The Issue The issue is whether Respondent committed an unlawful employment practice by discriminating against Petitioner in violation of Section 760.10, Florida Statutes (2002).
Findings Of Fact Petitioner is an African-American female. She has worked for Respondent in several positions since January 2000. Beginning on January 21, 2000, Petitioner worked as a student nutrition services assistant at Bonner Elementary School. She resigned on February 8, 2000, because she wished to seek an eight-hour per day position. On February 24, 2000, Petitioner began working as a custodian at Mainland High School. Soon thereafter, Petitioner required light-duty employment due to medical restrictions. She resigned her position on March 17, 2000, because Respondent did not have a position available that would accommodate her light-duty work requirements. On June 27, 2000, Respondent rehired Petitioner as a custodian at Holly Hill Middle School. On August 4, 2000, Petitioner resigned for personal reasons. Thereafter, Petitioner worked for Respondent as a substitute teacher. On April 18, 2002, Petitioner began working as a custodian at Silver Sands Middle School. She subsequently resigned the job due to a conflict with her supervisor. Thereafter, Petitioner worked for Respondent as a substitute custodian at Campbell Middle School. Petitioner never achieved permanent status in any of the above-referenced positions of employment. Instead, she resigned each of them while she was still on probationary status. During the summer of 2002, Respondent assumed responsibility for employment of the health support technicians (HST) that worked in Respondent's school health clinics. Prior to that time, the Volusia County Health Department had been responsible for employing the HST. When Respondent assumed responsibility for the employment of the HST, there were many vacancies in the school clinics. Catherine Ferguson, Respondent's Coordinator of Student Health Services, began interviewing applicants, conducting reference checks, and making hiring recommendations to Respondent's personnel department. Because Petitioner is licensed as a certified nurse's assistant (CNA), she applied for a position as an HST. On or about August 16, 2002, Respondent hired Petitioner to fill one of the vacant HST positions. Each school in the district, with the exception of alternative education sites, has some level of clinical medical or nursing staff. Staffing needs of the clinics are determined by the needs of the student body in each school. The student population may warrant either a full-time or part-time employee. An HST may be assigned to more than one school to fulfill the district's needs. If so, the HST will work three days per week in one school and two days per week in another school. As an HST, Petitioner's primary responsibility was to administer first aid and to dispense medication in school clinics. Her initial assignment was to Samsula Elementary School and Port Orange Elementary School. At all times relevant here, Don Olech was Principal of Samsula Elementary School. Because medication dispensing is an important issue, Mr. Olech took an active role in the clinic operations. He often took the time to personally care for the children, dispensing medicine and taking temperatures. On or about September 13, 2002, Petitioner made inappropriate and unprofessional comments about her sex life in the office at Samsula Elementary School. Petitioner made the comments to a member of the office staff in an area open to parents and students. At all times relevant here, Diane Hammond was Respondent's Nursing Supervisor. In a telephone call on September 13, 2002, Petitioner told Ms. Hammond that Petitioner did not feel welcome at Samsula Elementary School. Petitioner complained that a child with head lice had been sent back to class instead of being sent home. Additionally, Petitioner stated that she was uncomfortable because Mr. Olech was checking on her in the clinic. On September 19, 2002, Ms. Hammond met with Petitioner and Mr. Olech to discuss why Petitioner did not feel welcome at Samsula Elementary School. Petitioner explained that it bothered her for Mr. Olech to visit the clinic so often. On or about September 19, 2002, Ms. Hammond advised Petitioner that she would be assigned to work in the clinics at Port Orange Elementary and New Smyrna Middle School. Ms. Hammond explained that Petitioner was expected to assist in the clinics at other schools when requested to do so. Petitioner accepted the re-assignment. On September 24, 2002, Petitioner began working in the clinic at New Smyrna Middle School with another HST, Charlene Chastain. It was immediately apparent that Petitioner was not willing to do her share of the work. Petitioner was constantly eating or reading a book in the clinic. One of the students at New Smyrna Middle School had recently undergone a hernia operation. When he visited the clinic, Petitioner laughed out loud and made comments in the student's presence about his "nuts." Petitioner's unprofessional conduct in front of the student embarrassed Ms. Chastain. On September 26, 2002, Ms. Hammond visited Petitioner in the clinic at New Smyrna Middle School. Ms. Hammond reviewed Petitioner's responsibilities in general, including professional standards, food in the workplace, and paperwork. On September 27, 2002, Ms. Hammond visited the clinic at Port Orange Elementary School while Petitioner was on sick leave. Ms. Hammond confirmed complaints from Assistant Principal Cindy Fisher regarding the clinic's medication administration record (MAR). For example, there was no emergency care plan for a student with a peanut allergy. Ms. Hammond left a list of record corrections that Petitioner needed to make on the MAR. Petitioner was in the clinic at Port Orange Elementary School on September 30, 2002. During a telephone call to Ms. Hammond, Petitioner agreed to make the changes on the MAR. In the meantime, Principal Gary Marks informed Ms. Ferguson that he did not want Petitioner to return to New Smyrna Middle School due to her unprofessional conduct. Based on Mr. Mark's request and a need for an HST at Osceola Elementary School and Ortona Elementary School, Ms. Ferguson decided to assign Petitioner to work three days a week at Port Orange Elementary School, one day per week at Osceola Elementary School, and one day per week at Ortona Elementary School. On October 14, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner to counsel her on her performance. During the meeting, Ms. Ferguson advised Petitioner regarding appropriate discussions in the workplace, the need to limit telephone use to work-related business, and the prohibition against reading personal literature in the clinic. On October 15, 2002, Ms. Hammond checked the MAR at Port Orange Elementary School. Petitioner had not corrected all of the medication records. There were some remaining omissions in the MAR. Additionally, Petitioner had signed some records which required Ms. Hammond's signature as school nurse. During the visit to Port Orange Elementary School on October 15, 2002, Ms. Hammond noted that Petitioner had posted a lot of religious material on the walls of her desk area. Ms. Hammond left Petitioner a list of things she needed to correct in the clinic. On October 15, 2002, Petitioner worked at Osceola Elementary School for at least one half of a day. She refused to check a class for head lice because she was so busy making personal telephone calls. Additionally, Petitioner failed to properly sign-in medication and sent a student back to class after he vomited instead of sending him home. On October 18, 2002, Ms. Ferguson and Ms. Hammond met with Petitioner again. They explained that Petitioner was being terminated for unsuccessful completion of her probationary period. Since the meeting on October 14, 2002, Ms. Ferguson had received complaints about Petitioner using the phone at Osceola Elementary School for personal business. As Ms. Ferguson continued to advise Petitioner about the reasons for her termination, Petitioner abruptly ended the meeting, using profane and/or vulgar language as she slammed the door on her way out. Respondent approved the recommendation for termination of Petitioner's employment on November 12, 2002.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of October, 2004, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of October, 2004. COPIES FURNISHED: Cecilia Brown 3630 Caramel Avenue, Apartment 38 Port Orange, Florida 32127 Erin G. Jackson, Esquire Thomas M. Gonzalez, Esquire 501 East Kennedy Boulevard, Suite 14003 Post Office Box 639 Tampa, Florida 36602 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Respondent, Billie M. Bunch, is a noninstructional employee of the Petitioner, School Board of Palm Beach County, and is under an annual contract of employment for the 1987-88 school year. Respondent was initially employed by petitioner in 1970 as a custodian, and was assigned to Boca Raton Elementary School (the school). In 1972, he was promoted to foreperson, and has continued to serve in such capacity at the school through the ensuing years. The custodial staff at the school has, during respondent's tenure, consisted of two people: the custodial foreperson and a custodian. The school is, however, a small school, with a maximum capacity of 290 students, and can be appropriately maintained by a staff of two custodians provided they regularly perform their prescribed duties. As custodial foreperson, respondent was charged with the responsibility of ensuring that the school center was properly cleaned and maintained. To accomplish this charge, respondent was directed to devote 75 percent of his time to cleaning activities and 25 percent of his time to administrative matters. The administrative matters were, however, nominal and consisted primarily of preparing a work schedule, supervising the custodian, ordering necessary supplies, and recommending needed repairs. The proof demonstrates that respondent rarely devoted any time to actual cleaning at the school. 