Findings Of Fact There are no issues of material fact in dispute. Respondent, Department of Children and Families (Department), pursuant to section 394.9151, Florida Statutes (2018),1/ has contracted with a private entity, Wellpath, LLC (Wellpath), to use and operate a facility, Florida Civil Commitment Center (FCCC), to comply with the requirements of chapter 394, part V (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Each Petitioner is a sexually violent predator, and collectively are persons subject to chapter 394, part V. Petitioners are confined in the FCCC. Petitioners allege that the FCCC Resident Handbook is an unpromulgated rule which is imposed on FCCC residents, and that the same is an improper exercise of delegated legislative authority as a de facto agency rule that has not been adopted pursuant to the rulemaking procedures of section 120.54(1)(a), Florida Statutes. Petitioners also claim that because “Baker Act residents” are housed at FCCC, then “all rules governing every aspect of the facility must be implemented” in accordance with section 394.457. Petitioners do not allege that they are housed at FCCC pursuant to the Baker Act.2/
Findings Of Fact Darlington House is an adult congregate living facility owned and operated by Darlington Corporation under a license issued by the Department of Health and Rehabilitative Services. Darlington House has approximately five full-time residents and had five residents at all times relative to the events set forth in the administrative complaint. On January 22, 1985, personnel of the Department of Health and Rehabilitative Services conducted an inspection of Darlington House. A report of that inspection contained the following annotation: Medications were being administered by an unlicensed employee as evidenced by the employee placing medication in a spoon and dispensing it to residents. On March 6, 1985, the Department of Health and Rehabilitative Services issued a Notice of Deficiencies indicating that there was insufficient supervision of administration of medication. On March 14, 1985, the Respondent responded to the notice of deficiency indicating that all medications would be administered by or under the supervision of a person who would be either licensed as a practical nurse or registered nurse. On April 8, 1985, the Department conducted an inspection of Darlington House. A list of the deficiencies included the following entries. ACLF 28. The facility did not have job descriptions available for review. ACLF 55. The facility did not have food service policies and procedures providing for the nutritional care of the residents. On July 31, 1985, the Petitioner conducted an inspection of Darlington House. Gail Stanback, the temporary employee on duty, was unable to produce written copies of the job descriptions and nutritional policies and procedures during that inspection. The inspector also found on the kitchen counter plastic cups containing medication which had been transferred from original storage containers into the plastic cups by a licensed nurse in preparation for giving the medication to the residents. Darlington Corporation had written a job description for the position of the full time employee of Darlington House responsible for providing personal care to residents. This job description was located at the corporate offices of the corporation in Holiday, Florida, at the time of the agency's inspection. Similarly, Darlington Corporation had written policies and procedures pertaining to nutrition at Darlington House. At the time of the inspection, a copy of these policies and procedures was located at the corporate offices of Darlington House. Copies of the job description and policies and procedures for food service were received into evidence. The report of inspection of the agency for April 8, 1985, does not reference any deficiency involving the supervision or administration of medication.
Recommendation Having found the Respondent guilty of failing to maintain on the premises as required by rule copies of its nutritional policies and procedures, contrary to Rule 10A-5.20, Florida Administrative Code, it is recommended that the Respondent be fined One Hundred Dollars ($100.00). DONE AND ORDERED this 2nd day of June 1986 in Tallahassee, Leon County, Florida. STEPHEN F. DEAN 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 2nd day of May 1986. APPENDIX TO RECOMMENDED ORDER CASE NO. 86-0307 The following constitute my specific rulings pursuant to Section 120.59(2), Florida Statutes (1985) on the proposed findings of fact submitted by the parties. All of Petitioner's and Respondent's Proposed Findings of Fact were adopted except for the following: Respondent's Proposed Findings of Fact: 5. Rejected; irrelevant. 12. Rejected; irrelevant. Petitioner's Proposed Findings of Fact: 10. Rejected; conclusion of law. COPIES FURNISHED: Mr. William Page, Jr. Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Steven W. Huff, Esquire General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32301 Barbara McPherson, Esquire District V. Legal Counsel 2255 East Bay Drive Clearwater, Florida 33518 Scott L. Knox, Esquire 1017 Bartelt Road Holiday, Florida 33590
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
Findings Of Fact Petitioner, Warren Lodge, is licensed to operate Paskow Lodge Retirement Residence, 5821 N.W. 28th Street, Lauderhill, Florida as an Adult Congregate Living Facility. The Respondent, Department of Health and Rehabilitative Services, conducted an administrative inspection of Paskow Lodge Retirement Residence on February 2, 1985. At the conclusion of the inspection, the Respondent was given written notice of a list of deficiencies noted during the inspection. The Respondent was given until April 5, 1985 to correct the deficiencies. On September 12, 1985, the Petitioner conducted a follow-up survey of Paskow Lodge Retirement Residence. Although several of the deficiencies previously cited were corrected, many of them had still not been corrected. DEFICIENCIES PREVIOUSLY CITED ON FEBRUARY 2, 1985, AND UNCORRECTED ON SEPTEMBER 12, 1985 The Respondent failed to keep on file in the facility up-to-date daily records for residents who received supervision of self administered medications. Respondent allowed medications to be administered by unlicensed staff members during evening hours. Respondent failed to arrange exits remote from each other and in such a manner as to minimize any possibility that more than one exit might be blocked by any one fire or emergency. Respondent failed to document that therapeutic diet service was being provided although at least one facility resident had a physician's order for a 1500 calorie diabetic diet on file. Respondent failed to demonstrate that menus were planned in accordance with the recommended dietary allowances established by the Food and Nutrition Board National Research Council. Adequate amounts of meats, fruits, citrus, vegetables, milk and other foods were not specified on the menu. Respondent failed to conduct matters pertaining to food service in accordance with Chapter 10D-13, F.A.C., and Chapter 10A-5.20(m), F.A.C. in that: miscellaneous food items were stored on the floor; clothing and shoes were stored with food; The Kenmore reach-in-refrigerator/freezer had wet towels on the interior bottom shelf and outside base of unit, the thermometers registered a temperature of 60 degrees Fahrenheit instead of 45 degrees Fahrenheit or below, and 45 degrees Fahrenheit instead of zero degree Fahrenheit or below for the refrigerator and freezer respectively and the unit kickguard was missing; an Edlund can opener, blade and base were grossly soiled; dumpster doors were left open; plastic beverage tumblers were stacked and stored wet; the restroom next to the dining room was not provided with paper towels; documentation was not proved to show that food service staff were free of communicable disease; sanitation inspection reports on file did not document correction of deficiencies.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a fine in the amount of $1,087.50 be assessed against Petitioner. In addition, it is RECOMMENDED that the Petitioner be allowed to make five (5) monthly installment payments of $180 and a final payment of $187.50. DONE and ORDERED this 8th day of April 1987 in Tallahassee, Leon County, Florida. W. MATTHEW STEVENSON 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 8th day of April 1987. COPIES FURNISHED: Leonard C. Helfand, Esquire Department of Health and Rehabilitative Services 401 N.W. Second Avenue, Suite 1070 Miami, Florida 33128 Amy Jones Director Office of Licensure and Certification 2727 Mahan Drive Tallahassee, Florida 32302 Warren Lodge Paskow Lodge Retirement Resident 5821 N.W. 28th Street Lauderhill, Florida 33313 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 32399-0700 Sam Power Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, Florida 3239-0700
