Conclusions THIS CAUSE came on for consideration before the Agency for Health Care Administration ("the Agency"), which finds and concludes as follows: The Agency issued the Petitioner ("Elite Care at Home, Inc.") the attached Notice of Intent to Deem Application Incomplete and Withdrawn from Further Review (Ex. 1). The parties entered into the attached Settlement Agreement (Ex. 2), which is adopted and incorporated by reference. The parties shall comply with the terms of the Settlement Agreement. If the Agency has not already completed its review of the application, it shall resume its review of the application. The Applicant shall pay the Agency an administrative fee of five hundred dollars ($500.00) within 30 days of the entry of this Final Order. A check made payable to the "Agency for Health Care Administration" containing the AHCA number(s) should be sent to: Agency for Health Care Administration Office of Finance and Accounting Revenue Management Unit 2727 Mahan Drive, MS# 14 Tallahassee, Florida 32308 Any requests for an administrative hearing are withdrawn. The parties shall bear their own costs and attorney's fees. This matter is closed. DONE and ORDERED in Tallahassee, Florida, on this _dday of December, 2009. old, Secretary alth Care Administration 1 Filed December 15, 2009 1:34 PM Division of Administrative Hearings.
Other Judicial Opinions A party that is adversely affected by this Final Order is entitled to seek judicial review which shall be instituted by filing one copy of a notice of appeal with the agency clerk of AHCA, and a second copy, along with filing fee as prescribed by law, with the District Court of Appeal in the appellate district where the agency maintains its headquarters or where a party resides. Review of proceedings shall be conducted in accordance with the Florida appellate rules. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed. CERTIFICATE OF SERVICE i.i!!:aaY I HEREBY CERTIFY that a true and correct copy of this Final Order was served on the below named persons/entities by the method designated on this of December, 2009. Richard Shoop, Agency Cler Agency for Health Care Administration 2727 Mahan Drive, Mail Stop #3 Tallahassee, Florida 32308-5403 Telephone: (850) 922-5873 Facsimile: (850) 921-0158 Jan Mills Anne Menard Facilities Intake Unit Home Care Unit Agency for Health Care Administration Agency for Health Care Administration (Interoffice Mail) (Interoffice Mail) Finance and Accounting James M. Barclay, P.A. Revenue Management Unit Law Office of James M. Barclay, P.A. Agency for Health Care Administration 3021 Sawgrass Circle (Interoffice Mail) Tallahassee, Florida 32309 (U.S. Mail) Mark Hinely, Esquire Stuart M. Lerner Office of the General Counsel Administrative Law Judge Agency for Health Care Administration Division of Administrative Hearings (Interoffice Mail) (Electronic Mail) 2
The Issue Whether Respondent Employer committed an unlawful employment practice by discrimination on the basis of age and/or retaliation1/ against Petitioner, in violation of Chapter 760, Florida Statutes.
Findings Of Fact Petitioner, Deanna L. Eftoda, was born on August 26, 1949. Respondent, HealthSouth Rehabilitation Hospital of Tallahassee (HealthSouth), is a healthcare facility providing both in-patient and out-patient rehabilitation services in Tallahassee, Florida. As such, it employs personnel designated as "exempt" and "non-exempt," pursuant to the federal Fair Labor Standards Act. Generally speaking, "exempt" employees are salaried employees, in managerial posts, who do not receive over-time pay by the hour, and "non-exempt" employees are regular, non- managerial employees, who are paid a set amount per hour up to 40 hours per week and time and a-half per hour for every hour above 40 hours that they work in the same 40-hour week. There are some exceptions to this federal compensation scheme which are immaterial to this case. At all times material, a “Nursing House Supervisor” or “RN House Supervisor” were interchangeable job titles. Petitioner was initially hired by Respondent on January 26, 2004, as an "RN-Baylor Nurse." The RN-Baylor position was a non-exempt position, and in that position, Petitioner's hourly pay rate was $28.00. Petitioner's hourly rate of $28.00, was very high for an RN-Baylor Nurse, but Petitioner's credentials are exceptional. Within days of her hire, Petitioner was asked whether she would take an RN House Supervisor position. Petitioner accepted the RN House Supervisor position, and a corrected personnel action form reflecting this change was prepared on January 30, 2004. Petitioner signed an acknowledgement of her acceptance of the House Supervisor position on February 22, 2004. Every House Supervisor employed by Respondent during Petitioner's period of employment was an exempt employee. The RN House Supervisor position that Petitioner accepted was an exempt position. Nursing House Supervisors traditionally worked the evening and night shifts, when there was no member of the hospital administration on duty. Without a member of the hospital administration on duty, the Nursing House Supervisor was the highest ranking management employee at the facility. While Petitioner was employed with Respondent as an RN/Nursing House Supervisor, Respondent simultaneously employed “Charge Nurses.” The duties of a Charge Nurse were similar to the duties of a Nursing House Supervisor. However, unlike Nursing House