The Issue Whether Petitioner, a member of a protected class, was terminated from his position with the Respondent in retaliation for reporting an unlawful employment practice that occurred in June 1995.
Findings Of Fact Respondent is an "employer" within the definition found in Section 760.02(6), Florida Statutes. Petitioner was an "employee" of the Respondent as defined in Section 760.02, Florida Statutes, and was employed by Respondent for approximately two years. Aaron Rents, Inc., is a national furniture rental and sales company which does business in some locations, including locations in Florida, as Aaron's Rental Purchase. Petitioner, Jerome Carter, was employed by the company at an Aaron's Rental Purchase store in Kissimmee, Florida, from approximately August 2, 1993, until August 19, 1995. Petitioner was initially hired as a delivery driver and progressed to Assistant Credit Manager, Credit Manager, and finally Sales Manager of the Kissimmee store. In August 1995, Petitioner's immediate supervisor was Store Manager Steven Liberti. Liberti reported to District Manager Leonard Alonzo, who was supervised by Florida Regional Manager Joseph Fedorchak. As the Sales Manager, one of Petitioner's most important job duties was greeting and interacting with customers. He typically had the first contact with each customer as they walked into the store, and his demeanor, as he greeted them, influenced whether they felt comfortable and were likely to make a purchase. Petitioner, however, was not appropriately welcoming and friendly. Petitioner's attitude was withdrawn and not very cordial. Petitioner himself admitted that he "never look[s] happy." Petitioner's sullen demeanor was the topic of numerous discussions with his supervisors. In an effort to address the Petitioner's concerns and improve his work performance, the District Manager initiated a conversation to elicit any complaints the Petitioner might have. Petitioner expressed dissatisfaction with his position as a Credit Manager and the length of time since his last raise. As a result, Alonzo transferred the Petitioner to the Sales Manager position and gave him a pay increase. After the transfer, however, Petitioner's demeanor did not brighten. Concerned, the District Manager again inquired about the cause of the Petitioner's apparent unhappiness. Petitioner merely acknowledged that his attitude needed improvement and promised that he would "straighten up" and "be more outgoing." Each time they had that discussion, however, Petitioner's behavior would improve for only a short time, then return to his previous melancholy. The Store Manager also talked to Petitioner at least twice about his attitude toward his job, telling him that he needed to smile more often. Although the Petitioner's behavior would temporarily change after these discussions, Liberti observed that the improvement lasted only about 24 hours. In August 1995, sales at the Kissimmee store were at an all-time low. Petitioner's supervisors attributed the location's failure to meet its sales goals at least in part to the Petitioner's inability to interact with customers and make sales. After their repeated discussions with him did not result in lasting improvement, the Managers felt they had no choice but to terminate Petitioners employment. Fedorchak concurred that, because the Petitioner could not seem to display an appropriate attitude and demeanor for a Sales Manager, his services were no longer needed. Petitioner admits that when he was discharged, the reason that he was given was that he "did not look happy." Approximately two months before Petitioner left the Kissimmee store, one incident with racial overtones was brought to the Store Manager's attention. In June 1995, store employees Mark Mars and/or Jesus Rivera reported to Liberti that another store employee, Michael Flowers (who is white), had used the term "nigger" during a discussion with store employee Kenny Tatum (who is black). Liberti informed Alonzo about the complaint and an investigation was conducted. When the Managers spoke with Tatum, he explained that Flowers had used the expression "nigger, please," which was slang for "you've got to be kidding," during a conversation between the two men. He assured them that he had not been offended. Nevertheless, because Alonzo and Liberti felt it was highly inappropriate for Flowers to use such language in the store, they gave him a reprimand and warning. In his deposition testimony, Petitioner recalled learning about the occurrence from several other employees. Petitioner did not personally witness it or hear Flowers use the offensive term, but merely claimed to have reported to Liberti what he had been told. According to Petitioner, Liberti responded to this information by affirming that such behavior would not be tolerated. Petitioner admits that he was never told, and had no reason to believe, that Aaron's authorized, encouraged, or instructed Flowers to use racially derogatory language in the store or that he had done so on Aaron's behalf. When Petitioner allegedly reported the occurrence to Liberti, he only believed that a co-employee had made an inappropriate comment at work. The incident involving Flowers and Tatum was unrelated to Petitioner's discharge. None of the three individuals involved in the decision to discharge Petitioner associated him with the incident or any opposition to it. Liberti does not recall discussing the incident with Petitioner, and neither Alonzo nor Fedorchak knew that Petitioner even claimed to have had some involvement in reporting it until after he was discharged. Moreover, none of the conversations among the three about their decision to terminate Petitioner included any reference to Flowers' comment or the subsequent events. No one who opposed the incident suffered any adverse consequences. Rivera and/or Mars reported the comment, and neither of them experienced any unfavorable employment actions as a result.
Recommendation Based upon the testimony and evidence submitted on the record in the formal hearings on this matter and by application of the relevant or governing principles of law to the findings of facts established on such record, it is RECOMMENDED: That the Florida Commission on Human Relations issue a Final Order which dismisses the Charge of Discrimination. DONE AND ENTERED this 13th day of November, 1998, in Tallahassee, Leon County, Florida. DANIEL M. KILBRIDE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 Filed with the Clerk of the Division of Administrative Hearings this 13th day of November, 1998. COPIES FURNISHED: Jerome L. Carter, Sr. 2188 McClaren Circle Kissimmee, Florida 34744 Daniel F. Piar, Esquire Kilpatrick Stockton LLP 1100 Peachtree Street, Suite 2800 Atlanta, Georgia 30309-4530 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149 Dana Baird, General Counsel Commission on Human Relations 325 John Knox Road Building F, Suite 249 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent, Wal-Mart Stores East, LP (“Walmart”), discriminated against Petitioner, Ramon Santiago Lopez (“Petitioner”), based upon his national origin or age, and/or terminated his employment in retaliation for engaging in protected activity, in violation of section 760.10, Florida Statutes (2016).1/
Findings Of Fact Walmart is an employer as that term is defined in section 760.02(7). Walmart is a national retailer. Petitioner is a Cuban (Hispanic) male. He was 62 years old when he was hired by Walmart in November 2005 and was 72 years old at the time of his dismissal. Petitioner was initially hired to work at a store in Jacksonville, but transferred to Tampa. In June 2010, Petitioner requested a transfer back to Jacksonville and was assigned to Store 4444 on Shops Lane, just off Philips Highway and I-95 in Jacksonville. The store manager at Store 4444 was Scott Mallatt. Mr. Mallatt approved Petitioner’s transfer request and testified that he “very much” got along with Petitioner. Petitioner confirmed that he never had a problem with Mr. Mallatt. Petitioner testified that when he first started at Store 4444, he had no problems. After about four months, however, he began reporting to a supervisor he recalled only as “Lee.” Petitioner described Lee as “kind of a maniac.” Lee would harass Petitioner and give him impossible assignments to accomplish. Petitioner testified that he complained repeatedly to Mr. Mallatt about Lee’s abuse, but that nothing was ever done about it. Eventually, Petitioner gave up complaining to Mr. Mallatt. Mr. Mallatt testified that Petitioner never complained to him about being discriminated against because of his national origin or age. Petitioner apparently did complain about being overworked, but never tied these complaints to any discriminatory intent on the part of Lee. Petitioner testified that Lee no longer worked at Store 4444 in January 2016. From 2010 to 2015, Petitioner worked from 1:00 p.m. to 10:00 p.m. in various departments, including Grocery, Dairy, Paper, Pet, and Chemical. In 2015, Petitioner spoke with Mr. Mallatt about working at least some day shifts rather than constant nights. Mr. Mallatt approved Petitioner’s request. In August 2015, Petitioner was moved to the day shift in the Maintenance department. As a day associate, Petitioner typically worked from 8:30 a.m. to 5:30 p.m. Assistant Store Manager April Johnson transferred to Store No. 4444 in October 2015. Petitioner reported directly to Ms. Johnson. On January 14, 2016, Petitioner was scheduled to work from 8:30 a.m. until 5:30 p.m. He drove his van into the parking lot of Store No. 4444 at approximately 7:58 a.m. He parked in his usual spot, on the end of a row of spaces that faced a fence at the border of the lot. Petitioner liked this spot because the foliage near the fence offered shade to his vehicle. Closed circuit television (“CCTV”) footage, from a Walmart camera with a partial view of the parking lot, shows Petitioner exiting his vehicle at around 8:00 a.m. Petitioner testified that he could see something on the ground in the parking lot, 50 to 60 meters away from where his van was parked. The CCTV footage shows Petitioner walking across the parking lot, apparently toward the object on the ground. Petitioner testified there were no cars around the item, which he described as a bucket of tools. Petitioner stated that the bucket contained a screwdriver, welding gloves, a welding face mask, and a hammer. The CCTV footage does not show the bucket. Petitioner crosses the parking lot until he goes out of camera range.3/ A few seconds later, Petitioner returns into camera range, walking back toward his car while carrying the bucket of tools. When Petitioner reaches his van, he opens the rear door, places the bucket of tools inside, then closes the rear door. Petitioner testified that after putting the tools in the back of his van, he went to the Customer Service Desk and informed two female African American customer service associates that he had