Findings Of Fact Jacqueline A. Irby was employed as an Allstate Insurance Agent from April 25, 1983 until her dismissal July 17, 1987. Respondent has a company policy prohibiting employees from bringing firearms into company offices or carrying them while on company business. Violation of this policy can result in termination. (Exhibit 6). Petitioner was aware of this policy when employed in 1983 (Exhibit 1). She was unsure the policy applied to her office which she rented in the building not otherwise used by Respondent. On April 14, 1987, Petitioner wrote a memo to her supervising sales manager, Randy Rouse, stating that she had witnessed Judith Gill walk into her office with a handgun and point it directly at Petitioner's client. Both Gill and Petitioner were Allstate Agents sharing office spaces if not actually partners. During the subsequent investigation of this incident, Petitioner acknowledged to Rouse that she kept a .357 Magnum in her office for her protection when she worked late at night. Both Gill and Petitioner were fired by Respondent as Allstate Agents on or about July 17, 1987. Petitioner presented Exhibits 2 through 5 representing disciplinary action taken by Respondent against male Allstate Agents. Although the maximum penalty authorized by Respondent's Policy Statements Manual (Exhibit 6) for their offenses was dismissal, each of these Agents received a lesser punishment. None of the offenses noted in Exhibits 2 through 5 involved a firearm violation. No evidence was presented regarding the Agent hired to replace Petitioner, if any, or the sex of such replacement.
The Issue The issues in this case are whether Petitioner, in response to a question on the application for licensure as a certified nursing assistant, intentionally denied the fact that she had been convicted of crimes; and, if so, whether Respondent has grounds to deny Petitioner's application.
Findings Of Fact Petitioner Ruby Mouzon ("Mouzon") wants to become a certified nursing assistant ("CNA"). Because she is not currently certified in another state, to accomplish this goal Mouzon must submit an application for certification by examination to Respondent Board of Nursing (the "Board"). The Board is responsible for reviewing such applications and determining whether applicants are eligible to take the nursing assistant competency examination, which consists of a written test and a skills-demonstration test. Successful completion of both portions is necessary to obtain a CNA license by examination. On February 15, 2012, Mouzon submitted her first application to take the CNA examination. She truthfully answered a question on the application inquiring whether the applicant has a criminal record. This prompted the Board to request additional information regarding the judicial dispositions of her several arrests. Mouzon provided the details concerning her convictions for carrying a concealed firearm (1988 and 1992), battery (1992), and aggravated assault (1998). The Board considered Mouzon's application at its meeting on June 6, 2012, and authorized her to sit for the examination. Mouzon passed the written test in 2012 but failed the clinical skills test. For the next two years, she would be eligible to re-take the clinical skills test without taking the written test again. Therefore, on March 13, 2014, Mouzon submitted her second application for licensure as a CNA, this time as a "retester." As before, the application included a question which sought information about the applicant's criminal convictions, if any. It provided as follows: Have you EVER been convicted of, or entered a plea of guilty, nolo contendere, or no contest to, a crime in any jurisdiction other than a minor traffic offense? . . . *If you answered YES, please be prepared to create a typed or printed letter with arrest dates, city, state, charges and final dispositions and be prepared to send it to the Board Office upon request. (Do not send this information with your application for examination.) Mouzon, who with her first application had provided all of the relevant information pertaining to her various criminal convictions and thereafter been approved by the Board to take the examination in 2012, mistakenly interpreted the question as seeking merely an update to her previous application. Because she did not have any convictions besides the old ones she had already reported to the Board, Mouzon answered, "No." Mouzon's explanation for this objectively false answer is probably true. Based on her credible testimony, which the undersigned credits, it is found that Mouzon had no intention of deceiving the Board in hopes her criminal record would not be discovered. Mouzon knew, after all, that the Board, having considered her criminal convictions in 2012 and deemed them not to be disqualifying, was well aware of her background. Thus, she had no reason intentionally to omit or attempt to conceal these facts, nor anything to gain by doing so. Her belief that she needed only to update her previous application, although incorrect, was an honest mistake, more likely than not. On April 10, 2014, a member of the Board's staff named Sara Rotunda sent Mouzon a letter requesting additional information regarding the judicial dispositions of her several arrests, together with three to five letters of recommendation. Mouzon contacted Ms. Rotunda to remind her that, in connection with an application in 2012, she (Mouzon) had supplied the Board with all of the details concerning her criminal convictions. Ms. Rotunda checked the Board's files and found the information Mouzon had provided previously. Satisfied that Mouzon had complied with the Board's request for information regarding the convictions, Ms. Rotunda wrote again to Mouzon on April 15, 2014, but now asked only for letters of recommendation, which Mouzon submitted. On June 11, 2014, the Board executed a Notice of Intent to Deny Mouzon's application to re-take the CNA clinical skills test. The Board accused Mouzon of having attempted to obtain a license by bribery, misrepresentation, or deceit when she denied having any criminal convictions in response to the relevant question on the application. Determinations of Ultimate Fact Mouzon is not guilty of attempting to procure a CNA license by misrepresentation or deceit, which is a disciplinable offense and grounds for denial of licensure under section 464.204(1)(a), Florida Statutes.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order approving Mouzon's application for licensure by examination as a certified nursing assistant. DONE AND ENTERED this 23rd day of December, 2014, in Tallahassee, Leon County, Florida. S JOHN G. VAN LANINGHAM 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 23rd day of December, 2014. COPIES FURNISHED: Ruby J. Mouzon 309 Northwest First Avenue Hallendale, Florida 33009 Lee Ann Gustafson, Esquire Department of Legal Affairs The Capitol, Plaza Level 01 Tallahassee, Florida 32399 (eServed) Jennifer A. Tschetter, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399 (eServed) Lavigna A. Kirkpatrick, BSN, RN, Chair Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399
The Issue Whether Respondent discriminated against Petitioner on the basis of her race or color in violation of Chapter 760, Florida Statutes (2003); and, whether Respondent retaliated against Petitioner in violation of Chapter 760, Florida Statutes.
