifts. Accordingly, her request for additional OPS hours was rejected on May 13, 1987, by Dr. Perry. On May 21, 1987, the Petitioner filed a complaint with the Florida Commission on Human Relations, FCHR No. 87-3619, alleging that the denial of her request for OPS hours as a Mental Health Technician was based on racial discrimination. The Petitioner alleged that Ms. Mize, a white employee, was permitted to work the additional hours, 11:00 p.m. to 7:00 a.m. There was no evidence presented by the Petitioner which would indicate that the denial of her request for the additional hours was racially motivated or based on any factor other than her job performance and the decision to limit her employment to more closely supervised shifts. Subsequent to the Petitioner's filing of FCHR 87-3619, Laura Harris completed the review of the Bristol GRTS facility. Based upon her review she prepared an evaluation of the Petitioner's job performance and a corrective action plan which specified steps the Petitioner was directed to complete in order to continue her employment and improve her job skills, both dated August 26, 1987. (R-3, R-4). The evaluation was severely critical of the Petitioner's attitude, and her unwillingness to work towards improving her interaction with co-workers and facility clients. The evaluation recommended that her employment "be terminated immediately". The Petitioner received the documents on September 10, 1987. Her written comments on the documents indicate that she disputed Ms. Harris' evaluation, and noted that she alone was being required to comply with the corrective action plan. However, the plan was related to the lack of effort and cooperation the Petitioner demonstrated during the Harris review. Other employees, black and white, were cooperative and no other corrective action plans were necessary. During the summer of 1987, the Respondent determined that additional assistance in providing nursing services to Bristol GRTS clients was required. The Respondent initiated establishment of a part-time Licensed Practical Nurse position and decided to delete the Petitioner's Mental Health Technician position to fund the new LPN. On October 15, 1987, the Petitioner was advised by Dr. Perry that the Mental Health Technician position was being eliminated to provide for the LPN position. Dr. Perry proposed to the Petitioner that she accept a position as Cook which would provide 32 hours weekly employment. The Petitioner's period of employment as Cook had been satisfactory. The Petitioner did not agree or refuse to accept the position, but said she would consider it. On October 26, 1987, Laura Harris prepared a follow-up evaluation to the corrective action plan of August 26, 1988. Ms. Harris noted improvement in the Petitioner's performance, although there were substantial problems remaining. Apparently, unaware that the Petitioner's Mental Health Technician position was being eliminated to provide for an LPN position, Ms. Harris recommended that the Petitioner be reevaluated on November 30, 1987. On October 27, 1987, Dr. Perry contacted the Petitioner and informed her that she would be transferred to the Cook's position and that her salary as Cook would remain at the same level as her Mental Health Technician salary, causing no reduction in her rate of pay as could have occurred. The following day, Dr. Perry met with the Petitioner and reiterated the proposal. There was no response from the Petitioner. On November 12, 1987, Dr. Perry delivered a letter, dated November 2, 1987, from Mr. Kirkland, executive director of the Respondent, confirming the prior discussions between Dr. Perry and the Petitioner. The letter stated that her employment as Mental Health Technician would cease on November 12, 1987, and that she would be paid for two additional weeks in lieu of notice. Alternatively, the letter stated that she could begin employment in the Cook's position on November 13, 1987. At the time the letter was delivered, the Petitioner stated that, due to the lack of child care availability, she could not begin the Cook's job on November 13. Dr. Perry suggested she begin on November 16, but the Petitioner refused. The Petitioner's employment at the Bristol GRTS facility concluded on November 12, 1987. In December, 1987, she filed a complaint with the Florida Commission on Human Relations, FCHR 88-1288, alleging that the elimination of her position as Mental Health Technician was in retaliation for the filing of her earlier complaint. There was no evidence that the Respondent's decision to employ an LPN instead of a Mental Health Technician was in retaliation for the earlier complaint or based on any consideration other than to better provide nursing care to the elderly clients of the Bristol GRTS facility. The evidence indicates that the decision to eliminate the Petitioner's position, rather than the position of another Mental Health Technician, was based on the Petitioner's poor job performance during the Harris evaluation period and was made without regard to the earlier complaint. Although at the hearing, the Petitioner repeatedly accused the Respondent's witnesses of perjured testimony, there is no evidence to support the accusation.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter final orders dismissing the Complaints and Petitions for Relief in FCHR Cases No. 87-3619 and 88-1288. DONE and ENTERED this 21st day of December, 1988, in Tallahassee, Florida. WILLIAM F. QUATTLEBAUM Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 21st day of December, 1988.
The Issue The issue for determination in this proceeding is whether Respondent committed the acts alleged in the administrative complaint and, if so, what, if any, disciplinary action should be taken against Respondent's license.
