The Issue The issue in this case is whether Petitioner’s application for licensure as a registered nurse should be granted.
Findings Of Fact On or about December 6, 1988, Ms. Melegrito was convicted of two counts of fraud in violation of 42 U.S.C. Section 1395 and 18 U.S.C. Section 1341 in the United States District Court for the Western District of Virginia. On or about January 6, 1989, Ms. Melegrito was convicted of four counts of Medicaid fraud in violation of Sections 32.1-314 and 18.2-95 of the Code of Virginia. Both convictions involved the same set of facts. On or about August 3, 1989, the Florida Department of Professional Regulation and/or the Board filed an Administrative Complaint, Case No. 0107472 against Ms. Melegrito’s license as a registered nurse, charging a violation of Subsection 464.018(1)(c), Florida Statutes (1988), for the convictions set forth in paragraph one above. On or about October 27, 1989, the Virginia Board of Nursing revoked Ms. Melegrito’s nursing license as a result of the convictions set forth in paragraph 1 above. On or about December 21, 1990, the Board filed its Final Order in Case No. 0107472, placing Ms. Melegrito’s license on probation for a term concurrent with the probation imposed by the federal court and requiring her to comply with the terms of her federal probation. On or about June 25, 1993, Ms. Melegrito’s license to practice nursing in New York was revoked. On or about July 19, 1994, the Florida Department of Business and Professional Regulation and/or the Board filed an Administrative Complaint against Ms. Melegrito’s license in Case No. 92-11440, alleging a violation of Subsection 464.018(1)(h), Florida Statutes (1994), for unprofessional conduct including a departure from or failure to conform to the minimal standards of acceptable nursing practice. On or about September 14, 1994, Ms. Melegrito was found guilty of violating federal probation and sentenced to four years in the custody of the Federal Bureau of Prisons. Ms. Melegrito failed to make restitution as required by the terms of her probation. On or about November 28, 1995, the Division of Administrative Hearings issued a Recommended Order in Case No. 92-11440, finding that Ms. Melegrito violated Subsection 464.018(1)(h), Florida Statutes, and recommending suspension for three years followed by three years of probation and a $1,000.00 fine. On or about April 30, 1996, the Board filed a Final Order in Case No. 92-11440, imposing suspension for three years followed by three years of probation and a $1,000.00 fine. On or about December 13, 1996, the Agency for Health Care Administration and/or the Board filed an Administrative Complaint, Case No. 95-00886, against Ms. Melegrito’s license, charging Ms. Melegrito with a violation of Subsection 464.018(1)(l), Florida Statutes, for violating the Final Order in Case No. 0107472 by violating the terms of the federal probation. On or about September 4, 1998, the Board filed a Final Order in Case No. 95-00886, revoking Ms. Melegrito’s license for seven years. If Ms. Melegrito desired to reapply for licensure at the end of her revocation period, she was required to demonstrate her safety to practice as well as proof of completing continuing education courses and paying a $250.00 fine and $251.12 in costs. On or about February 24, 1999, Ms. Melegrito was convicted of felony criminal mischief and trespass in the Eighteenth Judicial Circuit in Broward County, Florida. On or about August 18, 2000; July 27, 2001; and December 9, 2004, the Virginia Board of Nursing denied Ms. Melegrito’s petitions for reinstatement of her nursing license. The denial by the Virginia Board of Nursing in 2004 was based in part on Ms. Melegrito’s misrepresentations concerning her licensure status at two job interviews, engaging in the unlicensed practice of nursing in 2003, and misrepresentations on her application for reinstatement by failing to disclose her previous disciplinary history and criminal history.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered denying Ms. Melegrito’s application for licensure as a registered nurse. DONE AND ENTERED this 18th day of March, 2008, in Tallahassee, Leon County, Florida. S SUSAN B. HARRELL 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 March, 2008. COPIES FURNISHED: Gerald D. Siebens, Esquire Office of the Attorney General One Mack Center 501 East Kennedy Boulevard Tampa, Florida 33602 Lee Ann Gustafson, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 Maria C. Melegrito 3137 Honeymoon Lane Holiday, Florida 34691 Josefina M. Tamayo, General Counsel Department of Health 4052 Bald Cypress Way, Bin A-02 Tallahassee, Florida 32399-1701 Rick Garcia, MS, RN, CCM, Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C-02 Tallahassee, Florida 32399-1701 Patricia Dittman, Ph.D(C), RN, CDE, Board Chair Board of Nursing Department of Health 4052 Bald Cypress Way Tallahassee, Florida 32399-1701
The Issue Whether Petitioner, Mary E. Johnson, was discriminated against by her discharge from her position as a Certified Nurse Assistant by Respondent, Ormond Beach Memorial Hospital (Hospital), on November 21, 1991, because of her handicap, clinical depression, in violation of Section 760.10, Florida Statutes.
Findings Of Fact Petitioner worked as an on-call Nurse Assistant for Respondent. On call employees were guaranteed no certain amount of hours and no benefits were provided to them. On call employees were called to work when patient census was high, and were the first to be cancelled when the census was low. Vodenicker, Tr. 29 (1. 20-25) - 30 (1. 1-19); Johnson, Tr. 31 (1. 4-5). On November 21, 1991, Respondent discharged Petitioner from her position as a Certified Nursing Assistant at the Hospital. Hearing Officer's Exhibit 1. Petitioner had been hospitalized the majority of May 1991 for clinical depression. She returned to work at the Hospital following her hospitalization and was not hospitalized again prior to her discharge, although she did continue to have problems with depression. Johnson, Tr. 33 (1. 18-25) - 34 (1. 1-14). Ms. Vodenicker, Vice President of Nursing Services, became aware that Petitioner had been hospitalized for clinical depression during a counseling session on August 20, 1991. Ms. Sally Cole, Nurse Manager of Six North, was also present during this meeting. Johnson, Tr. 53 (1. 23-24); Vodenicker, Tr. 120 (1. 8-16), Tr. 121 (1. 9-17), Tr. 133 (1. 8-11). In early May, Diane McCall, Assistant Director of Nursing, was told by Dorothy Johnson, Petitioner's mother, that Petitioner was depressed and had been hospitalized. McCall, Tr. 78 (1. 23-25) - 79 (1. 1-8). Petitioner never discussed her clinical depression with Ms. McCall. McCall, Tr. 79 (1. 9-14); Johnson, Tr. 51 (1. 5-7). Petitioner's psychiatrist, Dr. Oh, had no conversations with anyone at the Hospital regarding Petitioner's clinical depression. Johnson, Tr. 38 (1. 13-15). As a physician practicing in the area, the nurses and staff were familiar with his specialty, and some of the Petitioner's supervisor's knew Dr. Oh was treating the Petitioner. Petitioner did not inform any members of the Hospital's nursing staff that she was suffering from clinical depression. Johnson, Tr. 50 (1. 