The Issue The issue for consideration in this case is whether Respondent’s license to operate a nursing home should be disciplined because of the matters alleged in the Administrative Complaint filed herein, and whether the license issued to Respondent on October 1, 1995 should be conditional or standard.
Findings Of Fact At all times pertinent to the issues herein, the Agency for Health Care Administration, (Agency), was the governmental agency responsible for licensing and regulating the operation of nursing homes in Florida. Respondent operated a licensed nursing home known as Manhattan Convalescent Center, in Tampa. Consistent with its responsibility to conduct surveys (inspections) of nursing homes in this state, on June 16, 1995, the Agency conducted a complaint survey of the Respondent’s facility during which it noted a deficiency in staffing. This related to the surveyor’s determination that on May 22, 27, and 28, and on June 2, 3 and 6, 1995, there was “an underage of the state minimum CNA staffing requirements”. No citation was given for any violation of a state rule in this regard, nor was there any reference to a violation of state regulation. In addition, the matter was not noted as a “class” deficiency for state purposes under the provisions of Section 400.23, Florida Statutes. CNA’s, Certified Nursing Assistants, are answerable to nurses. Registered nurses, (RN’s), licensed practical nurses, (LPNs), and CNAs together constitute the nursing staff, which is responsible for direct resident care in a facility such as operated here by Respondent. All members of the nursing staff, regardless of classification, are responsible for hands-on resident care, such as bathing and feeding, and these duties are a part of the job description of not only CNAs but LPNs and RNs as well. The difference is that LPNs and RNs, depending on certification, are trained and authorized to provide additional, skilled care which a CNA is neither trained nor authorized to do. In other words, though a CNA can perform those functions which she or he is trained and licensed to do, a nurse, LPN or RN, can do and does those things within her or his training and certification which includes those things done by nurses lower on the scale. Nurses, either RNs or LPNs, employed at Manhattan are advised and understand that they are to perform CNA duties and cover for CNAs if a CNA does not come to work. If a nurse refuses or resists doing CNA work for any reason, the nurse is asked to leave the building. The Agency by rule has set a minimum level of CNAs per patient in nursing homes. The total number of CNAs required is figured by using a formula which multiplies the patient census for the day times 1.7 and divides the result by 7.5, the number of hours per shift worked by a CNA at Manhattan. The result is the number of CNAs required to be on duty on any given day. On July 31 and August 1, 1995, Elke Johnson, an RN specialist surveyor for the Agency, visited Manhattan for the purpose of following up on the complaint survey conducted in June, 1995. One of the allegations in the complaint was that patients were not being cared for. Ms. Johnson found this allegation to be unconfirmed. Nevertheless, as a part of the inspection, Ms. Johnson looked at the personnel records regarding CNA staffing for the two week period from June 16 through June 29, 1995 and did the calculation according to the cited formula for four days out of the 14. On all four days, she noted a shortage of CNAs. On July 15, 1995, there were 32 CNAs versus 38 required by patient census; 35 versus 38 on July 17, 1995; 35 versus 37 on July 22, 1995; and 25 versus 36 on July 23, 1995. When Ms. Johnson spoke about this finding with Manhattan’s director of nursing or assistant director of nursing, she was told that Manhattan was using licensed nurses, RNs or LPNs, to fill in for CNAs. The Agency claims that the director of nursing, Ms. Buble, stated that if licensed nurses were scheduled to do CNA work, that individual would be listed on the daily assignment sheet as a CNA so that the licensed nurse could receive assignments as a CNA. According to Ms. Johnson, however, even with the substitutions, there was still a shortage which Ms. Johnson classified as a deficiency. The Agency’s rule does not specifically provide for the use of RNs or LPNs in place of CNAs, but Ms. Johnson considered such a substitution to be appropriate. Accepting that, however, as was noted previously, Ms. Johnson still noted a deficiency in numbers. Though Ms. Johnson did not participate in the December 1995 follow-up inspection, on her visit to the facility in April 1996, she found the staffing deficiency had been cleared and no violations existed at that time. Two complaints involving staffing in September and November 1995 caused a reinspection of the facility by Susanne Emond of the Agency on December 5, 1995. Ms. Emond worked with the director of nursing, Ms. Buble, the entire day and went over the patient census sheets with her as well as the assignment sheets. At that time the documents provided by Manhattan reflected that it was required to have 37 CNAs on duty each day between September 12 through September 16, 1995, but in reality had only 32.5 CNAs on duty on September 12; 32 on September 13; 32 on September 14; 34 on September 15 and 32 on September 16, 1995. In addition, Manhattan was required to have more than 35 CNAs on duty each day between November 9 through 12, 1995 but had only 27.5, 28, 30 and 32.5 on November 9, 10, 11 and 12, 1995, respectively. As was previously stated, the determination of a CNA shortage was based upon a consideration of numbers generated by the surveyor in consultation with the then director of nursing, Ms. Buble. The compilation by Ms. Buble was made utilizing only the assignment sheets, and did not consider any extra hours which were worked by on-duty personnel which was reflected on the sign- in sheets, rather than the assignment sheets. Respondent claims, therefore, that the documentation provided to the surveyor by Ms. Buble was not accurate. Gary Janovsky is a RN specialist with the Agency who inspected Manhattan on June 16, 1995. During the course of his visit he checked the staffing levels relating to CNAs for May 22,27 and 28, and June 2,3 and 6, 1995, and using the appropriate formula as applied to the sign-in sheets provided by the Respondent, concluded there was a shortage on all six days whether one considered an 8 hour shift or a 7.5 hours shift. Jerry Alfieri has been the director of nursing at Manhattan since March 23, 1996 and was in place there during the follow-up inspections. He has worked as a director of nursing in a nursing home for 4 years. Before he got to Manhattan it was Respondent’s policy to heavily overstaff with licensed nurses to make up for shortages of CNAs, of which there is a shortage in the area. When he took over as director of nursing, he reviewed all staffing records from January 1995 up to date and found an adequate number of CNAs were hired and assigned, but from time to time, there was an attendance problem with that category of employee. It got so bad that at times, up to 10 CNAs per day would call in to be absent, and when this would happen, he would assign LPNs or RNs to CNA duties. He contends this was not made clear to the surveyors. Mr. Alfieri believes this is now clear to the Agency and his office is following the same procedure now, without problem, and was being followed at the time of the surveys which resulted in the filing of deficiencies. Mr. Alfieri reviews his staffing figures on a daily basis looking at hours worked, not bodies. When that procedure is followed, one sees that on May 22, 1995, Manhattan was 139.1 hours over requirement and, he believes, a review of every day in issue but one, July 23, 1995, will show an overage of hours for the facility. On that day, Manhattan was 21 hours low, a shortage of 3%. Mr. Alfieri takes the position not that the number of CNAs on duty was up to the Agency’s standard, but that adequate nursing hours were provided to meet the requirement, and there was no complaint sustained regarding a lack of patient care. In September 1995, for example a listing by date of nursing hours over standard shows: 9/12 103 9/13 36 9/14 77 9/15 15 11/9 93 11/10 201 11/11 4.7 11/12 27.92 It should be noted that on November 11, 1996, though 6 CNAs called in absent, Manhattan still had 4.7 hours of nursing care over standard. According to Mr. Alfieri, licensed nurses at Manhattan are assigned a certain set of patients and they are to insure that those patients get whatever care is necessary. If a CNA can do a procedure, its done by a CNA, or by a licensed nurse if a CNA is not available. That statement is confirmed by Robin Grab, nurse manager of station 1 (the Medicare unit of 42 beds) at Manhattan for 6 years. She has been an LPN for more than 19 years. According to Ms. Grab, from time to time CNAs call in absent, and when this happens, the licensed nurses do rounds and assist in doing whatever is needed to provide patient care. It is a part of their job duties and if a licensed nurse refuses to do anything asked, that individual is asked to leave. As a result, RNs and LPNs regularly assist and are involved in activities of daily living, (ADL), and answering call lights. If a licensed nurse has to do CNA work, the nurse is so told. When a shortage of CNAs appears imminent, an attempt is made to call in more CNAs, but, if necessary, RNs and LPNs are called in to fill vacancies of CNAs. When William Scheller, Manhattan’s administrator, first came to the facility he was made aware of the inadequate number of CNAs. To correct this, he started the practice of using licensed nurses to make up the shortage. He also hired additional licensed staff to make up for call-outs, paid bonuses and recruited staff from other facilities. Manhattan pays its nurses and CNAs competitive wages. At no time has it ever intentionally understaffed with CNAs. To do so does not make sense because it costs more for licensed nurses than for CNAs. He insures that licensed personnel perform CNA duties when required by personal checks by him and his staff. Unit managers are responsible to insure that patients get adequate care and if staff is insufficient, they try to bring in additional people. The documentation used to record nursing staffing was changed in early 1996 to conform to Agency direction as to how it should be done. These documentation changes did not change coverage practices, however, as those practices were, he contends, up to standard all along.