Supervisors, Charge Nurses traditionally worked the day shift, during which higher-ranking members of the facility’s administration were simultaneously on duty. In 2004, Respondent also employed a Charge Nurse on the weekend day shift(s) when at least one administrator was present for several hours. (This anomaly seems to be at least one element which confused Petitioner and led to this case.) Even so, unlike RN House Supervisors, all Charge Nurses were classified by Respondent Employer as filling non-exempt positions. Every Charge Nurse employed by Respondent during Petitioner's employment was classified as a non-exempt employee, eligible to earn time-and-a-half for overtime. Petitioner’s salary was not increased when she accepted the RN House Supervisor position, because her base salary (calculated at $28.00 per hour) was commensurate with the salary of other RN House Supervisors already being paid as managerial employees at straight salary. On the other hand, because Petitioner worked as an RN/Nursing House Supervisor on a “Baylor,” or weekend, shift, Respondent paid Petitioner a special compensation for being scheduled to work every weekend, with no weekends “off.” This special compensation took the form of Respondent’s paying Petitioner as if she had worked 36 hours per week, even though she was only scheduled for 32 actual hours of work per week. Petitioner believes that she worked a minimum of four additional hours per week, because it was her practice to come on shift an hour early and leave an hour late to set up and wind down the area and staff under her supervision as Nursing House Supervisor. She “guessed” there were some weeks when, between this practice and meetings she was required to attend, she worked 32 hours above the usual 40 hours per week. Her “best guess” was that she was working “two (additional) hours per eight-hour shift,” plus attending meetings which were not held during her shift(s), beyond her scheduled 32 hours, but Petitioner never worked straight eight-hour shifts. (See Findings of Fact 12-15, and 25.) A Nursing House Supervisor working the Baylor shift, or an RN-Baylor Nurse, normally worked two twelve-hour shifts on the weekend and one eight-hour shift during the week. When Petitioner was hired by Respondent in January 2004, she was completing a second doctoral degree. In order to accommodate Petitioner's work on her dissertation, Respondent had offered Petitioner an irregular shift pattern consisting of two sixteen- hour shifts on the weekends. Petitioner had accepted this scheduling accommodation. As RN House Supervisor, Petitioner was required to attend occasional mandatory meetings for Nursing Supervisors and other nursing staff. These meetings were held during the week, and usually, but not always, between 5:00 and 6:00 p.m. This meeting time was more convenient for employees regularly working the weekday shift immediately before 5:00 p.m. or coming on shift immediately after 6:00 p.m., than for staff on other shifts, but no age or retaliation component existed with regard to Petitioner or anyone else on other shifts. Petitioner also was required once or twice to attend several hours of computer classes in a single day and other training, but so was everyone else on staff. Because the meetings were not on the weekends during the hours Petitioner would normally work, Petitioner’s attendance at the mandatory weekday meetings upset Petitioner's personal plans for study, research, and writing her doctoral dissertation, but there is no evidence she was singled out for this inconvenience. Petitioner claimed herein that she was entitled to be paid overtime for coming to "work" for meetings and classes. Because her Nursing House Supervisor position was an exempt position, Petitioner was not paid overtime for attending these mandatory meetings and classes, but no other exempt employees were paid overtime for attending these meetings and classes outside of their normal working hours, either. Respondent's policy does provide that if a Nursing House Supervisor works an additional shift as a "floor nurse," separate and apart from his/her regularly scheduled shifts as a House Supervisor, then that Nursing House Supervisor can be granted additional pay for that additional shift during which he/she works as a floor nurse, even though the House Supervisor position is that of an exempt employee. In order to be granted this additional pay, the Nursing House Supervisor must fill out an "Additional Pay for Exempt Employees" request form and submit the form to management for prior approval. The mandatory weekly meetings that Petitioner was required to attend as a part of her Nursing House Supervisor duties did not qualify as a full additional shift, for any employee. Petitioner received a memorandum dated April 12, 2004, explaining this. In fact, When Petitioner filled out the correct form for work as a floor nurse, she was paid at the $27.50 per hour rate for a floor nurse. She was not paid when she filled out such a form for mandatory staff meetings, classes, and training sessions. Petitioner represented that throughout her employment by Respondent, she repetitively and persistently inquired about how her pay was being calculated and why the Employer did not calculate it the way she thought it should. She also claims to have repeatedly requested a different calculation of her pay and leave accruals on the basis of her beliefs and desires, but at the