Findings Of Fact Pursuant to a prehearing stipulation executed by the parties on July 22, 1982, the facts in this case are essentially not in dispute. The prehearing stipulation establishes the following facts concerning the allegations contained in the Administrative Complaint: Respondent Novoa is a certified air conditioning contractor having been issued license number CAC010132 and CAC010132. Respondent's address is 30 S. W. 67th Court, Miami, Florida 33144. At all times material hereto, Respondent was associated with and was the qualifying licensee for Baker Service Company, Inc., d/b/a Dade Air Conditioning and Appliance Service, 11651 N.W. 7th Avenue, Miami, Florida 33168. Respondent's responsibilities in said company were to pull permits and supervise installation of air conditioning systems in return for a salary of $100.00 per week. Petitioner has no evidence that Respondent did not fulfill that particular function for the company he qualified. However, Petitioner asserted and Respondent admitted that the company was also involved in soliciting service contracts for which it maintained a fleet of trucks and personnel to sell and solicit said contracts and to perform the obligations requested under the contracts. Petitioner asserted and Respondent admitted that it was not his function in the company to take any part in the business concerned with the service contracts. The Respondent completed a "Certification Change of Status Application" on or about December 14, 1978, and submitted it to the Department of Professional and Occupational Regulation, Florida Construction Industry Licensing Board. The Respondent signed an affidavit which is part of the application, certifying as true and accurate his answers on the application. Respondent asserted that the Certification Change of Status Application was prepared for his signature by personnel within Baker Service Company, Inc., who represented to him the truth of the contents thereof. Petitioner has no information contrary to Respondent's assertion. The Certification Change of Status Application contained false information in that it listed only Frank Baker as President of the company without listing the company's Secretary, Frank Baker III, and Albert Crooke, Vice President of the company. Respondent alleged and Petitioner has no evidence to the contrary, that he did not know of the involvement of Frank Baker III and Albert Crooke as officers of the corporation and only inadvertently filed false information with the Department. Baker Service Company, Inc. entered into many service contracts with certain named parties who are listed in and made a part of the Administrative Complaint by the attachment of Exhibit A thereto, all of whom had service contracts similar to Petitioner's Exhibit 3. Baker Service Company, Inc. was to provide air conditioning and other major appliance service pursuant to said contracts and did not perform its obligations thereunder, even though the company was paid and received funds to perform such service. The Respondent admitted that he did not take any active part in supervising the operation of Baker Service Company, Inc., with regard to their maintenance and service contract business and therefore used his registration to evade the contracting license law in violation of Section 489.129(1)(f) Florida Statutes. However, Petitioner admitted that this violation is of a technical nature. Respondent admitted that he obtained his registration by the filing of a false application, but asserted that he was not aware of its misrepresentation at the time of filing. Petitioner admitted it had no information with which to prove the Respondent knew the application was false when filed. Respondent admitted that his qualification of Baker Service Company, Inc., the execution of the numerous service contracts, and abandonment of the same by Baker Service Company, Inc., constitutes violations of Section 489.129(1)(k), Florida Statutes, and Chapter 10 , Code of Metropolitan Dade County, Section 10-22G, by failing to fulfill contractual obligations.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Construction Industry Licensing Board finding that the Respondent Novoa committed technical violations of Sections 489.129(1)(f) and (k), Florida Statutes, and imposing a $500.00 administrative fine and a private reprimand. DONE and ORDERED this 29th day of September, 1982, in Tallahassee, Florida. SHARYN L. SMITH 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 29th day of September, 1982. COPIES FURNISHED: Michael J. Cohen, Esquire Suite 101 2715 E. Oakland Park Boulevard Ft. Lauderdale, Florida 33306 Rodolfo Sorondo, Jr., Esquire Suite 1101 Peninsula Federal Building Miami, Florida 33131 James Linnan, Executive Director Florida Construction Industry Licensing Board Post Office Box 2 Jacksonville, Florida 32202 Samuel R. Shorstein, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF PROFESSIONAL REGULATION CONSTRUCTION INDUSTRY LICENSING BOARD DEPARTMENT OF PROFESSIONAL REGULATION/CONSTRUCTION INDUSTRY LICENSING BOARD, Petitioner, vs. DPR Case No. 0012267 DOAH Case No. 81-2477 JOSE E. NOVOA 30 SW 67th Court Miami, Florida 33144 C & S Air, Inc. CA C010132 Post Office Box 43-2094 Miami, Florida 33144 Baker Service Company CA CA10132(deleted) Respondent. /
Findings Of Fact Based on the stipulations of the parties and on the evidence received at the hearing, I make the following findings of fact. All seven Petitioners are prisoners at Baker Correctional Institution and are subject to the rules of Respondent. Petitioners' Exhibit One, a memorandum of December 29, 1987, was issued by O. J. Phillips, Superintendent of Baker Correctional Institution. By incorporation into Rule 33-3.0045(9), Florida Administrative Code, a new package permit became effective January 1, 1988, but according to the December 29, 1987, memorandum, Baker Correctional Institution would not begin using the new package permit until February 1, 1988. The old and new package permits, Petitioners' Exhibits 2 and 3, respectively, differ somewhat in the quantity and types of items the inmates are permitted to possess. The new package permit also lists a dollar amount limit on the value of each item. As alleged in paragraphs I(1), (3), (5), (7), (8), (9), and (11) of the petition, each Petitioner has property in excess of that provided for on the new package permit. Al Cook, Assistant Superintendent at Baker Correctional Institution, drafted the December 29, 1987, memorandum for O. J. Phillips' signature. The memorandum was the result of a rule change. He was uncertain of the date Baker Correctional Institution received the new rule. Since the new package permit was not available before Christmas, Baker Correctional Institution used the old permit. When the new one arrived, the institution decided to give the inmates a grace period until February 1 before implementing the new permit. The memorandum was to advise everyone of the change. When a proposed rulemaking package is received by Baker Correctional Institution, the Superintendent's secretary copies and distributes the proposed rules for posting on inmate bulletin boards. Mr. Cook believes his institution received the proposed rulemaking package for the rules challenged in this action in August 1987. He saw a document signed by Sergeant Flores, whose responsibility it was to distribute and post the proposed rules, attesting to the fact the challenged proposed rules were posted. According to the State Fire Marshal's codes, prisoners must keep all their personal items in a metal locker. Due to storage limitations at Baker Correctional Institution, inmates can have only one small locker. It is each inmate's choice as to what items he can fit into that locker and what items to mail out to his family. Petitioner Pacheco was a law clerk in the prison library. He did not see the notice of change in rules in the library. He saw the new package permit on the dormitory bulletin board but did not see a proposed rulemaking package. There have been occasions what he has witnessed inmates ripping memorandums off the bulletin boards. Although he has not had any property confiscated, Petitioner Pacheco has excess property. He has funds to mail the items home, but does not feel he should have to do so. Petitioners Smith, Cox, and Estremera did not see any proposed rule changes in the package permit posted on the bulletin boards during the last six months. Petitioner Cox had excess property but mailed it out. Petitioner Estremera has not had any property confiscated. Petitioner Peterssen understands little or no English; he is Spanish- speaking. The memorandum and rules in question were not published or posted in Spanish, and Peterssen became aware of the change only from talking with other Spanish-speaking inmates. Petitioner Cribbs did not see a rule change notice. He had personal and legal items seized from him on February 14, 1988. This is the subject of a pending disciplinary hearing. The reason given for the seizure is that the items seized were not stored in his locker due to lack of room. Petitioner Cribbs has no money to mail his excess property home. Richard Kirkland, formerly the security administrator for Respondent, was involved in changing the package permit. The reasons for the change were fourfold: The Fire Marshal mandated that items in institutions had to be stored in metal lockers. During a year's time, the Department transfers over 27,000 inmates in 15-passenger buses. There is little room in the buses to move personal property. Inmates moving from institutions more liberal in storage space to institutions with less space often have property seized. The change provides uniformity so that inmates and staff will know the property limitations. Without dollar valuations established, the Division of Risk Management had had to pay out what it considered excessive claims for such items as a "gold chain." By establishing dollar value limitations, the state can more fairly assess dollar losses for stolen or missing property. The rule change to establish a fair value, number, and type of acceptable items of personal property was promulgated after a year's work by a committee from around the state. Since four permits are allowed each year, inmates will be able, in most instances, to replace those items that wear out rather quickly. The challenged rules do not address religious or legal materials since those property items are covered by other rules. Additional property for valid medical conditions can be approved by medical staff.
The Issue The issue to be determined in this proceeding is whether Petitioner is entitled to a refund of premiums paid for life insurance coverage during the 2013 plan year.