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 finding that Respondent did not fail to meet staffing requirements sufficient to ensure each resident maintained his or her highest practicable level of well- being, but that it did fail to have an average of 1.7 hours of certified nursing assistant time for each resident during at least eight 24 hour periods, and assessing an administrative fine of $250.00. It is further recommended that the Agency correct its records to reflect Respondent’s entitlement to a standard license rating effective October 1, 1995. DONE and ENTERED this 12th day of March, 1997, in Tallahassee, Florida. ARNOLD H. POLLOCK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6947 Filed with the Clerk of the Division of Administrative Hearings this 12th day of March, 1997. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 7827 North Dale Mabry Highway Tampa, Florida 33614 Donna H. Stinson, Esquire Broad and Cassel 215 S. Monroe Street, Suite 400 Post Office Drawer 11300 Tallahassee, Florida 32302 Sam Power Agency Clerk Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Jerome W. Hoffman General Counsel Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32309
The Issue The issue is whether Respondent's employment with the District School Board of Taylor County, Florida, should be terminated.
Findings Of Fact The School Board has employed Dr. Whalen since 1997. She was, when first employed, a teacher at Gladys Morse Elementary School and then was employed as a teacher at Taylor Elementary School. Until January 19, 2005, she taught at Taylor Elementary School. Her employment was pursuant to a professional services contract. Dr. Whalen has been confined to a wheelchair for almost 55 years. She cannot move her lower extremities and she is without feeling in her lower extremities. On January 19, 2005, she was approximately 58 years of age. During times pertinent Dr. Whalen taught a "varying exceptionalities" class. A "varying exceptionalities" class is provided for students who have a specific learning disability, or have emotional difficulties, or have a physical handicap or handicaps. She has been an exceptional student education teacher for about 20 years. She has never been disciplined by an employer during her career. In addition to her teaching activities, she is County Coordinator for the Special Olympics. The School Board operates the school system in Taylor County. The School Board is a party to a Master Teacher Contract (Master Teacher Contract), with The Taylor Education Association, which is an affiliate of the Florida Education Association, the American Federation of Teachers, the AFL-CIO, and the National Education Association. This contract governs the relations between teachers, and others, and the School Board. Accordingly, it governs the relations between the School Board and Dr. Whalen. Kathy Kriedler is currently a teacher at Taylor Elementary School. She is certified in teaching emotionally impaired children and has taught emotionally impaired children in Taylor County since 1983. She is an outstanding teacher who was recently named Taylor County Elementary School Teacher of the Year and Taylor County District Teacher of the Year. Ms. Kriedler is a master level instructor in Nonviolent Crisis Intervention, which is a program of the Crises Prevention Institute. The use of skills associated with the program is generally referred to as CPI. CPI arms teachers with the skills necessary to de-escalate a crisis involving a student, or, in the event de-escalation fails, provides the skills necessary to physically control students. Ms. Kriedler has been the School Board's CPI teacher since 1987. CPI teaches that there are four stages of crisis development and provides four staff responses to each stage. These stages and responses are: (1) Anxiety-Supportive; (2) Defensive-Directive; (3) Acting Out Person-Nonviolent Physical Crisis Intervention; and (4) Tension Reduction-Therapeutic Rapport. The thrust of CPI is the avoidance of physical intervention. The CPI Workbook notes that, "The crisis development model . . . is an extremely valuable tool that can be utilized to determine where a person is during an escalation process." It then notes, helpfully, "Granted, human behavior is not an orderly 1-4 progression." The CPI Workbook provides certain responses for a situation that has devolved into violence. CPI physical control techniques include the "children's control position" which is also referred to as the "basket hold." CPI also provides a maneuver called the "bite release" which is used when a child bites a teacher and the "choke release" which is used when a child chokes a teacher. CPI specifically forbids sitting or lying on a child who is lying on the floor because this could cause "positional asphyxia." In other words, the act of lying upon a child could prevent a child from breathing which could result in injury or death. Ms. Kriedler teaches CPI throughout the District. The School Board encourages teachers to learn and apply CPI in their dealings with students. The use of CPI is not, however, mandatory School Board policy nor is it required by the State Board of Education. Dr. Whalen took and passed Ms. Kriedler's CPI course and took and passed her refresher course. She had at least 16 hours of instruction in CPI. She could not accomplish some of the holds taught because of her physical handicap. A memorandum dated April 7, 2003, and signed by Principal Sylvia Ivey, was presented to Dr. Whalen by Principal Ivey. The memorandum addressed conversations that Dr. Whalen had with two of her colleagues on April 3, 2003. The memorandum recited that these conversations raised concerns with regard to whether Dr. Whalen was using appropriate CPI techniques. The memorandum stated that Dr. Whalen's classroom would be video- taped for the remainder of the school year, that Dr. Whalen was to document each case of restraint used, that she should use proper CPI techniques, and that she should contact the office should a crisis situation arise in her classroom. The record reveals that Dr. Whalen's classroom was already being video-taped as early as November 20, 2002. It is certain that the classroom was being video-taped daily from April 2003, until the end of the school year. By January 2005 the practice of video-taping Dr. Whalen's classroom on a daily basis had ended. The incident giving rise to this case was not video-taped. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your Classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. During January 2005, a school resource officer, who is a deputy sheriff, was available should it become necessary to physically restrain a child who was a threat to himself or herself or others. On January 19, 2005, J.R. a female, was a student in Dr. Whalen's classroom. J.R. was ten years old and in the third grade. J.R. had been a student in Dr. Whalen's classroom since about January 10, 2005. Dr. Whalen did not know much about J.R.'s history on January 19, 2005. At the hearing J.R. appeared physically to be approximately as large as Dr. Whalen. A determination as to exactly who was the larger could not be made because Dr. Whalen was seated in a wheelchair at the hearing. Assistant Principal Verges found that J.R.'s physical strength was greater than average for an elementary school student when once he had to restrain her after she bit another person. J.R. brought a CD player to class on January 19, 2005, and after lunchtime, Dr. Whalen discovered the CD player and confiscated it. Dr. Whalen took possession of the CD player because school rules forbid students to have CD players in class. Dr. Whalen put it in a drawer by her desk. When this happened, in J.R.'s words she, "Got mad." A heated discussion between Dr. Whalen and J.R., about the dispossession of the CD player ensued, but after a brief time, according to Dr. Whalen's aide, Angela