Findings Of Fact Petitioner is the state licensing and regulatory agency charged with the responsibility to prosecute administrative complaints pursuant to the laws of the State of Florida. Respondent is now and has been at all times material to this proceeding a licensed physician in the state, holding license number ME 0028480. A Final Order was filed against Respondent in Department of Professional Regulation v. Roger Lopez, M.D., Department of Professional Regulation Case No. 0070692 on August 26, 1988. The Final Order was entered in accordance with the terms of a stipulation executed by Petitioner and Respondent. Respondent's license was suspended for six months, and Respondent was placed on probation from March 5, 1989, through March 4, 1994. Respondent was properly served a copy of the Final Order. Respondent was required by the terms of the Final Order to practice under the direct supervision of a physician approved by the Board of Medicine (the "Board") and to appear before the Probation Committee whenever requested to do so. Respondent violated the terms of the Final Order by failing to appear before the Probation Committee and by failing to name a monitoring physician to supervise him during his probation. By letter dated August 29, 1989, Respondent was requested by the Board to appear before the Probation Committee at its regularly scheduled meeting on September 20, 1989, and to submit a curriculum vitae for a proposed supervising physician. Respondent acknowledged the Board's request in a letter to Petitioner dated August 31, 1989. Respondent failed to appear before the Probation Committee and failed to designate a monitoring physician.
Recommendation Based upon the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that Petitioner should enter a Final Order finding Respondent guilty of the allegations in the Administrative Complaint, issuing a reprimand, imposing an administrative fine in the amount of $5,000, suspending Respondent's license until March 4, 1994, and requiring Respondent to demonstrate to the Board no later than March 4, 1994, his ability to practice medicine with the skill and safety required under applicable statutes and rules. DONE and ENTERED this 23rd day of October 1991, in Tallahassee, Leon County, Florida DANIEL MANRY 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 23rd day of October, 1991.
Findings Of Fact Based on the evidence offered at the formal hearing in this case, the following facts are found: The Petitioner, Elizabeth R. Hillegas, took the Mental Health Counselor licensure examination administered on April 21, 1989. The Petitioner's examination was given a failing grade. The Petitioner needs to receive credit for correct answers on at least two more questions in order to be entitled to a passing grade. The Petitioner's answers to questions 8, 17, and 33 on the subject examination were incorrect. 2/ All three of the challenged questions, namely questions 8, 17, and 33, inquire as to matters which are part of the basic training in the field of Mental Health Counseling or matters which are crucial to competent practice in the field of Mental Health Counseling. The challenged questions ask about matters which should be known by a competent Mental Health Counselor. Therefore, the challenged questions are within the appropriate subject matter domain for a licensure examination for the profession of Mental Health Counselor. 3/
Recommendation For all of the foregoing reasons, it is RECOMMENDED that the Board of Mental Health Counselors issue a final order in this case dismissing the Petition and assigning to the Petitioner a failing grade on the April 21, 1989, Mental Health Counselor licensure examination. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 25th day of May 1990. 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 25th day of May 1990.
The Issue The issue in this case is whether the Petitioner’s application for relicensure as a mental health counselor should be granted or denied.
Findings Of Fact The Petitioner was licensed as a psychologist in the State of New Jersey from May 14, 1979, until May 29, 1996. While so licensed, the Petitioner engaged in private practice as a psychologist in New Jersey where he engaged individual, family, and group therapy. On October 16, 1995, the Petitioner’s license to practice psychology in New Jersey was suspended pursuant to a Consent Order. The suspension was based on allegations of extensive insurance fraud perpetrated by the Petitioner during the course of his practice of psychology in New Jersey. Following the suspension of his license, the Petitioner continued to practice psychology in New Jersey by continuing to see patients and continuing to provide therapy. On May 28, 1996, the Petitioner pled guilty to one count of conspiracy and to one count of theft by deception in New Jersey Superior Court, Criminal Division. The criminal charges to which the Petitioner pled guilty resulted from the Petitioner’s having engaged in a scheme in his psychology practice whereby he would submit claims for payment to insurance companies, and would receive payments for those claims from insurance companies, for patients he did not see and/or for treatments he never rendered. The criminal court that convicted the Petitioner ordered the Petitioner to pay restitution in the amount of $2,793,656.70 and sentenced the Petitioner to a prison term of five years and six months. Ultimately, the Petitioner was required to serve only seven months in prison. The Petitioner has repaid a substantial amount of the restitution, but he still owes approximately $600,000.00 in unpaid restitution. On May 29, 1996, the New Jersey State Board of Psychological Examiners issued a Final Order which, among other things, revoked the Petitioner’s license to practice psychology in New Jersey. On June 27, 1996, the Superior Court of New Jersey in Case No. C-225-96 issued a Final Order and Judgment and Permanent Injunction against the Petitioner. That order permanently enjoined the Petitioner from engaging in the practice of psychology in any setting and also ordered the Petitioner to reimburse the patients he had treated while his license was suspended. On May 25, 1994, the Petitioner was advised by letter that he had successfully completed the requirements to be eligible for licensure in Florida as a mental health counselor. Shortly thereafter the Respondent received his license to practice as a mental health counselor in Florida. The Petitioner was licensed in Florida as a mental health counselor from mid-1994 until July 16, 2001. On July 16, 2001, the Florida Board of Clinical Social Work, Marriage and Family Therapy and Mental Health Counseling entered a Final Order revoking the Petitioner’s license to practice mental health counseling in Florida. The revocation order was based on an Administrative Complaint which alleged that the Petitioner had violated Sections 491.009(2)(b) and 491.009(2)(c), Florida Statutes, by reason of the revocation of his New Jersey license to practice psychology, and by reason of his criminal conviction in New Jersey of a crime that directly related to the practice of mental health counseling. The profession of psychologist and the profession of mental health counseling are comparable professions.2 The Petitioner has not completed a minimum of three semester hours or four quarter hours of graduate level coursework on the subject of substance abuse. The Petitioner has not completed a minimum of three semester or four quarter hours of graduate level coursework on the subject of legal, ethical, and professional standards.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling enter a final order denying the Petitioner’s application for licensure as a licensed mental health counselor. DONE AND ENTERED this 28th day of June, 2005, in Tallahassee, Leon County, Florida. S MICHAEL M. PARRISH 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 28th day of June, 2005.
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: Question 7 Question 7 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 1 as the answer to this question. The vendor who prepared the examination for the Department determined that No. 4 was the correct answer. Because she did not have No. 4 as her answer, Petitioner was not given any credit for Question 7. While No. 4 is a correct answer to Question 7, so is No. 1, the answer selected by Petitioner. Compared to preadolescents, the moral judgments of adolescents are more susceptible to "prestige suggestion," Petitioner should therefore receive credit for her answer to Question 7. Question 30 Question 30 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 30. Petitioner was properly denied credit for this answer. Of the symptoms/traits listed, the one she selected is not the one most characteristic of chronic drug abuse. Those described in No. 3, as well as in No. 2, are more common. Question 68 Question 68 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 2 as the answer to this question. The vendor determined that No. 1 was the correct answer. Because she did not have No. 1 as her answer, Petitioner was not given any credit for Question 68. Petitioner was properly denied credit for this answer. Of the choices given, the one selected by Petitioner does not represent the most useful way for a counselor to handle the prejudice referenced in the question stem. A counselor may encounter clients whose morals, customs, and/or behavior arouse prejudice in the counselor, notwithstanding that there are no cultural differences between these clients and the counselor. Accordingly, learning as much as possible about various cultures will not be helpful to the counselor in handling such prejudice. The correct answer to Question 68 is No. 1. Self-awareness on the part of the counselor is essential to effective counseling. It is imperative that a counselor remain objective and not respond to the client on the basis of bias or prejudice. Question 69 Question 69 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 69. While No. 3 is a correct answer to Question 69, so is No. 4, the answer selected by Petitioner in counseling drug abusers, limit setting, or what is commonly known as "tough love," is generally more effective than approaching the client with sympathy and gentleness. Petitioner should therefore receive credit for her answer to Question 69. Question 85 Question 85 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 2 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as her answer, Petitioner was not given any credit for Question 85. Petitioner was properly denied credit for this answer. A counseling session may be effective even though the client is upset upon leaving. The correct answer to Question 85 is No. 3. The mark of a skillful counselor is the ability to recognize the significance of minor or subtle changes in the client's conduct during the counseling session. Question 94 Question 94 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 4 as the answer to this question. The vendor determined that No. 2 was, the correct answer. Because she did not have No. 2 as her answer, Petitioner was not given any credit for Question 94. While No. 2 is a correct