Findings Of Fact Based on the oral and documentary evidence presented at the final hearing, the following findings of facts are made: Respondent, Progress Energy Corporation, is a public utility which provides electrical power. Respondent is an employer as defined by Subsection 760.02(7), Florida Statutes (2003). Petitioner is an African-American female. She began working for Respondent in October 1980. Petitioner was finally discharged from her employment on December 12, 2003. During her period of employment, she received various promotions and eventually became a service coordinator. She worked at the Jamestown Operations Center and was responsible for designing electrical power services and customer coordination. In 1992, Petitioner was terminated and re-hired at a lower position as discussed hereinafter. Steven McKinnie became Petitioner's supervisor in March 2002. While Petitioner's performance was adequate, Mr. McKinnie received complaints from both co-employees and customers about Petitioner's work performance. As a result, he engaged in private counseling sessions with Petitioner as he did with other employees. Concerned about Petitioner's performance, Mr. McKinnie consulted with Respondent's Department of Human Resources regarding the advisability of employing a "360 survey" as a tool for improving Petitioner's performance. A "360 survey" provides an employee with confidential assessments made by co-employees as a tool for self-improvement. A "360 survey" is not a disciplinary tool, nor does it effect an employees status. After receiving Petitioner's approval to conduct the "360 survey," on March 6, 2003, Mr. McKinnie distributed the survey questionnaire to Petitioner's co-employees. On the evening of March 6, 2003, Petitioner e-mailed Mr. McKinnie objecting to the "360 survey." The following day, March 7, 2003, the Jamestown Operations Center staff, including Petitioner and Mr. McKinnie, were in Deland, Florida, for a "two c's" (compliments and concerns) meeting. This is another human resources' tool. This gives employees the opportunity to express their concerns and for management to respond to those concerns. During the "c and c" meeting, Petitioner voiced her complaint about the "360 survey." This was Mr. McKinnie's first notice of her objection. She also complained that Mr. McKinnie treated employees as if they were in high school and intimidated them (or words to that effect). No mention was made of racial or sexual discrimination. The results of the "360 survey" were offered to Petitioner as a self-improvement tool. The survey was not included in her performance evaluation nor did it effect her pay. In early December 2003, Respondent's management received a complaint from a co-employee that Petitioner was using Respondent's postage machine for personal use. Shortly thereafter, Sandra Shields, conducted an investigation of the alleged impropriety. Respondent's postage machines and the cost of mailing are to be used for Respondent's business purposes only, not for personal use. During the investigation, Petitioner asserted that other employees similarly used the postage machine for personal use. She declined to identify any employees. The investigation failed to corroborated Petitioner's assertion. Petitioner had two employment-related incidents of theft. In 1990, she was arrested during her lunch period and incarcerated for retail theft. The company vehicle she was driving was impounded. She entered a pre-trial diversion program and admitted the theft. Her arrest and record of pre-trail diversion was made a part of her employment record. On a second occasion, in June 1992, Petitioner received a letter of reprimand because she "misused her position as an Engineering Technician for personal gain." She had produced and submitted engineering drawings for underground cable installation at the residence of a family member. The letter of reprimand noted: "This type of action cannot be tolerated. Further violations of this nature will result in disciplinary action, up to and including termination." As noted on the letter of reprimand, Petitioner did not agree with it (the letter). Incidental to this incident, Petitioner was terminated. She grieved her termination and was rehired at a lower paid position. The letter of reprimand was placed in her employment record. As a result of Petitioner's misuse of the postage meter, aggravated by the two previous incidents of theft, Petitioner was terminated. Subsequent to her termination, Petitioner complained to the Respondent's "Ethics Line" and invoked Respondent's dispute resolution process to contest her termination. Additional investigations did not change the facts or the outcome. At the hearing, Petitioner presented no direct evidence of discrimination or statistical evidence of discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 12th day of January, 2006, in Tallahassee, Leon County, Florida. S JEFF B. CLARK Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of January, 2006. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas Martin Gonzalez, Esquire Thompson, Sizemore & Gonzalez 501 East Kennedy Boulevard, Suite 1400 Post Office Box 639 Tampa, Florida 33601 Curtis B. Lee, Esquire 37 North Orange Avenue, Suite 500 Post Office Box 3412 Orlando, Florida 32802 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Conclusions The Respondent, AGENCY FOR HEALTH CARE ADMINISTRATION, issued the Petitioner, Asher Health Care, LLC, a final agency audit report dated December 8, 2009 advising Petitioner of an alleged overpayment in the amount of $4,833.70 with a fine of $1,000.00 for a total amount due of $5,833.70. Petitioner has paid this amount to the Agency’s Finance and Accounting Department and filed a Notice of Voluntary Dismissal. Based on the foregoing, the alleged overpayments have been paid and the file is CLOSED. DONE and ORDERED on this the yf day of dure , 2010, in rp. Thomas W. Amold, Secretary Agency for Health Care Administration Tallahassee, Florida. 1 Filed June 4, 2010 4:02 PM Division of Administrative Hearings. A PARTY WHO IS ADVERSELY AFFECTED BY THIS FINAL ORDER IS ENTITLED TO A JUDICIAL REVIEW WHICH SHALL BE INSTITUTED BY FILING ONE COPY OF A NOTICE OF APPEAL WITH THE AGENCY CLERK OF AHCA, AND A SECOND COPY ALONG WITH FILING FEE AS PRESCRIBED BY LAW, WITH THE DISTRICT COURT OF APPEAL IN THE APPELLATE DISTRICT WHERE THE AGENCY MAINTAINS ITS HEADQUARTERS OR WHERE A PARTY RESIDES. REVIEW PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE FLORIDA APPELLATE RULES. THE NOTICE OF APPEAL MUST BE FILED WITHIN 30 DAYS OF RENDITION OF THE ORDER TO BE REVIEWED. Copies furnished to: Daniel Lake, Esquire Assistant General Counsel Agency for Health Care Administration (Interoffice Mail) Martha Moreno Asher Health Care, LLC 1065 NE 125 Street, Suite 101 Miami, Florida 33161 (U.S. Mail) John D.C. Newton, Ii Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 Finance & Accounting (Interoffice Mail) Ken Yon, Chief, Medicaid Program Integrity (Interoffice Mail) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished to the above-named addressees by the means indicated on this the ¢! day of Oepe , 2010. Richard Shoop, Esquire Agency Clerk State of Florida Agency for Health Care Administration 2727 Mahan Drive, Building #3 Tallahassee, Florida 32308-5403 (850) 412-3630