1/ Rather, he placed that burden on the sole custodian. As a consequence, the school center was not routinely cleaned and fell into a state of disrepair. During the 1984-85 school year, the school was surveyed by a team of educators representing the Southern Association of Colleges and Schools. The purpose of the survey was to ascertain the degree to which the school met the standards for accreditation as established by the Southern Association. The team found the school satisfied all standards for accreditation except the standard relating to school maintenance. That standard Provided: There shall be evidence of effective maintenance and housekeeping designed to Provide a safe, sanitary, and attractive environment for learning and to protect the investment in the school plant. The team recommended: that the administration immediately take what ever action is necessary to insure that routine maintenance and daily housekeeping be done on a constant basis. that the administration recommend immediately for the district main- tenance to do the necessary repairs, painting, replacing, etc., that would come under their jurisdiction. * * * 4. that the gymnasium be maintained so that it can be utilized in a multi- purpose manner. The proof supports the finding of the survey team that daily housekeeping was not done on a routine basis. Trash was not removed, rooms were not cleaned, equipment was not maintained, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. During the 1985-86 school year, conditions were not improving at the school. Respondent contended, however, that the condition of the school was not a consequence of his failure to perform his duties, which contention is not credited, but the failure of petitioner to improve the school. In the face of the report of the survey team and complaints from the school advisory board, petitioner undertook to remodel, repaint, recarpet, and otherwise completely renovate the school center. The renovations were completed on or about June 1986, and respondent concedes that every complaint or problem he perceived with the condition of the physical plant had been remedied. During the 1986-87 school year, despite respondent's promise to maintain the school center, the same conditions that had previously existed at the school slowly began to reappear. Trash was not removed, rooms were not cleaned routinely, restrooms were not sanitary, graffiti was not removed from the walls, and the grounds were not kept free of litter. Because of the poor condition of the school at the end of the 1986-87 school year, the supervisor of petitioner's building services department sent in an outside crew to clean the physical plant. Over the course of a number of days that summer, this crew cleaned a substantial portion of the facility, including the 2 gang toilets, the 4 small bathrooms, 7 classrooms, the gymnasium, and the outside corridors. Additionally, they changed the air conditioning filters, cleaned the carpet in 6 classrooms, pressure cleaned the outside corridors, and washed windows. In July 1987, a new principal, Mary Smith, was assigned to Boca Raton Elementary School. Prior to the end of the 1986-87 school year, Donald Robinson had acted as principal of the school. However, because of his failure, among other things, to assure that the school center was properly maintained, petitioner requested and received his resignation. 2/ On July 27, 1987, Ms. Smith met with the respondent upon his return from vacation. At that meeting, Ms. Smith directed that he prepare new work schedules and that, under her administration, his absenteeism would have to cease. The new work schedules prepared by respondent were not significantly different than those previously used. While they purported to assign cleaning duties to him, respondent did not fulfill those duties but, rather, continued to place that burden on the sole custodian. While directed by Ms. Smith on July 27, 1987, to maintain a good attendance record, respondent promptly ignored such direction. Respondent was absent one-half day on July 28 and all of July 29, 1987, ostensibly attending an aunt who had suffered a heart attack. On July 30, 1987, respondent was present for work, but on July 31, 1987, a Friday, he was absent from the school to attend an in-services training session for custodial forepersons. While scheduled for a full day, respondent only attended until 1:30 p.m. 3/ On August 3, 1987, Ms. Smith received a phone call from respondent's aunt. She advised Ms. Smith that respondent was en route to New York to visit his ill mother. Ms. Smith told the aunt to have respondent call her as soon as possible. Fifteen minutes later, respondent telephoned Ms. Smith, ostensibly from the West Palm Beach Airport. He told Ms. Smith that his mother was very sick and that he was en route to New York to visit her. However, at no time did respondent disclose the nature of his mother's illness to Ms. Smith, and no proof was offered at hearing to demonstrate its nature or severity. During this same telephone conversation, respondent also advised Ms. Smith that he had borrowed $35 from the school coke machine. Ms. Smith told respondent he had no authority to borrow the monies. She also told respondent that he was needed to ready the school for the returning teachers and that she was not approving his absence. Notwithstanding such advice, respondent was absent from the school the week of August 3, 1987. Upon his return to the school on August 10, 1987, respondent was suspended. On September 2, 1987, respondent was suspended without pay, and thereafter the petitioner commenced this proceeding for his dismissal. On August 21, 1987, respondent delivered to the school a $35 check as a reimbursement for the monies removed from the coke machine. Respondent's contention that he did not borrow the monies but merely took them to safeguard them is not creditable. Rather, the proof demonstrates that respondent misappropriated such funds to his own use.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the School Board of Palm Beach County enter a final order sustaining the suspension of respondent and dismissing him from employment. DONE AND ORDERED in Tallahassee, Leon County, Florida, this 7th day of March, 1988. WILLIAM J. KENDRICK 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 7th day of March, 1988.
The Issue Whether the Respondent should be terminated from her employment with the Petitioner.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing and on the entire record of this proceeding, the following findings of fact are made: The Miami-Dade County School Board is responsible for operating, controlling, and supervising all public schools in the school district of Miami-Dade County, Florida. Section 4(b), Article IX, Florida Constitution; Section 230.03, Florida Statutes (1997). Ms. Klumpjan is employed by the School Board as a certified occupational therapist assistant. She has worked for the School Board in this position for approximately 17 years, first as an employee of an outside agency under contract with the School Board and, since 1988, as the School Board's direct employee. Certified occupational therapist assistants are classified by the School Board as educational support employees, and the terms of Ms. Klumpjan's employment are governed by the contract between Dade County Public Schools and the United Teachers of Dade. Occupational therapy is provided in the Miami-Dade County public schools to children who have been referred for the service by a physician. The goal of the therapy is to improve fine motor and functional living skills and, generally, to assist students in improving their ability to access education. When a student is referred for occupational therapy, the registered occupational therapist assigned to the student's school consults with the student's teachers and other professionals regarding the student's needs, evaluates the student, and develops an individualized occupational therapy program for the student. If the student is in the exceptional student education program, the occupational therapy program becomes part of the student's individualized educational program. Certified occupational therapist assistants carry out the treatment programs developed by registered occupational therapists, who supervise the work of the certified occupational therapist assistants. The formal job description for a certified occupational therapist assistant in the Miami-Dade County school system provides in pertinent part: BASIC OBJECTIVES The Certified Occupational Therapist Assistant (COTA) is responsible for the application of occupational therapist procedures under the direction of a Registered Occupational Therapist whose license in Florida is in good standing. The occupational therapist assistant must also be responsible for carrying out the responsibilities set forth by the supervisory [sic] of the physical and occupational therapist program. The occupational therapist assistant is responsible to the managing registered occupational therapist. JOB TASKS/RESPONSIBILITIES Implements treatment programs appropriate to the student's specific needs, as designated by the managing therapist. Meets periodically with managing occupational therapist for the purpose of reviewing the individual student's status. Documents any change in student status, treatment program, family visits, consultation with other health personnel. Established and maintains appropriate working relationships with school staff, parents, and health care personnel. Consults with managing occupational therapist prior to contacting the student's physician regarding problems and/or unusual changes in a student's program. Coordinates and schedules all treatment sessions for established students. Coordinates and schedules all treatment sessions for established students.[sic] Participates in DCPS inservice programs. Observes medical ethics. Conforms to DCPS policies and procedures. Assists in orientation and training of personnel new to the department. Maintains the therapy-area equipment by sanitizing and cleaning mats and other materials and equipment. Coordinates and/or assists in the preparation of materials for student use. Throughout the years she worked in the Miami-Dade County public school system, Ms. Klumpjan was considered a competent occupational therapist who worked well with the children in her care. Her job performance evaluations consistently rated her work as satisfactory. Nonetheless, since 1988, Ms. Klumpjan has worked at several schools in the Miami-Dade County public school system, having been transferred at the end of the 1989, 1990, 1991, 1992, and 1993 school years. Each time she was transferred, Louise Schmitt, one of the coordinators of the Miami-Dade County public school system's physical and occupational therapy program, discussed with her the reasons for the transfer, specifically, her inability to get along with her fellow therapists and other education professionals with whom she worked. Ms. Klumpjan was transferred to Arcola Lake Elementary School in July 1993. The students at Arcola Lake Elementary School are all in the exceptional student education program and have individualized educational programs. In meeting the needs of these students, the school staff, including the therapists and therapist assistants (referred to herein collectively as "co-workers"), work together as a team to provide the services necessary for the students to access education. At Arcola Lake Elementary School, Ms. Klumpjan and her co-workers also worked in close physical proximity with one another. In the opinion of a