time she made no formal claim or discrimination complaint related to these inquiries and requests. In her testimony, even Petitioner described what she was doing as “negotiating” her salary. Throughout her employment by Respondent, Petitioner was cited by management for performance problems, including but not limited to difficulty in dealing with staff; poor management style; poor judgment in dealing with her supervisors and subordinates; creating confusion and chaos for staff on her scheduled shift by her confrontational manner; failing to properly address performance concerns with staff on her scheduled shift; and failure to take responsibility for her own actions. Giving Petitioner the benefit of the doubt, some of her friction with management and staff may have arisen because of her complaining that evaluators did not observe her for an entire shift; because she mis-read management’s instructions on how to code her timesheets as a requirement to falsify them; because she perceived that Respondent’s staffing levels occasionally fell below matrix, and she then created turmoil by calling in extra staff, whereas her superiors did not share her interpretation of the matrix requirements or the staffing events themselves; because she blamed the preceding shift for cleanliness issues; because she perceived herself undervalued for her extensive nursing experience; because she perceived herself personally opposed and ridiculed by a nurse of lesser or equal rank (Mandar); and because she did not believe that her superiors backed her up sufficiently and/or did not afford her the appropriate discretion in her interactions with subordinates. Petitioner objected to Respondent’s chain of command, which had her reporting to Ms. Roberts, Nurse Manager. Petitioner felt she should report directly to the Director of Nursing, her “two-up” supervisor. However, none of these disputes rose to the level of a protected activity under Chapter 760.10(7), Florida Statutes (see Finding of Fact 35), or related to Petitioner's age in any way. From Respondent's perspective, its administration received a myriad of complaints from Petitioner's supervisors, peers, and subordinates, regarding Petitioner's management style and performance. Some of Respondent's employees threatened to quit if they were forced to continue to work under Petitioner's supervision. Petitioner testified that in July 2004, she had polled her subordinates and asked them to indicate that they had “no problems” with her management style. Then she presented the list of subordinates to her superiors. This could have legitimately been viewed by Respondent’s management as Petitioner’s insubordination to them and/or intimidation of the polled subordinates by Petitioner. Respondent’s Nurse Manager and Petitioner’s direct supervisor, Barbara Roberts, felt that she was being required to spend an inordinate amount of her time dealing with Petitioner's problems. As a result of these problems, Petitioner was placed on probation on September 10, 2004. Petitioner challenged this probation, and a review was conducted by Respondent's management. Despite the fact that the complaints concerning Petitioner's management style and performance came from various sources, Petitioner complained that Ms. Roberts was unfairly disciplining and harassing her. Respondent's management concluded that the attention Petitioner had received from Ms. Roberts was not improperly motivated, but was a result of personality conflicts between Petitioner and other employees. Some of the allegations against Petitioner were substantiated, but investigation into an allegation that Petitioner had coerced or threatened employees into working, only produced limited supporting documentation. In the absence of additional documentation, Lynn Streetman, Hospital Administrator, concluded that probation was not the correct level of discipline for Petitioner. (P-22) Ms. Streetman recommended that Petitioner's supervisor, Ms. Roberts, chalk the problems up to differences in management style and downgrade Petitioner’s probation citation to a "written warning." On September 30, 2004, the probation citation was replaced with a written warning citation. Also on September 30, 2004, six months after Petitioner’s initial hire and approximately five and a-half months after she accepted the exempt Nursing House Supervisor position, Ms. Roberts sent Petitioner a memorandum informing her that it was no longer operationally feasible to continue the irregular pattern of two sixteen-hour shifts on the weekend (R- 3).2/ Respondent's reason for this change was that for four hours of each day that Petitioner was scheduled to work, there was an overlapping period when two supervisors were on duty, and this duplication of supervisory personnel resulted in an unnecessary expense for Respondent. Ms. Roberts' memorandum informed Petitioner that it was operationally necessary for Petitioner to begin working the traditional Baylor-RN's two twelve-hour weekend shifts and one eight-hour shift during the week, beginning with the October 16-17, 2004, weekend. This managerial decision obviously inconvenienced Petitioner for purposes of completing her doctoral dissertation, and she contends the decision was “retaliatory.” However, the change had been in discussion with management before September 30, 2004. Immediately after her probation was down-graded to a written warning, Petitioner asked for a weekend