Findings Of Fact Petitioner is a state employee with over 30 years of public employment. Respondent, Department of Management Services, Division of State Group Insurance (Division), is the state agency charged with administering the state group insurance program. Pursuant to section 110.123(5), Florida Statutes, its duties include determining the benefits to be provided to state employees and the contributions to be required for the state group insurance program. The Department of Management Services is also authorized, pursuant to section 110.161, to administer a pre-tax benefits program that allows employees’ contributions to premiums be paid on a pre-tax basis, and to provide for the payment of such premiums through a pre-tax payroll procedure. Among the insurance products available to state employees are group health insurance, basic group term life insurance, and optional group term life insurance. At the crux of this case is the premium to be paid for group term life insurance. Basic insurance is noncontributory insurance (meaning the employer pays the premium) for full-time employees and is contributory insurance (meaning the employee pays the premium) for part-time employees. Optional insurance is contributory insurance for all employees. At the time relevant to this proceeding, career service, university system support staff, senior management, and select exempt service employees, as well as active state senators and representatives, were entitled to a basic group term life insurance benefit of $25,000. For retired vested legislators, the basic group term life benefit was $150,000, and for retirees who were not vested legislators, the benefit was either $2,500 or $10,000. Optional group term life insurance was also available to active employees enrolled in basic term life. This insurance coverage was available for purchase up to seven times an employee’s annual earnings, to a maximum of $1,000,000. Both basic and optional life insurance are provided through Minnesota Life. The opportunity to enroll in or make changes to insurance coverage occurs during open enrollment each year. During open enrollment in 2012, Petitioner made selections for the 2013 plan year, which corresponds with the calendar year. Among his selections, Petitioner opted to continue his optional life insurance coverage at four times his annual salary. To make his selection, Petitioner used the People First System. The Minnesota Life screen shot for determining the premium for coverage contains the following information: Determining the cost To determine the new monthly cost of changing your Optional Life coverage, please follow the example below: How is your monthly premium calculated? Your annual earnings = Basic amount Choose the salary multiple of one = to seven times your annual Optional multiple earnings Multiply your basic amount by your = optional multiple and round to the Coverage amount next higher thousand Divide your coverage amount by = 1,000 $1,000 increments Of coverage From the table on the right, find = the rate that corresponds with Rate from table your age X Answer from #4 = Your monthly Insurance premium The table referenced above provides the premium rates based on age bands, such as under age 30, 30-34, 35-39, etc. For ages 55-59, the rate is $0.335. From 60-64, the rate is $0.613. Below the rate/age table is the statement, “[r]ates increase with age and all rates subject to change.” However, nothing in the worksheet indicates that the rate changes during a plan year if the insured has a birthday that puts the employee in a different age band. Based upon his completion of the worksheet in People First, the monthly premium for the optional life insurance selected by Petitioner was $81.08. Petitioner received a document entitled “State of Florida Confirmation of Benefits for 2013 Plan Year.” The Confirmation of Benefits document confirmed that for the 2013 plan year, Petitioner’s monthly cost for optional life insurance would be $81.08. For the first two months of 2013, the expected amount of $81.08 was deducted from Petitioner’s salary. However, beginning in March 2013, for the coverage beginning in April 2013, the premium increased from $81.08 to $148.36, a difference of $67.28 per month.1/ Petitioner did not receive any specific notice regarding the change in policy premiums. He did not notice the difference in his net pay immediately because his salary is subject to additives, and it was not unusual for the net pay to vary from month to month. Employees do not automatically receive a copy of their pay stubs. They must affirmatively retrieve them electronically from a Department of Financial Services website. Petitioner first called the People First information line on August 27, 2013, to inquire regarding the increase in premiums. He followed up with a letter dated September 10, 2013, asking for a refund of the amount deducted from his salary in excess of $81.08 a month. On September 12, 2013, the People First Service Center responded to his request by stating that the increase was a “Significant Cost Increase Qualifying Status Change (QSC) event,” and that inasmuch as Petitioner did not request a decrease in coverage level within 60 days of the QSC event, any change to his benefits would have to wait until open enrollment. The letter referenced Florida Administrative Code Rule 60P-2.003, stating, We are charged with the responsibility of administering the State Group Insurance Program pursuant to these state regulations, as well as the federal regulations. The rules pertaining to changes in health plans are found in Chapter 60P-2.003 which states: “An employee may elect, change or cancel coverage within thirty-one (31) days of a Qualified Status Change (QSC) event if the change is consistent with the event pursuant to subsection 60P-2.003(7), F.A.C. or during the open enrollment period.” While the letter purports to quote the rule, rule 60P- 2.003, the language above does not actually appear as quoted in the rule. Rule 60P-2.003 states in relevant part: An employee enrolled in the Health Program may apply for a change to family coverage or individual coverage within thirty-one (31) calendar days of a QSC event if the change is consistent with the event or during the open enrollment period. * * * All applications for coverage changes must be approved by the Department, subject to the following: The Department shall approve a coverage change if the completed application is submitted to the employing agency within thirty-one (31) calendar days of and is consistent with the QSC event. Documentation substantiating a QSC event is as follows: If changing to family coverage, proof of family status change or proof of loss of other group coverage is required. If changing to individual coverage, proof of family status change or proof of change of employment status is required. If adding an eligible dependent to family coverage, proof of family status change is required. If terminating coverage, proof of family status change or proof of employment change is required. On September 23, 2013, Petitioner sought a Level-II appeal, forwarding all of his correspondence to the Division. On October 11, 2013, Barbara Crosier, Director of the Division, wrote to Petitioner and advised that his Level-II appeal was denied. The letter cited rule 60P-2, and stated that Petitioner needed to have acted within 31 days of the QSC event if the change was consistent with the event, or wait until the open enrollment period. The letter provided Petitioner with notice of his right to a hearing pursuant to chapter 120, Florida Statutes, and on November 6, 2013, Petitioner filed a request for hearing that resulted in these proceedings. Both the correspondence from People First and the letter from Ms. Crosier refer to a qualifying status change. However, the definition of a QSC event in rule 60P-1.003(17) does not include a change in age band. The events identified in the rule are “the change in employment status, for subscriber or spouse, family status or significant change in health coverage of the employee or spouse attributable to the spouse’s employment.” There is a table available somewhere through People First2/ entitled “State of Florida Qualifying Status Change Event Matrix.” The matrix identifies changes in status, the type of documentation required, and the options available to the employee. There was no evidence presented indicating that the matrix has been adopted by rule and in some instances, the matrix is inconsistent with both section 110.123 and rule 60P-1.003. Petitioner did not see this matrix when making his insurance selections during open enrollment. Included in the matrix as a category of QSC events is a category entitled “Significant Cost Changes.” Under this category, the grid identifies “[p]remium increase or decrease to subscriber of at least $20 per month as a result of a change in pay plan (e.g., Career Service to SES), FTE (e.g., part-time to full-time), LWOP, FMLA, legislative premium mandates, Optional Life age banding, etc.” The category “significant cost changes” is not identified as a QSC event in rule 60P-1.003(17). Footnote four of the matrix states, “[t]he period of time to make allowable changes to benefits, as defined by the IRS. All QSC windows are 60 days unless otherwise specified.” Footnote four is appended to text within the cell for information related to a change in marital status, which states “60-day QSC window4.” Petitioner credibly testified that he was not experiencing any change to marital status, so did not believe that the information identified in footnote four would necessarily relate to his circumstances. On December 19, 2008, the Division published the State of Florida Salary Reduction Cafeteria Plan with a Premium Payment Feature, a Medical Reimbursement Component, and a Dependent Care Component (Salary Reduction Cafeteria Plan), which Petitioner submitted without objection as Petitioner’s Exhibit 10. This document is available on the DMS website but has not been identified as a rule. However, it is consistent with the requirements of 26 U.S.C. § 125, which authorizes cafeteria plans, and 26 C.F.R. § 125-4, which identifies permitted election changes in cafeteria plans. The