Findings Of Fact The Petitioner is Gail C. Selvaggio, who currently resides in Palm Beach Gardens Florida, and at the time of the events complained of resided in Tallahassee, Florida. The Respondent is the Knight-Ridder Publishing Company, doing business as The Tallahassee Democrat (hereafter "The Democrat"). The Democrat is located in Tallahassee, Florida. The Petitioner commenced her employment with the Respondent as a secretary in its advertising department on February 13, 1978, at a salary of $160 per week. Petitioner's supervisor in the advertising department and the person for whom she primarily performed her secretarial duties was the advertising director, Martin Steinberg. Petitioner was hired to replace Judy McGinnis, who had been an administrative assistant to the previous advertising director whom Steinberg had replaced. McGinnis, who had supervisory duties in her position, had terminated her employment approximately six months prior to the time Petitioner was hired. When McGinnis left, her vacancy was advertised in August, 1977, as administrative assistant pursuant to the instructions of John Veenstra, the then advertising director. No one was hired at that time. When Veenstra left The Democrat in late 1977, the position was frozen. When Steinberg was hired by Respondent as its advertising director, he informed Personnel that he wanted a secretary and not an administrative assistant. Personnel then contacted the people who had earlier applied for the administrative assistant position and invited them to apply again, but informed them that the position had been changed to that of a secretary. Petitioner was referred to The Democrat on February 9, 1978, by Snelling and Snelling, an employment agency. A job counselor at that agency advised Petitioner that The Democrat had an opening for an administrative assistant, information given in a job order when McGinnis left The Democrat in August, 1977. The employment agency did not have any official business connection with The Democrat, and The Democrat had not informed the agency of any job opening when the agency referred Petitioner to The Democrat six months after the agency's job order was written. Based upon the information given her by the agency, Petitioner completed an application for employment with The Democrat by stating that she was applying for the position of administrative assistant. Petitioner was interviewed for employment by Tracy Rowe, who was at that time the personnel assistant at The Democrat. Ms. Rowe conducted approximately ninety percent of the initial employment interviews for The Democrat. She would then refer qualified applicants to the department head where the position was open. Rowe informed Petitioner during the initial interview that the position was not an administrative assistant position but rather was a secretarial position. Petitioner took a typing test as part of this initial interview. Petitioner then interviewed with Mr. Steinberg on February 9, 1978, and on February 10, 1978. Steinberg told Petitioner that the position was that of a secretary and explained to her the history of the position as it was held by Ms. McGinnis and his reasons for not wanting an administrative assistant. Steinberg had earlier told Rebecca Bradner when she interviewed for the position that the position was secretarial. He had also earlier told Mr. Harwell, the publisher of The Democrat, that he expressly did not want an administrative assistant because he did not want anyone with that much authority. Steinberg discussed with Petitioner possibilities of advancement during both her interviews and early employment, including agreeing with Petitioner's suggestion that she might write a training manual, which she never did, and conduct a sales training program. He did not make any promises to her regarding her future advancement or assignments. Petitioner received a salary increase to $180 per week within two weeks after beginning her employment, in accordance with her agreement with Steinberg. This was done to enable Petitioner to pay a lower fee to her employment agency. Steinberg did not promise any other pay increase to Petitioner. Petitioner was given an orientation program at The Democrat so that she could become familiar with the various departments of the newspaper and know who to consult with if problems arose when Steinberg was not in the office. Petitioner had no supervisory responsibilities in her position at The Democrat. During the initial months of her employment, Petitioner was basically a satisfactory employee, although she made mistakes in typing correspondence and various monthly reports. Steinberg brought these errors to her attention during the early months of her employment. Steinberg's practice in correcting documents and correspondence was to circle or underline the error in ink, thereby requiring the page to be retyped even if the error were minor. At times, he would sign correspondence without first reading it and later would find errors on the copy returned to him prior to filing, after the original of the letter had been mailed. Steinberg followed the practice of marking errors in ink from the beginning of Petitioner's employment. This practice was a personal habit of his which he followed with other employees as well. This practice was not an attempt on his part to harass Petitioner. Karen Sheffield, who sometimes handled secretarial duties for Steinberg, did not interpret this practice as harassment, although she frequently retyped the same document several times because of this practice. Petitioner made errors in the addresses and salutations of Steinberg's correspondence, which errors were especially noticeable to those to whom the letters were addressed. Several of the people with who Mr. Steinberg corresponded informed him of errors that had been made, and one person received a letter so full of typographical errors that he involved the publisher of The Democrat in the matter. Petitioner had the responsibility to correct correspondence. Steinberg did not instruct her to leave incorrect punctuation or grammar or spelling in a letter. Steinberg discussed Petitioner's unacceptable performance of her job duties with other management personnel, including Keith Helen, Walter Harwell, and Vernelle Tucker, on several occasions. Mr. Harwell advised Steinberg that it was necessary for Steinberg to turn out better work and that the secretary should be more careful. Steinberg counseled Petitioner about her mistakes and told her she needed to improve her performance on several different occasions. Petitioner was informed specifically about errors in the "Merchant letter" in May, 1978, and about errors in other letters as they occurred. Petitioner occasionally filled in for outside salespersons and made their calls for them when they were on vacation or sick. She performed as well as could be expected, although she made more errors than the regular salespersons made. Steinberg and Petitioner had a friendly, personal relationship in the earlier months of her employment and exchanged confidences with each other. Petitioner is a friendly, outgoing, gregarious person, and it was not unusual for her to put her arms around male employees while at work and hug them and even kiss them. On one occasion, Tracy Rowe observed Petitioner walk up behind Steinberg when he