19-22). Ms. Burns, one of Petitioner's supervisors, was not aware that Petitioner suffered from clinical depression. Johnson, Tr. 51 (1. 14-16); Burns, Tr. 182 (1. 16-19). Ms. Bowen, Nurse Manager of Six South, had no knowledge that Petitioner suffered from clinical depression. Johnson, Tr. 52 (1. 10-12); Bowen, Tr. 185 (1. 9-17). In her capacity as Team Leader and/or Charge Nurse, Ms. Canelli had occasion to supervise Ms. Johnson's work. Ms. Canelli described Petitioner's performance as "erratically efficient" because sometimes Petitioner was "very good at her job and at other times she was less than adequate". Canelli, Tr. 83 (1. 4-15). In early May 1991, Petitioner was counseled by Ms. Vodenicker regarding her personal interactions with a coworker, Brad Van Buren. Ms. Vodenicker cautioned Petitioner to keep her personal life separate from her business life at the Hospital. Johnson, Tr. 57 (1. 15-25) - 58 (1. 1-15). On July 20th, Ms. Canelli counseled Petitioner regarding the deficient level of care she had provided to a "total-care patient" (i.e., a patient who cannot feed, bathe or move themselves in bed) on July 2nd. Ms. Canelli discovered the patient "lying in a puddle of stool," and located Petitioner sitting at the nurses station holding her pocketbook and waiting to leave for the day, even though there was still 20-25 minutes left until the end of the shift. Ms. Canelli instructed Petitioner to clean up the patient. About ten minutes later, Ms. Canelli went back into the patient's room and discovered that the patient had apparently been wiped off with a dry cloth but had not been bathed. This was evident because there was still stool on the patient's pillow, dressings, and leg. Ms. Canelli summoned another Nurse Assistant, and they cleaned up the patient. Ms. Canelli counseled Petitioner regarding this incident on the next available opportunity she had to work with her, and she also documented the incident. Canelli, Tr. 83 (1. 21-25) - 84 (1. 1-17) - 85 (1. 4-25) -86 (1. 1-23); Respondent's Exhibits 6 and 7. On August 20th, Ms. Vodenicker had a second counseling session with Petitioner concerning Mr. Van Buren, following a complaint by Mr. Van Buren that Petitioner had been following him around in her car and that she had been seen in the Hospital parking lot watching him as he came on duty on the evening of August 19th. Vodenicker, Tr. 118 (1. 10-14). On October 27th, Ms. Canelli counseled Petitioner about Petitioner's absence from her assigned floor when she could not be located by the nursing staff, even after she was paged over the Hospital paging system. Ms. Canelli documented the events surrounding this counseling session on October 28th, to include several prior instances in which the nursing staff had been unable to locate Petitioner on her assigned floor. Canelli, Tr. 88 (1. 2-25) - 89 (1. 1- 8) - 102 (1. 1-25) - 103 (1. 1-3); Respondent's Exhibit 8. Ms. Vodenicker requested that Ms. Cole, Nurse Manager of Six North, escort Petitioner to Ms. Vodenicker's office in order to discuss the situation and to get Petitioner's side of the story. Ms. Cole sat in on the meeting as a witness. Ms. Vodenicker reminded Petitioner of their previous discussion regarding Mr. Van Buren and told Petitioner to keep her business and personal lives separate. Ms. Vodenicker also took this opportunity to discuss other problems with Petitioner's job performance. Vodenicker, Tr. 119 (1. 15-25) - 120 (1. 1-7); Johnson, Tr. 58 (1. 18-25) - 59 (1. 1-10). Because Petitioner's actions were in violation of the directives that Ms. Vodenicker had previously discussed with Petitioner in May, Ms. Vodenicker a wrote a disciplinary report. Johnson, Tr. 121 (1. 20-24). On August 21st, Ms. McCall presented Petitioner with the disciplinary report in the presence of Ms. McCall. Petitioner refused to sign the document, and Ms. Vodenicker made a notation of this fact on the face of the document and forwarded the original to the Hospital's personnel department. Vodenicker, Tr. 121 (1. 25) - 122 (1. 1-23) - 146 (1. 10-25) - 147 (1. 1-3); McCall, Tr. 156 (1. 22-25) - 157 (1. 1-11); Johnson, Tr. 59 (1. 11-25) - 60 (1. 1-4); Respondent's Exhibit 3. Ms. Burns counseled Petitioner after the Petitioner failed to answer a page and could not be found when Ms. Burns undertook a personal search for Petitioner. Petitioner later stated that she had taken a patient to x-ray; however, when Ms. Burns called the x-ray department, no one remembered seeing Petitioner in that area. Ms. Burns counseled Petitioner regarding leaving her assigned floor without notifying proper personnel and documented the incident. Burns, Tr. 176 (1. 4-23) - 177 (1. 22-25) - 178 (1. 1-17) - 179 (1. 3-25) - 180 (1. 1-10) - 181 (1. 14-16) - 182 (1. 9-15). On October 26, 1991, Petitioner was working under Ms. Peterson's supervision. Ms. Peterson observed that, while on a supposed 15-minute break at 8:15 a.m., Petitioner did not return until nearly 9:15 a.m. Ms. Peterson documented the incident after consulting with her supervisor. No one at the Hospital had instructed Ms. Peterson to keep an eye on Petitioner. Peterson, Tr. 172 (1. 12-23) - 173 (1. 18-25) - 174 (1. 1-6) - 175 (1. 1-3); Respondent's Exhibit 17. On November 2, 1991, Ms. McCall counseled Petitioner regarding being absent from her assigned floor, and limiting her breaks to 15 minutes and lunch breaks to one-half hour. Ms. McCall instructed Petitioner not to leave the floor unless directed to do so by the Charge Nurse or Team Leader. Ms. McCall documented her counseling Petitioner in her personnel file. McCall, Tr. 149 (1. 19-25) - 150 (1. 1-18); Respondent's Exhibit 14. On November 10, 1991, Petitioner was assigned to assist patient Joan Cummings. Patient Cummings was an "NPO" patient, meaning that she could not receive any of her fluids and medications by mouth. Petitioner forgot to measure the patient's urine output prior to emptying her bedpan. Canelli, Tr. 92 (1. 18-25). Johnson, Tr. 40 (1. 2-8) - 66 (1. 23-25) - 67 (1. 1-5). After forgetting to measure patient Cummings' urine, Petitioner asked the patient how many times she had urinated. The patient informed her that she had voided three (3) times, and Petitioner multiplied that number by 200 cc's to arrive at a figure of 600 cc's. Petitioner recorded 600 cc's as patient output on the intake/output slip, and which was ultimately recorded on the patient's daily log form located on a clipboard outside the patient's door. The information was later transcribed onto the patient's chart. Johnson, Tr. 40 (1. 10-25) - 42 (1. 4-25) - 43 (1. 1-12). The Nurse Assistant assigned to the patient is responsible for an accurate intake and output measurement as recorded on the patient's intake/output slips and daily log sheets. The information recorded on these Hospital documents are relied upon as accurate by the entire nursing staff. The information is transferred onto the patient's graphic charts by the nurse, or nursing assistant or nursing team leader, depending on who has time. Canelli, Tr. 112 (1. 8-25) - 113 (1. 1-3); Bowen, Tr. 184 (1. 