answer to Question 94, so is No. 4, the answer selected by Petitioner. Indeed, No. 4 is essentially the same answer as No. 2. They are simply worded differently. Petitioner should therefore receive credit for her answer to Question Question 99 Question 99 was received into evidence as part of Joint Exhibit 4. Petitioner selected No. 1 as the answer to this question. The vendor determined that No. 3 was the correct answer. Because she did not have No. 3 as answer, Petitioner was not given any credit for Question 99. Petitioner was properly denied credit for this answer. A couple that has been referred to a counselor for sexual problems should not be referred to a physician for medical work-ups before the counselor has met with the couple to find out more about the nature of the couples's difficulties. Accordingly, the correct answer to Question 99 is not No. 1, but No. 3.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling sustain Petitioner's challenge to the grading of her answers to Questions 7, 69 and 94 on Part II of the April, 1990, Mental Health Counseling Examination, reject her challenge to the grading of the remaining questions at issue, and modify her score on the examination accordingly. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 22nd day of November, 1991. STUART M. LERNER 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 22nd day of November, 1991. APPENDIX TO RECOMMENDED ORDER IN CASE NO 91-0650 The following are the Hearing Officer's specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings of Fact To the extent that it states that Petitioner's answers to Questions 7, 69 and 94 are correct and that she therefore should receive credit for these answers, this proposed finding has been accepted and incorporated in substance in this Recommended Order. To the extent that it states that her answers to Questions 30, 68, 85 and 99 are correct and that she therefore should receive credit for these answers, this proposed finding has been rejected because it is contrary to the greater weight of the evidence. Rejected because it is not supported by persuasive competent substantial evidence. Respondent's Proposed Findings of Fact 1-17. Accepted and incorporated in substance. 18-19. Rejected because they would add only unnecessary detail to the factual findings made by the Hearing Officer. Accepted and incorporated in substance. Rejected because it constitutes, not a finding of fact, but a statement of the opposing party's position regarding Question 30. 22-24. Accepted and incorporated in substance. 25-26. Rejected because they are contrary to the greater weight of the evidence. The preponderance of the evidence establishes that the concept of "prestige suggestion" incorporates the notion of peer identity and influence. 27. Rejected because it is irrelevant and immaterial. It matters not why an applicant selected a answer, if that answer is correct. 28-29. Rejected because they are contrary to the greater weight of the evidence. 30-33. Accepted and incorporated in substance. COPIES FURNISHED: Diane M. Kirigin, Esquire 2428 Broadway P.O. Box 9936 Riviera Beach, Florida 33419 Roberta L. Fenner, Esquire Department of Professional Regulation 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Diane Orcutt Executive Director Board of Clinical Social Work, Marriage and Family Therapy, and Mental Health Counseling 1940 North Monroe Street Tallahassee, Florida 32399-0792 =================================================================
The Issue The issue is whether Petitioner is qualified to take the examination for licensure as a mental health counselor.
Findings Of Fact Petitioner executed an application for licensure as a mental health counselor on June 13, 1989. He filed the application with the Board of Clinical Social Workers, Marriage & Family Therapists, and Mental Health Counselors on July 6, 1989. The application was accompanied by the appropriate fee and disclosed that Petitioner satisfied all of the educational requirements for taking the examination. However, Respondent determined that the application was incomplete because Petitioner failed to show that he had had the requisite clinical experience under the supervision of a qualified person. By letter dated July 17, 1989, Respondent informed Petitioner that his application was incomplete pending receipt of, among other things, documentation of the requisite clinical experience under the supervision of a qualified person. A second letter dated January 17, 1990, from Respondent to Petitioner restated that the application was still missing the items set forth in the prior letter. By Order of Intent to Deny filed April 12, 1990, Respondent informed Petitioner that it was denying his application on the grounds set forth above. Petitioner obtained a master's degree in clinical psychology from the University of Central Florida on December 20, 1985. From October 4, 1985, through October 20, 1988, Petitioner worked full- time as a psychological specialist at the Polk Correctional Institution under the supervision of Gerd Garkisch, Ph.D., who was head of the mental health department at the prison. Petitioner's work qualifies as clinical experience in mental health counseling. Dr. Garkisch does not hold any Florida professional licenses, such as a mental health counselor or psychologist. He is not so licensed in any other state, although he is licensed as a psychologist in Puerto Rico. Dr. Garkisch does not meet the education criteria required for licensure as a mental health counselor. Dr. Garkisch earned a master's degree in clinical psychology, which would otherwise satisfy the educational requirement for licensure as a mental health counselor. However, he received his degree from the Pontifical Catholic University of Rio Grande do Sul, Institute of Psychology, which is located in Brazil. The school is not accredited by an accrediting agency approved by the U.S. Department of Education, Council on Postsecondary Accreditation, or Association of Universities and Colleges of Canada.