was sitting at a desk and throw her arms around him and kiss him. Steinberg, as a supervisor, was demanding but fair. Petitioner had marital problems in the fall of 1978 and discussed those problems with Steinberg. Her marriage terminated in a divorce in November, 1970. Beginning approximately in August and September, Petitioner's job performance suffered as she began to spend more time away from her desk. Part of the reason for her time away from her duties was her participation as co- chairperson of The Democrat's United Way campaign. She voluntarily assumed duties in connection with that campaign above any required of her and more than her co-chairperson. She frequently returned from United Way luncheons much later than the other employees who were in attendance at those luncheons. Although she chose to entertain at some of the luncheons, she had time to eat during the business portion of the meetings and could have returned to work sooner. During this time period, Steinberg discussed with Petitioner and with other management personnel problems with correspondence typed by Petitioner and with her tardiness. Prior to her divorce, Petitioner began to date another employee of The Democrat, Ron Selvaggio, her present husband, who was then head of the promotion department at The Democrat. Petitioner was frequently observed in his office to an extent greater than her United Way role required. Additionally, she often went to lunch with him and frequently returned late. Petitioner frequently socialized with others in the department. She would leave her desk to socialize with other employees, and other employees would come by her desk. Many employees noticed that Petitioner spent an unusual amount of time not working, and this fact was conveyed to Steinberg by other management personnel. The time spent by Petitioner socializing and participating in the United Way campaign prevented her from completing her work in a timely manner. Steinberg discussed this with her and with other management personnel. There was always work to be done in the advertising department, and Petitioner's neglect of her duties was noticed by other employees of The Democrat who depended on her to get their work done. Steinberg, complained to Vernelle Tucker that his work was not being completed because of Petitioner's activities in the United Way. Mrs. Tucker counseled Petitioner and told her that her job duties still had to be fulfilled despite her participation in the United Way campaign and that her work was priority. Steinberg began to write private memoranda on Petitioner's performance and work habits beginning in November, 1978, at the suggestion of Mrs. Tucker. Steinberg told Tucker that he did not believe Petitioner should get a raise because of her poor work performance, and Tucker told him to start documenting problem areas. Steinberg did not show those memoranda to Petitioner, nor did he forward them immediately to the personnel office to be included in her file. However, in most of these instances, Steinberg counseled Petitioner at the time about the matters he had noted. Other supervisors at The Democrat followed the same practice with regard to private memoranda. This practice allowed them to record their observations and counsel the offending employee in the hope that whatever problem existed might be eliminated. If the problems were not resolved in that manner, the memoranda could then become part of the employee's file. Otherwise, the memoranda could be destroyed without ever being sent to Personnel, so that temporary problems need not become a part of the employee's permanent file. The memoranda by Steinberg were made at the time of the events recorded and were not manufactured as after-the-fact justification for Petitioner's termination. It is the policy of The Democrat to include raises for its employees in the annual budget. The supervisors actually determine which employees will get raises and how much they will receive. The supervisors have authority to withhold any or all of the budgeted raise from an employee. Petitioner did not receive a raise budgeted for December, 1978, because her job performance did not warrant a pay raise. The paperwork Petitioner was required to complete increased during the fall of 1975 due to the normal increase in advertising business experienced by The Democrat from the return of students to school and the Thanksgiving and Christmas holiday seasons. Other reasons for the increase in workload at that time are that budgeting and forecasting for the following year is conducted during the fall, as is preparation of the next year's rate structure. The workload increases for everyone in the advertising department at that time of year. Petitioner's workload did not increase as a result of any attempt by Steinberg to harass her. In December, 1978, Petitioner approached Karen Sheffield about a transfer because of the increased paperwork. Sheffield was the secretary to Mrs. Tucker and Mr. Selvaggio at that time. She did not work in personnel. Petitioner did not approach anyone in Personnel about a transfer. Petitioner was not overworked in comparison with other employees. Petitioner was assigned the responsibility for answering a bank of telephones during the time that the advertising department was in a temporary working area due to construction in the building. Steinberg could give that task to no one else due to spacing in the temporary work area. Petitioner was assigned the task of copying multiples because Jean Ash Webb, who had been performing the duty, had been incurring a considerable amount of overtime because of that duty together with her other duties. Steinberg reassigned this task to Petitioner to reduce that overtime. The amount of overtime worked is a matter of great importance to management at The Democrat. Steinberg instructed Petitioner to use carbons in making copies where practicable rather than using a copying machine. He told her that the reason for using carbons was to save money. This change was effected at the direction of Mr. Harwell, the publisher, who was concerned over expenses at that time. There was a valid business reason for the use of carbons. This policy was instituted throughout The Democrat and not simply against Petitioner. Petitioner resented being given what she considered to be menial tasks and complained to other employees about having to perform such tasks. She complained about having to collate the Belden (Building) Study. She complained about having to perform the task of copying multiples. She complained about being overworked. She complained about having to retype letters. Petitioner's hours of employment were changed to 10:00 a.m. to 7:00 p.m., effective January 18, 1979. Petitioner had changed her own work hours to suit her personal schedule on several occasions prior to her hours being changed to 10:00 a.m. to 7:00 p.m. Her method of changing her hours was simply to begin coming in at a different time and then to secure approval from Steinberg after he noticed the change. The reason for the change to 10:00 a.m. to 7:00 p.m. was to provide assistance to the outside sales staff upon their return to the office in the afternoon after making sales calls. Outside salespersons in the advertising department frequently work late to finish the required paperwork and layouts for ads sold