3-8). By substituting 200 cc's in the place of the BRP designation, Petitioner failed to follow the procedures as described to her by Ms. Canelli. Petitioner had never been instructed by anyone at the Hospital to substitute 200 cc's for actual measurement. Johnson, Tr. 44 (1. 21-25) - 45 (1. 1) - 47 (1. 15-25) - 48 (1. 1-19) - 49 (1. 1-6); Canelli, Tr. 99 (1. 2-8). It would not be proper for a nurse or nurse assistant to multiply the number of times a patient had voided by 200 cc's, and use that number as an accurate representation of the amount of urine output by the patient. Canelli, Tr. 91 (1. 9-14). Petitioner's "Nursing Skill Evaluation" form reveals that she received training on the use of intake/output sheets, including the accurate measuring of cleaning of these items, although she cannot recall what instructions she received. Johnson, Tr. 64 (1. 7-25) - 65 (1. 1), (1. 14-17); Respondent's Exhibit 4. An accompanying self-evaluation form also reveals that Petitioner indicated that she felt comfortable with charting elimination of bedpan fluids and with the accurate measuring and cleaning of the graduated pitcher. Johnson, Tr. 67 (1. 12-25) - 68 (1. 1-12); Respondent's Exhibit 5. Ms. Canelli instructed her Nurse Assistants to inform the Team Leader, whenever they had forgotten to measure a patient's urine output and to let their Team Leader know the number of times the patient had voided so that the staff would have some idea that the patient had voided and chart that the urine had not measured. Canelli, Tr. 91 (1. 17-25). Petitioner's substitution of her estimate of urine output was contrary to acceptable charting practice. Petitioner had been instructed by Ms. Canelli, who regularly performed Team Leader and Charge Nurse duties, to document instances in which she had forgotten to measure a patient's output by writing the number of times the patient had voided beside the designation "BRP" (bathroom privileges). Johnson, Tr. 43 (1. 25) - 44 (1. 1-20). On November 10, 1991, patient Cummings reported to Ms. Canelli that Petitioner had dumped her bedpan without measuring the urine output after the Petitioner had left at the end of her shift. Ms. Canelli documented the facts related to her by the patient in a report to her team leader, Ms. Bowen. Canelli, Tr. 94 (1. 22-25) - 95 (1. 1-3); Respondent's Exhibit 9. Petitioner admits that the nurses rely on the information recorded on the intake/output slips and daily logs as being accurate representations of the actual amount of fluids measured by the Nurse Assistants. Johnson, Tr. 43 (1. 13-15). Nurse Bowen was the Team Leader on Six North on November 10, 1991. Ms. Bowen spoke with Ms. Cummings, who advised her that Petitioner had failed to measure her urine output before emptying the bedpan. Ms. Bowen also documented the patient's complaint in a report. Bowen, Tr. 184 (1. 9-19). Nurse McCall was advised of the Cummings incident when she returned to work after the weekend. Ms. McCall brought the incident involving patient Cummings to the attention of Ms. Vodenicker. In reviewing patient Cummings' medical file, Ms. Vodenicker was very concerned about Petitioner's inaccurate recording of patient information. Ms. Vodenicker opined that it was very important that the Hospital be able to trust what its health-care employees tell them and have confidence that the employees have done what they say they have done. Vodenicker, Tr. 123 (1. 9-20) - 124 (1. 7-16). Ms. Vodenicker was already aware of Petitioner's performance, as well as the prior written corrective action which she had given Petitioner. She reviewed Petitioner's personnel file, performance appraisals, and met with Nurse McCall, Petitioner's immediate supervisor, in order to analyze this matter further. Ms. Vodenicker decided in view of the decline in Petitioner's performance, the verbal and written counseling she had received from the supervisory staff, the prior corrective action which had been issued, and the recent incident involving patient Cummings that a decision was required regarding Petitioner's further employment. Vodenicker, Tr. 124 (1. 20-25) - 125 (1. 1-3). Ms. Vodenicker discussed the matter with Nurse McCall and asked that she provide her with a recommendation. Nurse McCall recommended Petitioner's discharge based upon the incident involving patient Cummings and Petitioner's declining work performance. Vodenicker, Tr. 125 (1. 8-18); McCall, Tr. 153 (1. 10-25) - 154 (1. 1-11) - 157 (1. 24-25) - 158 (1. 1); Respondent's Exhibit 13. Petitioner's annual performance evaluation reflected that there had been a demonstrable demise in her overall performance over the course of her first year of employment. McCall, Tr. 155 (1. 4-21). The decision to discharge Petitioner was not communicated to Petitioner until November 21st, mainly because of the time that it took Ms. Vodenicker to conduct her review of the situation and discuss the proposed disciplinary action with her superiors. Petitioner was not called to work due to low patient census on November 15, 18, and 20, 1991. Vodenicker, Tr. 125 (1. 23-25) - 126 (1. 1-18) - 144 (1. 1-6). On November 21, 1991, Ms. Vodenicker met with the Petitioner and reviewed the incident involving patient Cummings with Petitioner. Petitioner admitted to Ms. Vodenicker that she had forgotten to measure the patient's urine output and had documented the output as 600 cc's. Ms. Vodenicker expressed her concern over Petitioner's failure to properly chart patient information, and Petitioner's declining work performance. Ms. Vodenicker then terminated the Petitioner. Vodenicker, Tr. 126 (1. 19-25) - 127 (1. 1-8); Johnson, Tr. 189 (1. 22-25) - 190 (1. 1-19); Hearing Officer Exhibit 1. Petitioner states she does not wish to return to the Hospital as a Nurse Assistant at this time for health reasons. Johnson, Tr. 50 (1. 3-13).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Commission on Human Relations issue a Final Order finding that Petitioner has failed to prove a violation of Section 760.10, Florida Statutes. DONE AND ENTERED this 17th day of September, 1993, in Tallahassee, 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 17th day of September, 1993 APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-1556 The following constitute specific rulings, pursuant to S120.59(2), F.S., upon the parties' respective proposed findings of fact (PFOF). Respondent's PFOF: 1-7 Adopted. 8-9 Irrelevant. 10-17 Adopted. 18-19 Irrelevant. 20-27 Adopted. 28 Irrelevant. 29-32 Adopted. 33 Rejected as contrary to the best evidence. 34-42 Adopted. 43-44 Subsumed in 24 and other paragraphs. 45-50 Adopted. 51-56 Subsumed in 41. 57 Adopted. Petitioner's PFOF: 1-End Rejected and contrary to the best evidence. COPIES FURNISHED: Sharon Moultry, Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Ms. Mary E. Johnson c/o Ms. Dorothy Johnson 1807 Golfview Boulevard South Daytona, Florida 32119 Gary E. Thomas, Esquire FISHER & PHILLIPS 1500 Resurgens Plaza 945 East Paces Ferry Road Atlanta, Georgia 30326
The Issue The issue to be determined is whether Petitioner’s application for licensure by endorsement as a licensed practical nurse in the State of Florida should be granted or denied.