Salary Reduction Cafeteria Plan states: Establishment of Plan The Department of Management Services, Division of State Group Insurance established the State of Florida Flexible Benefits Plan effective July 1, 1989. The Department of Management Services, Division of State Group Insurance hereby amends, restates and continues the State of Florida Flexible Benefits Plan, hereafter known as the State of Florida Salary Reduction Cafeteria Plan (“the Plan”), effective December 19, 2008. This plan is designed to permit an Eligible Employee to pay on a pre-tax basis for his or her share of premiums under the Health Insurance Plan, the Life Insurance Plan and the Supplemental Insurance Plan, and to contribute to an account for pre-tax reimbursement of certain medical care expenses and dependent care expenses. Legal Status This Plan is intended to qualify as a “cafeteria plan” under Section 125 of the Internal Revenue Code 1986, as amended (“the Code”), and regulations issued there under. The Medical Reimbursement Component of this Plan is also intended to qualify as a “self- insured medical reimbursement plan” under Code 105(h), and the Medical Care Expenses reimbursed under that component are intended to be eligible for exclusion from participating Employees’ gross income under Code 105(b). The Dependent Care Component of the Plan is intended to meet the requirements of Code 129. The Life Insurance Plan is intended to meet the requirements of Code 79. The Salary Reduction Cafeteria Plan contained definitions for a change in status. Those definitions are consistent with the definitions in rule 60P-1.003(17), although more detailed in terms of description. The definition does not include a change in cost due to age banding. Section 4.3 of the Salary Reduction Cafeteria Plan provides: Each eligible Employee’s Salary Reduction Agreement shall remain in effect for the entire Plan Year to which it applies, shall be irrevocable (except as provided in Sections 5.6, 6.4, and 7.4) and shall set forth the amount of the Participant’s Compensation to be used to purchase or provide benefits and the benefits to be purchased or provided. Sections 6.4 and 7.4 deal with a participant’s election to participate in the medical reimbursement component and the dependent care components of the plan and have no bearing on this proceeding. Section 5.6 deals with the irrevocability of the election under the premium component of the plan. The section states in pertinent part: In other words, unless one of the exceptions applies, the Participant may not change any elections for the duration of the Plan Year regarding: Participation in this Plan; Salary Reduction Amounts; or Election of particular component plan benefits. The exceptions to the irrevocability requirement, which would permit a Participant to make a mid-year election change in benefits and/or Salary Reduction amounts for this Premium Payment Component, are as follows: Change in Status: A Participant may change or terminate his actual or deemed election under the Plan upon the occurrence of a change in status, but only if such change or termination is made on account of, and is consistent with, the change in status. The Administrator (in its sole discretion) shall determine whether a requested change is on account of, and is consistent with, a change in status. Special HIPAA Enrollment rights. . . . Certain judgments, decrees and orders. . . . Medicare and Medicaid. . . . Significant Change in Cost or Coverage. A Participant may revoke a prior election with respect to pre-tax contributions and, in lieu thereof, may receive, on a prospective basis, coverage under another plan with similar coverage if any independent, third-party provider of medical benefits previously elected by the Participant either significantly increases the premium for such coverage, or significantly curtails the coverage available under such plans, during the plan year coverage period. (Note: if any mid- year premium increase by the third-party provider is insignificant, the Participant’s Salary Reduction election will be automatically adjusted by the Administrator or its agent. Significant Change in Coverage Attributable to Spouse’s Employment. . . . (emphasis added). None of the exceptions to irrevocability identified above apply in this instance. Section 5.2 of the Agreement addresses the Participant’s contributions and is the provision upon which Petitioner relies. It states in pertinent part: If an employee elects to participate in the Premium Payment Component the Participant’s share (as determined by the employer) of the premium for the plan benefits elected by the Participant will be financed by salary reductions. The salary reduction for each pay period is an amount equal to the annual premium divided by the number of pay periods in the plan year, or an amount otherwise agreed upon. . . . (emphasis added). Petitioner did not experience a QSC event. The Confirmation of Benefits received by Petitioner identifies the amount of premium Petitioner has agreed to pay and the benefit he was to receive for that premium. He elected optional life insurance coverage in accordance with the information provided to him on the People First screen. The statement “rates increase with age” can be construed, as Petitioner did, to explain the differences in rates reflected in the table described in paragraph 10. Nothing placed Petitioner on notice that upon achieving his 60th birthday, his premium would automatically increase to the next premium category. Such an interpretation is inconsistent with the method of premium calculation described in paragraph 5.2 of the Salary Reduction Cafeteria Plan.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a Final Order authorizing the refund of excess premiums in the amount of $605.52. DONE AND ENTERED this 13th day of March, 2014, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 13th day of March, 2014.
The Issue Whether Respondent Employer committed an unfair employment practice against Petitioner Employee by discriminating against her on the basis of her sex (pregnant female) or by a hostile work environment.
Findings Of Fact Petitioner gave birth to a stillborn child after an on- the-job accident on November 25, 1998, while in Respondent's employ. She believes she would not have fallen if she had been transferred to another department and that, but for the failure to transfer her to a front office (line cashier) position, her baby would be alive. In making the following Findings of Fact, every effort has been made to reconcile testimony and exhibits so that each witness may be found to speak the truth, but where these Findings of Fact diverge from the construction of events related by any witness(es), or omit testimony or parts thereof, it is because the witness or witnesses were not found entirely credible or the information was irrelevant or immaterial. Where there is an equipoise of evidence, that also is indicated. Respondent is a supermarket chain with stores and employees throughout Florida and several states. It constitutes an "employer" as statutorily defined by the Florida Civil Rights Act, Chapter 760, Florida Statutes. Petitioner's family has a history of successful employment with Respondent. She began working for Respondent in 1995, at the age of 16, as a part-time front end clerk (bagger) in Respondent's Store No. 231. Over approximately two years, she successfully held positions there as a bagger, stock crewman, and bakery clerk. During all of her employment, she got regular quarterly raises in her hourly wage. Respondent issues an Associate Information and Benefits Handbook to all employees a/k/a "associates." The Handbook contains an Open Door Policy which states, in pertinent part: If something bothers you, or if you need clarification of a Publix policy or procedure, please talk to a manager about it. Always remember, as a Publix associate, you can talk to anyone in management. Just remember -- you can discuss your problem with anyone in management all the way to the top level. Also, your Retail Associate Relations Specialist is available to assist you with any matter at any time. We hope you will use our Open Door policy whenever needed and as often as necessary -- it's there to work for you! (Emphasis in original). (Joint Exhibit C). The Handbook also contains an Equal Employment Opportunity Policy, Policy Statement on Harassment Including Sexual Harassment, and information regarding the Employer's Formal Complaint Procedure, which provides in pertinent part, Equal Employment Opportunity: Publix prohibits discrimination based on . . . pregnancy. . . . If any associate experiences, or is otherwise made aware of, a violation of Publix's policy prohibiting discrimination, he or she is strongly encouraged to use the Open Door Policy. Associates may also file a formal complaint under the Formal Complaint Procedure. Policy Statement on Harassment, Including Sexual Harassment: We at Publix Super Markets share the belief that each of us should be able to work in an environment free of discrimination and any form of harassment, including harassment based on . . . pregnancy. . . . [I]n order for the Company to deal with the problem [of discrimination], offensive conduct or situations must be reported to the Store Manager, District Manager, Support Department Manager or your Regional Associate Relations Specialist. Formal complaints may also be lodged with the Manager of Equal Employment Opportunity through the Formal Complaint Procedure. Any person electing to utilize these complaint resolution procedures will be treated courteously. The complaint will be handled as swiftly and as confidentially as practical in light of the need to remedy the problem, and registering the complaint will in no way be used against the associate nor will it have adverse effect on the individual's employment status. Formal Complaint Procedure: If an associate believes that he or she has not been treated properly, he or she should bring this to the attention of the appropriate persons in Publix Management. There are several avenues associates can use to voice their concerns, including the Open Door policy and the Formal Complaint procedure. The Formal Complaint