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Professional Regulation deny Petitioner's application for licensure as a mental health counselor. ENTERED this 11th day of October, 1990, in Tallahassee, Florida. ROBERT E. MEALE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 11th day of October, 1990. COPIES FURNISHED: Kenneth E. Easley General Counsel Department of Professional Regulation 1940 North Monroe Street Tallahassee, FL 32399-0792 Linda Biederman, Executive Director Board of Mental Health Counseling 1940 North Monroe Street Tallahassee, FL 32399-0792 Vytas J. Urba, Staff Attorney Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Suresh Paul Pushkarna, pro se 309 Hidden Hollow Court Sanford, FL 32773
Findings Of Fact After surgery on his shoulder, petitioner found it painful to lift sacks of fertilizer and the like at the nursery where he was employed, so he left his job and sought help at respondent's Orlando office. Albert Michael Tester, a counselor in respondent's employ, caused petitioner's shoulder to be evaluated by a physician and arranged for vocational testing. Presented with various vocational options, petitioner chose a two year paralegal training program at Valencia Community College. Beginning April 26, 1977, respondent paid for petitioner's books and tuition and paid petitioner $10.00 weekly toward transportation expenses incurred in getting to and from school. Petitioner's counselor also found a job for petitioner, as a child care worker at the Orange Regional Juvenile Detention Center. Petitioner testified that the $10.00 weekly transportation "maintenance" he had been receiving ceased when he began work. Petitioner held down the job and did well in school until he left both in January of 1978. Petitioner had consulted two physicians before he left off working and quit school in January of 1978. Petitioner testified that one, Dr. Samano, told him he should cut something out; but that the other, Dr., Tew, told him he need not cut out anything. At the time of the hearing, petitioner had not been employed since January 23, 1978. After dropping out of the paralegal program, petitioner suggested to his counselor that respondent set him up in a woodworking shop as a means of vocational rehabilitation. Mr. Tester advised petitioner that, in all likelihood, this request would not be granted. In mid-February, petitioner and a legal services representative met with Charles May, Mr. Tester and other employees of respondent. When informed that the rules did not seem to authorize setting petitioner up in business, petitioner's representative asked that a final determination be postponed pending a medical evaluation of petitioner. Respondent agreed to order a series of diagnostic tests to evaluate petitioner's psychiatric condition and to access the effects of petitioner's essential hypertension. Respondent had been advised as early as August of 1977, that petitioner's shoulder "should not be disabling to any degree or restrict him from activity of choice." Respondent's exhibit No. 7. Petitioner's counselor arranged for petitioner to receive four weeks' "diagnostic maintenance" and suggested he use his spare time to gather information about establishing a woodworking business. By letter dated May 8, 1978, respondent formally notified petitioner that it was "unable to meet [his] request to assist [him] in self- employment." Respondent's exhibit No. 5. On or about June 16, 1978, respondent sponsored petitioner in the photography program in which he was involved at the time of the hearing. This sponsorship has included maintenance payments. At no time before filing the petition in the present case did petitioner request any maintenance benefits. Respondent's "Rehabilitation Services Manual" provides: "Maintenance may only be provided when supportive of other vocational rehabilitation services." Respondent's exhibit No. 9. Respondent's "Vocational Rehabilitation Counselor Manual" provides: "Maintenance will be provided a client only if it is necessary for him to derive full benefits from other services being provided." Respondent's exhibit No. 8. Neither manual has been promulgated as a rule.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That respondent deny petitioner's request for back maintenance payments. DONE and ENTERED this 27th day of March, 1979, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William R. Barker, Esquire 128 West Central Boulevard Orlando, Florida 32802 Douglas E. Whitney, Esquire Room 912, 400 West Robinson Orlando, Florida 32801
The Issue By agreement of the parties, the issues to be resolved herein are as follows: Whether or not Alachua County denied Petitioner promotion to the position of Drug Counselor II because of her race (black) over her white counterpart. Whether Alachua County denied Petitioner promotion to the position of Victim Advocate Director and revised the position qualifications to preclude Petitioner because of her race (black). If either of these issues were resolved in Petitioner's favor, Alachua County would be guilty of an unfair employment practice pursuant to the Florida Human Rights Act of 1977, as amended [Section 760.10 et seq. F.S.].