number of her co-workers, including her direct supervisor, Ms. Klumpjan's attitude and behavior made working with her very difficult. She was defensive and combative with her direct supervisor and with her co-workers, who were intimidated and threatened by her and avoided engaging her in conversation about either work-related or general subjects. Ms. Klumpjan constantly made negative comments regarding the actions of her co-workers and her supervisors, as well as about school procedures and policies. Ms. Klumpjan continually complained that no one would sit down and "hear her out" about her concerns. For several years, but especially in the months immediately prior to March 1997, Ms. Klumpjan's co-workers observed her become increasingly quick to anger about minor incidents, exhibit increasingly paranoid behavior, and express increasingly paranoid thoughts, including her often-stated conviction that there is a conspiracy against her among her co-workers, who she believes are agents of the FBI and the CIA. Her co-workers also observed her become more unreasonable, defensive, combative, and vindictive whenever anyone questioned her about her work or her ideas. Ms. Klumpjan talked incessantly about religion and also articulated increasingly bizarre thoughts, including her belief that certain school personnel were practicing voodoo and were engaged in spiritual warfare against persons in the school. When her ideas were challenged by co-workers, Ms. Klumpjan invariably insisted that her perception of reality was the correct one. On several occasions, both Ms. Klumpjan's direct supervisor and her co-workers were aware that she did not follow written occupational therapy programs developed by her supervisor or her supervisor's specific instructions regarding the therapy to be given to particular students. Nonetheless, Ms. Klumpjan's supervisor found it difficult to make any adverse comments or to criticize her work because Ms. Klumpjan did not respond reasonably; consequently, her supervisor simply avoided confronting Ms. Klumpjan, even though the supervisor recognized that her avoidance could impact negatively on the care given the students. Other therapists, therapist assistants, and teachers avoided consulting with Ms. Klumpjan regarding the care to be given students. Ms. Klumpjan's co-workers became particularly concerned when she discussed an incident in which a person in Broward County had gone to the office of his former employer and killed several of his former co-workers. Ms. Klumpjan stated that she understood why a person would do such a thing, and she attributed the motive for the shootings to the failure of people to listen to the killer's concerns. Because this was one of Ms. Klumpjan's frequent complaints about her supervisors and because of her increasingly bizarre behavior, Ms. Klumpjan's co-workers began to fear for their safety. In March 1997, several of Ms. Klumpjan's co-workers went to Louise Schmitt, one of the two coordinators of the Miami- Dade County public school system's physical and occupational therapy program, and told her that they found it impossible to work with Ms. Klumpjan and that they felt that her inappropriate behavior was becoming more pronounced, creating a great deal of tension among the staff at Arcola Lake Elementary School and causing them to fear for their safety. Dr. Fishman asked them to write letters to her describing the behaviors that caused them concern. When Ms. Schmitt reviewed the letters she received in response to this request, she contacted the School Board's Office of Professional Standards. On March 13, 1997, Ms. Klumpjan was relieved of her duties at Arcola Lake Elementary School and told to report for an alternate work assignment at the Region I administrative office. Thomasina O'Donnell, Director of the School Board's Office of Professional Standards, scheduled a Conference-for-the- Record for March 20, 1997. At the conference, the letters and concerns of Ms. Klumpjan's co-workers and supervisors were reviewed, and Ms. Klumpjan's fitness for duty was discussed. While not specifically denying the statements and behavior attributed to her in the letters, Ms. Klumpjan stated that her statements and behavior were "blown out of proportion" by her co-workers. At the March 20 conference, Ms. Klumpjan was given a list of doctors approved by the School Board and asked to select one to conduct an evaluation of her fitness to continue work. Her March 13, 1997, alternate work assignment to the Region I office was ratified, and Ms. Klumpjan was directed not to contact anyone at Arcola Lake Elementary School or anyone who had written a letter outlining their concerns about her. Finally, Ms. Klumpjan was given a supervisor's referral to the School Board's Employee Assistance Program. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any non-compliance with the stipulated activities would compel District disciplinary measures to include suspension, demotion, or dismissal." Ms. Klumpjan chose not to participate in the Employee Assistance Program. However, on April 7, 1997, she was evaluated by Gary L. Fishman, D.O., a psychiatrist who has done "Fitness to Return to Work" evaluations for the School Board for the past ten years. Dr. Fishman spent approximately two hours interviewing Ms. Klumpjan and concluded that she suffers from a major psychiatric disorder evidenced by pronounced paranoid delusional symptoms. In his report, Dr. Fishman described Ms. Klumpjan as appearing "fragile, alone and isolated" and observed that she appeared to be out of touch with reality and completely unaware of the negative effect her comments and behavior had on her co-workers. In Dr. Fishman's opinion, Ms. Klumpjan was not capable of carrying out several of the job responsibilities assigned to certified occupational therapist assistants. Specifically, Dr. Fishman felt that, because of her problems dealing with others, her disturbed thinking patterns, and her impaired judgment, Ms. Klumpjan could not successfully consult with the managing occupational therapist, she could not establish and maintain appropriate working relationships with school staff and others, and she could not assist in training new personnel. Dr. Fishman counselled against allowing Ms. Klumpjan to resume her duties as a certified occupational therapist assistant until she received adequate medical and psychiatric care. Dr. Fishman recommended that Ms. Klumpjan receive a comprehensive medical examination from the physician of her choice, preferably an internal medicine specialist; that she have a complete psychological battery and profile prepared; and that she be referred for psychotherapy. A second Conference-for-the-Record was held on April 16, 1997, in order to review Dr. Fishman's report. Ms. Klumpjan was informed that she would not be allowed to return to work until she had met three conditions, which were essentially the recommendations made by Dr. Fishman: First, Ms. Klumpjan was told to have a comprehensive medical examination; second, she was told to obtain a complete psychological battery; and third, she was told to participate in a psychotherapy program. Ms. Klumpjan was informed that she could return to work only when cleared by Dr. Fishman, and she was again warned not to contact anyone at Arcola Lake Elementary School. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any noncompliance with the stipulated conditions would result in the recision [sic] of site disciplinary action and compel District disciplinary measures to include suspension, demotion, or dismissal." Ms. Klumpjan was absent without leave from her alternate work assignment beginning on May 16, 1997. Ms. Klumpjan was examined on June 25, 1997, by Larry Harmon, Ph.D., a clinical psychologist who works with the School Board's Employee Assistance Program and who was asked to evaluate Ms. Klumpjan's fitness to return to work. Dr. Harmon diagnosed Ms. Klumpjan with paranoid personality disorder; this diagnosis was based on his clinical interview, the results of Ms. Klumpjan's mental status exam, corroborative information, and the results of psychological testing. Although Ms. Klumpjan tested within the normal range on the psychological tests, Dr. Harmon is of the opinion that the results on several of the tests, including the Minnesota Multiphasic Personality-2, the Millon Clinical Multiaxial Inventory-III, and the Beck Depression Inventory, are not valid indicators of her true psychological condition. Dr. Harmon is particularly concerned about Ms. Klumpjan's very deep-seated delusions of persecution, together with her unshakable conviction that her delusions are true and accurately reflect reality. In his report, which is dated July 28, 1997, Dr. Harmon noted that Ms. Klumpjan refused to acknowledge that her behavior and comments in the workplace were inappropriate and would not agree to refrain from voicing her thoughts and suspicions to her co-workers, insisting that she has the right to speak the truth. Ms. Klumpjan rejected any suggestion that she should change her behavior at work and steadfastly attributed the "problem" to her co-workers. Consequently, Dr. Harmon predicted that the poor interpersonal work relationships would continue and, most likely, worsen. Dr. Harmon found that, even though Ms. Klumpjan is paranoid, she has no history of violence and is unlikely to pose a threat to the health and safety of the school staff and students. In his opinion, however, Ms. Klumpjan is unfit for duty because her symptoms of paranoia impair her ability to maintain the interpersonal work relationships necessary to carry out those job responsibilities of a certified occupational therapist assistant that require cooperation and working with others. Dr. Harmon also noted in his report that Ms. Klumpjan adamantly refused to consider seeking psychotherapeutic treatment; in his opinion, Ms. Klumpjan's symptoms will worsen unless she receives such treatment. Ms. Klumpjan was examined by her physician on July 1 and 2, 1997, and the results of the examination, laboratory work, and EKG were sent to the School Board's Office of Professional Standards. A Conference-for-the-Record was held on August 19, 1997, for the purpose of addressing Ms. Klumpjan's medical fitness to perform her assigned duties and her future employment in the Miami-Dade County public school system. At the conference, Ms. Klumpjan was again advised that services were available from the School Board's support referral agency, the Employee Assistance Program. She was given the opportunity to resign her position with the Miami-Dade County public school system, but she was directed to arrange for medical leave if she chose not to resign, with the caveat that she must apply for leave by September 19, 1997, or face an employment action for abandonment of position. Ms. Klumpjan was