Procedure is a formal method of having your concerns addressed and documented. (Emphasis in the original). (Joint Exhibit C). Petitioner received a copy of the Handbook when she was hired, and again when she transferred into the Bakery Department. Petitioner signed and initialed a document indicating she had read and understood the Handbook. Store 231 is divided into distinct departments: Grocery, Bakery, Deli, Meat, Produce, and the Common Area. In descending order of scope and authority, there is a Store Manager, several Assistant Store Managers, a Common Area Manager, and a Department Manager for each department. At all times material, Barry Long was the Common Area Manager and Anita Blanchard was the Bakery Manager of Store 231. Some of the jobs in the Common Area include line cashier, bagger, and office staff. In addition to supervising these associates, Mr. Long's job includes oversight of the flow of money throughout the store, cash accounting, handling of customer complaints, cleanliness of the front of the store (including the public restrooms), and overall appearance and safety of the parking lot. The duties of a bakery clerk, the position Petitioner filled at all times material, are set out in its job description as follows: •Finishes products such as filling or icing doughnuts and/or pastries. •Takes and/or fills special orders for customers. •Packages, labels, and prices products for self-service. •Maintains and fills bakery trays, display cases, and ingredient bins. •Operates the scale and bread slicer. •Unloads, organizes, and restocks supplies. •Follows sanitation and safety guidelines. •Assists in cleaning duties. •Assists in other duties as assigned. Duties are performed primarily in the Bakery department. A Bakery Clerk may be exposed to various temperature changes and work environments. Work includes walking, standing, repetitive arm and hand movements, eye-hand coordination, walking, lifting of product weighing up to 60 lb., bending, and working with hands in hot water or [sic] extended periods of time, along with frequent interaction with customers and associates. (P-1) A butter cream (cake icing) bowl was used in the bakery. Bakery clerks had to lift it from a waist-high table and place it in a freezer or place it on a "wheely cart," roll the wheely cart to the dishwasher, and lift the bowl into the dishwasher. This bowl weighed 60 pounds and was awkward to maneuver. When there was more than one bakery clerk on the same shift, they could, and did, help each other with the butter cream bowl, but because Petitioner often worked the closing shift alone, she sometimes had to do the dishes alone, including handling the butter cream bowl. Bakery clerks also had to go to another part of the store at approximately 3:00-3:30 p.m., each day, when frozen bakery goods were unloaded from delivery trucks. The bakery clerks then transferred such goods to "birds" (eight-foot-high narrow shelves) and rolled the birds on pallets or floats to the bakery. In the foregoing tasks, bakery clerks were sometimes assisted by "after-school kids" or stock crewmen, but when the goods arrived in the bakery, all the bakery clerks had to get the pies, cream cakes, etc., into a freezer quickly so they would not melt. This involved lifting trays of three cream cakes or trays of six pies at a time. The average weight per filled tray was 10-12 pounds. The bakery clerks then stretched upward, reached in, and "threw" the trays onto high freezer shelves. For all reaching activities, bakery clerks were instructed to use one of two ladders provided. Many bakery clerks broke this rule and climbed on a table to place goods on shelves or in the freezer. Whenever she saw a clerk climb on the table, Anita Blanchard ordered her down and told her to use a ladder. Petitioner knew this before she fell from the table in October 1998. (See Findings of Fact 1 and 37) Whenever a bakery clerk became pregnant, Ms. Blanchard followed the Employer's policy and allowed the bakery clerk to keep working, without any change of duties, until the pregnant employee brought in a medical excuse specifying what accommodations she might need. When a medical note was presented for restrictions due to pregnancy or for any other reason, Ms. Blanchard adjusted the employee's workload accordingly. If a note from a doctor was not presented, however, Ms. Blanchard did not grant any bakery clerk any accommodations, except on one occasion, when, at Bakery Clerk Shirley Poling's request, Ms. Blanchard spoke to Ms. Poling's doctor on the phone and then let Ms. Poling go home early without presenting a written medical excuse. When Petitioner was 18, she became engaged to Scott Beaty, a 28-year-old who had a criminal record for drugs. Mr. Long irritated Petitioner by repeatedly asking her if she really wanted to get married. She answered him a few times and then ignored him and would not respond. She did not complain to him or to anyone up the chain of command about these comments. Petitioner married Mr. Beaty on December 20, 1997. In June, 1998, she became pregnant. She immediately told Mr. Long. He repeatedly asked her if she really wanted to bring a child into "this" (presumably into the world), and this annoyed her. However, she ignored these remarks and did not complain to Mr. Long or to anyone up the chain of command about them. Petitioner had a heavy schedule in that she was working and going to college at the same time. When her pregnancy was approximately eight weeks along, she slipped, coming out of the bakery freezer and fell on her tailbone. She accepted her doctor's representations that this made little difference so early in a pregnancy. She continued to work, but she reported the incident, and it was written-up by Chris Green, the male Assistant Bakery Manager, within 48 hours as required by the Employer. According to Petitioner, "common sense told [her]" that the bakery clerk position was not good for her baby, but she "did not want to use [her] pregnancy as an excuse," because she had heard derogatory remarks about Shirley Poling's doing so. (See Findings of Fact 21 and 45). At some point, she sent two letters to Anita Blanchard and Chris Greene, asking that she not have to close the bakery out or wash dishes anymore, but she admitted that she did not get a medical excuse requesting these or any accommodations. Therefore, she never, at any time, presented a doctor's excuse to anyone in the Employer's chain of command.2 Petitioner's view that the bakery clerk job was dangerous to a child in utero was not shared by other female bakery clerks or former bakery clerks, Kim Wilkinson, Rosalind Williams, or Pamela Walls, all of whom had been pregnant at some time while working in Store 231's Bakery Department under Anita Blanchard. Shirley Poling considered lifting the butter cream bowl and handling the birds and floats too strenuous for her during her pregnancy, but conceded all she needed to avoid these tasks or get help with them was to present a suitable medical excuse to Ms. Blanchard. This was confirmed by the other bakery clerks, some of whom testified that Ms. Blanchard was solicitous and particularly kind in minor ways during their pregnancies, with or without a medical note, but that Ms. Poling was regarded as a slacker or whiner by themselves and Ms. Blanchard. Petitioner testified that "first," she asked Barry Long for a transfer out of the Bakery Department, but what precisely she said or when she made this first request is disputed. Since she had told him that she was pregnant, she may have assumed he knew that was the reason she wanted to transfer, but Petitioner was less than clear in her testimony as to what she asked Mr. Long for the first time. The second time she approached him, she said, "Barry, I have got to get out of here; this job is killing me." Petitioner admits that she said this only once, and Mr. Long does not remember that language being used. Petitioner accepted as true store gossip that Assistant Manager Larry Rosignol had gotten an underage employee pregnant and married her and that Bagger Tami Glover became pregnant from an affair with a different Assistant Manager and had a dispute with Mr. Long about her employment duties during that pregnancy. (See Findings of Fact 46-52). Petitioner was also aware from conversations with Jennie Daniels Sammons, a former employee, that Jennie had used the Employer's "Confidential Hotline" to complain about Barry Long's treatment of her during her pregnancy and that nothing substantial had come of the Employer's Human Resources investigation of Ms. Sammons' "anonymous" complaint. (See Finding of Fact 54). Petitioner did not personally witness any interaction between any of these pregnant women and Mr. Long or Mr. Rosignol. All the grapevine accounts were prejudicial to the assistant managers and to Mr. Long and contained elements beyond those proven at hearing as set forth in Findings of Fact 46-58. Nonetheless, Petitioner relied on the gossip. Petitioner further testified that Larry Rosignol always winked at her when he spoke to her and one time he said something like, "I'll tell you what I'd like to do." She did not recall the context of this comment but described Mr. Rosignol as a notorious flirt. She also related that two times she saw Mr. Long "looking [lustfully] at me." Petitioner also expected the Store Manager to back up his under-managers' business decisions. Accordingly, Petitioner elected not to "use her pregnancy" or call the Confidential Hotline when she did not immediately get a transfer out of the Bakery Department. She chose to use what she called "a different approach." In October 1998, she put in a "Register an Interest" form for an Office Staff Associate position in the office. She was specifically interested in an office cashier position because it was a promotion track to management positions. Petitioner also testified that upon Ms. Blanchard's recommendation, she registered an interest for a cake decorator position in the Bakery Department, a position which has lighter duty than a bakery clerk position, but a cake decorator is not on a promotion track. Apparently, Ms. Blanchard would be the one to determine if Petitioner were laterally transferred to