Watford, "the argument settled." Even though Ms. Watford's lunch break had begun, she remained in the room, at Dr. Whalen's request, until she was satisfied that the dispute had calmed. Subsequent to the departure of Ms. Watford, J.R. approached Dr. Whalen who was seated behind her desk working. The configuration of the desk and furniture used by Dr. Whalen was such that she was surrounded by furniture on three sides. In order to obtain the CD player, it was necessary for J.R. to enter this confined space. J.R. entered this space, moving behind Dr. Whalen, and reached for the drawer containing the CD player in an effort to retrieve it. When Dr. Whalen asked her what she was doing, J.R. said, "I am getting my CD player and getting out of this f class." Dr. Whalen told J.R. to return to her desk. J.R. continued in her effort to obtain the CD player and succeeded in opening the drawer and grasping the headset part of the CD player. Dr. Whalen attempted to close the drawer. J.R. reacted violently and this surprised Dr. Whalen. J.R. attempted to strike Dr. Whalen. Dr. Whalen reared back to avoid the blow and then put her arm around J.R. When J.R. pulled away, this caused Dr. Whalen to fall from her wheelchair on top of J.R.'s back at about a 45-degree angle. Immediately thereafter, J.R. bit Dr. Whalen several times. The bites broke Dr. Whalen's skin in three places and the pain caused her to cry. J.R. began cursing, screaming, and kicking. J.R. said she was going to "kick the s _ _ _" out of her teacher. In fact, while on the carpet, J.R. kicked Dr. Whalen numerous times. Dr. Whalen believed she would be in danger of additional harm if she allowed J.R. to regain her feet. This belief was reasonable. J.R. was in no danger of asphyxiation during this event because Dr. Whalen removed part of her weight from J.R. by extending her arms. Upon returning from lunch Ms. Watford spotted T.B., a boy who appears to be eight to ten years of age. T.B. was standing outside of Dr. Whalen's classroom and he calmly said to Ms. Watford, "Help." Ms. Watford entered the classroom and observed Dr. Whalen lying on top of and across J.R., who was face down on the carpeted floor, and who was cursing and kicking while Dr. Whalen tried to restrain her. Ms. Watford ran over to assist in restraining her by putting her legs between J.R.'s legs. J.R. thereafter tried to hit Ms. Watford with her right hand. Ms. Watford grabbed J.R.'s right arm and was severely bitten on the knuckle by J.R. The three of them ended up, Ms. Watford related, "in a wad." Within seconds of Ms. Watford's intervention, Frances Durden, an aide in the classroom next door came on the scene. She was followed by Takeisha McIntyre, the dean of the school, and Assistant Principal Vincent Verges. Ms. McIntyre and Mr. Verges were able to calm J.R. and safely separate her from Dr. Whalen. Then J.R. stated that Dr. Whalen had bitten her. Dr. Whalen and Ms. Watford went to the school's health clinic to have their wounds treated. The wounds were cleaned and Ms. Watford subsequently received an injection. While Dr. Whalen and Ms. Watford were at the health clinic, J.R. was ushered in by Ms. McIntyre. J.R.'s shirt was raised and the persons present observed two red marks between her shoulder blades. Dr. Whalen said that the marks must have been produced by her chin or that possibly her teeth may have contacted J.R.'s back. She said that she had forced her chin into J.R.'s back in an effort to stop J.R. from biting her. Ms. McIntyre took photographs of the marks. The photography was observed by Mr. Verges. The photographs reveal two red marks positioned between J.R.'s shoulder blades. The two marks are vertical and aligned with the backbone. They are from one, to one and one half inches in length. The skin is not broken. There is no wound. Teeth marks are not discernible. A teacher who has years of experience in the elementary or kindergarten education levels, and who has observed many bite marks, may offer an opinion as to whether a mark is a bite mark. Mr. Verges has the requisite experience to offer an opinion as to the nature of the marks on J.R.'s back and he observed the actual marks as well as the photographs. It is his opinion that the two marks were caused by a bite. Ms. McIntyre, who has also observed many bite marks in her career, and who observed the actual marks as well as the photographs, stated that the marks were consistent with a bite. Registered Nurse Cate Jacob, supervisor of the School Health Program observed J.R.'s back on January 19, 2005, and opined that the red marks on J.R.'s back were bite marks. J.R. reported via her mother, the day after the incident, that she had been bitten by a boy on the playground of Taylor Elementary School, by a black boy with baggy pants, possibly before the incident with Dr. Whalen. Facts presented at the hearing suggest that it is unlikely that J.R. was bitten under the circumstances described. T.B. was the only nonparticipant close to the actual combat who was a neutral observer. He did not see Dr. Whalen bite J.R., but did see her chin contact J.R.'s back and he heard Dr. Whalen say words to the effect, "I am going to make you say 'ouch.'" Dr. Whalen denied biting J.R. She stated at the time of the event, and under oath at the hearing, that she forcibly contacted J.R.'s back with her chin. She stated that it was possible that in the heat of the struggle her teeth may have contacted J.R.'s back. The opinion of the school personnel as to the origin of the marks upon J.R.'s back is entitled to great weight. On the other hand, a study of the photographs exposed immediately after the incident, reveals no teeth marks and no broken skin. The marks are consistent with pressing one's chin upon another's back or pressing one's teeth in one's back. In the latter case, whether J.R. was bitten may be a matter of definition. Generally, a bite occurs when the victim experiences a grip or wound like that experienced by Ms. Watford or Dr. Whalen in this incident. Although J.R. asserted that the marks occurred because of the actions of, "a boy on the playground," given J.R.'s general lack of credibility, that explanation is of questionable reliability. The evidence, taken as a whole, does not lend itself to a finding as to the origin of the marks on J.R.'s back. Principal Ivey's memorandum of April 7, 2003, specified that ". . . Mr. Howard and I informed you that we will video-tape your classroom . . . ." Thus it is clear that it was not Dr. Whalen's duty to cause the classroom to be video-taped. It is found that the assault on Dr. Whalen was sudden and unexpected. J.R. was suspended from Taylor Elementary School for ten days following this incident. Sylvia Ivey has been the principal of Taylor Elementary for three years. She has evaluated Dr. Whalen three times. She has evaluated Dr. Whalen as "effective," which is the top mark that a teacher may receive. Dr. Whalen received memoranda of counseling on December 2, 2002, and April 7, 2003.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED that Dr. Whalen be immediately reinstated to her former position without diminution of pay or benefits, pursuant to the Master Teacher Contract. DONE AND ENTERED this 15th day of June, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 15th day of June, 2005. COPIES FURNISHED: Mary F. Aspros, Esquire Meyer and Brooks, P.A. 2544 Blairstone Pines Drive Post Office Box 1547 Tallahassee, Florida 32302 Angela M. Ball, Esquire Post Office Box 734 Perry, Florida 32348 Daniel J. Woodring, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Honorable John L. Winn Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400 Oscar M. Howard, Jr., Superintendent Taylor County School Board 318 North Clark Street Perry, Florida 32347
The Issue The issue is whether respondent's license as a practical nurse should be disciplined for the reasons cited in the amended administrative complaint.