Findings Of Fact Petitioner is a black female. She was 41 years of age at the time of formal hearing. Between April 20, 1984 and approximately April 30, 1989, Petitioner was employed by Metamorphosis. Metamorphosis is an organization that was part of the Alachua County Department of Corrections. The Alachua County Department of Corrections was subsequently renamed the Department of Criminal Justice. Petitioner initially was hired as a Drug Counselor I. Metamorphosis' primary goal is to provide long-term, multi-disciplinary treatment and rehabilitation for chronic substance abusers. It accepts only adults with an on-going history of substance abuse with any drug, other than alcohol, as the primary addictive agent. The program's main goal is to help such people become socially functional again. Petitioner initially testified that she had applied for the position of Drug Counselor II on six separate occasions, but testified in detail to only five. Petitioner never received the position of Drug Counselor II. Petitioner professed that she first applied for the Drug Counselor II position in October 1984, approximately six months after she began employment as a Drug Counselor I. However, Petitioner's Alachua County personnel file, which is required to be kept intact for 75 years, does not contain any application by Petitioner for the position of Drug Counselor II in 1984. Petitioner first stated that she was interviewed for the Drug Counselor II position in 1984 by James Whitaker, a white, and Ed Royal, a black. Petitioner later testified that Jim Whitaker and Scott Simmons, a black, interviewed her in 1984. Mr. Simmons did not testify. Mr. Royal did not testify. Mr. Whitaker did not confirm interviewing Petitioner for the Drug Counselor II position in 1984, but he stated that he had participated with Ed Royal in the hiring interview for Petitioner when she was initially hired as a Drug Counselor I from outside the program approximately April 20, 1984. The Drug Counselor II position was filled in 1984 by James Santangelo, a white, who was hired from outside the program to begin work in 1985. Historically, the Drug Counselor II positions within Metamorphosis were the senior therapist positions which required background in community clinical therapy. Petitioner's qualifications for Drug Counselor II as of 1984 were as follows: She received of Bachelor of Science Degree in Criminal Justice from Florida Memorial College in Miami with a minor in Urban Services. She had acted as Vice-president of the Board of Directors for Sexual Abuse Resources Center and was also a public speaker for the Commission on "status of women family violence". At the time Petitioner allegedly applied for the position of Drug Counselor II in 1984, she had been a Drug Counselor I for approximately six months. As Drug Counselor I, Petitioner had counseled individually and in groups, facilitated therapeutic and pre-vocational groups, supervised clients in employment training, vocation, and mock job interviews. She assisted in the intake process and coordinated and provided recreational activities for the clients. She distributed medication to the residents, handled negative attitudes of residents, monitored urinalysis testing, wrote letters to probation officers and judges, kept records, and maintained files for residents, and other work-related duties. Petitioner completed intake interviews, qualified individuals for acceptance or denial into the Metamorphosis Program, supervised and conducted structured groups, trained Drug Counselor Aides for the night shift, signed-off on clients' psycho/social evaluations, and assisted newly hired Drug Counselor II's. James Santangelo, who received the Drug Counselor II position in 1984, had qualifications as follows: Prior to coming to Metamorphosis, he worked for five years in a forensic mental hospital, the North Florida Evaluation and Treatment Center (NFETC). Four of those five years he was a therapist supervisor in a psychiatric unit. He ran therapy groups, scheduled concerns with the staff, held individual sessions with clients, taught adjunctive therapies to the clients, such as stress management, anger management, and drug abuse techniques. Prior to that, he was a school teacher. Santangelo received a Bachelor of Arts with honors from the College of Education at the University of Florida, majoring in psychology. Santangelo also served as an outreach worker for the Alachua County School Board from January through June 1978. In this position he was the first person to contact families whose children were having problems with truancy or whose children were suspected of being victims of child abuse or neglect. He also had an employment history of extensive special skills. Mr. Santangelos's qualifications for the Drug Counselor II position were superior to Petitioner's in 1984, if, indeed, she applied in that year. Petitioner professed that the second time she applied for the Drug Counselor II position was in 1986, when she had approximately two years experience as a Drug Counselor I within the Metamorphosis program. Again, neither Petitioner nor Respondent (by way of Petitioner's personnel file) had any copy of such an application. Petitioner testified that she was interviewed for the position of Drug Counselor II in 1986 by either Jim Whitaker and James Santangelo or by Jim Whitaker and Ed Royal. Neither Whitaker nor Santangelo confirmed that an interview of Petitioner for Drug Counselor II occurred in that year. Ed Royal did not testify, but it was shown that Ed Royal, a black, actually made the appointment of Tootie Richey, a white female, to the Drug Counselor II position which was open in 1986. Ms. Richey was hired from outside the program. Petitioner had "heard" Ms. Ritchey was a licensed clinical social worker but actually had no way of comparing her own qualifications with Ritchey's. Sometime in 