encouraged to seek psychological treatment and was advised that she would be considered for re-employment only when she had successfully completed treatment and received a medical clearance from Dr. Harmon. The summary of the conference provided to Ms. Klumpjan contained the following warning: "Any noncompliance, with the stipulated condition, would result in District disciplinary measures to include dismissal." In a memorandum dated October 15, 1997, entitled "Employment Intention," Dr. O'Donnell notified Ms. Klumpjan that, because she had been absent from her employment since May 16, 1997, she must notify her worksite immediately regarding her employment intentions. Dr. O'Donnell also directed Ms. Klumpjan to implement one of four options: She could comply with the conditions of employment imposed at the August 19, 1997, Conference-for-the-Record; she could notify the Office of Professional Standards of the date she intended to return to work; she could resign from her employment with the Miami-Dade County public school system; or she could initiate the retirement process. Ms. Klumpjan did not respond to this memorandum and, in a letter dated October 27, 1997, she was informed that she had been absent from her employment with the Miami-Dade County public school system without authorized leave. She was further advised that the School Board would take action to dismiss her from her employment for willful neglect of duty and that, if she did not request a review of the facts relating to her termination within 10 days of the date she received the letter, the matter would be submitted to the School Board for final action. In a letter dated November 7, 1997, to Dr. Joyce Annunziata, Senior Executive Director of the Office of Professional Standards, Ms. Klumpjan stated that she had not been willfully absent from her duties but was absent because of actions taken against her by the Office of Professional Standards. She explained that she was abruptly removed from her duties at Arcola Lake Elementary School and told to report for work to Ms. Martha Boden. Ms. Klumpjan stated that she was willing to return to her duties as a certified occupational therapist assistant on November 10, 1997. Nothing further was heard from Ms. Klumpjan, and, at its January 14, 1998, meeting, the School Board suspended her from employment with the school system, without pay. Ms. Klumpjan had not, as of the final hearing, participated in psychotherapy, resigned her position, or applied for medical leave. The evidence presented by the School Board is sufficient to establish that Ms. Klumpjan committed gross insubordination, that she committed misconduct in office, that she is incompetent because of incapacity, and that she was willfully absent from duty without leave. These violations are sufficient to constitute just cause for the termination of her employment with the School Board.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the School Board of Miami-Dade County, Florida, enter a final order Sustaining Marilyn L. Klumpjan's suspension without pay, Terminating the employment of Marilyn L. Klumpjan for just cause, and Dismissing Count IV of the Notice of Specific Charges dated February 9, 1998. DONE AND ENTERED this 18th day of November, 1998, in Tallahassee, Leon County, Florida. PATRICIA HART MALONO Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 1998.
The Issue Whether Respondent, Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, violated Section 400.28(1)(a), Florida Statutes, and Rule 58A-5.0182, Florida Administrative Code, as cited in the four AHCA Administrative Complaints, based on four consecutive AHCA surveys of Respondent's assisted living facility (ALF), alleging failure to provide care and services appropriate to the needs of its residents. Whether the facts alleged constitute Class I or Class II deficiencies. Whether, if found guilty, a civil penalty in any amount or the imposition of a moratorium is warranted pursuant to the cited statutes.
Findings Of Fact Petitioner is the State of Florida, Agency for Health Care Administration. Petitioner is responsible for licensing and regulating adult living facilities pursuant to Section 400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code. Respondent is Casselberry ALF, Inc., d/b/a Eastbrooke Gardens, an assisted living facility located at 201 North Sunset Drive, Casselberry, Florida, which is licensed and regulated pursuant to Section 400.401 et seq., Florida Statutes, and Chapter 58A-5, Florida Administrative Code. On June 1, 2001, Petitioner's employee, Vilma Pellot, whose duties include surveying ALFs for compliance with licensure statutes and rules, conducted a survey of Respondent's facility based on an abuse complaint received by Petitioner. That same day, Pellot discussed her findings with the facility administrator, and later prepared AHCA form 3020. In her report, Pellot found that the facility was not in compliance with Rule 58A-5.0182, Florida Administrative Code, which states, in pertinent part: Resident Care Standards. An assisted living facility shall provide care and services appropriate to the needs of residents accepted for admission to the facility. Pellot determined that the standard was not met because "the facility failed to take proactive measures to prevent patient to patient abuse and to minimize potential for falls resulting in injuries." The deficiency was classified as a Class II deficiency and a prospective $2,500 fine was imposed. At hearing, Petitioner did not produce the records that Pellot reviewed, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the June 1, 2001 survey was the AHCA form 3020, which Petitioner acknowledged was not being entered for proof of the facts stated therein. Pellot did not print or send the AHCA form 3020 to the facility and she does not know if the facility received the form 3020 when she made a subsequent visit to the facility. On July 16, 2001, Pellot conducted a follow-up visit to Petitioner's facility. She again observed residents with bruises or dressings and reviewed their records. She also observed two residents sleeping in the wrong beds. In addition, Pellot determined that based on an interview and incident reports review, the facility failed to submit to Petitioner a preliminary report of all adverse incidents within one business day after occurrence. Pellot discussed her findings with the new administrator and concluded that there was still patient wandering, resulting in injury, and patient-to-patient abuse. Following her visit, Pellot drafted another AHCA form 3020, finding a continued violation of Rule 58A-5.0182, Florida Administrative Code. The continued deficiencies of June 1, 2001, were upgraded to Class I and a prospective fine of $5,000 imposed. In addition, a Class III deficiency was found for the failure to report adverse incidents within one day. At hearing Petitioner did not introduce the records that Pellot reviewed on her second visit, nor did it present the testimony of any of the people with whom Pellot spoke. Other than Pellot's direct observations of the residents' bruises and dressings and her observation that two residents were in the wrong beds, the only other direct evidence offered by Petitioner regarding the July 17, 2001 survey was the AHCA form 3020, which contained hearsay statements. In regard to the Class III deficiency for failure to report adverse incidents within one day, there was no testimony or records presented by Petitioner to support the allegation set forth in the AHCA form 3020, dated July 16, 2001. Petitioner acknowledged, in its Order of Immediate Moratorium, that an incident report had been submitted regarding a kicking incident involving Resident number 6. Other incidents noted in the AHCA form 3020 did not require incident reports because they did not meet the definition of "major incident" as defined by rule. Following the surveys on June 1, 2001, and July 17, 2001, Petitioner made an administrative determination that "conditions in the facility present an immediate or direct threat to the health, safety or welfare of the residents . . ." and issued an Order of Immediate Moratorium against Respondent's ALF. Respondent was not permitted to admit any new residents until the moratorium was lifted. On August 8, 2001, another follow-up survey to the ALF was made, and Pellot observed bruises on residents and one resident wandering into another resident's room. Another AHCA form 3020 was prepared finding a continued violation of the rule. The continued deficiencies of June 16, 2001, were classified as Class I and a prospective fine of $5,000 imposed. In addition, a Class III extended congregate care (ECC) deficiency was found for the alleged violation of not admitting a resident who required ECC services, total help with activities of daily living (ADL), or discharging her. At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with whom she allegedly spoke. Other than Pellot's direct observations of the residents' bruises and dressings and her observation of a resident wandering into another resident's room, the only other direct evidence offered by Petitioner regarding the August 8, 2001 survey was the AHCA form 3020, which contained hearsay statements. On August 17, 2001, another follow-up survey of the ALF was conducted, and bruises on residents were observed and a band-aid was seen on one resident. Another AHCA form 3020 was prepared, finding a continued violation of the rules. The continued deficiencies were classified as Class I and a prospective fine of $5,000 imposed. In addition, the Class III ECC deficiency previously determined in the August 8, 2001 survey was found to have been corrected. At hearing, Petitioner did not produce the records reviewed by Pellot, nor did it present any of the people with whom she spoke. Other than Pellot's direct observations of the residents' bruises and dressings, the only other direct evidence offered by Petitioner regarding the August 17, 2001 survey was the AHCA form 3020, which contained hearsay statements. Pellot returned to the facility on September 27, 2001, for a monitoring visit and on September 28, 2001, for a follow- up survey. At that time she concluded that the alleged deficiencies had been corrected and recommended that the moratorium be lifted. Petitioner recognizes that ALF residents do fall. The rule does not require that a facility be "fall free." There is no rule or regulation concerning falls, and there are no guidelines set forth in AHCA complaint investigation guidelines. Lois Bosworth, a certified gerontological nurse, is Director of Operations for Homestead Health Management Group which operates Respondent's ALF. Homestead Health Management Group operates nine ALFs in Florida, all of which have ECC licenses. ECC stands for Extended Congregate Care which is a higher level