during the day. Persons used to provide such assistance to the outside sales staff after normal hours are known as "ad-assists." Petitioner was assigned ad-assist duties only for part of the day, from 5:00 p.m. to 7:00 p.m. There had been a need for an additional person in the ad-assist position for some time. The need for an additional person in that position had been under discussion by outside salespersons and by the management of the advertising department for several months. Steinberg had discussed the problem with Petitioner and had solicited her advice on how to handle the problem. Mr. Harwell would not approve hiring a new employee for the position because of the financial pressures on The Democrat at that time. Steinberg, with Keith Balon, considered and evaluated the secretaries, clerks and others in the department to see whose hours could be changed and who had the most work flexibility. Steinberg also discussed his selection with Mr. Harwell. Petitioner's duties as secretary were more flexible and less demanding than those of Jean Ash Webb, Dianna Moyer, Becky Savilla, and Linda Crews, who were other employees of the advertising department considered for the move. Jean Ash Webb and Linda Crews could not be moved into the ad-assist position because they had specialized jobs to perform and because they had deadline functions which required their presence at a specific time in the morning and, thus, dictated their departure time in the evening. Also, Dianna Moyer worked for Keith Balon and the sales staff, and Ms. Savilla worked for other supervisors. Steinberg did not have anyone other than Petitioner to place into the ad-assist position. Harwell agreed with Steinberg's decision. There was a legitimate business reason for changing Petitioner's hours to 10:00 a.m. to 7:00 p.m. The Democrat is a twenty-four-hour business. Employees other than Petitioner have left the company because they would not work the hours they were assigned. Petitioner informed Steinberg and others that she would not accept the change in her hours and that she would look for another job. Petitioner complained to other employees about the change in her hours and made derogatory remarks about Steinberg. Mr. Harwell told Steinberg that he should get a timetable for Petitioner's departure so that new people could be interviewed for the position, and he suggested a two-week period. Harwell also instructed Steinberg to caution Petitioner about "bad-mouthing" either the company or Steinberg during her remaining time at The Democrat. He instructed Steinberg that if Petitioner made statements which could hurt the morale of the department, she should be terminated immediately. Steinberg initially advised Petitioner that she could continue to work at The Democrat until she found a new job so long as she did not make derogatory remarks about him or The Democrat. Petitioner initiated conversations with other employees in which she complained about Steinberg. These remarks were creating a morale problem in the department. She also told other employees that her telephone was being tapped. On January 22, 1979, Steinberg asked Petitioner for a timetable for her expected departure so that plans could be made for her replacement. Petitioner refused to provide a timetable. Petitioner continued to make derogatory remarks about Steinberg. Upon the instructions of Mrs. Tucker, Steinberg discharged Petitioner on January 23, 1979. Upon Petitioner's termination, another person assumed the ad-assist duties in the 10:00 a.m. to 7:00 p.m. time slot. The day Petitioner was discharged, she interviewed with Keith Balon, the retail advertising manager, for a position as an outside salesperson in the advertising department. Steinberg was aware of this interview and did nothing to prevent Petitioner from interviewing or from obtaining the position. In fact, he did not include his private memoranda in her personnel file and did not inform Mr. Balon of the existence of such memoranda or their contents. Outside salespersons for The Democrat regularly worked until 7:00 p.m. and frequently as late as 8:30 p.m. in order to complete their duties for that day. Petitioner gave no explanation regarding how she could work those hours for Mr. Balon when she had refused to work until 7:00 p.m. for Mr. Steinberg. Balon hired another person whom he believed to be more qualified than Petitioner. His decision was not made to discriminate against Petitioner in any way. In October, 1978, Steinberg gave Petitioner a 3" X 5" card stating "from one who is one to one who could be one Thanx Marty." Above that notation was drawn a large six-pointed star. Steinberg gave the card to Petitioner in response to several gifts given to him by her and her statement to him that she wanted to be his "Jewish mother." The card did not have any sexual connotation, and Petitioner did not perceive any sexual connotation to the card. Steinberg frequently worked on Saturdays after having been out of the office during the latter part of the workweek. He called Petitioner on occasion at her home on Saturday mornings when he had a question about what had happened at work. Steinberg also called his other employees at their homes on Saturday mornings for the same purpose. Although some social conversation did occur during the calls to Petitioner, the calls were not used to sexually harass her. There were no statements made about sex during these calls. When Petitioner announced her engagement to Mr. Selvaggio, Steinberg expressed a concern since an employee of his would be married to another department head. There was no sexual connotation to this remark. By Petitioner's own testimony, this remark related to Steinberg's concern for the confidentiality of certain information concerning his department. He also discussed his concern about confidentiality with Mr. Harwell and with Mrs. Tucker during this same time period. Steinberg once mentioned to James Reeves, Petitioner's then husband, that Petitioner was like an "office wife." Reeves did not consider the remark to have any sexual connotation but rather understood that Steinberg meant that Petitioner was his confidant. Petitioner married Mr. Selvaggio, who was then the promotion manager of The Democrat, on December 21, 1978. There was some confusion between Steinberg and Petitioner regarding the time she was to take off for her wedding. However, Petitioner admits that this was simply a misunderstanding. This confusion was not an incident of sexual harassment. There were two romantic interludes between Petitioner and Steinberg which occurred in the board room at The Democrat. The first incident occurred in September, 1978, when Petitioner was helping to compile and collate the Belden (Building) Study, which was an advertising research study that had been made. Petitioner complained about having to perform such a menial task although Rebecca Bradner, a supervisor, participated in the collating as did several other employees. Petitioner told Ms. Bradner that the collating was not Petitioner's job, that she was going to lunch, that she would take a long lunch, and that if Steinberg did not like that, he could come in and tell her so. Bradner relayed this information to Steinberg. Steinberg then came to the board room. While Petitioner and Steinberg were alone in the board room, he kissed