found some tools and put them in his car. Petitioner conceded that he told no member of management about finding the tools. Walmart has a written Standard Operating Procedure for dealing with items that customers have left behind on the premises. The associate who finds the item is required to take the item to the Customer Service Desk, which functions as the “lost and found” for the store. Mr. Mallatt and Ms. Johnson each testified that there are no exceptions to this policy. Petitioner was aware of the Standard Operating Procedure. On prior occasions, he had taken found items to the Customer Service Desk. Petitioner conceded that it would have been quicker to take the bucket of tools to the Customer Service Desk than to his van. However, he testified that he believed that he could have been fired if he had taken the tools to the desk before he had clocked in for work. Petitioner cited a Walmart policy that made “working off the clock” a firing offense. It transpired that the policy to which Petitioner referred was Walmart’s Wage and Hour policy, which states in relevant part: It is a violation of law and Walmart policy for you to work without compensation or for a supervisor (hourly or salaried) to request you work without compensation. You should never perform any work for Walmart without compensation. This language is plainly intended to prevent Walmart from requiring its employees to work without compensation. Petitioner, whose English language skills are quite limited, was adamant that this policy would have allowed Walmart to fire him if he performed the “work” of bringing the tools to the Customer Service Desk before he was officially clocked in for his shift. Therefore, he put the tools in his van for safekeeping and informed the Customer Service Desk of what he had done. Petitioner was questioned as to why he believed it was acceptable for him to report the situation to the Customer Service Desk, but not acceptable for him to bring the tools to the desk. The distinction he appeared to make was that the act of carrying the tools from the parking lot to the desk would constitute “work” and therefore be forbidden, whereas just stopping by to speak to the Customer Service Desk associate was not “work.” The evidence established that Petitioner would not have violated any Walmart policy by bringing the tools to the Customer Service Desk before he clocked in. He could have been compensated for the time he spent bringing in the tools by making a “time adjustment” on his time card. Mr. Mallatt testified that time adjustments are done on a daily basis when associates perform work prior to clocking in or after clocking out. Petitioner merely had to advise a member of management that he needed to make the time adjustment. Mr. Mallatt was confident that the adjustment would have been granted under the circumstances presented in this case. Petitioner did not go out to retrieve the tools after he clocked in. Mr. Mallatt stated that employees frequently go out to their cars to fetch items they have forgotten, and that Petitioner absolutely would have been allowed to go get the tools and turn them in to the Customer Service Desk. Later on January 14, 2016, Ms. Johnson was contacted by a customer who said tools were stolen off of his truck.4/ Ms. Johnson had not heard anything about lost tools. She looked around the Customer Service Desk, but found no tools there. Ms. Johnson also called out on the store radio to ask if anyone had turned in tools. Finally, the customer service manager at the Customer Service Desk told Ms. Johnson that Petitioner had said something about tools earlier that morning. Ms. Johnson called Petitioner to the front of the store and asked him about the missing tools. Petitioner admitted he had found some tools in the parking lot and had placed them in his vehicle. Ms. Johnson asked Petitioner why he put the tools in his vehicle. Petitioner told her that he was keeping the tools in his car until the owner came to claim them. Ms. Johnson testified that Petitioner offered no other explanation at that time. He just said that he made a “mistake.” Ms. Johnson explained to Petitioner that putting the tools in his vehicle was not the right thing to do and that he should have turned them in to “lost and found,” i.e., the Customer Service Desk. Petitioner was sent to his van to bring in the tools. After this initial conversation with Petitioner, Ms. Johnson spoke with Mr. Mallatt and Mr. Cregut to decide how to treat the incident. Mr. Cregut obtained approval from his manager to conduct a full investigation and to interview Petitioner. Mr. Cregut reviewed the CCTV footage described above and confirmed that Petitioner did not bring the tools to the Customer Service Desk. Ms. Johnson and Mr. Cregut spoke with Petitioner for approximately an hour to get his side of the story. Petitioner also completed a written statement in which he admitted finding some tools and putting them in his car. Mr. Cregut described Petitioner as “very tense and argumentative” during the interview. As the interview continued, Mr. Cregut testified that Petitioner’s reaction to the questions was getting “a little bit more hostile [and] aggressive.” Mr. Cregut decided to try to build rapport with Petitioner by asking him general questions about himself. This tactic backfired. Petitioner volunteered that he was a Cuban exile and had been arrested several times for his opposition to the Castro regime. Petitioner then claimed that Mr. Cregut discriminated against him by asking about his personal life and prejudged him because of his activism. Mr. Cregut credibly testified that he did not judge or discriminate against Petitioner based on the information Petitioner disclosed and that he only asked the personal questions to de-escalate the situation. Mr. Cregut’s only role in the case was as an investigative factfinder. His report was not colored by any personal information disclosed by Petitioner. At the conclusion of the investigation, Mr. Mallatt made the decision to terminate Petitioner’s employment. The specific ground for termination was “Gross Misconduct – Integrity Issues,” related to Petitioner’s failure to follow Walmart policy by bringing the tools to the Customer Service Desk. Mr. Mallatt testified that his concern was that Petitioner intended to keep the bucket of tools if no owner appeared to claim them. Mr. Mallatt credibly testified that had Petitioner simply taken the tools to the Customer Service Desk, rather than putting them in his vehicle, he would have remained employed by Walmart. Walmart has a “Coaching for Improvement” policy setting forth guidelines for progressive discipline. While the progressive discipline process is used for minor and/or correctable infractions, such as tardiness, “serious” misconduct constitutes a ground for immediate termination. The coaching policy explicitly sets forth “theft” and “intentional failure to follow a Walmart policy” as examples of serious misconduct meriting termination. Petitioner conceded that no one at Walmart overtly discriminated against him because of his age or national origin. He testified that he could feel the hostility toward Hispanics at Store 4444, but he could point to no particular person or incident to bolster his intuition. Petitioner claimed that his dismissal was in part an act of retaliation by Ms. Johnson for his frequent complaints that his Maintenance counterparts on the night shift were not adequately doing their jobs, leaving messes for the morning crew to clean up. Ms. Johnson credibly testified that Petitioner’s complaints did not affect her treatment of him or make her want to fire him. In any event, Ms. Johnson played no role in the decision to terminate Petitioner’s employment. Petitioner’s stated reason for failing to follow Walmart policy regarding found items would not merit a moment’s consideration but for Petitioner’s limited proficiency in the English language. It is at least conceivable that someone struggling with the language might read the Walmart Wage and Hour policy as Petitioner did. Even so, Petitioner was familiar with the found items policy, and common sense would tell an employee that he would not be fired for turning in customer property that he found in the parking lot. At the time of his dismissal, Petitioner had been working at Walmart for over 10 years. It is difficult to credit that he was completely unfamiliar with the concept of time adjustment and truly believed that he could be fired for lifting a finger to work when off the clock. Walmart showed that in 2016 it terminated three other employees from Store 4444 based on “Gross Misconduct – Integrity Issues.” All three were under 40 years of age at the time their employment was terminated. Two of the employees were African American; the third was Caucasian. Petitioner offered no evidence that any other employee charged with gross misconduct has been treated differently than Petitioner. At the hearing, Petitioner’s chief concern did not appear to be the alleged discrimination, but the implication that he was a thief, which he found mortally offensive. It could be argued that Mr. Mallatt might have overreacted in firing Petitioner and that some form of progressive discipline might have been more appropriate given all the circumstances, including Petitioner’s poor English and his unyielding insistence that he never intended to keep the tools. However, whether Petitioner’s dismissal was fair is not at issue in this proceeding. The issue is whether Walmart has shown a legitimate, non-discriminatory reason for terminating Petitioner’s employment. At the time of his dismissal, Petitioner offered no reasonable explanation for his failure to follow Walmart policy. Mr. Mallatt’s suspicion regarding Petitioner’s intentions as to the tools was not unfounded and was not based on any discriminatory motive. Petitioner offered no credible evidence disputing the legitimate, non-discriminatory reasons given by Walmart for his termination. Petitioner offered no credible evidence that Walmart’s stated reasons for his termination were a pretext for discrimination based on Petitioner’s age or national origin. Petitioner offered no credible evidence that his termination was in retaliation for his engaging in protected activity. The employee who was allegedly retaliating against Petitioner played no role in the decision to terminate his employment. Petitioner offered no credible evidence that Walmart discriminated against him because of his age or national origin in violation of section 760.10.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations issue a final order finding that Wal-Mart Stores East, LP, did not commit any unlawful employment practices and dismissing the Petition for Relief filed in this case. DONE AND ENTERED this 25th day of October, 2018, in Tallahassee, Leon County, Florida. S LAWRENCE P. STEVENSON 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 25th day of October, 2018.