Findings Of Fact Petitioner was licensed as a practical nurse by examination in the State of Ohio, having received her license in Ohio in August of 1994. She practiced in Ohio, generally in long-term care settings, from 1994 to approximately 2009. She was subsequently licensed by endorsement in Virginia on March 17, 2009, and in North Carolina on May 18, 2011. On February 23, 2011, Petitioner received a reprimand against her license in the State of Virginia. The reprimand was issued as a result of a Consent Order in which Petitioner neither admitted nor denied the findings of fact in the Virginia Board of Nursing’s Final Order. Petitioner applied for licensure in North Carolina a few months after the entry of the Virginia Final Order. Her testimony that she disclosed the reprimand in her application for licensure in North Carolina is undisputed and accepted. The application submitted in North Carolina was a paper application. On or about April 27, 2015, Petitioner submitted an electronic application for licensure by endorsement in Florida. The application contains the following question, which Petitioner answered “no”: Have you ever had disciplinary action taken against your license to practice a health care-related profession by the licensing authority in Florida, or any other state, jurisdiction or country? In submitting her application, Petitioner also checked an Affirmation Statement, which includes the following statement: I, the undersigned, state that I am the person referred to in this application for licensure in the State of Florida. I affirm these statements are true and correct and recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind, and I declare under penalty of perjury that my answers and all statements made by me herein are true and correct. Should I furnish any false information in this application I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or a Licensed Practical Nurse in the State of Florida. Petitioner did not complete her on-line application in one sitting. She filled it out over several sessions on the computer, because she had to complete the continuing education required for Florida and had to wait for funds to pay the application fee. Because of the way she completed the application, she did not check her application as carefully as she should have and did not realize that she had answered the question regarding discipline in another state incorrectly. Petitioner had notified North Carolina of her previous discipline when applying in that state. There was no basis presented to indicate that she was affirmatively attempting to conceal her prior discipline, as opposed to being negligent in the completion of her application. Petitioner did not realize the error on her application until she inquired about the status of her application after the Board considered it at its June 2015 meeting. After her inquiry, but before receiving the Notice of Intent to Deny, Ms. Walker wrote to the Executive Director of the Board to inquire what she needed to do to correct her error, stating, “it was an honest mistake of marking the wrong box on the question. I had started and stopped the application several times while gathering all of the information needed.” She provided information regarding the Virginia discipline, and a printout of the documents on file with the Virginia Board of Nursing with respect to the reprimand. Petitioner has been a nurse for over 22 years. She loves her job. She was candid and forthright in acknowledging that it was her error and no one else’s with respect to the answers given on the application. While Petitioner clearly needed to be more careful in preparing her application, no deliberate attempt to deceive was demonstrated.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Board of Nursing enter a final order granting Petitioner’s application for licensure by endorsement as a licensed practical nurse. DONE AND ENTERED this 8th day of March, 2016, 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 8th day of March, 2016. COPIES FURNISHED: Tara Danielle Walker 146 Smoky Crossing Way Seymour, Tennessee 37865 (eServed) Lynette Norr, Esquire Office of the Attorney General The Capitol, Plaza Level 01 Tallahassee, Florida 32399-1050 (eServed) Joe Baker, Jr., Executive Director Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 (eServed) Ann-Lynn Denker, PhD, ARNP Chair Board of Nursing Department of Health 4052 Bald Cypress Way, Bin C02 Tallahassee, Florida 32399-3252 Nichole C. Geary, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 (eServed)
Findings Of Fact On March 7, 1977, Smith completed and forwarded to the Board his application for licensure as a licensed practical nurse pursuant to the provisions of Section 464.21(1), Florida Statutes. Question eleven of that application asks whether the applicant has ever been arrested and convicted for an offense other than a minor traffic violation. Smith answered the question yes and in the space provided for an answer in the application detailed his arrest and conviction for driving while indoxicated in the State of Florida. No other notation is made on the application form regarding any other arrests and convictions. However, Smith did in fact have another arrest and conviction occurring in January, 1964, in the State of Michigan. At that time, Smith was found guilty of the crime of taking indecent and improper liberties with a female child under the age of sixteen, that being a violation of Section 750.336, Michigan Compiled Laws Annotated. The trial court found that Smith took his eleven year old niece to bed with him and "placed his penis between the girl's thighs and started to masturbate over her." Had Smith committed the same act in Florida for which he was convicted in Michigan in 1964, he could have been charged under Section 800.04, Florida Statutes, proscribing lewd, lascivious or indecent assault or acts upon or in the presence of a child under the age of fourteen. Smith argued that his conviction of a felony in Michigan should not automatically be equated to the commission of a felony offense in Florida because the acts which he committed in Michigan may not have been viewed in Florida at that time as "lewd, lascivious or indecent" as defined by Florida case law. Such definition is found in Boles v. State, 27 So.2d 293 (Fla. 1946), wherein the Court stated that the words lewd, lascivious and indecent are synonyms and connote wicked, lustful, unchaste, licentious, or sensual design on the part of the perpetrator. And the Court in Buchanon v. State, 111 So.2d 51 (Fla. 1959), defined these terms as meaning an unlawful indulgence in lust, eager for sexual indulgence. Smith argues that in the area of sexual attitudes and mores universal agreement is impossible and that local community standards must be applied to determine the nature and quality of any given act. This argument is specifically rejected. While such an argument may have application to the expression of ideas, it is inapposite to Smith's conduct in Michigan which had the potential of causing severe emotional damage to another person. Smith's conduct was without doubt lewd, lascivious and indecent. In defense of the charge of fraud or deceit in the procuring of his license, Smith introduced into evidence what purports to be a rough draft of a supplement to his application in which the details of his Michigan conviction are set forth. Smith and members of his family testified to events which, if true, would establish that Smith had intended to include the supplement to his application and that it had been inadvertently lost. While it is not concluded as a matter of fact that Smith actually intended to file a supplement to his application, the evidence introduced by Smith is sufficient to raise doubt and to cause the Hearing Officer to conclude that evidence of Smith's fraudulent intent, when viewed in light of the evidence as a whole, is insufficient to establish fraud or deceit.
The Issue Whether Respondent committed an unlawful employment practice against Petitioner by terminating her on the basis of her race.