her, and she kissed him. This was a voluntary act on the part of both persons. The second incident occurred several weeks later when Steinberg invited Petitioner to walk to the board room with him. When they got there, they began kissing each other. Steinberg touched Petitioner's breasts, and Petitioner placed her hands on his genitals. Again, each participated willingly and voluntarily. Steinberg's only superiors at The Democrat were Mrs. Tucker and Mr. Harwell. Petitioner admitted she never reported the board room incidents or any alleged incidents of sexual harassment to either of those persons, to any other management or supervisory personnel at The Democrat, or to any other employee of The Democrat. Further, neither Harwell nor Tucker, nor any other management or supervisory personnel at The Democrat had any knowledge of any alleged incidents of sexual harassment. Petitioner admitted that Steinberg never expressly or indirectly conditioned her continued employment or any term or condition of her employment upon acceptance of sexual advances. Petitioner does not know of anyone who was ever terminated from employment at The Democrat because he or she filed a complaint about a supervisor for any reason, nor of any employee who was ever fired because of making allegations of sexual harassment against a supervisor. On one occasion, Petitioner told Mrs. Tucker that Steinberg wanted to know where and with whom Petitioner went to lunch. This occurred in connection with the concern of Steinberg that Petitioner was returning late from United Way luncheons. Tucker agreed to speak with Steinberg about Petitioner's duties with the United Way. Petitioner told Tucker during this conversation that Steinberg was infatuated with Petitioner; however, Petitioner did not indicate that she found the alleged infatuation to be a problem for her, and she specifically did not inform Tucker of any alleged sexual advance or sexual harassment. Further, Petitioner later told Tucker that things had improved. The Democrat conducts what are called "management coffee breaks," at which "rank and file employees" meet with the publisher, Mr. Harwell, and the personnel director, then Mrs. Tucker. Supervisors and department heads are specifically excluded from attending. These conferences are used so that the employees may present grievances, complaints, or discuss any other problems or policies that they wish. At these sessions, employees are encouraged to speak with management privately on matters that cannot be discussed in a group meeting. Petitioner attended one of these conferences and could have used it to bring her alleged problems to management's attention. The Tallahassee Democrat's employee handbook contains a statement of policy which prohibits discrimination. The Democrat has a policy regarding supervisors having affairs with employees. Two supervisors, one male and one female, had previously been terminated because of sexual relationships with their employees. Other employees of The Democrat knew about these supervisors being terminated, Mr. Harwell testified that he would have taken corrective action by terminating Steinberg had Harwell known of any sexual harassment by Steinberg. Petitioner presented no evidence of discrimination based upon her sex or marital status and failed to request any affirmative relief.
Recommendation Based upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations declaring that Gail C. Selvaggio was not discriminated against on the basis of her sex or marital status and dismissing her Petition for Relief with prejudice. RECOMMENDED this 18th day of June, 1981, in Tallahassee, Florida. LINDA M. RIGOT, 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 18th day of June, 1981. COPIES FURNISHED: Edward S. Jaffry, Esquire S. Jack Carrouth, Esquire Horne, Rhodes, Jaffry, Horne & Carrouth Post Office Box 1140 Tallahassee, Florida 32302 C. Gary Williams, Esquire Charles L. Early, Jr., Esquire Ausley, McMullen, McGehee, Carothers & Proctor Post Office Box 391 Tallahassee, Florida 32302 Dana Baird, Esquire Assistant General Counsel Florida Commission on Human Relations 2562 Executive Center Circle, East Suite 100, Montgomery Building Tallahassee, Florida 32301 Mr. Norman A. Jackson Executive Director Florida Commission on Human Relations 2562 Executive Center Circle, East Tallahassee, Florida 32301
Findings Of Fact Respondent was originally licensed to practice medicine in Florida on August 15, 1956. Respondent's license was placed on inactive status on December 13, 1979, and currently remains on inactive status. Respondent's last known address is 6201 Riverdale Road, Riverdale, Maryland 20801 (Petitioner's Exhibit No. 1). On May 6, 1983 Respondent, by Indictment No. 18312601, was indicted for six counts of Medicaid fraud, three counts of false pretenses and one count of theft in the Circuit Court for Baltimore City, Maryland (Petitioner's Exhibit No. 2). On March 12, 1984, after Respondent's bench trial, the Circuit Court for Baltimore City ordered a judgment of conviction as to the six counts of Medicaid fraud. Respondent was acquitted of the other four counts of the indictment (Petitioner's Exhibit No. 2, P. 39 of the memorandum opinion). Respondent's conviction resulted from the inclusion of nonallowable costs in applications for Medicaid funds submitted by Magnolia Gardens Nursing Home while Respondent was the administrator and a 50 percent owner of the nursing home. The trial court specifically found that Respondent knew that nonreimbursable costs for construction done to Respondent's personal residences and medical office building were included in applications for Medicaid payments (Petitioner's Exhibit No. 2, p. 39 of memorandum opinion). Use of Medicaid funds for improvements to a private physician's office is a violation of Maryland state law which clearly relates to the practice of medicine. As a result of Respondent's conviction for Medicaid fraud, he was sentenced to concurrent five-year terms of imprisonment on each of the six counts. All but 18 months of the sentence was suspended. Respondent was placed on 18 months of work release and 18 months of community service after work release at the rate of 20 hours per week. Respondent was also fined $60,000 and ordered to pay $50,000 restitution. Additionally, Respondent was placed on two years of unsupervised probation (See docket entry of April 23, 1984, Petitioner's Exhibit No. 2). On April 30, 1984 Respondent appealed his conviction to the Court of Special Appeals of Maryland (See docket entry of April 30, 1984, Petitioner's Exhibit No. 2). On November 6, 1985 the Maryland Court of Special Appeals rendered its opinion in William R. Greco v. State of Maryland, Case No. 171 (Petitioner's Exhibit No. 2). Respondent's conviction was affirmed in all aspects and Respondent's sentence was affirmed as to the order to make restitution which was vacated (See Mandate of the Court of Special Appeals of Maryland, dated December 6, 1985, Petitioner's Exhibit No. 2). On October 3, 1986, the Court of Appeals of Maryland affirmed the decision of the Court of Special Appeals. Greco v. State, 307 Md. 470, 515 A.2d 220 (1986). On December 4, 1984 Respondent was suspended from participation in the federal Medicare and Medicaid programs for a period of ten years (Petitioner's Exhibit No. 3).