of care than a standard ALF license. All of Respondent's ALF residents are memory impaired to some extent. Most are in their 60s or older, some have early Alzheimer's, others have dementia for other reasons. Because they suffer from dementia, the residents' physical abilities are declining. Some are not ambulatory and use wheelchairs, some are able to use walkers to some degree, most can still feed themselves. In the evening, ALF residents with dementia have to be cued over and over to perform the activities of daily living (ADLs) more often than in the daytime because while they're up during the day, they become very tired and their processes decline. Some residents have the same levels all day, but over the course of weeks, to months, to years, they will decline, needing more hands-on personal services as their disease progresses. ECC has established criteria and retention criteria which Respondent is required to follow. With the dementia clients, it is gauged on their ability to transfer with minimal assistance. They may need help becoming steady because sitting for any length of time makes them unsteady or off balance when they first stand up. Retention criteria is also based on how much cuing a resident needs in feeding themselves. With Alzheimer's patients, it is typical that feeding is one of the last of the physical needs that they can do themselves. When residents are no longer able to ambulate or feed themselves, they are more prone to physical ailments that require nursing home care. If there is a question concerning appropriate placement, Respondent will have the Department of Children and Family Services (DCF) CARES team become involved. The CARES team consists of nurses that make the official determination of the appropriate level of care required for a resident. Many times it is necessary to involve the CARES team because the family is reluctant to have their loved one transferred from the ALF to a nursing home. In a facility such as Respondent's where there are many residents with dementia, it is not unusual for the residents to get into confrontations with one another. Often they will shout at each other before they touch each other. Alzheimer residents will sit next to each other touching each other, shoulder to shoulder, knee to knee. They'll even hold hands walking down the hallway. There are other times they need to have the comfort of someone touching them. But they have periods of time when they don't want people touching them at all and for no apparent reason. Of the residents identified in the June 6, 2001 survey, Resident number 1 was ambulatory. She would wander at night time up until midnight before she would settle down and go to sleep. This is typical Alzheimer's type activity. She was a lady who had very large bags under her eyes constituting soft tissue which can continue to bleed from a bruising into both eyes. Such an injury is typical of people with glasses, or people who get hit over the bridge of the nose, making it quite common to have two black eyes with one injury. A small bruise over the eye one day may be extremely massive the next because there will be continued leaking of blood under the skin and the tissues that cause the bruise. This resident was allegedly struck by another resident who was not known to be aggressive, but did not recognize people all the time. One of the defenses that Alzheimer's people have, if they can't process the thought and recognize someone, is to make someone the bad person because they don't remember what happened. Often they will respond verbally ordering the person to go away, even though the person may be a roommate. In the earlier stages of Alzheimer's, a person may recognize that he or she is forgetting things and have a tendency on some occasions to be more resistant, not necessarily aggressive. The resident who allegedly struck Resident number 1 was not known to be aggressive to other residents, even after this alleged incident. The alleged incident could not have been foreseen. Resident number 2 in the June 1, 2001 survey was receiving therapy for her falls. There was a recommendation that a different wheelchair with a seat which slightly tilts back be tried. After the June 1, 2001 survey, this resident was placed in a nursing home which could use restraints in a wheelchair. Resident number 5 in the June 1, 2001 survey would sit on the side of the bed to put her slippers on. She would pitch forward because she was short and the bed was too tall for her to sit on. Her mattress was placed on the floor to alleviate the problem which was resolved. Resident number 5 had a tendency to bruise easily. It was determined that she had a bleeding disorder, so that even a slight bump would cause her skin to bruise. She continued to have skin tears and bruising following June 1, 2001, which required her to go to the emergency room. When she returned her skin tear had not healed and she had very massive bruising from use of an IV in the emergency room. The patient eventually went back to the hospital and did not return to the facility. Resident number 4 in the June 1, 2001 survey was the resident who allegedly had an altercation with Resident number 1. She had no other problems such as this. Resident number 4 apparently alleged that Resident number 1 came into her room and grabbed her arm. Then she hit that resident for coming into her room, to defend herself. This is the only event that occurred with this resident. A person with dementia is usually not credible. It is not uncommon for people with dementia to blame something that happened to them on someone else. Due to memory impairment, they do not want people to think that something is wrong with them, so they blame someone else for something that happened to them. The material available, publications and educational offerings for Alzheimer's encourage allowances for wandering for Alzheimer's clients, because it is part of the disease process and part of their need. They are not able to sit quietly; in fact, the literature states that it's important that they be permitted to wander. At Respondent's ALF wandering is allowed throughout the facility, which is open. Respondent is barrier- free to permit the wandering, allowing a resident to pace up and down the hallways or common areas. The option to participate in activities is always the right of the resident. Alzheimer's clients can't always make that decision, and so they're encouraged to participate in activities to keep them distracted to a degree. They cannot be forced to participate if they choose to continue to walk up and down the halls. Respondent tries various techniques to deter wandering into the wrong room, from posting photographs on residents' doors to decorating rooms with personal items. Respondent tries hard to keep the residents in common areas when they wander and tries to keep doors to residents' rooms closed. But wandering is still a problem with Alzheimer's residents. There are no publications on how to prevent falls. Falls can be minimized in number and by the severity of injuries. The facility needs to be able to provide what the resident needs; if that means they need to go barefoot, then they should be allowed to go barefoot without neglect being alleged. While Respondent cannot prevent falls, it tries to minimize them by providing appropriate care and services to meet the residents' needs within the standards set by the state. Respondent has a procedure in place to minimize falls. Fall assessments were done by the therapy department. When someone had a first fall, therapy would do a screening and assessment to see if they had a need for therapy services to increase their functionality of ambulating. The administrative staff would also review the circumstances of the fall to see if it was preventable or non-preventable. The resident would be evaluated to determine if there was a medical condition that had arisen that was contributing to the fall. There would be a general assessment of the different environmental issues as well as clinical issues. The resident would be watched for any possible decline. Resident number 3 in the June 1, 2001 survey is a tall gentleman who walks around with a stuffed dog. He is friendly and takes direction easily. He is not aggressive, and he does not have a tendency to walk into other peoples' rooms. Other than the two residents seen napping in other residents' beds, the incidents cited in the July 16, 2001 survey, which led to the issuance of a repeat citation and a moratorium, consisted of the actions of one resident identified in that survey as Resident number 6. Resident number 6 was a 48-year-old lady who was brought to Respondent by DCF through an emergency placement under a court order to place her in an ALF for supervision of her care needs. She was a younger resident than normal for the facility because she had a diagnosis of Huntington's Chorea, which is a type of dementia which does not progress as quickly as Alzheimer's but strikes adults earlier in life. Respondent has an agreement with DCF which provides for emergency placements for persons who do not need to go into nursing homes, for those with memory impairment, including after-hour placement, and weekend placement. Respondent does not require that DCF bring with them a medical assessment. Regulations allow Respondent to have one completed within 30 days following the emergency placement. Resident number 6 was at a table and another resident reached for her purse. Resident number 6 picked up a cup of coffee that was sitting on the table and threw the coffee on the other resident's lap. The other resident involved was not injured because the coffee served was not hot coffee. Resident number 6 came to the facility in early June 2001. The coffee incident occurred on June 30th and was the first indication that there might be a problem. Respondent did not interpret the action of Resident number 6 to mean that Resident number 6 was going to hurt anyone. Resident number 6 did not come with a history of hurting anyone, and there was no documentation that she had tried to hurt anyone in the past. She calmed down after the incident and didn't seem to be a problem. Resident number 6 was quite settled in and was doing well. This was a DCF placement to see how she did and whether or not she would be able to return home or go to a different living arrangement. On July 11, 2001, the survey indicated that Resident number 6 had an altercation with Resident number 1 over a cigarette lighter and pushed him down and kicked him, requiring him to be admitted to the hospital with a fractured hip. On July 14, 2001, Resident number 6 allegedly grabbed the arm of Resident number 3 who was in her room and created a skin tear to Resident number 3 as she was pulling her down the hall to the nursing station. During the July 16, 2001 