off, which was granted. Because she took a weekend off at that time, Petitioner had one less weekend to use later in December 2004. (See Finding of Fact 36.) Approximately October 17-18, 2004, when her new shift arrangement was beginning, Petitioner's supervisors again sought to put her on probation, due to a series of complaints by staff similar to the previous ones. Ms. Roberts and other superiors believed Petitioner distorted common conversations and created chaos on her shift by misinterpreting in her conversations with her subordinates the instructions her superiors had given her. In accord with its policy, Respondent launched a second investigation into Petitioner's alleged misconduct. On December 11, 2004, prior to conclusion of the second investigation, Petitioner sent an e-mail to Ms. Roberts and to Respondent's Human Resources Director, Jackie Chaires, requesting that her status be changed from full-time Nursing House Supervisor to "PRN," or "as needed," status. Petitioner's e-mail stated, I believe I have 'too many irons in the fire.' With my dissertation and numerous meetings outside my 32 hours, I find myself run down. To remedy this situation I am willing to wait until January 17, 2005 for this transition to begin. Please advise as to the salary changes. Petitioner believed that by giving four weeks’ notice before the date she wanted to “go PRN” she would be entitled to a payout of “personal time off” (PTO). However, due to subsequent events, she was not entitled to an "in cash" payout of PTO. (See Findings of Fact 59-60.) Respondent's policy provided that at any time an employee moved to a new position, he/she was placed on a 90-day mandatory probation to assess his/her performance in that new position. Because Petitioner was to be placed on a mandatory 90-day probation at the time that her status changed to PRN, there was no need to also place Petitioner on probation due to the conclusions of the second investigation into her alleged misconduct. However, Ms. Streetman instructed Ms. Chaires and Ms. Roberts to meet with Petitioner to go over the various performance problems that Petitioner was experiencing, and to inform Petitioner that continued poor performance in these areas during her PRN probationary period could result in disciplinary action up to, and including, termination. This meeting took place on December 15, 2004, and led to a rebuttal by Petitioner on December 29, 2004. (See Finding of Fact 34.) Petitioner previously considered moving to PRN status during February 2004. Petitioner also claimed that in March or April 2004, she had requested to be moved back to an RN-Baylor Nurse position, and that Ann McElreath, Director of Patient Care Services/Director of Nursing, told her that she could not make such a move without suffering a 45-percent decrease in compensation. Ms. McElreath testified that she did not remember any such request from Petitioner, and that she never told Petitioner that Petitioner would suffer a 45 percent decrease in pay if she moved back to a Baylor-RN position. Ms. McElreath further testified that she would have no reason to make such a statement to Petitioner, because she was not involved in any way in setting salaries. In light of the differential between part-time and full-time pay schedules, as discussed hereafter (see Findings of Fact 38 and 58), and the complexity of Respondent Employer’s other pay categories, coupled with the complexity of Baylor status, one can see how Petitioner misunderstood her situation, but her testimony evidences a clear misunderstanding of how Respondent calculated salaries, as well as a misunderstanding of the effect of designating exempt and non-exempt positions. On December 29, 2004, Petitioner sent a memorandum to Ms. Roberts, Ms. Chaires, Ms. Streetman, and Ms. McElreath, requesting to rescind her request to move to PRN status and requesting to finish another six months as House Nursing Supervisor; complaining about “harassment” by Ms. Roberts due to Ms. Roberts’ telephone calls reminding Petitioner to attend meetings and Ms. Roberts’ “insulting” Petitioner’s professional abilities by not seeing/taking Petitioner’s side of many issues with staff. Petitioner requested to begin “dispute resolution.” At no point in this memorandum did Petitioner mention anything about alleged discrimination on the basis of age. At no point during any investigation, nor at any other time, did Petitioner allege that she was being discriminated against based on her age. She did allege harassment by her immediate supervisor, Ms. Roberts, but this was in the nature of challenging Respondent’s basic chain-of-command decisions; Ms. Roberts' not permitting her sufficient discretion; and Petitioner’s belief that only Petitioner could interpret Center for Disease Control (CDC) requirements regarding cleanliness and restrictions on the employment of coughing personnel and Occupational Safety and Health Act (OSHA) staffing requirements with regard to scheduling additional staff and instructing staff concerning these issues. Yet, Petitioner has never posed any complaint directly alleging violations of any federal or state regulation besides her “exempt” versus overtime issues, which she raised for the first time, herein. Petitioner wanted to take off December 31, 2004, and January 1, 2005 (New Year’s Eve and New Year’s Day), and she had been authorized in advance to do so. However, that authorization was rescinded