Findings Of Fact Petitioner, an African-American female, was employed by Respondent in the position of Certified Nursing Assistant (CNA) from April 21, 2007, to February 21, 2008, when she was terminated. Respondent Employer is a provider of long-term and rehabilitative care to elderly patients and patients recovering from surgery. The majority of Respondent’s patients range from 60-to-90 years old. Upon hiring, Petitioner received a copy of the Employer’s Handbook. CNAs are responsible for patients’ basic needs, which include feeding, bathing, dressing, and turning. They are responsible for performing vital sign checks and providing reports to nurses on each patient’s health condition. CNAs are supervised by nurses, including Nurse Practitioners, Registered Nurses (RNs), and Licensed Practical Nurses (LPNs). The majority of nurses and CNAs employed by Respondent are African-American. At all times material, Petitioner regularly worked night shifts, beginning at 11:00 p.m. and ending at 7:00 a.m. the following day. Typically, fewer CNAs are scheduled to work the night shifts as compared to shifts scheduled between 7:00 a.m. and 11:00 p.m. The assignment of fewer CNAs to these shifts means that there is a greater need for those employees assigned to the night shifts to be alert and responsive to patients’ status, needs, and requests. Petitioner was scheduled to work a shift beginning at 3:00 p.m. on February 7, 2008, and then another shift from 11:00 p.m. February 7, 2008, to 7:00 a.m. February 8, 2008. She admitted that she worked a double shift spanning February 7, 2008, and February 8, 2008. The Employer’s records show that she had been paid for the period of time from 11:00 p.m. February 7, 2008, to 7:00 a.m. February 8, 2008. According to employee disciplinary reports admitted in evidence, Michelle Hatcher, LPN, an African-American female who was the night shift Charge Nurse, observed Petitioner and a Caucasian female CNA sleeping on the job on February 8, 2008. The two sleeping CNAs were not attending to patient call lights, which was an unsafe situation. Nurse Hatcher’s observation was confirmed by two separate, dated written statements provided by female African-American Nurse Felicia Rockett against each named CNA. “Discharge” was the proposed disciplinary action. Serious injury or death of a patient may result when a CNA fails to perform required job responsibilities. Respondent’s Employee Handbook describes “sleeping or inattention on the job” as a serious infraction which is subject to immediate discharge. Petitioner testified that she knew that sleeping on the job was a cause for immediate discharge and that it warrants termination “on the spot,” without prior warnings or progressive discipline. She denied ever sleeping on the job. Nurse Hatcher did not have authority to immediately terminate Petitioner and the sleeping Caucasian LPN “on the spot.” Nurse Hatcher was required to provide a written disciplinary report of the incident to the Director of Clinical Services, a/k/a the Director of Nursing, which she did. In turn, the Director of Clinical Services was responsible for reporting any termination of employment issue to Employer's Regional Director of Human Resources for review and a final decision on the appropriate course of action. Laura Register, a Caucasian female, had been appointed Acting Director of Clinical Services on or about February 7, 2008. She was new to the position, and there were many pending matters when she assumed the position, including disciplinary matters. Elaine Leslie, a Caucasian female and Respondent’s Regional Director of Clinical Services, visited Respondent’s Tallahassee facility two or three days per week for awhile to help acclimate Ms. Register to her new position and to assist her with pending matters. Mesdames Leslie and Register triaged resident care issues ahead of disciplinary actions. Therefore, there was a delay in addressing the two CNAs' disciplinary action forms. To ensure consistency and protect against bias, discrimination, and personality problems, Robert Walker, Respondent’s Regional Director of Human Resources, reviews and makes the final decisions with respect to all termination actions. This process is designed to ensure that uniform policies are applied to one and all equally. Ms. Leslie and Ms. Register contacted Mr. Walker, a Caucasian male, to review the disciplinary reports related to the charges of sleeping on the job. The three executives then reviewed the disciplinary reports of Nurses Hatcher and Rockett and believed their reports of Petitioner’s and the Caucasian CNA’s sleeping-on-the-job to be credible. Mr. Walker made the final decision to terminate Petitioner and the Caucasian CNA. He held a termination meeting with Petitioner, rather than terminating her by telephone. Petitioner’s termination date reflects when the termination actually occurred, on February 21, 2008, not the date of the offense or when the offense was reported to management. Respondent offered evidence of Petitioner sleeping on the job as the sole motivating factor in terminating her employment.1/ Respondent has a firm anti-discriminatory policy, of which Petitioner was aware because she signed a copy thereof upon her date of hire. However, Petitioner never complained to Mr. Walker about perceived racial discrimination, before or after her termination. At hearing, she denied any discriminatory treatment or any racial slurs or comments by any of Respondent’s employees at any time before, during, or after the incidents previously related. On February 29, 2008, which was after Petitioner’s February 21, 2008, termination, Respondent hired three new CNAs: one Caucasian and two African-American. Ten of the eleven CNAs hired by the Employer from February 5, 2008, to March 26, 2008, were African-American females.
Recommendation Based 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 Petitioner’s Charge of Discrimination and Petition for Relief. DONE AND ENTERED this 31st day of July, 2009, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 31st day of July, 2009.
The Issue The issues in this case are whether, before applying for licensure as a registered nurse in Florida, Petitioner had suffered the denial of an application for licensure as a practical nurse in the state of Virginia, and, if so, whether Petitioner's failure to disclose that fact in her Florida application was a knowing misrepresentation; finally, if either or both of the forgoing questions are answered in the affirmative, whether Respondent has grounds to deny Petitioner's pending application for a nursing license.
Findings Of Fact On October 15, 2012, Petitioner Yolette Tema ("Tema") signed an application for licensure as a registered nurse, which she mailed to the Department of Health for review by Respondent Board of Nursing (the "Board"). Item No. 9 of the application sought information about the applicant's disciplinary history. Four subparts (lettered A through D) asked questions that called for a "yes" or "no" answer, which the applicant was to give by marking the applicable check box. The first question ("9A") was: Have you ever been denied or is there now any proceeding to deny your application for any healthcare license to practice in Florida or any other state, jurisdiction or country? Tema answered, "No." In Item No. 10 of the application, there appeared above the signature line the following declarations: I recognize that providing false information may result in disciplinary action against my license or criminal penalties pursuant to Sections 456.067, 775.083, and 775.084, Florida Statutes. I have carefully read the questions in the foregoing application and have answered them completely, without reservations of any kind. Should I furnish any false information in this application, I hereby agree that such act shall constitute cause for denial, suspension or revocation of my license to practice as a Registered Nurse or Licensed Practical Nurse in the State of Florida. Tema's signature manifested her agreement with the foregoing declarations. Despite having acknowledged the hard consequences of deceit, Tema's negative answer to the question of whether she ever had suffered the denial of an application for licensure was false. In fact, in June 2011, the Virginia Board of Nursing had denied Tema's application for licensure as a practical nurse, on the ground that she had provided false information in an effort to obtain a license by fraud, deceit, or material omission. Tema had received timely, contemporaneous notice of the Virginia Board of Nursing's final decision, and she was fully aware of that disposition at all times relevant to this case. When she completed the Florida application in October 2012, therefore, Tema knew that her response to question 9A was false. Because the information Tema failed to disclose obviously would have hurt her chances of obtaining a license in Florida, the undersigned disbelieves Tema's explanation for the material omission, which was that she simply made a mistake.1/ Instead, the undersigned infers that Tema intentionally omitted the damaging fact of the Virginia denial in hopes that the Board would not discover it.2/ The Board did, however, discover the Virginia decision while reviewing Tema's application. Based on that past denial and Tema's present failure to disclose it, the Board determined that Tema's Florida application should be denied. The Board's preliminary decision was communicated to Tema through a Notice of Intent to Deny dated February 11, 2014. Determinations of Ultimate Fact Tema is guilty of having an application for a license to practice nursing denied by the licensing authority of another state, which is a disciplinable offense under section 464.018(1)(b), Florida Statutes.3/ Tema is guilty of attempting to procure a license to practice nursing by knowing misrepresentation, which is a disciplinable offense under section 464.018(1)(a).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Board of Nursing enter a final order denying Tema's application for licensure as a registered nurse. DONE AND ENTERED this 10th day of September, 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 10th day of September, 2014.