survey, Respondent was directed to remove Resident number 6 immediately from the facility. DCF declined to help. Respondent placed Resident number 6 on one-to-one supervision until the next day when DCF refused to remove her. Respondent could not Baker Act Resident number 6 to a mental facility because she did not meet the criteria. Respondent was finally able to get Resident number 6 to agree to a voluntary psychiatric placement. Resident number 4, a 98-year-old female, identified in the August 8, 2001 survey, apparently had been found on the floor of her room in April with no injuries. She appeared to fall because she was trying to dress herself and the blanket got wrapped up in her legs. In June, she fell into the soda machine with no injuries. And then on July 18th and 20th she fell in the evening. Evening is when some Alzheimer's residents have what is called "sundown syndrome," simply meaning that as the sun sets, they have become so tired they've exhausted all their physical resources and will have a decline. Resident number 4 was receiving physical therapy to keep her ambulating at the highest level possible. She reached her highest potential in therapy because she couldn't remember safety factors that she was taught. The purpose of physical therapy was to help Resident number 4 in her ability to ambulate and minimize her falls. The only way to actually prevent her from falling was to restrain her, which is not permitted at an ALF. On August 1st, Resident number 4 aparently stood up from a bench that was in the hallway and literally ran down the hallway, running to the point that a therapist and the nursing assistant could not catch her. Resident number 4 only stopped because she fell forward and hit her nose on the floor. She was in a dementia state, and did not reach her hands out to catch herself. There was no way anyone could have prevented such an accident, especially since Resident number 4 did not take off running all the time and she was under direct supervision when this happened. Resident number 3 in the August 8, 2001 survey, apparently fell in the TV room and the corner of her chin hit the table. While the injury did cause a massive bruise on her chest, there was no way of knowing the fall would occur since the resident did not have a history of falls. Resident number 6 identified in the August 8, 2001 survey, was non-verbal. During the survey she followed the staff and held hands with a staffer. She is a person who was always reaching for someone. She had a habit of patting another resident on the head, but she was not aggressive. She merely liked to touch, kiss, hold hands, or hug people. Respondent tried to keep her hands busy by giving her something to hold but that did not stop her need to touch people. During the surveyor's tour of the facility on August 8, 2001, a resident mistakenly walked up to a room and asked if it was hers. She was redirected before she entered the room. The resident who claimed to be missing glasses and spools of thread has a mild dementia. She was wearing glasses and the facility supplied her with spools of thread when she ran out. Resident number 2, in the August 17, 2001 survey, was totally ambulatory and did not have a history of falling. She was steady but very confused. She was walking to dinner in the dining room in an open area, no barriers, and apparently when she made a step, she stepped on the shoe of her other foot and fell down, striking her head on the piano. She had a tendency when she sat down to constantly shake her leg or cross her legs back and forth. She was in continuous motion, which is not unusual with Alzheimer's type of dementia. Apparently when she first came back from the hospital, she was able to stand up, help herself to bed with some assistance. Through the night she was having more difficulty and returned to the emergency room where they discovered that she in fact had a fractured hip from the fall. Resident number 1, in the August 17, 2001 survey, was approximately 97 years old, very frail and very thin. He had a recent diagnosis of cancer that was a progressive non-Hodgkins type lymphoma. He had good days and he had bad days, as far as his physical health, which is typical of the disease process. He also had confusion from memory impairment disorder that may or may not have been Alzheimer's. There were days when Resident number 1 could walk using a cane, on other days he could walk with a walker, and there were days when he was so tired he used a wheelchair. With his demented state he wasn't always sure which appliance to use for the day and had to be reminded. Resident number 1 was a smoker, so he would go out on the patio frequently. Sometimes he would reach for things and, being frail, would fall. He was in end stage with his cancerous process and one of his goals was to stay out of a nursing home. Resident number 1 did have a series of falls which created skin tears because his skin was very thin, but nothing that was more of a serious nature than that, and he was adamant that he stay at the ALF. He was able to be maintained at Respondent's ALF and did not have any fractures while he was there. Toward the end of his life, he determined that he did not want to be involved with the hospice group that came to visit. He did eventually go to a different level of care. Resident number 3, identified in the August 17, 2001 survey, fell in the shower when she was being assisted in May of 2001. She apparently fell and hit the back of her head on a shower stall, but she was receiving assistance at the time. This was an unusual occurrence, Resident number 3 was not a resident who fell frequently or had a great history of falls. On August 12 the survey notes that she had redness under both her eyes and a cut or scratch on her nose. This was another resident who had very large bags under her eyes and rubbed her eyes frequently. There was no documentation that this resident had received an injury or a fall that would create this redness around her eyes or the yellowish, purplish hematomas. There was no indication that this resident had had a fall and she was not prone to falls. Resident number 6, identified in the August 17, 2001 survey, was a resident who was required to wear shoes because it is considered inappropriate for our elders to walk around barefoot. She would take her shoes off frequently. When she did wear them, she had a difficult time picking her feet up high enough to walk without someone with her. Resident number 6 apparently tripped with no apparent injuries, but later that day her right hand showed bruising and swelling. There was no indication as to the cause of the swelling and an X-ray indicated no fracture. Resident number 6 apparently tripped again while walking, tried to catch herself and held onto a chair; she had a skin tear on her shin. Resident number 6 although ambulatory, would often catch herself from falling. Resident number 4, identified in the August 17, 2001 survey, scratched his arm because he has dry skin. It began bleeding and an aide administered a bandage. There was no need for documentation. The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of this facility, or the personal care of the residents which directly threatened the physical or emotional health, safety or security of the facility residents. At no time during any of her surveys that are at issue in this proceeding did Pellot find Respondent's ALF to be short-staffed. The facts alleged in the four surveys at issue do not indicate any conditions or occurrences relating to the operation and maintenance of the facility or the personal care of the residents which would have been an imminent danger to the residents or guests of the facility, or a substantial probability that death or serious physical or emotional harm could result therefrom. Respondent was providing appropriate care for the needs of the residents that were identified in the statements of deficiencies at issue in this proceeding. None of the patients who were involved in these incidents cited in the four surveys had the mental capacity to form a willful intent to harm someone. Nor could the patient's actions be interpreted, under the facts, to be anything more than defensive reactions or touching incidents of persons with mental impairments. The relevant facts showed that Respondent took appropriate steps to address wandering problems and protect residents in its facility. The events surrounding Resident number 6, in the July 16 survey were an anomaly and could not have been foreseen by the staff at the facility. Respondent had a right to rely on the assertion by DCF that Resident number 6 was appropriate for placement in an ALF. The incident with the coffee was not significant enough to precipitate the resident's removal from the facility. When it became apparent that the resident was aggressive at times, Respondent took appropriate steps to have her placed elsewhere. In addition, this isolated incident was not similar to those for which Respondent was cited in the first survey of June 1, 2001. This was a problem created by a particular patient and not incidents of falls or wandering. As such, it should not have triggered a repeat offense nor a moratorium. The evidence produced by Petitioner was primarily hearsay in nature without corroboration. Respondent presented none of the patients, staff or other witness to the incidents referred to, and none of the records referred to or relied on by the surveyor were produced. Under these circumstances, Petitioner failed to meet its burden to produce clear and convincing evidence that Respondent committed the violations alleged in Petitioner's form 3020s, the Administrative Complaints, or the Order of Immediate Moratorium. Respondent's witness was credible and its explanation surrounding each incident was plausible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order determining that: The deficiencies in the AHCA form 3020s are unfounded and must be withdrawn; The Administrative Complaints be dismissed against Respondent; and The Order of Immediate Moratorium be revoked. DONE AND ENTERED this 3rd day of September, 2002, in Tallahassee, Leon County, Florida. COPIES FURNISHED: Theodore E. Mack, Esquire Powell & Mack 803 North Calhoun Street Tallahassee, Florida 32303 DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 3rd day of September, 2002. Michael P. Sasso, Esquire Agency for Health Care Administration 525 Mirror Lake Drive, North Suite 310-G St. Petersburg, Florida 33701 Virginia A. Daire, Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308 William Roberts, Acting General Counsel Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building, Suite 3431 Tallahassee, Florida 32308
The Issue The issue is whether Respondent committed an unlawful employment act by discriminating against Petitioner based on her age.