Findings Of Fact On July 15, 1994, Petitioner applied to be licensed as an optician in Florida. She evidenced her intentions by completing the license application form, together with various supporting documents. Respondent denied the license application through an order dated August 25, 1994. This preliminary decision by the Respondent was contested by Petitioner when Petitioner sought an informal hearing. To resolve their dispute the Respondent received supplemental documents from Petitioner, to include tax returns. Petitioner submitted this information in September 1994. On November 4, 1994, Respondent conducted an informal hearing. On December 9, 1994, a final order was entered finding that Petitioner did not meet statutory criteria for licensure under Section 484.007(1)(d), Florida Statutes. Petitioner did not seek appellate review following entry of the final order. On July 12, 1995, Petitioner filed a second application to be licensed to practice opticianry in Florida. On August 29, 1995, Respondent entered a preliminary order denying the reapplication. As reasons for the denial it was stated: . . . The Board hereby states as the basis of this decision that you were previously denied licensure August 5, 1994; and there are three discrepancies of material fact regarding your work experience between your application dated July 18, 1994 and your subsequent application of July 21, 1995. See Sections 484.014(1)(a), Florida Statutes. . . . There were factual differences in the July 15, 1994 application compared to the July 12, 1995 application related to Petitioner's work experience. The July 15, 1994 application did not refer to work experience between May 1994 and December 1994 at Vision Work, Inc., an establishment located at 9480 Arlington Expressway, Regency Point, Jacksonville, Florida. The July 12, 1995 application did describe that experience. To explain this discrepancy, Petitioner indicated that the job at Vision Work had been a temporary/part-time job that she did not expect to last as long as it did. This is taken to mean that the reference to Vision Work was not set forth in the July 15, 1994 application in that it was a temporary position at that time. Petitioner indicated that when she filled out the July 15, 1994 application she had only worked at Vision Work since May, one Saturday a month. After being there through August she started working nights and every Saturday and Sunday, making it a more permanent position. In the July 15, 1994 application Petitioner related work experience for National Optical at No. 9 Best Square, Norfolk, Virginia, from August 19, 1987 until March 19, 1993. In the July 12, 1995 application the National Optical work experience was described as March 19, 1989 through March 19, 1993. Otherwise reference to the work experience for National Optical set forth in the two applications remained consistent. In explanation, Petitioner stated that she had worked part-time from August 19, 1987 until 1989 when she began full-time employment at National Optical. The reason for making the change between the two applications was based upon discussions at an appearance before the Respondent in which someone had asked Petitioner about working two jobs that overlapped. This is referring to an appearance before the Board associated with the 1994 application. By the change in the 1995 application concerning Petitioner's work experience, she sought to clarify the circumstance related to working two jobs at the same time by pointing out the date upon which the National Optical job became a full-time job. In the discussions held with the Respondent related to the 1994 application, Petitioner made the Respondent aware that the National Optical employment became full-time on March 19, 1989. This beginning date coincides with the information in the July 12, 1995 application. The July 15, 1994 application stated that Petitioner had worked for the Navy Exchange Optical at Bldg C-9 in Norfolk, Virginia from April 24, 1984 until March 7, 1987. In the July 12, 1994 application the concluding date became March 3, 1989. Otherwise the two applications were essentially the same. In explanation, Petitioner stated that she had made a mistake in the 1994 application as to the concluding date and that this had been brought to her attention in the hearing before Respondent to consider the 1994 application. After Petitioner had been denied licensure in the 1994 informal hearing, someone pointed out that Petitioner had worked with the Navy Exchange Optical for a period of three years. Petitioner then realized that she had been in that position for a longer period. As a consequence the 1995 application was corrected to reflect the proper end date. The reference which Petitioner made before Respondent to working two jobs corresponds to a part-time position at National Optical while working full- time at the Navy Exchange Optical, both in Norfolk, Virginia. When Petitioner made reapplication on July 12, 1995, she was aware that the Respondent had received and reviewed the prior application dated July 15, 1994. Under that circumstance and given the explanations at hearing for the discrepancies between the two applications as reported in the facts, Petitioner is not found to have intended to misrepresent or commit fraud when reapplying for licensure or to have misrepresented or committed fraud.
Recommendation Based upon a consideration of the facts found and the conclusions of law reached, it is, RECOMMENDED: That a final order be entered which denies the 1995 application for a license to practice opticianry on the merits, but sets aside the grounds for denial related to alleged discrepancies of material fact pertaining to the 1994 application when compared to the 1995 application. DONE and ENTERED this 5th day of January, 1996, in Tallahassee, Florida. CHARLES C. ADAMS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 5th day of January, 1996.
The Issue The issue for decision herein is whether or not Respondent exhibited fraud, deceit, negligence, incompetence, or misconduct in the examination and fitting of a patient for contact lenses in violation of Subsection 463.016(1)(g) and (h), Florida Statutes, and, if so, what, if any, administrative penalty should be imposed.