when management discovered that she had already used the three weekend leaves to which she was entitled and that there might be staffing problems for the weekend period requested. (See Findings of Fact 26 and 54-57.) Petitioner had already made arrangements for her personal activities, and badgered management by e-mail to give her one or the other day off. Management ultimately let her have one of the days off, despite its “only three weekends” policy. Due to Petitioner’s on-going performance problems; management’s continuing concerns about her ability to effectively function as Nursing House Supervisor raised in the second misconduct investigation; and the patient safety concerns raised by her admission that she felt she had too many demands on her time, Respondent's management declined to allow Petitioner to rescind her request to move to PRN status. On January 5, 2005, Ms. Chaires told Petitioner, and on January 10, 2005, Ms. Chaires sent Petitioner a formal acknowledgement, of Respondent's acceptance of Petitioner's request to move to PRN status, effective January 17, 2005. On January 12, 2005, Ms. Chaires sent Petitioner an e- mail communication outlining the Respondent Employer’s pay rates for PRN status/service. Because Petitioner would be moving from a full-time House Nursing Supervisor position to a part-time PRN position, Ms. Chaires informed Petitioner that there would be a reduction in her salary from $28.00 per hour to $21.00 per hour. Ms. Chaires testified that it was customary for an employee moving from a full-time House Supervisor position to a PRN position to experience a reduction in pay. Petitioner claimed she was discriminated against because she received no merit increase at the end of 2004. She believes the lack of merit increase constituted retaliation for her obtaining the rescission of probation on September 30, 2004. Actually, Respondent’s employees undergo performance evaluations approximately every October. According to Respondent's policy, if an employee is on probation at any time during the third- quarter (July, August, September) of the calendar year, that employee is not eligible for a merit increase in connection with that year's October performance review. Respondent considered Petitioner ineligible for a merit raise at the end of 2004, because she had been on probation in September 2004; because there was a second investigation into Petitioner's performance and alleged misconduct that continued at least until December 15, 2004; and because Petitioner had requested to change her status to PRN. Because Petitioner’s probation was rescinded on the last day of September 2004, she technically was not barred from a merit increase due to being on probation in the third quarter, but she continued to be in the turmoil of some sort of disciplinary investigation until at least December 15, 2004. Respondent may have not followed the letter of its policy, but it maintained that policy’s spirit and purpose in not rewarding with a merit increase an employee who was subject to discipline at any moment. Petitioner also has not demonstrated that she was eligible for a merit increase based on meeting or exceeding performance standards. There is no credible evidence that the lack of an evaluation, the contents of an evaluation, or the lack of a 2004 merit increase in pay for Petitioner, constituted discrimination against her on the basis of her age or in retaliation for any protected activity. On January 14, 2005, a Friday, Petitioner had a friend phone Ms. Roberts on her behalf. The friend informed Ms. Roberts that Petitioner had undergone surgery that same day and would not be able to work as scheduled on the upcoming weekend. When Ms. Roberts inquired as to what kind of surgery Petitioner had undergone, the speaker would not give that information to Ms. Roberts. Ms. Roberts informed the caller that Petitioner should call Respondent to discuss her expected recovery time and her availability to return to work. Petitioner, who testified that she had listened to the foregoing conversation, described Ms. Roberts as “rude,” and the phone call may, indeed, have been acrimonious, in that the caller insisted on Petitioner’s right to medical privacy and Ms. Roberts wanted some detailed explanation why Petitioner was unable to report for work and why Petitioner was giving such short notice for her weekend shift(s), if she had not been in an accident and if she had elected the surgery in advance. At hearing, Petitioner’s explanation for her inability to work her last House Supervisor shift(s) covering January 14, 15, and 16, 2005, was that she had elected minor surgery with the intent to return to work her regular shift, but the procedure had turned out to be more debilitating than she had expected, so she could not return to work as scheduled. Also by date of January 14, 2005, Petitioner submitted an application for PRN employment with a different health care provider, Interim Healthcare. This date was a little more than a month after Petitioner had requested PRN status with Respondent; a little more than two weeks after Petitioner had sought to rescind that request; and two days after Respondent had declined in writing Petitioner's PRN rescission request. It was three days prior to Petitioner's scheduled move to PRN status with Respondent on January 17, 2005, pursuant to her accepted request. There was nothing to prohibit Petitioner from signing-up for PRN