Findings Of Fact The Notice of Hearing dated January 5, 2001, was sent to Petitioner at her address of record. The United States Postal Service did not return said notice to the Division of Administrative Hearings as undeliverable. Respondent's counsel had a telephone conversation with Petitioner on February 21, 2001. At that time, Respondent's counsel understood that Petitioner intended to make an appearance at the hearing. The hearing commenced at 10:00 a.m. on March 2, 2001, as scheduled. Petitioner did not make an appearance. Shortly thereafter, the undersigned's office attempted to contact Petitioner by telephone. There was no response at Petitioner's telephone number of record. Petitioner did not contact Respondent or the Division of Administrative Hearings to explain her non-appearance. The undersigned adjourned the hearing at 10:30 a.m. on March 2, 2001.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ORDERED this 6th day of March, 2001, in Tallahassee, Leon County, Florida. SUZANNE F. HOOD Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 6th day of March, 2001. COPIES FURNISHED: Eileen E. Carroll 925 East Magnolia Drive Apartment E-7 Tallahassee, Florida 32301 Leslei G. Street, Esquire Florida State University Office of the General Counsel 424 Wescott Building Tallahassee, Florida 32306-1400 Azizi Coleman, Agency Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue presented herein concerned the Respondent's appeal of the School Board's assignment of her son, Joseph Robinson, to an alternative school placement.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, and the entire record compiled herein, I hereby make the following relevant findings of fact. By letter dated March 4, 1983, Petitioner, the, School Board of Dade County, Florida, by its Director of Alternative Education Placement, William R. Perry, Jr., advised Mrs. Alfreda Robinson, parent of Joseph Robinson, date of birth July 8, 1971, that her son was being administratively assigned to Youth Opportunity School-South due to the child's, Joseph Robinson, disruption of the educational process in the regular school program. During the 1982-3 school year, Joseph Robinson was a sixth grader at Campbell Drive Middle School in Dade County, Florida. He attended Campbell Drive Middle School up through March 4, 1983, the date that he was administratively assigned to Youth Opportunity School-South. At the outset of the 1982 school year, Joseph Robinson was the subject of repeated incidents of disruptive behavior consisting of defiance, physical altercation with other students, physical threats to instructors, verbal outbursts in class, refusal to perform class assignments and repeatedly attending classes tardy. As example, on September 9, 1982, Joseph Robinson defied an order of his instructor. On October 11, 1982, he was engaged in a physical altercation with two other students which resulted in an indoor suspension. On October 18, 1982, he refused to allow two other students to complete their class assignments. Again, on that same date, October 18, 1982, he physically threatened his instructor which resulted in a three- day outdoor suspension. From the period November 3, 1982 through March 11, 1983, Joseph Robinson was the subject of approximately seven referrals and/or suspensions for disruptive behavior. During early March, 1983, a screening committee of the Department of Alternative Education Placement recommended that Joseph Robinson be administratively assigned to Youth Opportunity School-South based on the repeated acts by him of the disruption of the educational process in the regular school program. Mrs. Alfreda Robinson, the mother of Joseph Robinson, alleged that her son was the subject of disparate treatment by the school board. No evidence was offered by Mrs. Robinson in support of her claim in that regard. It is therefore rejected.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby RECOMMENDED that the Respondent's appeal of the school board's assignment of Joseph Robinson to an alternative school placement be DENIED. RECOMMENDED this 9th day of December, 1983, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 9th day of December, 1983. COPIES FURNISHED: Jesse J. McCrary, Jr., Esquire & Mark Valentine, Esquire 3050 Biscayne Blvd., Suite 800 Miami, Florida 33137 Mrs. Alfreda Robinson 934 NW 2nd Street Florida City, Florida 33034 Leonard Britton, Superintendent Administrative Office Lindsey Hopkins Building 1410 NW 2nd Avenue Miami, Florida 33132
The Issue This case concerns the propriety of Respondent's abolishment of Petitioner's position of Occupational Specialist within the Gilchrist County School System. In particular, it is to be determined whether Respondent has failed to meet requirements of law in that its action of abolishing the position was arbitrary and capricious and contrary to Petitioner's constitutionally protected rights to free speech and assembly.
Findings Of Fact Petitioner is the holder of a Rank 111 Teaching Certificate, issued by the State of Florida. The certification recognizes her as an Occupational Specialist. On July 8, 1974, she was granted a continuing contract of employment with the Gilchrist County School Board as an Occupational Specialist in the Trenton and Bell schools within the Gilchrist County School District. A copy of that contract may be found as Respondent's Exhibit No. 7, admitted into evidence. The contract by its terms states at Paragraph 9, "This contract shall not operate to prevent discontinuance of a position as provided by law." It is the discontinuance or abolishment of the position of Occupational Specialist held by the petitioner that occasioned the formal hearing in this cause. Since being granted the position of Occupational Specialist in permanent status, Petitioner has performed those duties described in the job description, a copy of which is Petitioner's Exhibit No. 2, admitted into evidence. Those functions include career planning for students, considering their personal problems, preparing them for assessment tests and the execution of job application forms. In the school year 1981-82, Petitioner worked three- fifths of her time in Trenton High School and two-fifths in Bell High School. In her capacity, Respondent considered her to be acting as the equivalent of a guidance counselor. She has never been certified by the State of Florida as a guidance counselor. Around the beginning of April 1982, the superintendent of Schools in Gilchrist County, Ray Thomas, decided that the position of Occupational Specialist held by the petitioner should be abolished. At that time, and at all relevant times, this position of Occupational Specialist was the only position of its type in the Gilchrist County School System. The basis for the abolition or discontinuation of the position concerned anticipated revenue shortfalls or budget inadequacy for the upcoming school year 1982-83, pursuant to information from persons within the State of Florida responsible for educational funding. In arriving at his decision, Thomas sought comment from Robert Ervin, the principal at Hell High School and James Surrency, the principal at Trenton High School. Ervin was asked if the guidance responsibility at Bell High School could best be achieved by the provision of a full-time guidance counselor. Thomas gave the impression to Surrency that the basis for requesting the discontinuation of the position of Occupational Specialist pertained to funding. No particulars were revealed to the two principals on the question of the financial position of the school system facing the advent of the 1982-83 school year. Respondent's Exhibits Nos. 1 and 2, admitted into evidence, are the comments of the Trenton and Bell principals on the subject of the abolition of the position of Occupational Specialist. Ervin accepted the idea of abolishing the Occupational Specialist position based upon his belief that a full-time guidance counselor would be provided to his school, as contrasted to the half- time guidance counselor and two-fifths time work of the Petitioner during the school year 1981-82. In his remarks, Surrency indicates reconciliation to the idea of losing the three-fifths time that the Petitioner was spending at Trenton High; however, he indicates his preference to have the Occupational Specialist position remain if it could be afforded. In the school year 1981-82, Trenton had a full-time guidance counselor in addition to the work being done by the Petitioner. After receiving the comments of the principals and in keeping with his choice, the Superintendent of schools wrote to the petitioner on April 21, 1982, advising her that he would recommend to the School Board, effective the beginning of the school year 1982-83 that the position of Occupational Specialist not be filled and offering Bowdoin a leave of absence without pay for one year. A copy of this correspondence may be found as Respondent's Exhibit No. 3. On April 22, 1982, the recommendation of the Superintendent was presented to the School Board and in the course of that meeting, the Petitioner was represented by counsel. Action on this recommendation by the Superintendent was tabled. On May 3, 1982, the Superintendent wrote the School Board and modified his position on the question of Occupational Specialist from one recommending that the position of Occupational Specialist not be filled in 1982- 83 school year to one of recommending the discontinuance of the position for economic and curriculum reasons, stating that the duties of that position could be assumed or transferred to the guidance counselor at each school in Gilchrist County. A copy of this correspondence may be found as Respondent's Exhibit No. On May 4, 1982, consideration was given to the suggestion of total abolishment of the position of Occupational Specialist and the School Board in a 3 to 2 vote determined to abolish the position of Occupational Specialist. This action was in keeping with Chapter 230, Florida Statutes. Prior to the vote, no specific information was imparted by the Superintendent or other school officials as to the financial benefits to be derived from the action or effect of the abolishment in terms of curriculum