The Issue This issue is whether Mr. LaFergola is guilty of misconduct by holding himself as a physician's assistant when he was never licensed as a physician's assistant in the State of Florida and whether he used improper technique in attempting to intubate an infant at Raulerson Memorial Hospital in Okeechobee, Florida, thereby departing from minimal standards of acceptable prevailing nursing practice.
Findings Of Fact Frank LaFergola is licensed as a practical nurse in Florida, holding license 0601421. Mr. LaFergola was employed by Flight Nursing, Inc., an air ambulance company, between September, 1982 and November, 1983. Mr. LaFergola has had no medical training beyond that which he received as a licensed practical nurse. A physician's assistant has a higher level of training than a licensed practical nurse or a registered nurse. Mr. LaFergola has not been trained as a physician's assistant. In April of 1983 Mr. LaFergola represented himself to Dr. Barry D. Chandler as a physician's assistant. He represented to Nancy Northington, a registered nurse, who flew with him for Flight Nursing, Inc. that he was a physician's assistant. Mr. LaFergola represented to Ms. Mary Nara, who is the director of a private technical school and licensed as a licensed practical nurse in Florida, that he was a physician's assistant by presenting her with a certificate from the University of the State of New York showing that Mr. LaFergola held license number 16302 for the biennium ending August 31, 1984 as a registered physician's assistant in New York. These representations were false because Mr. LaFergola has never been licensed as a physician's assistant in Florida or New York. It is dangerous for a licensed practical nurse to misrepresent the status of his training. Mr. LaFergola's representation that he was a physician's assistant caused others engaged in medical practice to permit him to perform actions which they would not have permitted him to perform if they had known the level of his training. On one occasion Nancy Northington, a registered nurse, took an order from Mr. LaFergola concerning intravenous medication for an infant. Mr. LaFergola's instructions were not those which had been given by the attending physician, Dr. Chandler. This change in the instructions endangered the infant. In May, 1983 at Raulerson Memorial Hospital in Okeechobee, Florida, Mr. LaFergola attempted to place an endotracheal tube in a newborn to prepare it for air transportation to another facility. Intubation is a procedure requiring training beyond that of a licensed practical nurse. His attempt to use a laryngoscope during the insertion was incorrect, and he approached the method of insertion of the tube in a manner so wrong that the attending physician stopped him from proceeding with the insertion. Misrepresentation of licensure and training constitutes unprofessional conduct for a nurse. In addition to these cases of misrepresentation to health care providers concerning his status, while employed at Flight Nursing, Inc. Mr. LaFergola signed correspondence on behalf of Flight Nursing, Inc. using the letters "P.A." after his name, representing himself as the "Assistant Flight Medical Director" for Flight Nursing, Inc. Mr. LaFergola was not the Assistant Flight Medical Director of Flight Nursing, Inc. The use of the initials "P.A." after his name was meant to lead those in medical professions who would read the letter to believe that he was a physician's assistant. While at Flight Nursing, Inc., Mr. LaFergola also signed material soliciting business for Flight Nursing, Inc., with the designation "B.S.P.A." after his name. The designation B.S. is commonly recognized as an indication that the person signing the correspondence holds a Bachelor of Science degree. While there is no recognized designation "B.S.P.A", the use of that designation in correspondence would have conveyed to those reading it that Mr. LaFergola held a Bachelor of Science degree and was a physician's assistant. Conspicuously absent from this correspondence is any indication that Mr. LaFergola is a licensed practical nurse. By signing the Flight Nursing, Inc. advertising as he did, Mr. LaFergola intended to mislead other health care personnel regarding his credentials.
Recommendation It is recommended that a final order be entered by the Florida Board of Nursing suspending the license of Frank LaFergola as a licensed practical nurse for one year and fining him $1,000. DONE and ORDERED this 28th day of July, 1987, in Tallahassee, Florida. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings 2009 Apalachee Parkway The Oakland Building Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 28th day of July, 1987. APPENDIX The following are my rulings on the proposed findings of fact submitted by the parties pursuant to Section 120.59(2), Florida Statutes (1985). Rulings on Proposals submitted by the Petitioner Covered in Finding of Fact 1. Covered in Finding of Fact 2. Covered in Finding of Fact 4. Covered in Finding of Fact 3. Covered in Finding of Fact 5. Covered in Findings of Fact 4 and 6. Covered in Finding of Fact 7. Covered in Finding of Fact 8 to the extent it deals with the use of the initials P.A. There is no allegation in the Administrative Complaint of misconduct arising from advertising that Mr. LaFergola was under the direct supervision of Dr. Norman Silverman, and facts concerning that contention are irrelevant. It is inappropriate to use such uncharged misconduct on the issue of the penalty to be imposed because the Respondent had no notice of such charges. Covered in Finding of Fact 9. Rulings on Proposals submitted by the Respondent In general the submission of Mr. LaFergola is in the form of argument rather than findings of fact. The following comments on the proposals can be made. The testimony of Dr. Chandler and Nancy Northington was believable. The suggestion that they should not be believed is rejected. Although the initials B.S.P.A. have no generally accepted meaning, they were intended to have the meaning stated in Finding of Fact 9, which was misleading. Given the Respondent's admission that the signatures on Exhibits 2 and 3 are his, the similarity of the signature on Exhibit 5 to those signatures, as well as identification of the signature on 5 as his by Ms. Nara, is sufficient to admit Exhibit 5. The testimony of Mr. Bovio as corroborated by the deposition testimony of Dr. Fred Brown is sufficient to establish that the intubation attempt made by Mr. LaFergola was improper. The testimony of Ms. Bauman was not based upon the investigative file which was not placed in evidence. There is no reason to strike her testimony. See Transcript page 71. COPIES FURNISHED: Gary D. Beatty, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Mr. Frank LaFergola 177 Doris Avenue Franklin Square, New York 11010 Van Poole, Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Joseph A. Sole, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201
The Issue The issue in this case is whether Respondent violated section 760.10(7), Florida Statutes (2011), by discriminating against Petitioner, who is white, because Petitioner opposed Respondent's discrimination against other employees because of race and color, in violation of section 760.10(1)(a), and by discriminating against Petitioner because of a handicap in violation of section 760.10(1)(a).