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: At all times relevant hereto, respondent, Susan Helen Tavares Benson, was a licensed practical nurse having been issued license number PN 0537171 by petitioner, Department of Professional Regulation, Board of Nursing (Board). Respondent has been licensed as a practical nurse since December 3, 1979. She currently resides in Naples, Florida. On February 12 and 13, 1989, respondent was employed as an independent contractor by Morning Star Nursing Home Service, a Naples firm that provided private in-home nursing care in the Naples area. On those particular dates, respondent was assigned to work the 4 p.m. - midnight shift at the home of C. S., an elderly female patient who was bedridden. Respondent relieved another nurse, Miriam Sheriff, who had worked the 8 a.m. - 4 p.m. shift. When respondent reported for duty on February 13, Sheriff observed respondent wearing street clothes, to be "hyper" and having what she perceived to be a very prominent smell of alcohol on her breath. Sheriff also recalled that when she left the premises there were no drinking glasses on the table in the area where the nurse normally sat. Although Sheriff was concerned with respondent's appearance and demeanor, she did not say anything when leaving the premises. Living in the patient's home at that time were the patient's husband and daughter. A few minutes after respondent reported for duty, the husband and daughter advised respondent they were leaving the home to run an errand and would return shortly. Although the husband spoke briefly with respondent before leaving and after returning, he did not detect any alcohol on respondent's breath. When the husband and daughter returned home about two hours later, the husband found the patient (wife) to be "quiet" and resting. However, the daughter spoke with her mother, and based on that conversation, approached respondent, smelled her breath, detected what she perceived to be alcohol, and asked respondent whether she had been drinking. Respondent denied drinking alcoholic beverages and contended it was Listerine mouth wash that the daughter smelled. At that point, the daughter told respondent to leave the premises. The daughter declined to accept respondent's suggestion that she call respondent's supervisor, have the supervisor come to the house, and confirm or dispel the claim that respondent was drinking. After respondent departed, the father and daughter found a glass partially filled with gin on an end table next to the couch where the nurse normally sat. It may be reasonably inferred that the drink had been prepared by respondent. After leaving the premises, respondent immediately telephoned her employer and reported the incident. A few hours later, respondent's supervisor telephoned respondent and advised her to take a breathalyzer test at a local law enforcement agency or obtain a blood alcohol test at a local hospital in order to prove she was not drinking on duty. Although respondent attempted to take a breathalyzer at the local sheriff's office, she was unable to do so since the law enforcement agency would not administer the test unless respondent had first been arrested. Respondent was also unable to obtain a blood alcohol test at a local hospital without a doctor's order and payment of a $250 fee. She reported this to her supervisor around 11:30 p.m. that evening. Respondent denied drinking any alcohol and contended the glass was on the end table when she reported for duty. However, these contentions are rejected as not being credible. There is no evidence that respondent's judgment or coordination were impaired by such consumption or that her conduct in any way threatened the health and welfare of the patient. According to the Board's expert, a nurse reporting to duty while under the influence of alcohol would be guilty of unprofessional conduct and such conduct would constitute a departure from the minimum standards of acceptable and prevailing nursing practice. However, there was no evidence that respondent was under the influence of alcohol, i. e., her judgment was impaired, when she reported to duty on February 13. The expert further opined that if a nurse reported to duty after consuming any amount of alcohol, no matter how small a quantity and without regard to when the alcohol was consumed, and even if it did not impair her judgment or skills, the nurse's conduct would nonetheless be "unprofessional" because it would give the impression that the nurse's judgment was clouded. However, this opinion is not accepted as being logical, rationale or persuasive. Although not specifically addressed by the expert, it may be inferred that by having an alcoholic beverage in her possession while on duty, a nurse would not conform with the minimum standard of conduct. There is no evidence that respondent has ever been subject to disciplinary action at any other time during her eleven year tenure as a licensed practical nurse.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is recommended that respondent be found guilty of violating Subsection 464.018(1)(h), Florida Statutes (1989), and that she be given a reprimand. RECOMMENDED this 5th day of March, 1991, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of March, 1991. APPENDIX TO RECOMMENDED ORDER, CASE NO. 90-2516 Petitioner: 1. Partially adopted in finding of fact 1. 2-4. Partially adopted in finding of fact 2. 5. Partially adopted in finding of fact 3. 6. Rejected as being unnecessary. 7-8. Partially adopted in finding of fact 3. 9. Partially adopted in finding of fact 4. 10. Rejected as being hearsay. 11-16. Partially adopted in finding of fact 5. 17. Rejected as being hearsay. 18-20. Partially adopted in finding of fact 6. 21-25. COPIES Partially adopted FURNISHED: in finding of fact 8. Tracey S. Hartman, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Ms. Susan H. T. Benson P. O. Box 143 Naples, FL 33939 Jack L. McRay, Esquire 1940 North Monroe Street, Suite 60 Tallahassee, FL 32399-0792 Judie Ritter Executive Director 504 Daniel Building 111 East Coastline Drive Jacksonville, FL 32202
The Issue The issue for disposition in this proceeding is whether Petitioner, Ms. Fearon, is entitled to licensure by endorsement as a registered nurse in Florida. This requires a determination of whether her education is substantially equivalent to or more stringent than required in Florida, pursuant to Section 464.009, Florida Statutes, and Rule 64B9-3.008, Florida Administrative Code.