changes. The school board simply accepted the Superintendent's word that it was necessary to abolish the position for financial reasons. (The Superintendent, since taking office in 1981, has abolished other positions within the Gilchrist County School System, such as assistant principal at Trenton High School, general supervisor of instruction, food services supervisor, brick and block masonry teacher, librarian at Trenton High School and has left vacant teacher's aide positions.) At the May 4, 1982, meeting, Petitioner asked for and the Board agreed to afford a formal hearing to the Petitioner to challenge the abolishment of the Occupational Specialist position. Again, on June 1, 1982, a request was made in the Petitioner's behalf to have a grievance hearing before the board concerning the board's decision to abolish the job and it was determined that grievance hearing should be held on July 6, 1982. On July 6, 1982, the Board requested the Superintendent to prepare a list of vacancies which Mrs. Bowdoin might be certified for, the salary schedules related to those positions, a list of programs offered other than K-12 and the state certification requirements for those positions and the name of those persons filling the positions at the time. On July 20, 1982, the Board considered the level III grievance of the Petitioner in the presence of the Petitioner's attorney on the topic of an alternative placement of the Petitioner and the salary associated with that placement. On August 3, 1982, the Board entered a written resolution of decision pertaining to the level III grievance pertaining to the Petitioner, a copy of that resolution being found as Respondent's Exhibit No. 5. In this resolution, the School Board properly identified that the Petitioner could not be placed as a guidance counselor in that she did not hold a master's degree required for such position. In lieu of the position of Occupational Specialist which had been abolished by the School Board on May 4, 1982, by its August resolution, the Board offered the position of Teacher's Aide at Trenton Elementary School, with a substantial reduction in salary from approximately $15,000 a year to approximately $6,300 a year. This position of Teacher's Aide was reserved until August 16, 1982. Petitioner did not elect to accept the position of Teacher's Aide and has been unemployed since August 1982. In the course of an August 11, 1982 meeting, the Superintendent reported to the Board that the petitioner had "responded" at a level IV grievance procedure. On August 31, 1982, the Board was asked to consider litigation which had been presented to it by the Superintendent. On September 2, 1982, in an Executive Board session of the School Board of Gilchrist County, discussion was made of certain civil litigation brought by Petitioner against the Board. On October 5, 1982, an update was given to the Board concerning that case of the Petitioner versus the Board. Another update was made on October 5, 1982. On December 7, 1982, the Board was made aware of the fact that the case was to be considered in arbitration. (Various minutes of School Board meetings as described in this paragraph are more completely set forth in Respondent's Exhibit No. 8, admitted into evidence.) The matter was presented before the American Arbitration Association and the Arbitrator in his report absolved the Board of any violation related to the job abolition. The copy of that report may be found as Respondent's Exhibit No. 6, admitted into evidence. The date of the report is July 21, 1983. As stated before, the Bell High School in 1982-83, employed a full-time guidance counselor in substitution for an approximately half-time guidance and two-fifths time from Bowdoin the prior year. The Trenton school went from a 1981-82 school year in which a full-time counselor and three-fifths of Bowdoin's time was devoted to counseling activities to a full-time counselor, an aide working two-thirds time mostly in a clerical capacity and some assistance by a vocational teacher in school year 1982-83. Bad Bowdoin returned as an aide to the Trenton school in 1982-83, she would have been used in the guidance department in the same role as she had been given as Occupational Specialist. There was a revenue surplus left at the end of the 1982-83 school year and it was sufficient to have allowed the funding of the position of Occupational Specialist for the 1982-83 school year; however, that surplus was less than the 1981-82 school year by approximately 65,000. This funding difference in the face of providing essentially the same services in the school system, pointed out the more difficult economic circumstance that Thomas had made mention of in his initial decision to abolish the position of Occupational Specialist. In the 1982-83 School year, employees in the school system received salary increases. At the conclusion of the 1981-82 school year, there were approximately 900 students at the Trenton school which included grades K-12. According to Petitioner's Exhibit No. 11, excerpts from the standards of the Commission on Secondary Schools of the Southern Association of Colleges and Schools, schools of a population of 750-999 need two guidance professionals. Therefore, the reduction of one and three-fifths counselors in 1981-82 to one counselor and something less than three-fifths in 1982-83 was contrary to the statement of standards. This excerpt is at 4.10.0, Figure 1, minimum personnel requirements. Respondent replies to that assertion through its Exhibit No. 9, which are excerpts of the standards for unit schools by the Commission on Secondary Schools and Commission on Elementary Schools of the Southern Association of Colleges and Schools. At Page 9, 9.16.0-9.16.2, Respondent argues that one guidance counselor suffices for any school with a membership of 500 or more students up to 999 students. Without determining which of these guidelines related to accreditation by the Southern Association of Colleges and Schools is correct, it suffices to say that the changes that were made by the School Board in abolishing the position of Occupational Specialist as it might affect accreditation were made in good faith in that it can arguably be said that Trenton school, having 900 students, only needed one guidance counselor to meet conditions of accreditation. There were no curriculum changes made in the 1982-83 school year as a result of abolishing the Occupational Specialist position. There were curriculum changes but they were not the result of any influence provided by the abolishment of the Occupational Specialist job.
The Issue Whether Amanda’s Childcare and Preschool is subject to a civil penalty and licensure action for failing to comply with staff-to-student ratios and for having tools on the daycare playground, in violation of Florida Administrative Code Rules 65C-22.001(4) and 65C-22.002(1)(a), and chapter 402, Florida Statutes.
Findings Of Fact Respondent is licensed by the Department to operate a facility known as Amanda’s Childcare & Preschool located at 123 West Rhode Island Avenue, Orange City, Florida 32763. Respondent is owned by Joseph Corneck. During the morning of January 28, 2013, Mr. Corneck was working on the construction of a climbing apparatus in a playground at Respondent’s daycare facility. There were no children playing on the playground at the time of Mr. Corneck’s construction activities. Rather, there were 20 kindergarten-aged children inside an adjacent classroom while Mr. Corneck was outside working. Near lunchtime, Ms. Carolyn, a staff member who was supervising the classroom, lined the children up so that they could use the two available bathrooms and wash up for lunch. Because of crowding by the number of children lining up for only two bathrooms, Ms. Carolyn asked seven boys in the group to line up outside the classroom along the exterior wall near the door adjacent to the playground. Ms. Carolyn asked Mr. Corneck to assist in watching the boys while they were in line. Mr. Corneck left the apparatus that he was working on, which was approximately 30 feet away, and came over to the boys to watch over them while they were in the line. Mr. Corneck left the tools that he was working with, consisting of a hammer and a cordless drill gun, back on a platform of the apparatus. The platform where he left the tools was approximately four to six feet high. He also left the materials he was working with and a ladder near the apparatus. While Mr. Corneck was watching the boys, Department family services counselor Kalyn Yeager stopped by for a routine inspection. She noticed the boys outside the classroom and apparently concluded that they had access to the tools and materials. Mr. Corneck, however, did not allow the boys to play on the playground that day. There is no evidence that the children were allowed access to the tools or playground apparatus, and there is insufficient evidence to suggest that the children otherwise had access to those tools or materials, or that they were ever in danger or potential danger because of his construction activities. After the inspection, Ms. Yeager had a conversation with Mr. Corneck in which he advised that he had shown some of the day care students how to use tools. Mr. Corneck, however, never told Ms. Yeager that he had given a demonstration to the kindergarten-aged children who were present on the day of the inspection. Rather, his reference to a tool demonstration was about another occasion or occasions when he had demonstrated the use of tools to some of the older boys in Respondent’s after- school care. At the final hearing, Ms. Yeager could not recall the number of children who were there the day of her inspection. The evidence is otherwise inadequate to show that Respondent violated any applicable staff-to-child ratio standards. In sum, the Department failed to prove the alleged violations set forth in the Administrative Complaint.
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 dismissing the Administrative Complaint. DONE AND ENTERED 15th day of October, 2013, in Tallahassee, Leon County, Florida. S JAMES H. PETERSON, III 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 15th day of October, 2013.