1986, the State of Florida had established a means by which persons working with addiction rehabilitation could become "Certified Addiction Professionals" (CAPs) if they had a college degree, or "Certified Addiction Associate Professionals" (CAAPs) if they did not have a college degree. Mr. Whitaker became a CAAP in 1986 and Santangelo became a CAP in 1987. Petitioner never received such certification. In 1987, Metamorphosis was somewhat restructured so that Drug Counselor II positions became supervisory positions in the program. There were then two Drug Counselor II positions. One Drug Counselor II would supervise the Drug Counselor I's and the other Drug Counselor II would supervise the Drug Counselor Aides. Petitioner's first documented application is dated February 2, 1988. She was applying at that time for a position as an Evaluation Rehabilitation Case Worker I, not Drug Counselor II. Petitioner was referred for that position as a qualified candidate, but Edward Woodbury, also black, was selected for that position. In her testimony, Petitioner professed to have applied for Drug Counselor II, Rehabilitative Case Worker, and Program Coordinator by way of "Applicant Update Sheets" filed on June 27, 1988, October 4, 1988 and November 29, 1988. The greater weight of the credible evidence shows that Petitioner's June 27, 1988 application (P-1) was for promotion to be Program Coordinator of the Metamorphosis Program. This document, filled out at that time entirely by Petitioner, asserts that she had previously applied for Rehabilitation Case Worker and Drug Counselor II, but does not state when she applied. At that time, Jim Whitaker, a white, was the Program Coordinator. During the 1987 reorganization, the Program Coordinator position had been changed from clinical duties to administrative duties which Whitaker did not want to do and did not feel capable of handling. Whitaker therefore requested a "downward promotion" from Program Coordinator to some clinical position. Since there was no vacant clinical position (either as Drug Counselor II or otherwise) in the program, the Alachua County Personnel Director, Colleen Hayes, suggested that the position of Program Coordinator be posted as needing to be filled but that the job posting be made only within the Metamorphosis program itself so that only Metamorphosis staff would be allowed to apply. Ms. Hayes further suggested that when the promotional decision was made, Whitaker should be allowed to go into the lower position vacated by whatever Metamorphosis staff member was promoted into the Program Coordinator position currently held by Whitaker. It was understood that Whitaker would suffer no decrease in pay in the lower position of Drug Counselor II. Ms. Hayes' suggestion was followed, and ultimately, James Santangelo, then a Drug Counselor II, was selected to replace Whitaker as Program Coordinator. Whitaker exercised his option to take Santangelo's vacated Drug Counselor II position. Contrary to Petitioner's testimony, Santangelo's Drug Counselor II position was never advertised nor open to competitive interviewing at that time, and therefore there was no Drug Counselor II position vacant for which Petitioner could have applied. However, Mr. Whitaker's qualifications for the Drug Counselor II position were clearly superior to Petitioner's, anyway. At the time of Whitaker's "downward promotion," Whitaker's qualifications (for Drug Counselor II) included 15 years of experience on the Metamorphosis staff, beginning on October 14, 1974, as an entry level Drug Counselor I on night shift for one and a half years. He had served on the day shift for one year and then been promoted to Drug Counselor II where he had served until 1976. He had life experience as a drug abuser, including 13 months of Metamorphosis residential care for drug abuse, which was and is considered very valuable in a drug addiction counselor. He also had, over time, worked every shift, every level of group with every client from clients #86 to #1100 sequentially, and with every staff person in Metamorphosis to that date. Whitaker also had been Program Coordinator from 1978 to 1988. At the time of Whitaker's "downward promotion," Santangelo's qualifications for Program Coordinator included all of those set out supra in Finding of Fact 11, plus approximately two years as a Drug Counselor II. By the time of Whitaker's "downward promotion", both Whitaker and Santangelo had been state certified through examination. (See Finding of Fact 15). At the time of Whitaker's "downward promotion", Petitioner had the same qualifications set out supra in Finding of Fact 10, plus an additional two years as a Drug Counselor I. She was not state certified as an addiction professional. By comparison, James Santangelo's qualifications for the Metamorphosis Program Coordinator position were clearly superior to those of Petitioner. Also, the record reflects no persuasive evidence that Respondent's downward transfer process, which on this occasion accommodated Mr. Whitaker, was contrary to, or unique within, the standard operating procedure of the Respondent's personnel department. There likewise is no persuasive evidence that the downward transfer process required the promotion of a Drug Counselor II (Santangelo) over a Drug Counselor I (Petitioner) into the Metamorphosis Program Coordinator position, so as to be "rigged" to prohibit Petitioner, as a minority employee, from being promoted. The greater weight of the credible evidence shows that Petitioner next applied for a Drug Counselor II position on October 4, 1988 (P-2). That document, made out solely by Petitioner, asserts she previously applied for Drug Counselor II and Program Coordinator without stating any dates. Lennard Perry, a black, who was seeking a downward transfer from Evaluation and Rehabilitation Case Worker I was ultimately hired for the Drug Counselor II