Findings Of Fact Petitioner Sylem May Fearon (Ms. Fearon) was born in Jamaica, approximately 68 years ago. After being educated in Jamaica she emigrated to England to pursue an education for the practice of professional nursing. Ms. Fearon took courses in geriatric nursing in England for two years, then proceeded to do a three-year general training program (1960-1963). After the general registered nursing education, she took courses in midwifery for two years, passed an examination, and was qualified as a certified nurse midwife in September 1965. Approximately 32 years ago, Ms. Fearon responded to nursing recruiters from the United States; she emigrated to the United States and commenced working as a staff nurse in a hospital in Washington, D.C. Since emigrating to the United States, Ms. Fearon has become a citizen. She took the examinations for nursing licensure in New York and Massachusetts and was successful in obtaining licensure in both states, as well as in Washington, D.C. She maintains current licensure as a registered nurse in Washington, D.C. Approximately two years ago, Ms. Fearon moved to Florida and commenced application for licensure by endorsement as a registered nurse in this state. Florida's and other states' nursing boards do not have reciprocity with each other in the sense that if you are licensed in one state you may also practice in others. Florida and other jurisdictions have licensure by endorsement which allows an applicant for licensure to demonstrate that he or she has passed an examination in another state and has the educational background that is substantially the same or more stringent than required by the state in which the applicant is seeking licensure. This allows an applicant to become licensed without having to take another examination but does not waive other requirements for licensure such as education. After Ms. Fearon applied for licensure by endorsement in Florida, nursing board staff determined that she met all of the requirements except for some areas of her education. The Board of Nursing in Florida has developed guidelines to implement its broad rules on what specific education is required. When staff determines those guidelines are not met, the individual case is brought to the Board which then makes the ultimate decision. In Ms. Fearon's case, the Board accepted the deficiencies identified by its staff and entered the order which Ms. Fearon has challenged in this proceeding. The staff and Board considered a transcript of Ms. Fearon's registered nursing education from the University of Sheffield School of Nursing and Midwifery, hereinafter referred to as the official transcript. Ms. Fearon also provided copies of a "Statement and Recommendation by Director of Nursing" dated July 20, 1967, hereinafter referred to as Petitioner's transcript, and a copy of correspondence from the Chesterfield School of Nursing dated May 2, 1968, which stated Ms. Fearon attended lectures in elementary psychology (8 hours), psychiatry (5 hours) and head injuries (2 hours), hereinafter referred to as the 1968 supplement. The official transcript includes coursework that is not listed on Petitioner's transcript, and there are discrepancies between the official transcript, Petitioner's transcript, and the 1968 supplement; however, these discrepancies did not prejudice Ms. Fearon, according to Dr. Stiehl, executive director of the Board. According to the official transcript, Ms. Fearon's education at the Royal Hospital of Chesterfield in Derbyshire, England, consisted of the following coursework in hours: Theory Hours Anatomy and Physiology 42 Personal and Communal Health 21 First Aid 15 Nutrition 8 History of Nursing 2 Elementary Psychology 8 Bacteriology and Principles of Asepsis 15 Theory of Nursing 66 Demonstration and Practical Classes 103 Bandaging 13 Principle of Surgery and Surgical Nursing 15 Principle of Medicine and Medical Nursing 19 Operating Theatre Technique 3 Gynecology and Introduction to Obstetrics 10 Diseases of Ear, Nose and Throat 5 Genito-Urinary Diseases 4 Diseases of the Eye 3 Lecture by Anesthetist 1 Orthopaedics 4 Pharmacology 4 Communicable Disease 6 Venereal Disease 4 Pediatrics and Nursing of Sick Children 8 Psychiatry 5 Social Services 4 Disease of the Skin 4 Radiography 2 Revision and Coaching Classes 10 Practical/Clinical Hours Childrens 375 Female Surgery 487.5 Male Surgery 637.5 Ear, Nose and Throat 150 Opthalmic 300 Female Orthopaedic 75 Male Orthopaedic 300 Male Medical 412.5 Female Medical 187.5 Gynecology 300 Theatre 412.5 Casualty 300 Private Patient Unit 150 Relief Night Duty 225 Preliminary Training School 450 Study Blocks 225 A nursing license is issued by the Board of Nursing for a general practitioner, i.e. the licensee can work in any area of nursing. Therefore, to practice safely, the licensee needs a basic theoretical underpinning in all the basic areas of nursing: medical, surgical, obstetric, pediatric, and psychiatric nursing. Hours spent in patient care is not equivalent to didactic study. Study of theory provides the proper theoretical base to make good clinical decisions. The Board's guidelines establish these minimum standards that must be demonstrated before its staff may approve an applicant (education in hours): Subject Theory Clinical Medical Nursing 35 150 Surgical Nursing 35 150 Obstetric Nursing 20 70 Pediatric Nursing 20 70 Psychiatric Nursing 20 70 Community Health Nursing NO SPECIFIED MINIMUM Ms. Fearon's official transcript met the minimum requirements in Medical Nursing (theory and clinical), Surgical Nursing (theory and clinical), Pediatric Nursing (clinical only), and Community Health Nursing. The official transcript documents only 5 hours of theory in Obstetric Nursing and no clinical hours. The official Transcript demonstrates 300 hours of clinical experience in "Gynecology"; however, gynecology cannot be substituted for obstetrics training. Gynecology and obstetrics training are not interchangeable. In gynecology the training looks at the female patient in totality and at a different set of disease processes than in obstetrics; in obstetrics the training focuses not only on the mother but the growth of the fetus and the health of the child. However, Dr. Stiehl reviewed Petitioner's Exhibit no. 3 (the midwife certificate) and determined that this documents the necessary training in obstetrics. The official transcript documents only 8 hours of theory in Pediatric Nursing and no clinical hours. Ms. Fearon testified that her midwifery training covered pediatrics; however, it does not meet the requirements for theory and clinical training in pediatrics. Midwifery training covers the child from birth to age one; pediatrics covers children from birth to age 18. The official transcript documents only 5 hours of theory in Psychiatric Nursing. The 1968 supplement demonstrates 5 hours in Psychiatric Nursing and 8 hours in Elementary Psychology. Psychology cannot be substituted for psychiatric training. Basic psychology training looks at normal behavior; psychiatric nursing training deals with comparing normal with abnormal and with disease processes such as manic depression. The course in head injuries is not identified as training in psychiatry. Petitioner's transcript documents 12 weeks of clinical training in psychiatry, and the Board staff reviewer gave her full credit for the needed hours. (See worksheet Respondent's Composite Exhibit no 1.) Although Ms. Fearon asserted that she had psychiatric training in her midwifery program, it would not provide the necessary minimum education in psychiatric theory. Ms. Fearon's documentation demonstrates deficiencies in psychiatric theory, pediatrics theory, and clinical training. Even if the information on Petitioner's transcript regarding psychiatric clinical experience is accepted, Petitioner still has not demonstrated sufficient theoretical education. Ms. Fearon testified that she completed two years of geriatric nursing training. No documentation has been provided of what the content of the course was. Education for a lower level of licensure would not be considered as meeting the requirements for licensure as a registered nurse. Ms. Fearon also testified that she completed courses in order to sit for her U.S. licensing examination. However, the courses were not identified, and no documentation of the courses has been submitted. Ms. Fearon did not document the requirements for licensure in New York in 1973, when she was first licensed in the United States. Instead she has responded to the staff's inquires with an effort to provide documentation of her education, most of which occurred over 35 years ago in a program which no longer exists.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the Board of Nursing enter its Final Order denying Petitioner's application for licensure by endorsement without prejudice to her right to pursue her application as described above. DONE AND ENTERED this 22nd day of December, 1999, in Tallahassee, Leon County, Florida. MARY CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of December, 1999. COPIES FURNISHED: Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Sylem May Fearon 7019 Hiawassee Oak Drive Orlando, Florida 32818 Ruth Stiehl, Executive Director Board of Nursing Department of Health 4080 Woodcock Drive, Suite 202 Jacksonville, Florida 32207 Pete Peterson, General Counsel Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701 Angela T. Hall, Agency Clerk Department of Health Bin A02 2020 Capital Circle, Southeast Tallahassee, Florida 32399-1701
The Issue The issues in this case are whether and how the Education Practices Commission (EPC) should discipline the Respondent on charges that she submitted another teacher’s work to earn an endorsement to her teacher certificate for English for Speakers of Other Languages (ESOL).