Findings Of Fact Petitioner, Department of Professional Regulation, Board of Optometry, is the state agency charged with regulating the practice of optometry in Florida, pursuant to Section 20.30 and Chapters 455 and 463, Florida Statutes. Respondent is, and has been at all times material hereto, a licensed optometrist who holds license number 0000437, and his last address of record is Zodiac Optical, 1211 South Dale Mabry Highway, Tampa, Florida 33 On February 21, 1987, Respondent examined and fitted Patricia Gama for hard contact lenses and Ms. Gama paid $154.00 for the lenses. On that date, Respondent obtained an initial refraction for the right eye of -1.25 and for the left eye of -1.00 (eye glass prescription only) and by use thereof, fitted Gama with contact lenses. At the time, Gama was employed as a cashier at a commercial retail establishment. Gama immediately began experiencing discomfort with the contacts, specifically blurred vision, red eyes and headaches. Gama found it difficult to read the cash register keys and function as a cashier. Gama advised Respondent of her discomfort on February 25, 1987, and at that time, Respondent fitted Gama with another set of contact lenses. Gama continued to experience discomfort with the contact lenses and after advising Respondent of such, Respondent on February 27, 1987, fitted Gama with a third set of contact lenses. Gama's discomfort with the contact lenses continued and she again advised Respondent of his discomfort. On March 18, 1987, Respondent fitted Gama with a fourth set of contact lenses. Through it all, Respondent used eleven different lenses in an effort to properly fit Gama; however, she continued to experience discomfort. Throughout Respondent's endeavor to properly fit Gama with contact lenses, he did so in a courteous and professional manner. However, Gama's husband insisted that she seek a second opinion from another optometrist, obtain a refund from Respondent and discontinue using the lenses Respondent prescribed. On April 22, 1987, Respondent's partner, Dr. William Hunter, refunded $74.00 of the total purchase price of $154.00 that Gama paid. He also gave Gama the prescription prepared for her by Respondent. Respondent works in a group practice which is owned by Dr. Hunter. Dr. Hunter has a policy of giving only a 50% refund within thirty days of purchase if the patient is not satisfied. On the following day, April 23, 1987, Gama was examined and fitted for contact lenses by Dr. Julian Newman. Respondent's initial refraction was twice as strong as Dr. Newman's refraction. It is not uncommon for patients, such as Gama, to test differently for glasses on different days which can result in different refraction readings on different days. Likewise, it is not unusual for an optometrist to note different refractions for the same patient on different days, or to make an error in the refraction readings for the same patient. When this is done however, the optometrist should try to correct the mistake if, in fact a mistake is made. Here, Respondent strived to satisfy Gama and never ceased efforts to comfortably fit her with contact lenses. Respondent made a refund to Gama in keeping with office policy which appeared reasonable under the circumstances considering the time spent with Gama before she decided to seek another opinion from another optometrist. (Testimony of Drs. Julian D. Newman, O.D. and Joel Marantz, O.D. both of whom were expert witnesses in this proceeding.) Respondent's receptionist, Beatrice Franklin, paid $100.00 to Gama on or about December 11, 1987, in exchange for Gama signing a request to drop her charges against Respondent at the Department of Professional Regulation. Respondent had no knowledge of Ms. Franklin's actions, and in fact, Sharon Hosey, a receptionist employed by Respondent, corroborated Respondent's testimony respecting lack of knowledge on his part as to any payments to Gama other than the $74.00 refund in exchange for her withdrawal of the complaint with Petitioner or to otherwise obtain Gama's signature on a release. Respondent was conscientiously attempting to comfortably fit Gama with contact lenses when Gama decided to seek a second opinion. He did so by changing the prescriptions on several occasions, including changing to lenses made by a different manufacturer. In the process, Respondent tried eleven different contact lenses. Respondent was willing to continue treating Ms. Gama and provide the required follow-up care.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: The Board of Optometry enter a Final Order dismissing the Administrative Complaint filed herein in its entirety. DONE and ENTERED this 16th day of February, 1990, in Tallahassee, Leon County, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904)488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16 day of February, 1990. COPIES FURNISHED: Elizabeth R. Alsobrook, Esquire Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 Jack L. Hargraves, O.D. 1211 South Dale Mabry Highway Tampa, Florida 33629 Patricia Guilford, Executive Director Florida Board of Optometry Northwood Centre, Suite 60 1940 North Monroe Street Tallahassee, Florida 32399-0792 Kenneth E. Easley, Esquire General Counsel Department of Professional Regulation 1940 North Monroe, Suite 60 Tallahassee, Florida 32399-0792 =================================================================
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant facts are found: At all times pertinent to this proceeding, respondent Patrick Gallagher was a licensed optician in Florida, having been issued license number D00001006. From approximately March of 1979 until December of 1981, except for the months of June and July, 1981, respondent was employed as a licensed optician for Union Optical in Tampa, Florida. Prior to May, 1981, respondent worked full time. When he returned to Union Optical in late July or August, 1981, he worked only three days a week. Another optician, Bobby Prohenza, was employed at Union Optical on a part-time basis in June and July of 1981. Rose Ochs, the manager and/or supervisor of Union Optical in Tampa is not now, and has never been, licensed as an optician in the State of Florida. Having received a complaint from Bobbie Prohenza against Union Optical and Rose Ochs, petitioner's investigator, Wayne Lopez, went to Union Optical on December 3, 1981, to investigate unlicensed opticianry activities. The only employee on the premises was Rose Ochs. While on the premises, Mr. Lopez observed Ms. Ochs handing a glasses case and glasses to a customer. Investigator Lopez, identifying himself to Ms. Ochs as a long , distance truck driver asked her if she could duplicate his existing prescription "glasses"" into "sunglasses." When Ms. Ochs refused to do so without a written prescription, Lopez told her he would obtain one. The investigator obtained a duplicate prescription from his personal physician and returned to Union Optical a few hours later. He handed the written prescription to Ms. Ochs and she took his eyeglasses and put them on a lensometer to see if the two prescriptions were the same. Mr. Lopez and Ms. Ochs then sat at a table across from one another and she began taking measurements with a small ruler across the bridge of his nose. She then wrote some numbers on a piece of paper and attached that paper to the prescription. Investigator Lopez, attempted to leave a deposit with Ms. Ochs, but was told he could pay for the glasses when he returned some weeks later. When Mr. Lopez departed from the Union Optical premises, he observed a Florida opticianry license hanging over the entrance door, which license was issued to respondent Patrick Gallagher. After learning of respondent's address, Mr. Lopez went to respondent's residence on December 3rd, identified himself as an investigator with the Department of Professional Regulation and told respondent that he wanted to discuss with him the operation of Union Optical. Respondent worked at Union Optical 24 hours a week on Mondays, Tuesdays and Fridays. While he knew the store was open on his days off, respondent had been assured that opticianry work would not be performed on those days. It was the respondent's understanding that when he was not on the premises, the only business which would be transacted was the selling of non-prescription items, glass care items and cleaning solutions. Respondent was aware that Rose Ochs would receive written prescriptions in his absence and would, on occasion, transfer or copy the prescriptions onto an invoice which went to an independent laboratory. He was also aware that Ms. Ochs occasionally assisted customers in the selection of a frame for their lenses and quoted prices to customers in his absence. Respondent did not suspect that Ms. Ochs took pupillary distance measurements or used the lensometer when he was not on the premises. He does not believe that Ms. Ochs has sufficient knowledge or experience to properly operate the lensometer. Respondent was not present at Union Optical on December 3, 1981, when Investigator Lopez was on the premises. When Mr. Lopez described to him the events which had transpired at Union Optical on that date, some one-half hour after their occurrence, respondent was surprised to hear that Ms. Ochs had performed the functions of operating the lensometer and taking pupillary distances. Respondent had no managerial control over the premises of Union Optical or Rose Ochs.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that the Administrative Complaint charging respondent with a violation of Section 484.014(1)(n), Florida Statutes, be DISMISSED. Respectfully submitted and entered this 16th day of May, 1983, in Tallahassee, Florida. DIANE D. TREMOR 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 16th day of May, 1983. COPIES FURNISHED: Jerry Frances Carter, Esquire Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Paul W. Lambert, Esquire Slepin, Slepin, Lambert & Waas 1115 East Park Avenue Tallahassee, Florida 32301 Mr. Fred Roche Secretary Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301 Mr. Fred Varn Executive Director Board of Opticianry Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32301