a cake decorator position. Petitioner provided no further direct information as to why she did not get this position, but from her stated belief that one "could not get ahead in the Bakery Department unless someone died," it is inferred that there were no available cake decorator positions when she registered that interest. The job description for Office Staff Associate is almost exclusively devoted to bookkeeping, banking, and accounting functions and responsibilities. These positions handle and account for all cash in the store. The minimum qualifications for Office Staff positions provide in pertinent part: must be at least 18 years of age experience as an office cashier and must not have received a positive test result on a company-sponsored drug test within the last six months. (R-5) Barry Long informed Petitioner she was not qualified by experience for the office staff openings soon to occur due to two female office staff members taking maternity leave. He ultimately filled these positions with qualified persons during the regular employees' maternity leaves. Petitioner testified that she next told Mr. Long that she would work as a line cashier for six months so as to get promoted to Office Staff, and that although she repeatedly asked him for a transfer to a line cashier position, for which she was qualified, Mr. Long did not grant the transfer. Mr. Long denies that this request was ever made. The foregoing minimum requirements for Office Staff do not specify six months' experience as a line cashier; they specify experience as an office cashier. If there is a separate job description for office cashier that requires six months' service as a line cashier, it was not presented at hearing. Therefore, Petitioner's reasoning as to why the line cashier position would have helped her reach an Office Staff management track position is flawed, and her testimony concerning this conversation with Mr. Long thereby becomes less credible than his. Petitioner also maintained that she wanted to transfer to line cashier if only to protect her unborn child. She testified that for that purpose, she arranged with non-pregnant line cashier Rose Texera (phonetic spelling), to "swap" positions. Petitioner testified that she did not tell Bakery Manager Anita Blanchard that she wanted to "swap" because of her pregnancy, but she did present Ms. Blanchard with the "swap" idea, and Ms. Blanchard did not oppose it. Petitioner did not present the "swap" idea directly to Mr. Long, who was Ms. Texera's immediate superior, but she believes that Anita Blanchard did. Petitioner testified Ms. Blanchard told her that Mr. Long said Petitioner did not have enough available working hours because Petitioner was a part-time employee. Petitioner did not verify with Mr. Long that the foregoing conversation ever took place. Ms. Blanchard was not called to testify, and no witness corroborated Petitioner. Mr. Long denied any such arrangement was presented to him. Petitioner tested out of college algebra and announced to Mr. Long that she had become available to work anytime on Mondays, Wednesdays, and Fridays and to do the closing shift on Tuesdays and Thursdays. This would have made her available for 30-35 hours per week, which was virtually full-time availability. She maintains that Mr. Long then said that he had made up his schedule for the week and he would see about next week. She assumed Mr. Long knew she was talking about a line cashier position and that Mr. Long was talking about a line cashier schedule. Mr. Long was not examined at hearing about this version of events. Petitioner testified that in October 1998, after months of requesting a transfer to line cashier, she went to the office and said to Mr. Long, referring to her request to transfer to line cashier, "So what's up, Barry, are we going to do this or what?" and he replied, "You need to wait until after you have that young'un." Petitioner claims that three other women employees overheard this exchange. None of these women were called to corroborate her version of this event. Petitioner complained about the "young'un" comment to Anita Blanchard. Ms. Blanchard told Petitioner that if it bothered her, she should report it to the Store Manager himself. Petitioner told a male Assistant Manager (not Mr. Rosignol) who replied, "He's not allowed to do that. If [Barry] said that, he s--t in his hat." Petitioner still did not feel she would get a fair deal from any of the male managers in Store 231. The Handbook said she could talk to anyone at any level of management, inside or outside the store, but Petitioner misinterpreted the instructions, and believed she could not skip any levels of management and still be heard by the next highest manager. It is not clear from Petitioner's testimony whether she reported the "young'un" comment to the Employer's Confidential Hotline at this point in October 1998, or after she returned to work in 1999. From the evidence as a whole, however, it is probable she waited until 1999. (See Finding of Fact 44). The Employer's Human Resources Investigator then came from Jacksonville and interviewed Mr. Long. Mr. Long told the investigator he never made the alleged "young'un" comment. At hearing, Mr. Long again denied making the alleged "young'un" comment. The alleged "young'un" comment and the questions related to why Petitioner would want to have a child (see Finding of Fact 18), are the only comments Petitioner claims were related to her pregnancy, although she also testified that Mr. Long asked her one time, "Are you ready?" and then laughed when she said she was. She thought he was referring to her transfer request when she answered, but in retrospect, she thinks he was just teasing her. On November 25, 1998, while still a bakery clerk, and knowing it was contrary to the Employer's safety policy, Petitioner climbed up on a table to put cream cake packages away overhead in the freezer. Getting down, her foot slipped, and she fell on the table, landing on her buttocks. Petitioner did not report the fall at that time because, by experience, she believed she had 48 hours in which to report it. Over the next 48 hours, while she was on regularly scheduled leave at her home, she had cramping and then the baby ceased to move. She was admitted to the hospital and delivered a stillborn child. It is unclear when Petitioner got around to reporting the fall to her Employer. (See Finding of Fact 44.) A line cashier's job description is as follows: Weighs and scans customer product. Greets customers and responds to their questions. •Accepts payment and counts back the change. •Handles cash and other media accurately. •Utilizes strong interpersonal skills. Packages groceries as needed. •Keeps the checkstand area neat and clean. •Assists in other duties as assigned. Duties are performed primarily at the front-end area of the store with exposure to outside weather conditions at times. Work includes standing at checkstand for prolonged periods, repetitive arm and hand movements, and moving and lifting of product at checkstand, along with continuous interaction with customers and associates. (P-2) Petitioner testified that, regardless of the job description, she knew that as a line cashier she would be required to lift 50-pound sacks of dog food, but that she thought that she could get help with these items from the baggers. Bakery clerk and line cashier are each entry-level, wages-per-hour positions, with substantially the same benefits. It is undisputed that they could be considered "lateral." Mr. Long testified that in approximately August 1998, a Super WalMart had opened down the street and had a $50,000, per week, adverse impact on sales at Store 231. Mr. Long's Common Area was heavily affected. With the precipitous drop in customer and revenue numbers, Store 231 had more line cashiers than were really needed. Mr. Long did not need to schedule as many hours or as many people after August 1998, as he did before that date. He addressed the problem by slowly tapering schedules down and not filling line cashier positions. Due to the crucial financial nature of Office Staff positions, he did fill the Office Cashier positions as described above. Petitioner did not demonstrate that there were any line cashier vacancies during the period that she was allegedly requesting to transfer into such a position. Petitioner did not prove that anyone else similarly situated to herself who was not pregnant, was granted such a transfer between June and November 1998. She also did not prove that Mr. Long hired anyone new as a line cashier during that period when she was requesting the transfer. Her only evidence that a line cashier position could have been created for her relates to the "swap" arrangement with Rose Texera. (See Finding of Fact 31.) Petitioner did not formally complain to higher levels of management about the failure to transfer her to line cashier until after she returned from Family Medical Leave, sometime in January 1999, following the tragic stillbirth and funeral of her child. It is unclear whether she was given a line cashier position immediately after her return because she wrote a letter accusing the Employer of causing the death of her child, or if the Employer offered her a line cashier position as a proposed resolution to the instant February 9, 1999, Charge of Discrimination filed with the Florida Commission on Human Relations on or about February 16, 1999. (Joint Exhibit A). Petitioner has been serving as a line cashier ever since. Shirley Poling, Rosalind Williams, Kim Wilkinson, and Pam Walls experienced no discriminatory treatment or commentary from Barry Long related to their pregnancies. Shirley Poling overheard comments by co-workers that she was a "wuss" because she did not work normally through her pregnancy. Tami Glover worked as a bagger at Store 231. The work done by a bagger is to put the customer's product in bags, put the bags in a cart, wheel the cart to the customer's car, load the bags into the customer's car, and bring back the cart used and other stray carts anyone else has left in the parking lot. Sometimes, customers buy heavy water bottles and 50-pound bags of dog food, which baggers have to lift in and out of the carts. Tami