position, but he was hired on a competitive basis. Petitioner's November 29, 1988 "Applicant Update Sheet" (P-3), again made out solely by herself, asserts she had previously applied for the Drug Counselor II position in September 1988. There is no documentary evidence of any kind of September 1988 application by Petitioner. Petitioner herself testified that the Drug Counselor II position was unfunded after her first 1988 application and then stated it was unfunded after her third 1988 application. This confusion may account for her saying at one point that she had applied for Drug Counselor II six times. However, Respondent's witnesses were credible and persuasive that the Drug Counselor II position was phased out after Petitioner last applied due to lack of funding and further reorganization. In making the foregoing findings of fact, the undersigned has rejected the testimony of Petitioner and Warren A. McCluney that a white man named Alan Pappas ever filled the Drug Counselor II position after any of Petitioner's 1988 applications. Their unsupported testimony on this issue is not probative that Alan Pappas was ever employed full-time and paid by Metamorphosis, even though Mr. McCluney stated that he saw Mr. Pappas receive a paycheck at the same time Mr. McCluney himself did. Mr. McCluney did not specify that the check Pappas allegedly received was a Metamorphosis or county check. He also testified that Mr. Pappas was only present at Metamorphosis for nine months during 1987, and that period bears no relationship to Petitioner's not being promoted in 1988. Other witnesses clearly testified that Mr. Pappas never worked for Metamorphosis in any capacity at any time. There is no evidence or pleading of record to support Petitioner's allegations that she filed any formal discrimination claim before 1988. The position of Victim Advocate Director was advertised by posting of the job description from February 13 to February 17, 1989. Petitioner applied for the position on February 16, 1989. Respondent received so few applicants in response to the February 1989 Victim Advocate Director job posting that the Respondent's Personnel Director feared the hiring procedure would be compromised. No one was hired for the Victim Advocate Director at that time. The dearth of applicants was believed to be the direct result of the low number of Victim Advocate Programs statewide so that, in turn, few people could meet the job position requirement of a minimum of one year's supervisory experience in a Victim Advocacy Program. It was ultimately decided to rewrite the minimum qualifications and re-advertise. At no time material did Petitioner have one year's supervisory experience in a Victim Advocacy Program. The only pertinent revision of the minimum position qualifications was that one year of supervisory experience in any related area was acceptable the second time the Victim Advocate Director position was advertised. The second time the Victim Advocate Director position was advertised, an applicant's supervisory experience did not have to be specifically in a Victim Advocate program. The job position revision was reviewed by Ida Rawls-Robinson, the Director of the Alachua County Equal Opportunity Office prior to publishing it. Ms. Rawls-Robinson, a black, approved the amended requirements because the amendment broadened the base of the pool of qualified people, thus inferentially making the position more accessible to minorities. Before the second job-posting, Petitioner received a letter dated April 14, 1989 from Personnel Director, Colleen Hayes, advising Petitioner that the job criteria for the position of Victim Advocate Director had been revised. In Colleen Hayes' April 14, 1989 letter, Petitioner was asked to complete the enclosed application update sheet if she felt she was still qualified after the revision of the minimum qualifications, but she did not do so. Instead, Petitioner forwarded a memorandum to Colleen Hayes to the effect that since her original application was less than six months old, Petitioner would not submit an application update in response to the revised job description, although she remained interested in the position. The second job-posting with the broadened minimum qualifications was posted from April 17 to April 29, 1989. Petitioner was not referred for the position of Victim Advocate Director because she did not have the minimum one year supervisory experience in the revised category either. The requirements had always required one year of supervisory experience in any event. The position of Victim Advocate Director was never actually filled by Respondent. It was ultimately moved to, and funded by, the State Attorney's Office.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Human Relations Commission enters a final order dismissing the petition for relief filed herein. DONE and ENTERED this 24th day of July, 1992, 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 24th day of July, 1992. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: 1 Covered under preliminary matters 2-5, 7-8, 17-18, 20-21 23-26, 29-39 Accepted 6, 9, 15-16, 19, 27-28 Accepted in substance but modified to more accurately reflect the record as a whole, to eliminate hearsay, and to describe and resolve the issues as raised by Petitioner. 22 Rejected as stated. Petitioner initially testified to this. Later, she professed that the budget cuts occurred after the third application. The RO reflects all reconciled, competent, credible evidence. Respondent's PFOF: Respondent waived filing posthearing proposals. COPIES FURNISHED: Bruce W. Smith, Esquire Post Office Box 450 Gainesville, Florida 32602 Mary Marshall, Esquire Alachua County Attorney's Office Post Office Box 2877 Gainesville, Florida 32602-2877 Margaret A. Jones, Clerk Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F Suite 240 Tallahassee, Florida 32303-4113