Findings Of Fact Upon consideration of the oral and documentary evidence produced at hearing, the following relevant facts are found: At all times pertinent to this proceeding, Respondent was licensed to practice optometry by the State of Florida, Board of Optometry. On or about May 8, 1980, Respondent entered into a lease agreement with Cole National Corporation to lease 154 square feet of space as an optometric office in the location of the retail store of Sears, Roebuck and Co. at 1420 Northwest 23rd Boulevard, Gainesville, Florida. Respondent practiced in that location approximately two days per week until on or about October 1, 1982. Respondent's optometric office was located in a Sears, Roebuck retail store next door to the "Sears Optical Department," in which eyeglasses and contact lenses and other optical merchandise could be purchased. Respondent's office was identified by a large sign overhead reading "Optometrist," in the same print as the sign above the Sears Optical Department. In addition, a small plaque on the door leading into Respondent's examination room read "Dr. L. A. Schwartz, Optometrist." During the time he practiced at the 1420 Northwest 23rd Boulevard location of Sears, appointments could be made with Respondent by calling the Sears Optical Department telephone number. The phone was answered "Sears Contact and Lenses Center" by employees of Cole National Corporation, which controlled and owned the Sears Optical Department. The Cole employees were not paid for this service by Respondent. Respondent had no telephone listing in either the yellow or white pages of the Gainesville, Florida, telephone directory between May, 1980, and July 12, 1982, the date of the Administrative Complaint. The Cole National Corporation employees maintained Respondent's scheduling book and made tentative appointments for his prospective patients, although Respondent customarily would call the patient back to confirm the date and time of the appointment prior to the time of the scheduled visit. Respondent's hours of service and fee information were also given to prospective optometric patients by Cole National personnel. Respondent accepted the Sears, Roebuck and Co. credit card as payment for optometric services. Sears then billed the patients directly and Respondent received monies billed to the patients in full through Sears on a monthly basis, regardless of whether the patient paid the bill fully monthly or carried the debt over to succeeding months. Respondent, pursuant to his lease with Cole National Corporation, was precluded from selling optometric supplies to his patients. Rather, Respondent would in all cases issue prescriptions for optometric goods and supplies, such as glasses and contact lenses, which in most cases were placed on a prescription blank bearing his name. At times, however, when Respondent did not have prescription forms available bearing his own name, he would use such a form from the Sears Optical Department, crossing out all references to Sears and inserting his name and address in place of that of Sears Optical Department. On or about February 22, 1982, the Sears Optical Department mailed letters to various consumers in the Gainesville area. These letters, in part, advised that Respondent, an independent doctor of optometry, was available for eye examinations in his private office in the Sears building and that he could be reached for appointments at a telephone number which was listed in the telephone directory for Sears Optical Department. The evidence in this cause establishes that Respondent's office location at all times material hereto was maintained separately from both Sears, Roebuck and Co. and the Sears Optical Department. In addition, the record in this cause fails to in any way establish that Respondent ever held himself out as an employee or representative of either Sears, Roebuck and Co. or the Sears Optical Department. In fact, the record clearly establishes that both Respondent and employees of the Sears Optical Department always indicated to the consuming public that Respondent was an independent optometric practitioner.
The Issue At issue is whether Respondent materially failed to follow applicable ruling making procedures required by Section 120.54(2)(a), Florida Statutes, with regard to promulgation of proposed Rule 21P-16.002, Florida Administrative Code, relating toqualifications of sponsors for apprentice opticians; whether the proposed rule is an invalid exercise of delegated authority by Respondent; and whether Petitioners are parties substantially affected by the proposed rule.
Findings Of Fact Respondent is the state agency responsible for regulation of an apprenticeship program for candidates desiring licensure as opticians in the State of Florida. The apprenticeship program provides an alternate route to qualification to take the examination for licensure as an optician. Candidates may also qualify for examination by receipt of an associate degree in opticianry from an accredited educational institution or previous practice and licensure in other jurisdictions. Candidates electing to pursue licensure examination through the apprenticeship program as currently established must comply with provisions of Rule 21P-16.002, Florida Administrative Code. The current version of Rule 21P-16.002, Florida Administrative Code, states: 21P-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: An apprentice must be at least 17 years old at the date of application; must submit a complete application for apprenticeship along with proof of having obtained a qualified sponsor; and must submit the registration fee required in Rule 21P-11.013. A sponsor must be an optician, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 21P-10.007 on the premises of any establishment in which apprentices are trained. Proposed Rule 21P-16.002, makes no changes to the existing sponsorship requirements found in paragraphs (1) and (2) of the present rule, but adds a new paragraph (3) which specifies the following: (3) No optician, physician or optometrist may serve as a sponsor unless he actually dispenses eyewear and maintains the required equipment on the same premises where the apprentice works. For example, an optician, physician or optometrist whose premises and equipment are distinct from the intended apprentice's work area cannot serve as a sponsor, even though the optician's, physician's or optometrist's premises are within the same office area or building. The proposed rule seeks to implement Section 484.007(1)(d)4., Florida Statutes, which provides an applicant may qualify to take the state opticianry licensure examination following completion of a three year apprenticeship "under the supervision of an optician, a physician, or an optometrist licensed under the laws of this state." Through promulgation of the new rule, Respondent seeks to correct a perceived deficiency in the degree of supervision provided by some sponsors to their apprentice opticians. The new proposed rule seeks to correct such deficiency through the prohibition of separate or "distinct" work areas for sponsor and apprentice; the requirement that the sponsor "dispense eyewear"; and the requirement for the sponsor to "maintain the equipment" used by the apprentice on the premises where both apprentice and sponsor work. Petitioners are corporate entities licensed to do business in the State of Florida. Petitioners operate various retail optical establishments engaged in providing opticianry services. While not licensed to perform opticianry services, Petitioners employ opticians and apprentice opticians for that purpose. Petitioners also have contractual relationships with licensed optometrists for the provision of optometric services at Petitioners' retail establishments. The employed opticians and contracted optometrists often act as sponsors for apprentice opticians employed in Petitioners' retail establishments. Generally, Petitioners' retail establishments haveseparated areas for optometry services, dispensing of eye wear and a laboratory for the preparation of lenses. In the various establishments, these areas are separated from each other by a permanent wall constructed of either glass or other solid, opaque substance. Two to four licensed opticians are employed in each of Petitioners' retail establishments. Each of these individual opticians, or a licensed optometrist under contract, may sponsor an apprentice optician employed by Petitioners. Often the sponsoring professional is otherwise occupied in these establishments and the apprentice, who is also generally an employee, may be required to perform certain functions without direct supervision by the sponsor. The proposed rule's requirement that a sponsor actually "dispense eyewear" results from Respondent's position that a sponsor should actually be performing that task in order to properly train an apprentice in the performance of that procedure. The proposed rule's requirement that a sponsor "maintains the required equipment on the same premises where the apprentice works" dictates that a sponsor must own the equipment used by the apprentice or otherwise be responsible for the provision of that equipment. Such a requirement may effectively prohibit opticians and optometrists employed by Petitioner from serving as sponsors where those employees do not own and are not otherwise responsible for providing, generally, the "required equipment" on the premises of Petitioners' various establishments. Petitioners argue that such de facto denial of sponsorship opportunities to opticians, optomertrists and physicians employed by them contravenes the statutory provision of Section 484.007(1)(d)4, Florida Statutes, that an apprenticeship be completed under the supervision of "an optician, a physician, or optomertrist licensed under the laws of this state." Such an argument is not credited in the absence of expressed legislative intent to grant sponsorship status to any of the licensed professionals denominated in the statute. Specifically, it is found that the referenced statutory provision sets a minimum requirement for sponsorship, as opposed to a limitation to establishment of further qualifications. Respondent's economic impact statement was prepared by counsel. Respondent's position, as expressed through testimony of its executive director, is that the proposed rule has no discernible direct adverse economic impact, although testimony presented by Petitioners supports the finding that the proposed rule change shall require at least some alteration of the physical arrangement at some of Petitioners' retail establishments in the event that Petitioners desire to continue present apprentice programs in their businesses.
The Issue The issue is whether Petitioner is entitled to a passing score on the clinical examination of the July 2002 optometry licensure examination.