Findings Of Fact Petitioner is a registered nurse. She was hired by Respondent in mid-July 2009, participated in an orientation program for approximately a month, and began work as a charge nurse on the night shift of the cardiovascular step-down unit in late August. The cardiovascular step-down unit primarily cares for patients who are recuperating from cardiovascular surgeries and procedures. In early September, Petitioner was counseled for two unscheduled absences and for twice leaving her shift early on account of illness. On November 27, 2009, Petitioner left her shift due to illness without notifying her supervisor. Respondent began taking steps to terminate Petitioner's employment. Respondent told Petitioner not to report for her next shift but to attend a meeting with the director of human resources, the chief nursing officer, and the nurse director. After the meeting, Respondent decided to terminate Petitioner's employment. After the meeting, Petitioner hand-wrote a 12-page letter defending her actions on November 27 and her performance on the job in general. Several days later, she hand-wrote another similar letter, this one 36 pages long. In neither of these letters, or at any time up until then, did Petitioner claim that she was being retaliated against for opposing discrimination against minority employees or that she was being discriminated against because of a handicap or disability. Instead, she excused her actions on November 27 and blamed several other employees of Respondent for making her actions and job performance in general look worse than they actually were. One of Petitioner's main targets of blame in these letters was Karen Franco. Franco is a Filipino registered nurse who sometimes worked as the charge nurse on her shift. Petitioner claims that she received Franco's agreement to cover for Petitioner as charge nurse on November 27, in addition to caring for the patients assigned to Franco on the shift, and did extensive preparation of a charge report for Franco to update and deliver at the end of the shift. Petitioner says she told Franco and almost everyone else on the shift that she was leaving early and placing Franco in charge. Petitioner says she forgot to tell her supervisor and called Franco from her cell phone in the parking lot to ask her to notify the supervisor. Petitioner says Franco agreed to do so. Franco contradicted practically all of Petitioner's version of events. According to Franco, she refused to be placed in charge in addition to caring for her patients, did not know when Petitioner left the building, did not know Petitioner was gone until she received a telephone call after Petitioner already had left the building, and did not agree to advise the supervisor for Petitioner. Another target of Petitioner's blame in these letters was Dena Vegter, the nurse manager for Petitioner's night shift. In the first letter, Petitioner's main complaint was that Vegter reacted with hostility when Petitioner made suggestions to improve the operation of the night shift unit. The letter said nothing about Vegter supposedly discriminating against minority nurses, about Petitioner opposing this practice, or about Vegter or anyone else retaliating against Petitioner for her opposition. In the second letter, Petitioner modified her complaint against Vegter, alleging that Vegter became hostile when Petitioner refused to cooperate with a plan to "crush" and drive off a nurse named Choisette, whom Vegter perceived to be a poor nurse and a liability to the unit. She also alleged in the second letter that Vegter wanted Petitioner to cooperate in getting rid of a nurse with a hearing impairment and that Petitioner herself was fired on account of medical issues. Before writing these letters, Petitioner never complained to anyone at the hospital that Vegter was targeting minority nurses or nurses with disabilities, not even to Sandria George, Vegter's immediate supervisor, who is black and participated in firing Petitioner. Besides George, Respondent had numerous minority nurses and other staff. Petitioner did not prove that Vegter or anyone else employed by Respondent was discriminating against minorities. When Vegter moved from the step-down unit to the cardiovascular unit, several minorities requested to be transferred with her, including several individuals Petitioner claims were Vegter's "targets." During and after Petitioner's employment by Respondent, Respondent fired some minority nurses, some minority nurses resigned, and some non-minority nurses were hired. However, during the same time period, some non-minority nurses were fired or resigned, and some minority nurses were hired. As for the alleged discrimination against Petitioner because of her handicap, during the time she worked at the hospital, Petitioner never claimed to have a handicap or disability. She alleged in her complaint of discrimination filed in November 2010 that she had fibromyalgia and "issues" with the discs in her back that prevented her from working four days in a row. However, Petitioner did not prove that she had a medical condition that limited her in any major life activity. In addition, at Petitioner's request, she never was scheduled to work more than three days in a row and usually was scheduled for no more than two days in a row. Petitioner now claims that she was demoted from charge nurse because of her inability to work four days in a row and in retaliation for opposing discrimination against minority nurses. However, the evidence was that there was no actual charge nurse position at the time Petitioner worked for Respondent. Rather, the nurse manager would assign one of the nurses on duty to be in charge of the shift. The charge nurse would receive a small additional amount of pay, but it was not a permanent job classification. In any event, Petitioner clearly was not demoted since she was assigned to be in charge on her last night on the job before her termination. After filing her complaint of discrimination, Petitioner again modified her story to allege for the first time what she described as an elaborate plot by her and Vegter. Petitioner said Vegter was an old and dear friend of Petitioner who agreed to have Petitioner hired by Vegter's immediate supervisor, Sandria George, while concealing from George her close friendship with Petitioner. According to Petitioner, after George hired her, the plan was for Petitioner to improve the operation of the night shift and share credit with Vegter, to the benefit of both of them. Vegter persuasively contradicted most of Petitioner's allegations. She testified that she had no close friendship with Petitioner, but an rather an old friendship based on prior employment together. She also testified that there was no plot to dupe George and the hospital. To the contrary, Vegter testified that she openly acknowledged to George that she knew Petitioner and requested that George interview Petitioner and make an independent decision whether to hire her. She also denied targeting minority nurses or nurses with handicaps or disabilities. Respondent had legitimate, non-discriminatory reasons for all employment actions taken with respect to Petitioner. Petitioner failed to prove that Respondent's reasons were pretexts for actual retaliation against Petitioner for opposing illegal discrimination or for actual discrimination against Petitioner based on handicap. There was no persuasive evidence that Respondent discriminates against nurses or other employees because of race or handicap (disability). Petitioner's testimony regarding such discrimination is rejected as not credible. In December 2009, Petitioner both threatened Respondent and begged Respondent for her children's sake to allow her to resign with severance pay instead of being terminated. Respondent agreed so that Petitioner would be able to collect unemployment and be reemployed more easily. In return, Petitioner agreed not to bring an action such as this one.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 15th day of May, 2012, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2012. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Thomas M. Findley, Esquire Messer, Caparello and Self, P.A. 2618 Centennial Place Tallahassee, Florida 32308 Jerry Girley, Esquire The Girley Law Firm, P.A. 125 East Marks Street Orlando, Florida 32803 Lawrence Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