Glover testified that Barry Long put her on "cart duty." Assignment to "cart duty" meant she had primary accountability for returning carts from the parking lot during a one-hour time slot during each shift that she worked as a bagger. She maintained that Mr. Long made this assignment within the same conversation during which she told him she was pregnant by one of the Assistant Managers (not Larry Rosignol).3 She considered Mr. Long's putting her on "cart duty" to be discrimination against her as a pregnant female. However, she admitted that she never provided Mr. Long with a medical excuse stating she could not, or should not, do this task or any of the other tasks involved in being a bagger. Mr. Long was entirely credible that one of his office staff subordinates, using a blind rotation system, put Ms. Glover first on the cart list, the first day he instituted the cart list; that the cart list was instituted to ensure that someone was accountable each hour for the carts that were not otherwise being brought into the store; that each bagger would take an hour's turn at this task each shift (a fact Ms. Glover admitted was true); that the Employer had a written policy against any associate moving more than five carts at a time; and that, therefore, he had no reason to believe cart duty would be bad for the pregnant Ms. Glover. Ms. Glover asked Mr. Long for a transfer to avoid heavy lifting, but she presented no medical excuse. Mr. Long told her, "We aren't training cashiers now." How this conversation relates to the time frame when Petitioner was requesting a transfer is unclear. Ms. Glover orally complained to Mr. Long about the cart list, about having to lift heavy dog food bags and water bottles, and about having to go into the parking lot at all during her pregnancy. She also claims Mr. Long told her she looked like "a cow" when she was pregnant, a comment he adamantly denied. She never filed a formal complaint with the Employer against Mr. Long. If Mr. Long had acquiesced in all Ms. Glover's accommodation requests, the only part of a bagger's duties she would have been performing would have been putting some of the customers' product into bags. Since Ms. Glover produced no written medical restrictions, Mr. Long had no reason to grant her requests. Accordingly, Ms. Glover's testimony does not support any discrimination or hostile work environment emanating from Mr. Long or the Employer. Jennie Daniels Sammons had worked successfully for Store 231 as a bagger, line cashier, and produce clerk. When Barry Long transferred into Store 231 in October 1997, she was again a line cashier and pregnant. When she was less than 12 weeks pregnant and not in the store, she began to bleed. Her doctor orally ordered her to a week of bed rest. At 10:30 p.m., the night before she was to report for her 11:00 a.m. shift at the store, she realized she should tell the Employer she would not be in for a week. She telephoned the store, and Mr. Long answered. At that point, they did not know each other or anything about each other. Ms. Sammons testified that she told Mr. Long the equivalent of "I am bleeding and cannot leave the bed for a week." He testified she gave him no details beyond the equivalent of "I'm sick and can't come in for a week." He told her to provide him with a written medical excuse before her regularly scheduled shift the next day at 11:00 a.m., or he would write her up. This was the Employer's usual policy and procedure. Ms. Sammons managed to timely present the written medical excuse to Mr. Long, but at great inconvenience to her mother who took off work to deliver it. Accordingly, Mr. Long did not write her up. Ms. Sammons did not respect Mr. Long due to their acrimonious first encounter. For that event, and because she felt Mr. Long was not treating her properly, either due to her pregnancy or because she was not "available," Ms. Sammons reported him to the Employer's Confidential Hotline. She believes that the Employer's Human Resources Office either telephoned the Store Manager or sent someone to Store 231 to investigate her complaint and that her identity was revealed, because all the managers "treated [her] like a queen" for a few days and then went back to business as usual. However, aside from her vague testimony that the cute, flirtatious girls got more attention and time from all the managers, including Mr. Long, than did the pregnant and/or unavailable women, she could describe no "discrimination." Thereafter, on or about December 19, 1997, Mr. Long wrote-up a counseling sheet on Ms. Sammons, as required by the Employer's policy, because her till was short. Ms. Sammons conjectured that Mr. Long deliberately took the money from her till to make her look bad or get rid of her. Five-and-a-half weeks before her expected delivery date, Ms. Sammons began labor. The labor was not extreme, and in an effort to stop or delay it, her doctor ordered her home to rest. She went to Store 231 on her way home from her doctor's office and told the women in the office she was "standing here in labor." Mr. Long came out of the inner office and she handed him the note. The note is not in evidence, and Ms. Sammons could not remember how explicit it was. Mr. Long read the note and asked if Ms. Sammons could finish out the week. She knew he asked this because he did not want to be left short-handed or have his shift schedule disrupted. She testified that she was offended at what she perceived as Mr. Long's insensitivity and felt she had to go on shift because of his comment. Later that day, she went on early maternity leave because Mr. Long said something more that offended her, the substance of which she did not recall when testifying. She chose to stay home with her baby after her maternity leave ran out. Ms. Sammons left on maternity leave around Easter (Spring) 1998. This was well before the Super WalMart drained away much of Store 231's business, making line cashiers plentiful, and well before Petitioner became pregnant. Accordingly, Ms. Sammons' testimony does not establish any specific hardship in working conditions or discrimination due to her pregnancy.
Recommendation Upon 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 and the Charge of Discrimination. DONE AND ENTERED this 18th day of July, 2002, in Tallahassee, Leon County, Florida. ELLA JANE P. DAVIS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of July, 2002.
The Issue The issue for determination is whether Respondent discriminated against Petitioner on the basis of national origin in violation of the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Ellis was born in Peru. She is Hispanic. No dispute exists that she is a member of the protected class as it relates to discrimination. No dispute exists that, at all times material hereto, the Day School was an employer as defined by the Florida Civil Rights Act of 1992, as amended. No dispute exists that Ms. Ellis has day care and pre- school experience. She was a teacher in pre-school and day care in Peru and in the United States after moving to the United States with her husband in 1988. Ms. Ellis was also a previous owner of a day care in the United States. In 1998, Ms. Ellis moved to Florida with her husband. She found employment as a day care teacher. In working as a day care teacher, Ms. Ellis also assisted with cleaning the room in which the children were located. On January 10, 2000, Ms. Ellis requested a teacher's assistant or teacher's aide position at the Day School. She did not know of any openings at the Day School. The Day School had not advertised any vacant positions. Ms. Ellis met with Ms. Louise Brand, the director of the Day School.2 The Day School was associated with a church and had a diverse student population. The student population included children from different Hispanic countries, Haiti, and the Bahamas. The diverse student population also included children from different socio-economic backgrounds. Additionally, the teachers and teacher's aides, as well, were diverse.3 At the meeting on January 10, 2000, Ms. Brand inquired as to Ms. Ellis' birthplace, and Ms. Ellis informed her that it was Peru. Ms. Ellis presented to Ms. Brand several certificates, which indicated, among other things, that Ms. Ellis had completed courses and training regarding the care of children. Ms. Ellis also presented documents showing that she had experience in day care centers assisting teachers. Ms. Brand requested a high school diploma from Ms. Ellis. The Day School requires a high school diploma to be hired as a teacher's aide or teacher's assistant, but Ms. Ellis was not informed by Ms. Brand that the Day School was requiring a diploma for the position of a teacher's aide or teacher's assistant. Ms. Ellis had a high school diploma from Peru but did not provide proof of having it to Ms. Brand because Ms. Ellis did not have the diploma with her, since none of the other day care centers at which she worked had requested the diploma. A teacher's assistant, teacher's aide, and assistant teacher are one in the same. These terms and positions were used interchangeably in testimony. Teacher's assistant and teacher's aide are used interchangeably in this Recommended Order. Ms. Brand was aware that Ms. Ellis was Hispanic. At hearing, it was evident that Ms. Ellis speaks with an accent which is Hispanic. Additionally, an interpreter was used when Ms. Ellis testified to make it easier for her (Ms. Ellis) to respond to the questions asked. Ms. Ellis speaks basic English. The Day School requires a teacher's aide to be able to "speak, read and write English." Ms. Brand did not inform Ms. Ellis that speaking English was a requirement to be a teacher's aide at the Day School. Ms. Ellis was not aware that speaking English was a requirement. Ms. Brand instructed Ms. Ellis to return the next day for work. When Ms. Ellis left the Day School, she was expecting to be hired as a teacher's assistant. Ms. Ellis returned to the Day School the next day, dressed to teach, and brought a completed employment application with her. To Ms. Ellis' surprise and dismay, Ms. Brand informed her that no position for a teacher's assistant was available; that only a cleaning position was available; and that