work with multiple health care providers. Because Petitioner did not show up for her last three scheduled shifts (two days) as Nursing House Supervisor, Respondent's policy required Petitioner to provide a doctor's note releasing her to return to work before Respondent would place her on PRN duty. Petitioner never provided Respondent with a doctor's note releasing her to return to work. Petitioner's testimony, that Ms. Chaires had told Petitioner on some previous occasion that as an "exempt" employee Petitioner did not need a doctor’s note for her absences, is not credible upon the record as a whole. It also is immaterial whether Petitioner's absence for her last three shifts/two days equate with "three consecutive days' absence," per Respondent’s policy on doctors’ notes, because more than three days passed without any word from Petitioner in response to Ms. Robert’s January 14, 2005, instructions by telephone. Respondent’s witnesses maintain that after January 14, 2005, Petitioner never initiated contact with Respondent in any way to discuss her availability for work, and that Ms. Streetman first phoned Petitioner in March 2005, to determine whether she was returning to work as a PRN. Petitioner claims that Respondent did not call her for any PRN work until May 2005, and therefore, in effect, Respondent constructively terminated Petitioner’s employment. There also is some divergence in testimony whether or not Respondent mailed Petitioner a package of materials with instructions that she must complete and return those materials before Respondent would call her for PRN duty, in March or at any other time. However, there is no dispute that during May 2005, Ms. Streetman, as acting interim Human Resources Director for Respondent, had telephone contact with Petitioner to coordinate Petitioner’s return to work as a PRN nurse. During this conversation, Petitioner informed Ms. Streetman that she would not return to work for Respondent as a PRN nurse under any circumstances. Petitioner stated that she would only work for Respondent if: Petitioner were returned to the position of full-time House Supervisor; Petitioner would only work a 16-hour shift on the weekends; and Ms. Streetman would set up a meeting with herself, Petitioner, Ms. Roberts, and a corporate representative of Respondent to discuss the resolution of various issues Petitioner wanted addressed. These issues were much as set out previously. (See Findings of Fact 17-19 and 35-39.) Age does not seem to have been one of Petitioner’s issues. Petitioner also indicated that she had not received the PRN packet of information that Respondent maintains it had sent her. Ms. Streetman immediately forwarded a copy of the PRN package to Petitioner. Although Petitioner provided a copy of a current CPR card to Respondent in May of 2005, she did not provide a doctor's note releasing her to return to work, her executed PRN paperwork acknowledging her duties and responsibilities as a PRN nurse, or an executed acknowledgement of Respondent's HIPPA policies and procedures, all of which Respondent required before putting Petitioner on its PRN status/phone list. On or about May 24, 2005, Ms. Streetman once again contacted Petitioner and informed her that she was unable to bring Petitioner back to work under the conditions that Petitioner had previously outlined, but Respondent was willing for Petitioner to work as a PRN nurse. Once again, Petitioner informed Ms. Streetman that she would not return to work as a PRN nurse under any circumstances. Accordingly, at that time, Ms. Streetman terminated Petitioner. During her employment with Respondent as a Nursing House Supervisor, Petitioner accrued PTO, in accordance with her position and length of service. As a Nursing House Supervisor, Petitioner should have accrued PTO at the rate of 7.69 hours of accrued PTO per two week pay period, which corresponds to the PTO accrual schedule for staff employees. However, due to a clerical error by Ms. Chaires, Petitioner actually had been allowed to accrue PTO at a rate of 9.54 hours of accrued PTO per two-week pay period, which corresponds to the PTO accrual schedule for department head employees, even though as Nursing House Supervisor, Petitioner was not a department head. Respondent's policy in 2004, permitted all Baylor, or weekend, employees of Respondent to expend PTO hours on no more than three weekends per year. Because Petitioner worked a Baylor, or weekend, schedule as Nursing House Supervisor, Petitioner was limited to using PTO for three weekends per year. Petitioner signed off on, and acknowledged, this three weekend limitation. Although this policy limited the weekend days on which Petitioner was entitled to use her accrued PTO, Petitioner was entitled to use her accrued PTO for any weekday shifts for which she was scheduled after September 30, 2004, when Ms. Roberts informed her that it was operationally necessary for her to work at least one eight-hour shift during each week. During 2004, Petitioner used 171 hours and 15 minutes of PTO, and all three of her allotted weekends off as a Baylor employee of Respondent. (See Findings of Fact 26 and 36.) Later in 2005, Respondent re-examined its PTO leave policy. In order to compete for staff with other local health care providers, Respondent changed the number of allowed weekend PTO days for its Baylor employees from three to four weekends. However, this increase in the number of