Findings Of Fact Petitioner, Omerea E. Herring, is a registered nurse with a degree in nursing from LaGrange College in Georgia which she attended between 1976 and 1978. No limitation was placed on her degree nor on her license as a registered nurse because of her handicap. Petitioner is handicapped visually. She was born with toxoplasmosis, a condition which leaves her nearsighted. This congenital condition has stayed the same over the years and will not likely change in the future. During Petitioner's education, she used regular textbooks, not Braille. She continued college for a year after receiving her nursing degree taking courses in liberal arts, and then was hired as an R.N. in September, 1979 by West Georgia Medical Center. Petitioner worked as a floating nurse, filling in and doing routine care and other general duties until she voluntarily left employment to move with her husband to another area in Georgia where she again secured employment as a registered nurse. Her duties entailed primarily sterilizing instruments and she remained in that job for approximately four months until her husband completed his education and they moved to Gainesville, Florida. When Petitioner applied for her nursing jobs, she informed her prospective employers of her condition and because of her handicap, there were some limits placed on her duties. For example, she requested not to be assigned to a heavy medication area and in each case, the hospital accommodated her. She asked for these limitation so as to not run the risk of inadvertently placing patients in danger. When Petitioner came to Gainesville, she was interviewed at Shands and at the time of her application, advised the interviewer she was physically handicapped and noted it on her application for employment. She was, nonetheless, selected for a further interview with the head nurse of the newborn nursery, Mrs. Wyman. Subsequently, as a result of this second interview, she was hired as an RN I in the newborn nursery starting in July, 1980. Petitioner worked on several shifts, primarily the seven am to three pm shift, but for three weeks during October, 1980, she worked the three to eleven pm shift. While on duty, her primary duties were to admit and assess patients, describe vital signs and discharges, and bathe and feed babies. She was also required to instruct new mothers on how to care for their children and did substantial charting. During her time in the nursery she did not give injections or administer medications because of her vision problems. She was unable to read the small print on the medicine bottles. Her supervisor knew this and agreed to the limitation and made alternate arrangements for the administration of medications. There was ample staff to do this consisting of between six and eight people on the shift of whom four or five were RN's and the others LPN's, Clerks and Aides. In November, 1980, she went on maternity leave. When she was originally hired, she was five months pregnant and it was obvious she would have to take maternity leave within a short time. Before leaving, she orally got permission from her supervisor. Her leave was to be for three to six months and when she left work, she was given no indication she would not be allowed to come back. It was only after the birth of her child, when she went to the hospital to fill out certain insurance forms for the hospital group insurance policy, that she was told by Mr. Bruce Malsbury, an official in the hospital personnel department, that there had been some difficulties with her work in the nursery and she would not be re-placed at Shands Hospital when she was ready to return off maternity leave. When she asked Mr. Malsbury about the availability of alternate employment with the hospital, since it was apparent to her that the decision not to bring her back was related to her visual handicap, he said there was no alternative placement available. To the day of the hearing, she has not received any official notice in writing of her termination. However, in January, 1981, she submitted a letter of resignation to Mr. Malsbury based on her need to be at home with her new child. Petitioner claims however, that this letter was suggested to her by Mr. Malsbury, after he advised her that she would not be rehired, on the basis that if she could show that she resigned, it would be easier for her to secure employment elsewhere. No evidence to contradict this was presented by Respondent. Mr. Malsbury did not testify and the custodian of the records was unfamiliar with the background relating to the letter in question. When it became obvious that Petitioner would not be rehired at Shands, she applied at the Alachua General Hospital in early 1981 for employment as an RN. Though she interviewed, she was turned down on the basis, she was told, of a poor recommendation from Shands. Respondent contends that Petitioner was terminated from employment as a part-time temporary employee on November 12, 1980, involuntarily, because of derogatory comments contained in her personnel record. On the termination report, signed by Mrs. Wyman on January 12, 1981, there was a recommendation that Petitioner not be rehired in any job. The termination was based on two incidents reflected in incident reports both dated October 27, 1980, thirty minutes apart. In each case, the shift supervisor, Ms. Hitchcock, wrote the Petitioner up because of minor injuries to infants which, it was claimed, were resulting from the improper handling of the infants by Petitioner. Petitioner did not take any action to contest the decision of the Respondent at the time. When Mr. Malsbury discussed the situation with Petitioner at the time she came in to file the insurance forms, he merely indicated there had been a complaint filed by Ms. Hitchcock, but gave no specifics. This was the only notice she was given of any complaints about her work and it related only to the one shift in October, 1980. Her license as a registered nurse is currently in effect, but during the period June, 1981 through June, 1984, her license was suspended for a period of time. The complaints submitted by Ms. Hitchcock to the Board of Nursing were identical to those described above including allegations that she was too rough with the babies, bumped into things with them, and was improper in her bottle feeding. Though she has applied for employment at other hospitals besides Shands and Alachua General in the general area where she lives, she has not been hired. She is now employed in industry as an industrial nurse doing primary care for employees. In addition to the part time job in industry, Petitioner also worked for the Sunland system as a cottage nurse during the period August to December, 1981. She left there because of a second pregnancy and decided to stay home and raise her children. Her three children are now ages 5, 3 and 8 months. She has never been fired from any employment other than with Shands. Petitioner contends there are many RN positions available at Shands where her handicap would not interfere with her duties and she is convinced she could satisfactorily fill any of them. Lists of vacant positions at Shands in the nursing career field for the period February 17, 1984 through September 10, 1984, reveal numerous staff nurse positions available in various departments throughout the hospital. However, Petitioner has failed to show that she is capable of performing duties safely in any of the numerous Staff Nurse I positions. Her unsupported allegations that she can perform many nursing positions which do not require good eyesight is insufficient to establish that she is qualified for any of the listed positions. Notwithstanding, her license is currently in good standing and current and she has completed all educational and other requirements necessary to keep her license current. In 1984, Petitioner again applied for employment with Respondent but was not given an interview. She was advised in writing that her application would be kept on file but that there was no job available for her at that time. A phone call to Mr. Malsbury revealed she was not hired because of her termination in 1980. It is because of this 1984 failure of Shands to hire her that Petitioner filed the complaint with the CHR. Shand's Policy C, as outlined in Memorandum PM-218, dated January 5, 1984 states that former employees terminated because of unsatisfactory performance, job abandonment, or misconduct, will not be considered for rehire. Since Petitioner had been terminated in 1980 because of unsatisfactory performance, consistent with that policy she was not eligible for rehire in 1984. Notwithstanding the fact that Ms. Hitchcock and Mrs. Wyman, along with several of the other nurses with whom Petitioner worked considered her performance to be unsatisfactory, others, all of whom are either RN's or LPN's who worked with her at various times when she was a Staff Nurse I in the newborn nursery, and who had the opportunity to observe her on a repeated basis, felt certain that she did her job in a satisfactory fashion. Petitioner made it known what duties she could not do and in all cases, when confronted with a situation where she felt it was improper for her to attempt to render patient care, she got assistance from someone else to do that particular job. None of them ever observed any deficiencies in Petitioner's nursing performance or her educational background which resulted in poor patient care. No one ever saw her injure any child under her care either intentionally or negligently. Most of these witnesses, who have been active in nursery nursing for a period of time, have concluded that babies do, in fact, scratch themselves due to long fingernails and there is no evidence that Petitioner was directly responsible for the injury to any patient under her care. It is also the opinion of one of her associates who complained about Petitioner, that she tended to over-react. Within the nursing community at Shands in the nursery, there was some difference of opinion as to the appropriateness of Petitioner's discharge in the first place. While it is obvious that Petitioner may not have been responsible for substandard care (though her license was suspended for a period) and her discharge may have been more the result of internal ward factionalism rather than ineptitude, there is no evidence that it was the result of unlawful discrimination.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Omerea Herring's Petition for Relief from Unlawful Employment Practice be denied. RECOMMENDED in Tallahassee, Florida this 29th day of April, 1986. ARNOLD H. POLLOCK, 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 April, 1986. COPIES FURNISHED: Phil S. Whiteka, Esquire 537-3 N.E. 1st Street Gainesville, Florida 32601 Thomas M. Gonzales, Esquire P. O. Box 639 Tampa, Florida 33601 Donald A. Griffin, Executive Director Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Dana Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303 Betsy Howard, Clerk Florida Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, Florida 32303