Ms. Ellis could take the position of a cleaning/housekeeping person until a teacher's assistant position became available. Ms. Ellis agreed to take the cleaning/housekeeping position.4 Ms. Brand was Ms. Ellis' supervisor. The Day School requires a housekeeping person to be able to "speak, read and write English." As the cleaning/housekeeping person at the Day School, Ms. Ellis had several responsibilities. Her responsibilities included mopping; vacuuming; cleaning out refrigerators; cleaning curtains; assisting the cook; cleaning the area where the children ate; taking out the garbage, which weighed approximately 60 to 70 pounds; moving and placing donated canned goods; and taking out bags of mulch. Ms. Ellis' duties spanned two buildings. Ms. Ellis complained to no avail to Ms. Brand regarding all of the duties given her. Ms. Ellis considered the work to be too much and some of the work to be too heavy. In February 2000, while at work, Ms. Ellis slipped on the floor at the Day School and ammonia was spilled over her body. She was on her way to complain to Ms. Brand about the inordinate amount of work that she was doing. Ms. Ellis had headaches for two weeks after the accident. No evidence was presented that Ms. Ellis reported the accident to Ms. Brand. After slipping on the floor, Ms. Ellis inquired of Ms. Brand as to when she was going to be hired as a teacher's assistant. Ms. Brand ignored her question and told her to return to work. In February 2000, Ms. Ellis attempted to give Ms. Brand a copy of her diploma. Ms. Brand informed her that she (Ms. Brand) did not need a copy. Subsequent to the inquiry about a teacher's assistant position, Ms. Ellis observed individuals, who were white and who had not completed high school, being hired as, believed by Ms. Ellis, teacher's assistants. Ms. Ellis questioned Ms. Brand regarding hiring her as a teacher's assistant. Ms. Brand ignored her and told Ms. Ellis to return to work. No dispute exists that, in the summer of 2000, high school students, who were non-Hispanic, were hired as part-time teacher's aides. Also, some worked more hours than part-time. Ms. Ellis continued to inquire of Ms. Brand about being hired as a teacher's assistant. Ms. Brand told Ms. Ellis that "Spanish are only good for cleaning" and to return to work. Ms. Ellis continued to work as the cleaning/housekeeping person. On Friday, August 4, 2000, around noon, Ms. Ellis injured her back while attempting to throw garbage into the dumpster. She had taken garbage, weighing approximately 60 or 70 pounds, to the dumpster. Ms. Ellis attempted several times to lift and throw the garbage into the dumpster but could not. On her last attempt, she heard something click in her back and remained at the dumpster, without trying to move. After an elapse of some time, Ms. Ellis went to Ms. Brand's office, holding her lower back, and explained to Ms. Brand what happened. Ms. Brand told Ms. Ellis to return to work. Ms. Ellis then requested to go to the hospital, but Ms. Brand denied the request, informing Ms. Ellis that she could go wherever she wanted after 5:30 p.m., which was the end of Ms. Ellis' workday. Ms. Ellis remained on the job until 5:30 p.m. After 5:30 p.m., Ms. Ellis saw a physician, Seth H. Portnoy, D.O., who determined that she had injured her back, a lumbar strain. Dr. Portnoy wrote a prescription of restrictions, which indicated that Ms. Ellis should not perform any bending, lifting, pushing, or pulling for 10 to 14 days and that she needed rest. On the following Monday, August 7, 2000, Ms. Ellis gave the prescription to Ms. Brand, who threw it on the floor and told Ms. Ellis to go to work. Ms. Ellis went to work even though she was in pain and taking prescribed medication for pain. For the next two weeks, Ms. Ellis continued to come to work although she performed very light and little, if any, work. During the entire time, she was in pain and taking prescribed medication for her back. Ms. Ellis continued to request time off for her injury from Ms. Brand, but Ms. Brand refused to pay Ms. Ellis while she was off, thereby not working, so Ms. Ellis continued to come to work. On August 17, 2000, while at the Day School, Ms. Ellis was having severe pain and sat down, not proceeding to a building to which Ms. Brand had directed her to go. When Ms. Ellis failed to report to the building, Ms. Brand directed someone to send Ms. Ellis to her (Ms. Brand's) office. Before getting to Ms. Brand's office, Ms. Ellis and Ms. Brand met one another at the kitchen. Ms. Brand had a list of duties that Ms. Ellis was expected to perform in order to continue to work at the Day School, including taking out garbage. Also, at that time, Ms. Brand wanted Ms. Ellis to take out a heavy bag of garbage; however, Ms. Ellis refused to take out the garbage. Ms. Brand told Ms. Ellis to follow her to her (Ms. Brand's) office. At the office, Ms. Ellis and Ms. Brand got into a shouting match. Ms. Brand made abusive remarks to Ms. Ellis and poked Ms. Ellis with her finger. Ms. Ellis tried to leave Ms. Brand's office, but Ms. Brand prevented her from leaving. A small and short scuffle ensued, with Ms. Brand grabbing Ms. Ellis' shirt, tearing it, and Ms. Ellis suffered a bruise on her buttocks from falling on Ms. Brand's desk. Ms. Ellis was shortly thereafter able to leave Ms. Brand's office, and left shouting "She [Ms. Brand] fired me. She fired me!" When Ms. Ellis left Ms. Brand's office, she (Ms. Ellis) believed that Ms. Brand had fired her. Ms. Ellis did not return to the Day School to work. No dispute exists that between January 2000 and December 2000, the Day School employed full-time and part-time teachers and teacher's aides, some of whom were Hispanics. One such Hispanic teacher's aide was Maria Guerrero who is from the country of Colombia. Ms. Guerrero was hired by Ms. Brand at the Day School around February or March 2000, to work in the afternoons as a teacher's aide and anywhere she was needed. Ms. Guerrero has a high school diploma. Not only was Ms. Guerrero a teacher's aide, but she also had the duties of helping in the kitchen, sweeping floors, taking children on the outside and not remaining inside at any time, and taking out the garbage. As to the garbage, Ms. Guerrero dragged the garbage bags because they were too heavy to lift. At times, some of the non-Hispanic teachers and teacher's aides assisted in doing these same additional duties to "help out," but none were required to do so as often as Ms. Guerrero. Ms. Guerrero considered such treatment of Hispanics by Ms. Brand to be different than the treatment of non-Hispanics by Ms. Brand. Ms. Guerrero resigned from her position in June 2000 because she could no longer handle the many duties imposed upon her by Ms. Brand; because she felt that she was being treated unfairly by Ms. Brand; and because constantly being in the outside heat was too much for her. In addition to being a teacher's aide, Ms. Guerrero was a "floater." The duties of a floater are generally the same as were Ms. Guerrero's additional duties, i.e., filling in where needed. Ms. Guerrero was present when Ms. Brand made the remark to Ms. Ellis regarding Spanish people. Ms. Guerrero heard Ms. Brand state that "Spanish is good for cleaning." The undersigned finds no difference in this statement and the statement indicated by Ms. Ellis, i.e., "Spanish are only good for cleaning." Ms. Guerrero's testimony is found to be credible. At the time Ms. Ellis was in Ms. Brand's office on August 17, 2000, Dorothy Scowronski's, who is the present director of the Day School, worked in the administrative office and was referred to as the "front desk" person. Ms. Scowronski's desk was approximately five feet from Ms. Brand's office. Only a wall and a door separated Ms. Scowronski from Ms. Brand's office. Ms. Brand had two doors in her office which were usually open but were closed at this time. Although Ms. Scowronski was unable to hear what was being said between Ms. Ellis and Ms. Brand, she knew that the two of them were shouting. Ms. Scowronski agrees that Ms. Ellis left Ms. Brand's office shouting that she was fired but also recalls Ms. Brand walking behind Ms. Ellis and telling Ms. Ellis that she was not fired. The undersigned does not find the testimony credible that Ms. Brand told Ms. Ellis that she was not fired. Ms. Brand terminated Ms. Ellis from employment with the Day School. No evidence was presented that Ms. Brand sent or Ms. Ellis received written communication that Ms. Ellis was terminated from employment. Since August 17, 2000, when she was terminated, Ms. Ellis has not worked and has not been able to work, which includes seeking employment, because of her back injury. She has herniated discs, is totally disabled,5 and is in constant pain. She cannot sleep. She has no insurance. Ms. Ellis has a pending workers' compensation claim based on the injury to her back at the Day School. Ms. Ellis pays $80.00 a month for prescribed medication for depression. No evidence was presented as to a psychological or psychiatric report regarding her depression. The evidence is insufficient to draw an inference that the depression is a result of her experience at and termination from the Day School. Ms. Ellis' position as the cleaning/housekeeping person paid $7.25 per hour. She worked eight hours a day, five days a week. The evidence does not show that an allegation of hostile work environment was set forth in Ms. Ellis' complaint of discrimination or Petition for Relief. Further, the evidence does not show that the FCHR investigated an allegation of hostile work environment. Ms. Ellis was represented by counsel in this matter.
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: Finding that the Village Methodist Day School (Day School) discriminated against Lindaura Ellis on the basis of her national origin and ordering the Day School to cease such discrimination. Ordering compensation to Ms. Ellis reflected in an adjustment in her rate of pay consistent with this Recommended Order. Ordering the payment of attorney's fees. DONE AND ENTERED this 1st day of December, 2003, in Tallahassee, Leon County, Florida. S ERROL H. POWELL 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 1st day of December, 2003.