weekend leaves permitted for Baylor employees did not affect Petitioner, because her request to move from full-time Nursing House Supervisor to PRN nurse had been granted, effective January 17, 2005, and the new leave policy was not retroactive. A PRN nurse occupies a part-time position. As a PRN nurse, Petitioner was not eligible to accrue or use PTO. On January 22, 2005, Petitioner’s PTO balance was 4.37 hours, meaning Petitioner had 4.37 hours of PTO available for use. The dollar value of Petitioner’s remaining PTO hours amounted to $83.09. According to Respondent's policy, an employee was eligible for a cash payout for his/her unused PTO hours upon voluntary resignation (including a voluntary employment status change) and/or involuntary lay-off if: (1) the employee had successfully completed his/her 90-day probationary period; (2) the employee provided Respondent with proper notice; and (3) the employee worked a minimum of four hours on his or her final scheduled day of work. Whether Petitioner successfully completed her probationary period as a Nursing House Supervisor is not at issue in this case. Sufficient notice of status change is not at issue in this case. (See Findings of Fact 29- 30.) Petitioner did not receive a cash payout for her 4.37 unused PTO hours on January 17, 2005, when she moved from a full-time Nursing House Supervisor position to a PRN nurse position, because she did not work the required four hours on her final scheduled day of work as a Nursing House Supervisor. Petitioner missed her final three scheduled shifts as a Nursing House Supervisor in January of 2004, and she did not work on the day that her employment with Respondent was terminated. whether one counts the status change date of January 17, 2004 or the final termination date in May 2005. (See Findings of Fact 45 and 52.) Therefore, Petitioner was not eligible for a PTO payout under Respondent Employer’s policy at the time her status changed to PRN nurse, January 17, 2005. Between January 14, 2005, and November 2005, Petitioner did not apply for any type of work so as to mitigate potential damages. After January 14, 2005, she had PRN status with Interim Healthcare, but she did not accept work from Interim until November 2005. During that period, she only attended classes and lived on her student loans. Petitioner had previously acquired at least a J.D. (law degree), two nursing degrees, and possibly another doctorate. With these credentials, she was certainly not “unemployable” during the interim of January-November 2005. Petitioner never complained to Ms. Roberts, her direct supervisor, that Petitioner believed that she was being discriminated against on the basis of her age. In 2004, Petitioner would have been 55, and Ms. Roberts would have been 51 years of age. Ms. Roberts never treated Petitioner any differently than any other Nursing House Supervisor. Ms. Roberts was not actively aware of Petitioner's age at any time during her employment. Petitioner never complained to Ms. McElreath, then- Director of Nursing and Petitioner's “two-up” supervisor, that Petitioner believed she was being discriminated against on the basis of her age. Ms. McElreath would have been 50 to Petitioner's 55 years of age at all times material. Petitioner never complained to Ms. Chaires, Director of Human Resources, that Petitioner believed she was being discriminated against on the basis of her age. No decision that Ms. Chaires made concerning Petitioner was motivated by Petitioner's age. Petitioner never complained to Ms. Streetman, Respondent's administrator, that Petitioner believed she was being discriminated against on the basis of her age. Ms. Streetman would have been 49 years of age, at all times material. No decision that Ms. Streetman made concerning Petitioner was motivated by Petitioner's age.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 22nd day of September, 2006, 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 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 22nd day of September, 2006.
Findings Of Fact At all times pertinent to the allegations contained herein, Respondent, Tracie Ann Johnson, was licensed as a practical nurse in Florida under license number NI20852451. The Board of Nursing was and is the state agency responsible for the licensing of practical nurses in Florida. On March 28, 1987, Deborah W. Murphy was a licensed practical nurse and charge nurse at the Hillsborough County Development Center assigned to the 3 - 11 PM shift. As a part of her duties that evening she was assigned to conduct an orientation of the Respondent, Tracie A. Johnson, who had recently been employed by the facility. As a part of her routine duties, Ms. Murphy conducted a count of all controlled drugs at the beginning of her shift, when medications were passed, and again at the end of her shift. The initial count, less the drugs passed, should have resulted in the number present at the end of shift count. On the night in question, Ms. Murphy, along with the Respondent, went to each individual house at the facility to pass medications. Drugs are kept in a locked cabinet in a locked storage room in each house. In order to get to the drugs, it takes two separate keys - one for the room and one for the drug cabinet. Both keys were kept within the personal control of the charge nurse on duty, and on the night in question, Ms. Murphy, as the sole nurse on duty, had the only keys. When