Recommendation It is recommended that Respondent's license to practice medicine be revoked. DONE and ORDERED this 30 day of December, 1986 in Tallahassee, Florida. SHARYN L. SMITH 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 30th day of December, 1986. COPIES FURNISHED: Stephanie A. Daniel, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 William W. Cahill, Jr., Esquire WEINBERG and GREEN 100 South Charles Street Baltimore, Maryland 21201 Dr. William R. Greco 6201 Riverdale Road Riverdale, Maryland 20737 Fred Roche, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Salvatore Carpino, Esquire General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Dorothy Faircloth, Executive Director Board of Medical Examiners 130 North Monroe Street Tallahassee, Florida 32301
The Issue Whether the Petitioner should reimburse the Respondent for alleged Medicaid overpayments in the amount of $44,581.50.
Findings Of Fact At all times material to the allegations of this case, the Petitioner, Roosevelt T. Jackson, Jr., M.D., has been a Medicaid provider authorized to receive reimbursement for Medicaid services provided to Medicaid recipients. Dr. Jackson is an ophthalmologist. All services in this cause related to Medicaid claims for procedures performed between January 1, 1998, and December 31, 1999. The Respondent is the state agency responsible for the administration of the Medicaid program within the State of Florida. Medicaid Program Integrity is the arm of the Agency that oversees the activity of the Florida Medicaid providers and recipients to ensure that they are in compliance with the Medicaid program. As part of its duties, the Agency audits the records of providers to verify compliance with all Medicaid rules. In this case the audit of Petitioner's records was triggered by a computer program that reviews data from similar Medicaid providers. The Surveillance Utilization Review Section (SURS) of the Medicaid Program Integrity office found that the Petitioner had exceeded the norm in Medicaid billings when compared to his peers. When the SURS kicked back the Petitioner's name, it represented that the Petitioner had exceeded his peers in the total number of Medicaid recipients serviced, total number of evaluation and management procedures, average number of evaluation and management procedures per recipient, number of office visits, average number of office visits per recipient, and average number of services per recipient. Based upon the SURS responses, the Agency elected to conduct a sample audit of the Petitioner's records. Records for 30 Medicaid recipients were requested and obtained from the Petitioner. The results of that sample audit were then extended to calculate the overpayment for which the Respondent currently seeks reimbursement. The Respondent's audit established that the Petitioner had failed to comply with Medicaid provisions in three specific areas. First, based upon the records submitted to the Agency, the Petitioner billed for services at a higher level than actually performed. Second, the audit established that the Petitioner billed for services that were "medically unnecessary" as that term is utilized by Medicaid. And third, the audit found that the Petitioner billed for services that were not properly documented by the records maintained. Such records were created, maintained and produced to the Agency by the Petitioner. The results of the audit were set forth in the Final Agency Audit Report and were provided to the Petitioner. The report requested reimbursement from the Petitioner in the amount of $44,581.50. The report was completed on or about June 27, 2001. Thereafter, the Petitioner timely challenged the results of the audit, and requested a formal administrative hearing to dispute the amounts set forth in the report. As to all amounts claimed in the report, the evidence presented in this cause supports the Agency's conclusions as to the overpayment. Prior to January of 1999, the Petitioner was not authorized to bill for a level 4 visit. Thus all services billed at that rate prior to January 1999 should be reduced. Secondly, none of the records supplied by the Petitioner supported the complexity required for a level 4 billing. Therefore, services billed at the level 4 rate should be reduced to the appropriate level. The Petitioner also billed for services that were not medically necessary. A normal examination (with no retinal problem identified in the record) would not warrant additional retinal examinations. Therefore, billings for additional procedures would not be warranted in such cases. Finally, Medicaid rules require that a physician maintain records in compliance with documentation guidelines. The Petitioner's records did not comply with such guidelines. Accordingly, Medicaid payments for services that lack the required documentation may be recouped. After a full review of the records submitted, the Agency used a standard formula to extend the sample data throughout the population from which the sample was taken. That is, from the 30 patient records reviewed, the results were applied by statistical formula to the entire Medicaid patient population served by the Petitioner. This computation resulted in the amount of the overpayment currently sought. The statistical formula used by the Agency to compute the overpayment was reasonable and within the guidelines of the law.