Findings Of Fact The Respondent, Kimberly Bank, holds Florida educator certificate 993098, which expires on June 30, 2018. She is certified in English and reading. During the 2012-2013 school year, she was employed by the OCPS as a reading teacher at Oakridge High School. In January 2013, the Respondent and a fellow Oakridge reading teacher named Charnetta Starr enrolled in an online course through CaseNEX to earn credit towards an ESOL endorsement to their teaching credentials. ESOL endorsements were required for their jobs. Ms. Starr completed all required course work, including participation in online discussions, journal entries, and workbook submissions, and earned credit for the course. The Respondent began the CaseNEX class, but stopped participating after a few weeks and was told by the course facilitator that she was being withdrawn from the class. The course ended on April 24, 2013. On May 2, 2013, the Respondent emailed Ms. Starr to ask her to provide the Respondent with Ms. Starr’s course work, which Ms. Starr emailed to her. The Respondent enrolled to take the CaseNEX class again during the summer of 2013. She copied Ms. Starr’s journal entries and workbook submissions from the January course and submitted them verbatim as her own work for course credit during the summer course. The submissions struck the course facilitator as being very familiar, and her investigation revealed that they were exact copies of Ms. Starr’s submissions. The facilitator reported this to her supervisor. The Respondent was again withdrawn from the class, this time for violating course prohibitions against plagiarism. The Respondent and Ms. Starr were reported to OCPS, which reprimanded them and suspended them for three days. The Petitioner initiated separate, but virtually identical administrative cases to discipline the educator certificates of both the Respondent and Ms. Starr. The Petitioner agreed to settle Ms. Starr’s case for a reprimand and $750 fine, and the EPC accepted the settlement, because Ms. Starr was not perceived to have used the Respondent’s work product, but only to have allowed her work product to be used by the Respondent. Ms. Starr testified that she agreed to the settlement but actually does not believe her actions were wrong or violations because she did not know the Respondent was going to plagiarize her work and submit it for credit. Because the Respondent was perceived to have used Ms. Starr’s work product and submitted it as her own for CaseNEX course credit, the Respondent’s administrative case proceeded, with the Petitioner seeking to fine her, suspend her educator certificate, and place her on probation. The Respondent contends that she and Ms. Starr collaborated on all of Ms. Starr’s journal entry and workbook submissions with the intention that each would submit the identical work as their own. Initially, the Respondent contended that this was permissible “collaboration” under the CaseNEX honor code and course requirements. Later in the hearing, the Respondent seemed to concede that it was against the honor code and the course’s requirement that each teacher taking the course had to submit his or her own original work. At that point in the proceeding, she seemed to be taking the position that her conduct mirrored Ms. Starr’s and that her discipline should be the same (i.e., that she should not be suspended). In her proposed recommended order, the Respondent again took the position that her conduct was permissible collaboration under the CaseNEX honor code and the course’s requirements and that no discipline should be imposed. The evidence was clear and convincing that the work submitted by the Respondent for credit in the summer 2013 CaseNEX course was not the product of collaboration between her and Ms. Starr. The Respondent testified that she and Ms. Starr collaborated by jointly doing work for the course from the very beginning of the January 2013 course with the intention of each submitting their joint work product for credit. Yet, it is obvious that the Respondent’s work submissions prior to her withdrawal from the January 2013 course were not the same as Ms. Starr’s. The Respondent testified that she collaborated with Ms. Starr throughout the January 2013 CaseNEX course. She testified that they produced joint work for them both to submit for credit in the course. She testified that after she was withdrawn from the January course, she continued to collaborate and produce joint work product with Ms. Starr, and that it was understood that the Respondent would submit the work as her own when she retook the course. The Respondent testified that she misplaced and lost her thumb-drive with a digital copy of the joint work product and asked Ms. Starr to send her a copy as an attachment to an email, which Ms. Starr did on May 2, 2013. Ms. Starr testified that the Respondent emailed her to ask for a copy of Ms. Starr’s work product from the January CaseNEX course and that Ms. Starr complied on May 2, 2013. Ms. Starr testified that this was her own personal work product, not joint work product. She denied knowing that the Respondent intended to plagiarize and submit it as her own. She testified persuasively that there were other legitimate uses the Respondent could have made of the work besides plagiarizing it. Where there is conflict between the Respondent’s testimony and Ms. Starr’s testimony, the Respondent’s is rejected as being false, and Ms. Starr’s is credited as being the truth. The evidence was clear and convincing that Ms. Starr did her own work throughout the January 2013 course. None of the work submitted by Ms. Starr for credit in the January 2013 course was produced jointly with the Respondent. If the Respondent were telling the truth, and she and Ms. Starr collaborated on their work submissions, her early submissions for the January CaseNEX course would have been identical to Ms. Starr’s. They were not. On the other hand, some of her submissions during the course she took during the summer of 2013 were identical to Ms. Starr’s submissions. For this and other reasons, Ms. Starr’s testimony was more credible than the Respondent’s when their testimony was in conflict. The Respondent attempted to attack Ms. Starr’s credibility by use of a screen shot of an incomplete and out-of- context cell phone text message exchange between them on June 13, 2013. At 11:25 a.m. on that date, Ms. Starr texted the Respondent: “OK. Did you sign up for the online modules for the $1000? Let’s start working on them so we can get paid on 7/31.” The Respondent answered: “Girl I have started. The kids do 2 hrs in the computer lab and I do the modules. They are easy but looooooong!” Ms. Starr replied: “OK. Send me any info you have for it please.” The Respondent texted: “You just watch a video and answer 2 multiple choice questions. Skip through the video and go to the questions. You can try as much as you want. There”. There was no evidence as to what preceded or followed the exchange. When Ms. Starr was confronted with the text exchange on cross-examination, she understood that it was being presented to impeach her testimony that the Respondent contacted her about providing the Respondent with their supposedly joint work product from the January CaseNEX course. In her haste to vehemently defend herself, Ms. Starr failed to realize that the text message exchange actually had nothing to do with her providing the Respondent with her work product from the January course, but was about a different course they were taking to earn bonus pay, and she testified incorrectly that it was the Respondent who initiated the text message exchange that was in evidence. The cross-examination failed to impeach the essence of Ms. Starr’s testimony. The evidence was that the Respondent is a good teacher. She performed satisfactorily both at Oakridge before the CaseNEX cheating incident and at Conway Middle School after it. Nonetheless, it is clear that her effectiveness as an employee of the school district was seriously impaired by her plagiarism and cheating on the June 2013 CaseNEX course. For one thing, she was reprimanded and suspended for three days. For another, she did not get the ESOL endorsement that was required for the job she held at Oakridge. Since the Respondent was guilty of plagiarism, and Ms. Starr was less culpable, it is reasonable for the Respondent’s discipline to be harsher than Ms. Starr’s. A period of suspension is reasonable. Based on the EPC records of discipline imposed in similar cases that were officially recognized in this case, it appears that it has been the practice of the EPC to impose a one-year suspension, in addition to a fine, probation, and a requirement to take a college-level course in ethics, for a teacher who admits to plagiarism and cheating in a CaseNEX ESOL endorsement course. In the Respondent’s case, a longer period of suspension is warranted due to the Respondent’s dispute of the charges and her false testimony.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the EPC enter a final order finding the Respondent guilty as charged, suspending her educator certificate for 18 months, placing her on probation for two years with conditions to be determined by the EPC, requiring her to take a college-level course in ethics under terms and conditions determined by the EPC, and imposing a fine in the amount of $750. DONE AND ENTERED this 8th day of June, 2016, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 8th day of June, 2016.