Findings Of Fact Petitioner earned a bachelor of science degree in mathematics from Baylor University in 1978 and a doctor of optometry degree from the University of Houston in 1982. He subsequently became licensed to practice optometry in West Virginia and Texas. After practicing for years in West Virginia, Petitioner practiced for 13 years in Texas before moving to Florida in June 1999. In July 2002, Petitioner took the clinical examination portion of the optometry licensure examination. To obtain a license, a candidate must pass this portion of the examination, as well as the portions pertaining to pharmacology and ocular disease and Florida laws and rules. Petitioner has already passed these other portions, so the clinical examination is what he must pass to earn a Florida license. The clinical examination is a practical examination in which a candidate must demonstrate specific procedures. Respondent selects the procedures to be demonstrated on the basis of their importance to the practice of optometry. Respondent scores the clinical examination by averaging the scores of two examiners, who score the candidate's work independent of each other. The clinical examination is divided into two sections, and a different pair of examiners score each section. An examiner must be a Florida-licensed optometrist for at least three years prior to the examination. The examiner may not be under investigation or have been found to have violated Chapter 456 or 463, Florida Statutes. Prior to performing their duties, examiners must attend a standardization program, at which they are trained in identifying the skills to be examined and the standards to be applied. All of the examiners for a specific examination date attend the same standardization program, at which Respondent's coordinators present several hundred slides showing correct and incorrect procedures and answer any questions that examiners may have. In general, Petitioner challenges the work of one of Respondent's staff in rescoring his examination and calculating his score as 74.10. Although still not a passing grade, 74.10 is one point closer to passing than was his originally reported score of 73.10. However, this staffperson rechecked her work and later confirmed that 73.10 was the correct score. At the hearing, Petitioner specifically challenged Questions 33(b), 33(c), 35(b), 37(a), and 38(b). These questions are all from the same section of the examination, so the same two examiners scored each of them. In Questions 33(b) and (c), the candidate must perform tonometry on a nondilated eye and demonstrate the proper mires width and correct mire alignment, respectively. For Question 33(b), Examiner 143 gave Petitioner no credit, noting that the mires width was "too thin," and Examiner 242 gave Petitioner no credit, noting that the mires width was "too thin" and there was "not enough flourescein." For Question 33(c), Examiner 143 gave Petitioner no credit, noting that the mires were "no [sic] aligned," and Examiner 242 gave Petitioner no credit, noting that the "mires [were] off." Petitioner has failed to prove error in either score. For Question 33(b), both examiners found the same condition. The candidate, not the examiner, as Petitioner claimed, is responsible for adding flourescein. Insufficient flourescein would leave the mires too thin. Examiner 242's additional note explains the source of Petitioner's error in Question 33(b). Petitioner's argument that he could still obtain a proper ultimate reading despite insufficient flourescein and thin mires lines misses the point of the question, which is to determine if candidates can take the conventional steps toward the ultimate objective of estimating intraocular pressure. For Question 33(c), both examiners drew similar pictures showing that Petitioner's mires lines were misaligned. Petitioner produced no evidence to the contrary. His argument that he could not have answered Question 34 correctly without solving Question 33(c) misses the point of Question 34, which is merely to determine if a candidate can accurately read a dial. For Question 35(b), the candidate must demonstrate proper illumination of an inferior angle of the eye. Examiner 242 gave Petitioner credit, but Examiner 143 gave Petitioner no credit, noting "poor lighting." It is entirely possible that Examiner 242, who was first to examine the demonstrated angle, found adequate lighting, but, due perhaps to patient movement with no readjustment, Examiner 143 found inadequate lighting. In this procedure, only one examiner can check the angle at a time. For Question 37(a), the candidate must determine the presence of iris processes by showing the correct response and clear focus. Examiner 242 gave Petitioner credit, noting that Petitioner "repositioned [patient] and got focus of angle and answered correctly," but Examiner 143 gave Petitioner no credit, noting "no view or focus." As noted by Examiner 242, Petitioner had to reposition the patient and did so to earn credit for this item. Evidently, Petitioner failed to do so for Examiner 143. For Question 38(b), the candidate must demonstrate the specified angle of the eye with proper illumination. Examiner 242 gave Petitioner credit, but Examiner 143 gave Petitioner no credit, noting "no view of angle." Again, the most likely reason for the loss of a view was patient movement without an accompanying readjustment of the focus. Petitioner has failed to prove that he is entitled to any additional points for the clinical examination portion of the optometry licensing examination that he took in July 2002.
Recommendation It is RECOMMENDED that the Board of Optometry enter a final order dismissing Petitioner's challenge to the clinical examination portion of the July 2002 optometry licensure examination. DONE AND ENTERED this 23rd day of April, 2003, in Tallahassee, Leon County, Florida. ROBERT E. MEALE 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 April, 2003. COPIES FURNISHED: Joe Baker, Jr., Executive Director Board of Optometry Department of Health 4052 Bald Cypress Way, Bin C07 Tallahassee, Florida 32399-1701 William W. Large, General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1701 A. S. Weekley, Jr. Holland & Knight LLP Post Office Box 1288 Tampa, Florida 33602 Cassandra Pasley Senior Attorney Office of the General Counsel Department of Health 4052 Bald Cypress Way, Bin A02 Tallahassee, Florida 32399-1703
The Issue This cause arose as an action pursuant to Section 120.56(2), Florida Statutes, challenging the validity of the amendment to Rule 59U-16.002(2), Florida Administrative Code, proposed and published by the Board of Opticianry on February 14, 1997. The issues are: Do Petitioners have standing to bring this rule challenge? Is the following proposed amendment of Rule 59U- 16.002(2), Florida Administrative Code, an invalid exercise of delegated legislative authority, pursuant to Sections 120.52(8)(c) and (8)(e), Florida Statutes? A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. (Amended language underlined) Are Petitioners entitled to attorney's fees, pursuant to Section 120.595(2), Florida Statutes?
Findings Of Fact All persons seeking to be licensed as opticians in Florida must first pass a minimal qualifications licensure examination. Before being qualified to sit for this examination, one of the following courses of preparation provided in Section 484.007, Florida Statutes, must be met. In relevant part, this section provides that one must have (1) received an associate degree, or its equivalent, in Opticianry from an accredited educational institution; (2) be an individual who is licensed to practice the profession of Opticianry in another state, territory, or jurisdiction, who has actively practiced for more than three years; or (3) come from a state or jurisdiction which is not licensed and have actively practiced in that state, territory, or jurisdiction for more than five years immediately preceding application; or (4) be an individual who has completed an apprentice program consisting of 6,240 hours of training under the supervision of an optician, a physician, or an optometrist licensed under the law of this state. Respondent Board of Opticianry published on February 14, 1997 a proposed change to Rule 59U-16.002(2), Florida Administrative Code, as set out below. The underlined language is the only substantive change: 59U-16.002 Qualifications for Apprentices and Sponsors. Apprentices and sponsors for apprenticeship programs must meet the following qualifications: No change. A sponsor must be an optician who is licensed under Chapter 484, F.S., for no less than one (1) year, a physician or an optometrist licensed in this state, whose license is not subject to any current disciplinary action; must be actively engaged in the practice of the qualifying profession; and must provide the equipment set forth in Rule 59U-10.007 on the premises of any establishment in which apprentices are trained. Specific Authority - 484.005 F.S. Law Implemented - 484.007(1)(d)4. F.S. The parties' Amended Prehearing Stipulation agreed that, Petitioners did not request a public hearing pursuant to the Florida Administrative Weekly notice. A Notice of Additional Public Hearing scheduled for May 16, 1997, was published on April 18, 1997, Volume 23, No. 16, Florida Administrative Weekly. At that hearing, the Board of Opticianry discussed and approved an amendment to proposed amendment to Rule 59U- 16.002. At formal hearing, counsel for the Board represented that the Board had voted to amend the challenged proposed rule so that it would not restrict persons who had completed more than one year of opticianry practice out of state prior to passing the Florida Opticianry licensure examination from acting as sponsors of apprentices within their first year of Florida practice; however, the Board would not withdraw the challenged rule as published and would not publish/file a Notice of Change until a Final Order is entered on the instant challenge. The Board's position was that this vote did not constitute a stipulation of invalidity, arbitrariness, capriciousness, or overreaching its statutory authority. According to the Board, this representation was made only because the Board would not be putting on evidence to support certain portions of the rule language, as published. Nonetheless, Sam Jones, licensed optician and Board member, testified, on behalf of the Board, that new Florida licensees from out of state could not properly sponsor apprentices for at least one year because they "need a little more exposure" to Florida laws and rules before teaching others and because some other states have no licensure criteria at all and no continuing education requirements. The Petition challenges the ability of the Board to require that opticians be licensed for at least one year prior to serving as apprentice sponsors, alleging that the Board lacks statutory authority to promulgate such a rule and that the proposed change is arbitrary and capricious and not based on appropriate factual or legal justification. Petitioner Lenscrafters, Inc. is a corporation that does business in the State of Florida, offering optical services and goods to the public. Lenscrafters hires employees to work as opticians, as well as hiring other unlicensed store employees. Petitioner Sanjiv Matta is Lenscrafters' Regional Trainer of Operations and apparently Lenscrafters' primary Florida employment