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 confirming the Medicaid overpayment in the amount of $44,581.50. DONE AND ENTERED this 21st day of May, 2002, in Tallahassee, Leon County, Florida. J. D. PARRISH Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of May, 2002. COPIES FURNISHED: 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 Roosevelt T. Jackson, Jr., M.D. 3740 West Broward Boulevard Plantation, Florida 33312 Kim A. Kellum, Esquire Agency for Health Care Administration 2727 Mahan Drive Fort Knox Building 3, Suite 3431 Tallahassee, Florida 32308-5403
Findings Of Fact The Petitioner was employed by the Respondent as an Accountant II on December 1, 1987 and in December of 1993, was promoted to Tax Auditor II. In September of 1991, the Respondent received a complaint regarding Petitioner from a taxpayer. The taxpayer alleged that the Petitioner had accused the taxpayer of attempting to sabotage the Petitioner's van. When questioned about the complaint, the Petitioner stated that the taxpayer had attempted to damage his van because the Petitioner had denied the taxpayer's refund claim. The Petitioner's supervisor investigated Petitioner's claims, counseled him and suggested that the Petitioner participate in the Employee Assistance Program (EAP). The Petitioner declined assistance. In October and November of 1992, the Petitioner began making bizarre allegations about his co-workers and supervisors engaging in outrageous and deviant sexual conduct and activities, and began to behave strangely. The Petitioner told his supervisors that his co-workers were engaging in sex with his mother, aunt, uncle and other members of his family. According to the Petitioner, these sexual activities were taking place in the office. The Petitioner was upset particularly at one co-worker, who Petitioner stated had moved in next door to him or into his neighborhood in order to spy on Petitioner. In addition, Petitioner stated that the "sex police" were observing him at Walmart. The police would get on top of his van to spy on him according to Petitioner. During this time, the Petitioner filed a "sexual harassment" complaint with the Respondent's Inspector General. Petitioner's statement to the investigators repeated the bizarre accusations outlined above regarding his co- workers. After investigating the Petitioner's claim, the Respondent's Inspector General found no evidence to substantiate these allegations and statements. Because the Petitioner's increasingly bizarre behavior, the Respondent became concerned about the Petitioner's ability to perform his duties as a Tax Auditor I. Therefore, the Respondent requested that the Petitioner go to a psychiatrist for an evaluation. The Petitioner agreed and went to the Apalachee Center for Human Services, where he was examined by Dr. Terence Leland, a psychologist and Dr. Inez Bragado-Spence, a psychiatrist. The evaluation consisted of three, one- hour interviews and various written tests. It was understood that the results of this examination would be shared with Respondent. Dr. Leland reported to the Respondent that the Petitioner had made delusional statements of the type made to and investigated by the Inspector General and found to be baseless. The Petitioner reported that co-workers and others were spying on him. The Petitioner reported alleged sexual liaisons at the office between various employees and supervisors. The Petitioner reported plots against him by various conspirators and "hit men" of the Respondent. Dr. Leland's diagnosis was that the Petitioner suffered from a delusional (paranoid) disorder, persecutory type. It was Dr. Leland's opinion that the Petitioner clearly needed treatment. Dr. Leland felt that the Petitioner could not perform his duties without treatment, and recommended requiring treatment as a condition of the Petitioner's continued employment. During this period, the Petitioner's job performance suffered. Based upon Dr. Leland's reports, the Respondent required that the Petitioner obtain treatment as a condition of continued employment. The Petitioner and the Respondent entered into an agreement which required the following as a condition of continued employment: Seeking psychiatric treatment within 40 days. Furnishing documentation that treat- ment had commenced and was continuing for as long as treatment was recommended. Following the prescribed treatment so long as it was recommended. The Petitioner commenced treatment in June of 1993, Dr. Prasad, a psychiatrist, prescribed medication for the control of Petitioner's illness and Suzan Taylor, a counselor associated with Dr. Prasad, held regular counseling sessions with Petitioner. As a result of his treatment, the Petitioner was asymptomatic, his work improved, and he was promoted to Tax Auditor II in December of 1993. In the summer of 1994, approximately one year after commencing treatment, Dr. Prasad and Suzan Taylor began to suspect that the Petitioner was no longer taking his medication when he again began making delusional statements. At the same time, the Petitioner's supervisor began to notice the reoccurrence of Petitioner's prior conduct. When confronted by his doctors in November of 1994 about the failure to take his medication, the Petitioner stated that he had quit taking it. He was given the option of getting shots of the same medication on a regular basis, but he declined. On November 18, 1994, the Petitioner had an altercation with a co- worker and received a one-day suspension. Dr. Prasad had diagnosed the Petitioner as having major depression with psychotic features of persecution and delusion. Dr. Prasad's opinion was that the Petitioner could not perform his essential job functions without treatment. On or about November 21, 1994, the Petitioner told his supervisor that his last visit to Dr. Prasad was on November 16, 1994. Dr. Prasad was contacted by Petitioner's employer, and Dr. Prasad issued a final report dated November 23, 1994, in which she stated that the Petitioner refused to take any further medication or follow her directions; therefore, there was nothing further she could do to help him if he refused her recommended treatment. She did not release Petitioner from treatment. The Respondent issued its proposed letter of termination based upon the Petitioner's refusal to continue treatment contrary to his agreement and the Petitioner's behavior on the job. In a response to the letter of termination, the Petitioner made bizarre statements about the co-worker with whom he had had the altercation with on November 18, 1994. At a pre-determination conference conducted by William Fritchman, the Respondent's Chief of Personnel and Training (at the time), it was suggested that the Petitioner go to another doctor for evaluation and treatment, if necessary. The Petitioner stated that he would not seek further medical help and stated that he would not take any drugs. The Respondent had real concerns about the Petitioner's ability to perform his job duties, his interaction with taxpayers, and potential harm to fellow employees. Based upon Dr. Prasad's diagnosis and opinion that Petitioner required continuing treatment and Petitioner's declining job performance, Mr. Fritchman issued the Final Action Letter of Termination citing the Petitioner's breach of the conditions of employment, as agreed in the letter of April 30, 1993, which constituted insubordination. Petitioner offered no evidence showing he was sexually harassed.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Petitioner's claim be dismissed. DONE AND ENTERED this 28th day of October, 1996, in Tallahassee, Florida. STEPHEN F. DEAN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 SUNCOM 278-9675 Fax Filing (904) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 28th day of October, 1996. COPIES FURNISHED: Jack E. Franklin Post Office Box 572 Tallahassee, Florida 32302-0572 Gene T. Sellers, Esquire Department of Revenue Post Office Box 6668 Tallahassee, Florida 32311-6668 Sharon Moultry, Clerk Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149 Dana Baird, Esquire Human Relations Commission Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303-4149