The Issue Whether Respondent committed an unlawful employment practice against Petitioner in violation of Section 760.10 et seq., Florida Statutes, as set forth in Petitioner's Charge of Discrimination dated September 4, 2001, and, if so, the penalties that should be imposed.
Findings Of Fact Respondent is a nursing home located in Miami Springs, Florida. At the times pertinent to this proceeding, Cathy Abello was Respondent's Director of Nursing (DON), and Barbara Fernandez was Respondent's Assistant Director of Nursing (ADON). The DON is responsible for the performance of the nursing staff and has primary responsibility for personnel decisions pertaining to the nursing staff. The ADON also has supervisory authority over the nursing staff and can hire or fire nursing personnel. At the times pertinent to this proceeding, Respondent employed between 50 and 55 registered nurses, six of whom have supervisory responsibilities. Respondent used three shifts of approximately eight hours each to provide 24 hour per day nursing coverage for its residents. The first shift began at 7:00 a.m. and ended at 3:00 p.m. The second shift began at 3:00 p.m. and ended at 11:00 p.m. The third shift began at 11:00 p.m. and ended at 7:00 a.m. The starting and ending times are approximate because there was usually an overlap between shifts to permit nurses coming on duty to coordinate patient care with the nurses going off duty. It was not uncommon for nurses to work more than one shift each day. In addition to the DON and the ADON, Respondent had a nursing supervisor for each shift. A nursing supervisor's duties include supervising the nurses and support staff during a shift, finding personnel to fill in for absences, and responding to emergencies. A nursing supervisor works under the supervision of the DON and the ADON. Petitioner is a registered nurse and had worked for Respondent for several years prior to May 2001. At the times pertinent to this proceeding, Respondent employed Petitioner as a nursing supervisor for the first shift. Respondent stipulated that Petitioner was qualified to do her job and performed her duties adequately with no disciplinary record. Petitioner failed to present evidence as to her date of birth. While her exact age was not established, the testimony of the witnesses who had known her and had worked with her for several years established that Petitioner was in her late fifties or early sixties at the times pertinent to this proceeding. In April 2001, Petitioner required a total knee replacement. Prior to her surgery, Petitioner was capable of performing her job. When she learned she required knee surgery, Petitioner requested and was granted medical leave. She began her medical leave in April 2001. It is inferred that Petitioner was incapable of performing her work for a period of time following her surgery. However, the duration of her incapacity and the extent of her recovery were not established by the evidence presented at the final hearing. When Petitioner went on medical leave in April 2001, Ms. Fernandez worked as ADON during the first shift and also worked the second shift. To accommodate Petitioner’s absence, Ms. Abello asked Ms. Fernandez to continue to perform her duties as ADON during the first shift and to assume Petitioner’s duties as nursing supervisor for the first shift. From the time Petitioner went on medical leave to the time of the final hearing, Ms. Fernandez discharged her duties as the ADON on the first shift and served as nursing supervisor for the first shift. Ms. Fernandez also continued to perform duties on the second shift. At the time of the final hearing, Ms. Fernandez was the nursing supervisor for the second shift. Ms. Abello was pleased with the manner in which Ms. Fernandez performed her dual responsibilities as ADON and as nursing supervisor for the first shift. Ms. Abello made a business decision to consolidate the positions of ADON and first shift nursing supervisor. Ms. Abello also decided to have Ms. Fernandez perform those consolidated responsibilities. Ms. Abello made the employment decision to make the nursing staffing more efficient and to reduce Respondent's overhead. Ms. Abello's articulated reason for the challenged employment decision is found to be legitimate and non-discriminatory. There was insufficient evidence to establish that the articulated reason for the challenged employment decision was a pretext for unlawful discrimination. At the time of the final hearing, Ms. Abello had worked with Ms. Fernandez for almost 14 years and had worked with Petitioner for approximately five years. Ms. Abello considered Ms. Fernandez’s professional qualifications to be superior to Petitioner’s. Ms. Fernandez and Petitioner are approximately the same age. 1/ Petitioner failed to establish that age was a factor in Ms. Abello’s decision to have Ms. Fernandez perform in the consolidated positions instead of having Petitioner perform those duties. The greater weight of the credible evidence established that age was not a factor in Ms. Abello’s decision. Petitioner was still on medical leave when Ms. Abello decided to have Petitioner’s responsibilities consolidated with Ms. Fernandez’s ADON responsibilities. Maria Cruz, acting on instructions from Ms. Abello, informed Petitioner by telephone that as of the end of May 2001, her position as nursing supervisor for the first shift would be eliminated and that her employment would be terminated. During that telephone conversation, Ms. Cruz told Petitioner that there was an open position as a nursing supervisor on the weekends and asked Petitioner to call her if she was interested. Petitioner never called Ms. Cruz about that or any other position Respondent might have open. The fact that Petitioner was still on medical leave when she was informed of Ms. Abello's employment decision arguably creates an inference that Petitioner had not recovered from her surgery. Assuming, arguendo, that Petitioner was disabled when Respondent terminated her employment, Respondent clearly established that it had a legitimate, non-discriminatory business reason for the challenged employment decision. The greater weight of the credible evidence established that any disability Petitioner might have suffered from her total knee replacement, whether temporary or permanent, was not a factor in the challenged employment decision.
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 Petitioner’s Charge of Discrimination. DONE AND ENTERED this 6th day of November, 2002, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 November, 2002.