Ms. Murphy was out of the drug room passing medicines, she would leave the room unoccupied save for Respondent for a few moments. During this period, the drug cabinet was unlocked as well. On the night in question, no one else, other than Ms. Murphy or Respondent, was present or had access to the drug room and cabinet. When Ms. Murphy finished passing medicines in the house where the shortage in question here was noted, she and Respondent were to go to another house to pass medicines. However, prior to leaving, Ms. Johnson indicated she had to go to the bathroom and they agreed that she would meet Ms. Murphy at the next house. Ms. Johnson did not show up and Ms. Murphy went back to find her. When she did, she found that Respondent was still in the bathroom. When Respondent came out of the bathroom, she was pale and sweaty, and her eyes appeared glassy. She said at that point that the "Doritos" must have made her sick. The two nurses went back to the nurse's station but Respondent was unable to stay awake to continue the orientation. In Ms. Murphy's opinion, Respondent was under the influence of some substance, either alcohol or a drug. When Ms. Murphy conducted the 11 PM count of drugs at the end of her shift, she found that one 100 mg phenobarbital capsule was missing from one of the drug cabinets in the room where she had left Respondent unaccompanied. Both Ms. Murphy and her replacement night nurse searched thoroughly for the pill but could not find it. As a result, Ms. Murphy called Ms. Cottrell, the assistant director of nursing, who advised her to fill out an incident report which all parties involved were to sign. When asked to sign this report, Respondent refused, stating that she was not present during the search and therefore could not vouch for its effectiveness. Ms. Murphy indicates that even before the medicines were passed, Respondent disappeared with her purse often and her conversation seemed to be somewhat inappropriate. She was highly talkative and after the passing of medicines, it appeared that her demeanor changed. She was much quieter and did not go with Ms. Murphy on any of the other medicine passes that evening. Ms. Cottrell, herself a recovered impaired nurse, was called by Ms. Murphy when the shortage was noticed. In a meeting the next morning, Ms. Murphy reported that Respondent's performance and demeanor had been inappropriate and Ms. Cottrell had heard from other nurses as well that Respondent appeared to be under the influence of some substance. When Ms. Murphy attempted to question Respondent about her familiarity with a venous puncture, she reportedly stated she did not have to observe that as she had experience in sticking needles in her own veins. After receiving a complete report from Ms. Murphy, Ms. Cottrell called Respondent in at which time Respondent indicated strong signs of impairment. These included repeated absences to go to the bathroom, drowsiness, sweating, and paleness. During their conversation, Respondent appeared to be bored and angry at having to come in early to talk. Ms. Cottrell spoke of her concerns about Respondent's behavior and condition, and Respondent's refusal to sign the incident report, and asked Respondent to be evaluated by an addiction counselor rather than to be reported to the Board. At this point, Respondent, already angry, got angrier. She denied taking drugs, made a few more inappropriate comments, and stomped out of the room. This type of conduct is consistent with a drug dependance denial but is also consistent with innocence. After the interview, during which Respondent declined to be evaluated by an addiction counselor, Ms. Cottrell felt she had no choice but to discharge Respondent from employment with the Center. In her opinion, based on her personal experience and her training in drug addiction, Respondent was under the influence of something at the time. Her symptoms are not consistent with food poisoning but with a drug high. She is satisfied that Ms. Murphy is not responsible for the loss of the pill and Ms. Murphy denied having taken it. She is further satisfied that none of the patients assigned to the residence from which the pill was missing was capable of taking it. It is found, therefore, that Respondent took the phenobarbital from the drug room while Mrs. Murphy was out of the room and ingested it. It is also found that her symptoms, as described by the three nurses who observed her, are consistent with drug ingestion and that she was under the influence of drugs whale on duty with Ms. Murphy on March 28, 1987.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is, therefore: RECOMMENDED that Respondent's license as a practical nurse in Florida be suspended for three years or until such time as she proves to the satisfaction of the Board of Nursing that she is capable of safely engaging in the functions of the profession of nursing. RECOMMENDED this 15th day of November, 1988, at Tallahassee, Florida. ARNOLD H. POLLOCK, 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 15th day of November, 1988. COPIES FURNISHED: John Cobb, Law Clerk Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Tracie Johnson 1906 East Hamilton Tampa, Florida 33610 Bruce D. Lamb, General Counsel Department of Professional Regulation 130 North Monroe Street Tallahassee, Florida 32399-0750 Judie Ritter, Executive Director DPR, Board of Nursing Room 504, 111 East Coastline Drive Jacksonville, Florida 32201