recruiter. He also locates coaches for Lenscrafters' training programs. He has been a licensed optician in Florida for more than one year. He does not currently sponsor an apprentice. Lenscrafters and Mr. Matta allege that they will be substantially affected because the proposed rule amendment will reduce the number of available sponsors, which will in turn reduce the number of apprentices, which will in turn reduce the number of available employees now and the number of available licensed opticians in the future. As a subset of this alleged chain of unavailability of sponsors, apprentices, and employees generally, Petitioners claim great difficulty will arise in attempting to coordinate apprentice work hours with sponsor work hours. Lenscrafters has 64 stores in Florida. Each store is staffed by opticians, but there is often an independent optometrist next door. Lenscrafters employs approximately 200 opticians in Florida, with an average of three opticians working in each of its stores. Approximately 25 of the 200 opticians employed by Lenscrafters in Florida have been licensed for less than one year. These 25 were among the 60 new employees hired by Lenscrafters last year. Some of the licensed opticians Lenscrafters hires unilaterally elect to serve as sponsors to other employees who would like to obtain their opticianry license by completing an apprenticeship program. However, according to Mr. Matta, it would not be "integrity based" for Lenscrafters to urge or encourage optician employees to take on sponsorship. Lenscrafters provides the optometric equipment used by sponsors and apprentices in its employ. Although Lenscrafters provides programs to help all its employees, including apprentices, achieve expertise in fitting and adjusting eyeglasses and provides situational training, equipment training, training tests, performance tests, and lending libraries, it has no specific apprenticeship program, as such, in place. Some of Lenscrafters' programs assist apprentices in attaining credit hours towards licensure. Some supplement the apprentice program requirements. The primary purpose of Lenscrafters' programs is to educate and train its employees for servicing its customers. The ultimate testimony of Mr. Matta that there currently are three opticians employed by Lenscrafters who have been licensed in Florida for less than one year and who are also currently serving as sponsors was anecdotal at best and at worst was speculative and self-contradictory of prior testimony. Lenscrafters currently has 66 apprentices in its employ in Florida. Pursuant to Board rules, each sponsor may oversee two apprentices and any apprentice may have both a primary and a secondary sponsor. Credit hours in the apprentice program are only earned when the apprentice works under a sponsor's supervision. Board rules would permit Lenscrafters' 200 opticians to sponsor 400 apprentices if each licensee had two apprentices. The proposed change in the rule would allow 175 Lenscrafters' opticians to sponsor 350 apprentices. Simple mathematics shows that Lenscrafters has between 33 and 66 optician employees who serve as apprentice sponsors, primary or secondary. Clearly, Lenscrafters currently employs many more non-sponsors than sponsors. Section 484.011, Florida Statutes, allows any employee of an optician to perform any of the functions an optician performs, as long as the acts are performed under the direct supervision of the optician. Lenscrafters allows apprentices to perform more tasks than other unlicensed employees. Lenscrafters considers apprentices to have greater expertise, employee commitment, and career commitment than other unlicensed employees. Lenscrafters pays apprentices more than other unlicensed employees. Lenscrafters and Mr. Matta believe that apprentices who have worked in Lenscrafters' stores and trained on Lenscrafters' equipment will eventually provide a pool of trained opticians for hire or promotion. However, Lenscrafters submitted no statistical data to confirm this "belief" expressed by Mr. Matta, and based on the ratio of available sponsors to apprentices which was developed at formal hearing, this "belief" constitutes pure speculation. It could be just as beneficial for Lenscrafters to train non-apprentices at a lower salary. Intervenor Odette Gayoso has been involved in opticianry for 15 years. She has an Associate of Arts (AA) degree in Optical Science and has been licensed as an optician in Puerto Rico since 1991. Ms. Gayoso is employed as an optician by Lenscrafters. She has been a licensed optician in Florida since December 1996. Therefore, at the time of formal hearing, she had been Florida- licensed for less than one year. Under the proposed rule amendment, she would be unable to act as a sponsor for five more months. Ms. Gayoso does not sponsor an apprentice currently, although the current rule permits her to do so. She has never applied to be a sponsor. No apprentice currently wants her as a sponsor. In the past, two Lenscrafters employees needed sponsors, but both left Lenscrafters' employ before any agreements concerning sponsorship were reached. Ms. Gayoso feels she is qualified to sponsor an apprentice and that she would derive satisfaction from teaching one. The parties' Amended Prehearing Stipulation stipulated that POF had standing to intervene. POF put on no evidence of standing. Mr. Matta and Ms. Gayoso testified that they recruit for Lenscrafters. Ms. Gayoso is an assistant retail manager in a single store. Mr. Matta recruits state-wide. Only Mr. Matta testified that, in his experience, there is a shortage of qualified opticians available to be hired. Only Mr. Matta testified that due to the Board's rule requirement of direct supervision it was difficult for him to match apprentices' work hours with those of their sponsors. Ms. Gayoso did not corroborate Mr. Matta's perception that it is difficult to match apprentices' work hours with those of their sponsors. Although she could see how that could be, it apparently was not a problem in her store where the optician/manager sponsored two apprentices and where another optician who had been employed less than 90 days was prohibited by Lenscrafters from acting as a sponsor. The fact that Lenscrafters prohibits some of its licensed opticians from sponsoring apprentices undermines Lenscrafters' position that the proposed rule change alone would undermine apprentices locating willing sponsors. Mr. Sam Jones perceived no shortage of licensed opticians, only a shortage of licensed opticians he would care to hire in his establishment. The Board office receives approximately 86 calls about the apprenticeship program each month. The Board has never received a call concerning a prospective apprentice's inability to find a sponsor. There are currently approximately 2,500 actively licensed opticians in Florida. Of these 2,500 licensees, 174 were licensed last year. This number of annual new licensees has stayed relatively stable for many years. Of 544 current apprentices in Florida, only 27 currently have sponsors of less than one year licensure. The statistics show that many more potential sponsors are available both state-wide and within Lenscrafters' Florida operation than there are those who want to be apprentices. Under the current rule, only those licensees who are currently under disciplinary action are precluded from being sponsors. Under the proposed rule, and excluding any disciplinary concerns, only the 174 new admittees could not be sponsors for one year. A year later, those 174 could become sponsors. So in effect, the only licensees who could not be sponsors each year are the newest licensees, while each year the total number of potential sponsors grows respectively. Of course, the number of eligible physicians and optometrists who could also serve as sponsors would not fall below the current number and would continue to grow respectively year by year. Florida has two junior colleges with an Opticianry AA degree program. These colleges graduate approximately 60 opticians per year. Approximately half of the successful opticianry licensure examinees come from the AA program, and half come from the apprentice program. There is a 90 percent first time pass rate on the examination. The number of apprentice program examinees who fail on both the initial examination and "retake" examinations is higher than for AA degree holders. Since 1991, the Board has been concerned that the apprenticeship route has not been adequately educating future opticians and ensuring the safety of their public practice after licensure even if they were being adequately prepared to pass the standardized minimal qualifications examination. The Board consulted no empirical data for formulating its rule as published, but it held between nine and 12 Board meetings which included discussions on upgrading the apprenticeship program. Board members reported information from nationally recognized professional associations and reviewed a national trend whereby more states are requiring licensure and more states are phasing out apprenticeship programs. Some Board members took the minimum qualifications licensure examination so that they could understand what was involved and how the examination could be improved and report back to the Board. Board members heard reports from staff and investigators on reasons more disciplinary cases were not prosecuted. These Board meetings were open to the public and solicited public input. Some were referred to as "workshops," although they might not meet the generally understood Chapter 120, Florida Statutes, definition of "workshop." In 1996, a bill to amend Chapter 484, Florida Statutes, so as to require optician licensees to have three years of licensure before becoming sponsors did not pass into law. The Board viewed the one-year rule amendment as a more conservative step than requiring three years of licensure for sponsorship. All witnesses agreed that an experienced optician knows more about the practice of opticianry than a newly licensed optician. Lenscrafters' witnesses contended that newly licensed opticians were more enthusiastic sponsors and more able to teach what would be required on the licensure examination. Sam Jones was one of the Board members who retook and passed the current licensure examination. On behalf of the Board, he stated that the teaching of how to pass the licensure examination did not equate with teaching the practice of opticianry. In drafting the rule challenged herein to apply to all new optician licensees regardless of which of the four alternative routes they had taken to licensure, the Board viewed the new one-year requirement as constituting an internship akin to the internship required of other health care professionals. The new rule does not require physicians and optometrists to be licensed for one year before acting as a sponsor. In not applying the one-year requirement to physicians and optometrists, but only to opticians, the Board considered that licensed physicians and optometrists already had clinical experience in excess of licensed opticians. The parties stipulated that the Board is authorized to make such rules as are necessary to protect the health, safety, and welfare of the public as it relates to the practice of opticianry and is authorized, "to establish administrative processing fees sufficient to cover the cost of administering apprentice rules as promulgated by the Board."