Findings Of Fact The Respondent, Jar Robert Roth, holds Florida Teaching Certificate 333599 issued by the Department of Education covering the areas of social studies, administration and supervision, and junior college. The Petitioner is an agency of the State of Florida charged with the licensure of teachers, regulating the licensure status of teachers and enforcing the professional practice standards related to teachers, and imposing disciplinary sanctions where proven to be appropriate. At all times material to this proceeding, the Respondent was employed by the Lee County School District as a teacher at Alva Middle School (Alva). At the beginning of the 1982-1983 school year, the Respondent taught an eighth grade physical education class. During the school year, the Respondent was teaching out of his field and had little prior experience with middle school students. The Respondent taught the physical education class for a short time, probably less than nine weeks. During this period of time, he had no difficulties or disciplinary problems between student Richie Jones and himself at all. One day in December 1982, Richie Jones, a 12-year old student, was walking down a hallway at Alva Middle School when he saw the Respondent approaching him. In a joking vein, Richie called the Respondent "ugly." The Respondent replied, "come here, kid" or words to that effect and advanced towards Richie. Richie replied to the effect that the Respondent should beware because he knew karate. At that juncture, the Respondent grabbed the student by the collar or lapels and pushed him against the wall, picking him up off the floor slightly (Richie was 12 years old and a very small child for his age). When this occurred, Richie told the Respondent that he was just joking. The Respondent replied "you'd better be," or a similar admonishment, possibly regarding sending Richie to the principal's office, and walked away. Richie walked away in the other direction. The record does not reflect whether the Respondent's comment before walking away was in a serious or joking vein. However, as revealed by Alice Moore, the Petitioner's own witness, a teacher who observed the incident, she saw Richie and the Respondent laughing and joking during the incident when the Respondent physically grabbed Richie, picked him up and pushed him against the wall. According to Ms. Moore, the time elapsed from the point when the Respondent and Richie were laughing and joking, to the time that the Respondent put him down and walked away, was only a matter of seconds. Richie possibly was briefly scared by the incident, but was unhurt, and, by his own admission, forgot about it and thought no more of it thereafter. No report of this incident to other teachers was made by Richie or anyone else. On the afternoon of January 6, 1983, at approximately 3:30 p.m., John Gouley, Glenn Dyess and Paul Meloy, Alva Middle School students, were walking to Alva Supply Store approximately one to one and a half blocks from the school, after school hours, to obtain refreshments. Paul was walking several steps ahead of John and Glenn as they were waling down the side of the road. At that time, John and Glenn were engaged in an argument. They were approximately one hundred yards from the school at that time. As the boys were walking along the side of the road, the Respondent passed them when leaving the school grounds in his van. The Respondent, in the belief that John Gouley had shouted "Roth sucks" or made an obscene gesture, or both, slammed on his brakes, jumped out of the van, and approached the boys. The Respondent got close to John Gouley, facing him, and Gouley asked "What did I do?" The Respondent replied, "I heard what you said" and the Respondent then pushed Gouley with the open palms of his hands applied to the boy's chest. Following this pushing, Gouley either fell into the ditch behind him or went down on one knee. The evidence in this regard conflicts. Gouley had grass stains on the seat of his pants as well as his knees. He maintains he fell into the ditch on his back, while the Respondent maintains the he merely grabbed Gouley's lapels causing him to go down on one knee. In any event, the Respondent admits to physically touching Gouley in this instance. Gouley was unhurt, although somewhat shaken and upset. The three boys then returned to school and reported the incident to Ms. Louise King, a physical education and health teacher at Alva Middle School, who was in the principal's office at the time the boys sought out the principal, who was absent at the time. The boys explained the incident to Ms. King. Ms. King observed Gouley's chest and saw that it was red, although not bruised and with no finger marks. Gouley was upset and crying at the time, and his clothes appeared dirty. Ms. King made notes of the incident and informed Mr. Watson, the Principal, by calling him at home. Both Glenn Dyess and Paul Meloy observed the incident, and two female students were present in the office when Ms. King and John Gouley were discussing the incident. Mr. Thomas Benton, Director of Personnel Services for the Lee County School District, interviewed the Respondent the following day, January 7, 1983. The Respondent told Mr. Benton that he did indeed push the student, indicating that he regretted it, but simply acted impulsively. In any event, the incident with John Gouley was related by Gouley to people at his church; his friends and other teachers were in various ways made aware of the incident. The fact of the incident was published in a newspaper of general circulation in Lee County, the Fort Myers News Press. Mr. Roth has been in the teaching profession for approximately 12 years, most of that time as a teacher and as a dean at Riverdale High School in Lee County. The last one and a half years before his resignation were spent in middle school, where he was required to teach out of his field with students younger than those he was accustomed to relating to and instructing. Mr. Roth's entire career has been characterized by exemplary performance of his duties, also characterized by a vital concern for his students' education and personal and social development. He is greatly concerned with the success of his students. Upon beginning teaching at Alva Middle School, when he observed many failing students in the sixth grade, he organized "Parent's Nights" so he could discuss the students' problems with parents and assist parents in helping the students at home so that more of them would pass his courses. His practice of the profession has also been characterized by extracurricular activities he has organized in order to attempt to make learning interesting for his students, and to assist to motivating them. Indeed, one parent, Mrs. Helen Henderson, thought that the Respondent made a substantial contribution to education in Lee County, finding him to be a dedicated, considerate teacher who is the only teacher in the 17 years this parent had children in both Riverdale and Alva Middle Schools, who bothered to call her from his home in the evening to discuss the problems here child was having, and to offer his assistance. That assistance for her daughter resulted in her raising her poor grade average to an "A" average. This parent found the Respondent always willing to share his knowledge and give extra help to students, and the students in his seventh grade science and other classes were taught extra skills compared to other sections dealing with the same subject matter and grade level. Additionally, the Respondent taught an extra first aid class which he organized and offered on his own for the benefit of his students, and this parent found his method of teaching, based upon experience with her daughter's progress in Roth's classes, to be both fun and interesting. This parent, who was aware of the incident involved in the case at bar and the publicity related to it, obviously would allow the Respondent to educate her children if that were still possible, even with that knowledge. Ms. Karen Dyess, another parent, who had a son in the Respondent's class, also found him to be an exemplary teacher. This parent's son was having difficulty with the subjects in Mr. Roth's class and Ms. Dyess attended a number of classes to observe. The Respondent's class was well organized and the Respondent had a good rapport with his students. He conducted himself in a totally professional manner. The Respondent made extra efforts to enable Ms. Dyess' son to pass the course, to no avail. Ms. Dyess, however, believes the Respondent put forth a lot of extra professional effort in assisting her son, and she was impressed with his sincere desire to help him, and indeed Ms. Dyess has commended the Respondent to his Principal, Mr. Watson. This parent, also with knowledge of the altercation involved in the case at bar, has a high opinion of the Respondent as a teacher and finds it would be regrettable to lose his services on "our teaching staff." The Respondent is married and the father of three children. There is no evidence that any such incidents have ever arisen in his professional career prior to those involved in the charges at issue. The Respondent enjoys teaching and working with young people and desires to continue teaching in the Lee County School System.
Recommendation Having considered the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is, therefore RECOMMENDED that the penalty of a written reprimand shall be imposed as provided for in Section 231.262(6)(f), Florida Statutes. DONE AND ENTERED this 21st day of November 1984 in Tallahassee, Florida. P. MICHAEL RUFF 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 November 1984. COPIES FURNISHED: J. David Holder, Esquire Post Office Box 1694 Tallahassee, Florida 32302 John C. Coleman, Esquire Coleman & Coleman 2300 McGregor Boulevard Fort Myers, Florida 33901 Honorable Ralph Turlington Commissioner of Education The Capitol Tallahassee, Florida 32301 Donald Grieshiemer, Executive Director Education Practices Commission Knott Building Tallahassee, Florida 32301