The Issue The issues in this proceeding are whether Respondent committed an unlawful employment practice against Petitioner in violation of the Florida Civil Rights Act, and whether Petitioner’s Complaint of Employment Discrimination was timely filed.
Findings Of Fact Respondent operates a retail store located in Panama City Beach, Florida. At the time, William Todd Collins was the store manager. Petitioner is female. Around October 2011, Petitioner was first employed with Respondent in Puerto Rico as a jewelry sales expert, Level II. In October 2012, she transferred to Respondent’s Panama City Beach store as a Level II, jewelry sales expert. Towards the beginning of August 2013, Petitioner learned that she was pregnant. Shortly thereafter, she started displaying symptoms of her pregnancy and experienced dizziness from not eating due to her pregnancy. She was terminated on October 25, 2013. During her employment with Respondent, Petitioner performed her duties well and was not disciplined by Respondent until the incident that led to her termination. Additionally, the evidence demonstrated that Petitioner’s pregnancy was accommodated by allowing her breaks and to sit down as needed. She was also allowed to eat snacks as needed. On October 22, 2013, the store had closed for the evening. Petitioner and other sales associates were putting merchandise away and closing down the registers throughout the store. While standing at one of the sales counters, Petitioner was feeling dizzy from not eating, picked up a Godiva chocolate bar from the store’s inventory, and began to eat it. The Department Supervisor Mindy Watson saw her eating the chocolate bar and asked Petitioner what she was doing. Petitioner responded, “what does it look like I’m doing. I’m eating a candy bar.” Thereafter, Ms. Watson told Petitioner she needed to pay $4 for the chocolate bar. A discussion about the price of the chocolate bar ensued but, contrary to Petitioner’s claim that she offered to pay for the chocolate bar, the evidence showed that she did not offer to pay for the chocolate bar. The evidence was clear that it would have been easy to open a sales register so that Petitioner could pay for the chocolate with her credit card, which she had with her. Instead, Petitioner walked away from Ms. Watson and said she was going to place the wrapper in the vault as a reminder to pay for the candy bar. When Petitioner walked away with the chocolate bar, Ms. Watson informed Human Resources Supervisor Kelly Black about Petitioner not paying for the chocolate bar. At about the same time, Ms. Black approached the area where Petitioner was and saw Customer Service Specialist Pamela Wells also approaching the same area. Ms. Black heard Ms. Wells say to Petitioner, “oh you have chocolate,” to which Petitioner responded, “yes, and I stole it.” Once all the associates were gone for the day, Ms. Watson and Ms. Black checked the vault and the Fine Jewelry trash cans, but could not find the chocolate wrapper. Ms. Black called Mr. Collins that night and reported the incident. Additionally, both Ms. Black and Ms. Watson sent an email to Mr. Collins detailing these events. The day after the incident, Mr. Collins began an investigation. During the investigation, he interviewed Ms. Watson and Ms. Black, as well as other associates who were working the evening of October 22, 2013. Mr. Collins also learned that Petitioner was seen eating a Godiva chocolate bar from the store’s inventory several weeks before the October 22, 2013, incident. With that report, Mr. Collins checked Petitioner’s associate files to see whether she had purchased any chocolate over the last three months and to determine if she had purchased the chocolate bar from October 22, 2013. There was no record of Petitioner paying for any chocolate. On October 25, 2013, at 9:30 a.m., Petitioner returned to work. She did not pay for the chocolate bar either before or during her shift, even though, contrary to her claim at hearing that she could not pay for the chocolate during work, she had the ability to do so. After she did not pay for the chocolate bar during her shift, around 3:30 p.m., Sarah Menchaca, the manager on duty, told Petitioner that Mr. Collins, the store manager, wanted to speak to her. Petitioner went into Mr. Collins’ office and was terminated due to Misuse of Property/Assets. At the time of her termination, Petitioner signed dismissal papers agreeing to a summary of the events on October 22, 2013, and the reason for her termination. The dismissal papers did not mention Petitioner’s pregnancy and dizziness as the reason she took the candy bar. However, at the same meeting, Petitioner also wrote another two-paged detailed statement where she mentioned her pregnancy, the dizziness, and the fact that she had not eaten for hours. As indicated, Petitioner was terminated on October 25, 2013, and clearly was aware she had suffered an adverse employment action on that day. Thereafter, Petitioner obtained a Technical Assistance Questionnaire from FCHR. The questionnaire makes it clear on page 1 that it is not a substitute for filing an actual complaint with FCHR in a timely manner. It states, “REMEMBER, a charge of employment discrimination must be filed within 365 days of the alleged act of discrimination”. (emphasis in original). In this case, it is clear that Petitioner’s complaint was filed with FCHR on October 27, 2014, 367 days after she was terminated by Respondent. As such, her claims are time-barred and should be dismissed as a matter of law. Even assuming that Petitioner’s complaint was timely, the better evidence establishes that Respondent terminated Petitioner’s employment after a reasonable investigation determined that she took a Godiva chocolate bar from inventory and failed to pay for it. Petitioner provided no testimony or other evidence that other store personnel were allowed to take chocolate bars and not pay for them or that such individuals were not terminated for theft. Additionally, there was no evidence that Respondent discriminated against women who were pregnant or had difficult pregnancies. In fact, the evidence showed that Respondent employed pregnant women and made accommodations for such pregnancies when needed. Given these facts, the Petition for Relief should be dismissed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission of Human Relations enter a final order finding Respondent not guilty of discrimination and dismissing the Petition for Relief. DONE AND ENTERED this 21st day of October, 2015, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER 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 21st day of October, 2015. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Merrill W. Daily, Esquire JC Penney Headquarters Mail Station 1111 6501 Legacy Drive Plano, Texas 75024 Robert L. Thirston, II, Esquire Thirston Law Firm Post Office Box 19617 Panama City Beach, Florida 32417 (eServed) Derek Benjamin Lipscombe, Esquire JC Penney Corporation 6501 Legacy Drive, MS 1108 Plano, Texas 75024 (eServed) Cheyanne Costilla, General Counsel Florida Commission of Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
