The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER 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 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue Whether Respondent committed the offenses as set forth in the Administrative Complaint dated June 13, 2000, and if so, what penalty should be imposed.
Findings Of Fact At all times material to this case, Respondent is a licensed Certified General Contractor in the State of Florida. At all times material to this case, Respondent was the qualifying agent for Rivero Construction, Inc. On or about June 20, 1996, Respondent contracted with Manuel Chamizo (Chamizo) to construct a parking lot with drainage at 4735 Palm Avenue, Hialeah, Florida, and to repave the parking lot at 4719 Palm Avenue, Hialeah, Florida, for the total price of $7,090.00. Chamizo paid Rivero Construction, Inc., the full contract price. Respondent constructed the parking lot at 4735 Palm Avenue, but did so in a substandard manner. Specifically, the parking lot flooded and was rendered unusable because Respondent had broken a sewer pipe during construction. After being notified of the problem, Respondent failed to correct it. Respondent failed to perform any of the contracted work at 4719 Palm Avenue. Dissatisfied with Respondent's performance, Chamizo sued Rivero Construction, Inc., for damages in the County Court in and for Miami-Dade County, Florida. On or about August 24, 1998, the lawsuit was concluded in Chamizo's favor with the entry of a final judgment against Rivero Construction, Inc. Respondent has failed to satisfy the final judgment. Respondent has failed to obtain a qualified business certificate of authority. Petitioner has incurred costs of $1,669.09 in the investigation and prosecution of Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered finding that Respondent committed the offenses set forth in the Administrative Complaint dated June 13, 2000; ordering that Respondent pay an administrative fine in the amount of $1,250; pay restitution to Manuel Chamizo in the amount of the Final Judgement obtained by Manuel Chamizo; and pay costs incurred in the investigation and prosecution of this proceeding in the initial amount of $1,669.09, plus costs incurred through the date of final action, which revised affidavit of costs will be submitted to the Board at final action. DONE AND ENTERED this 12th day of December, 2001, in Tallahassee, Leon County, Florida. ___________________________________ FLORENCE SNYDER RIVAS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 2001. COPIES FURNISHED: Diane Snell Perera, Esquire Department of Business and Professional Regulation 401 Northwest Second Avenue Suite N-607 Miami, Florida 33128 Manuel Rivero 61 East 16th Street Hialeah, Florida 33010 Suzanne Lee, Executive Director Construction Industry Licensing Board Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792 Hardy L. Roberts, General Counsel Department of Business and Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-2202
Findings Of Fact Based upon Section 120.65(11), Florida Statutes, and Ms. Curry's failure to dispute the allegations of paragraph 4 of the Administrative Complaint (quoted above), that count will be treated as admitted.
Recommendation It is recommended that a final order be entered by the Education Practices Commission revoking the teaching certificate of Sherry Curry. RECOMMENDED this 3rd day of April, 1990, at Tallahassee, Florida. WILLIAM R. DORSEY, JR., 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 3rd day of April, 1990. COPIES FURNISHED: Karen B. Wilde, Executive Director Education Practices Commission 301 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Martin Schaap, Administrator Education Practices Commission 352 Florida Education Center 325 West Gaines Street Tallahassee, Florida 32399-0400 Lane Burnett, Esquire 331 Union Street Jacksonville, Florida 32202 Sherry Curry 4260 Northwest 170 Street Carol City, Florida 33055 Sydney H. McKenzie, General Counsel Department of Education The Capitol, PL-08 Tallahassee, Florida 32399-0400
Findings Of Fact Based upon the record evidence, the following Findings of Fact are made: On August 31, 1988, Respondent was authorized by the Board Of Medicine (Board) to provide respiratory care services in this state under license number TU C000050, a license she still holds. Respondent did not take a licensure examination. She was granted her license based upon her pre-October 1, 1987, respiratory therapy work experience pursuant to Section 468.357(3)(a), Florida Statutes, as amended by Chapter 87- 553, Laws of Florida. In December, 1990, Respondent sought to renew her license. As part of the renewal process, she submitted to the Board a signed Affirmation of Eligibility for License Renewal, which read as follows: I HEREBY AFFIRM THAT I HAVE MET ALL OF THE REQUIREMENTS FOR LICENSE RENEWAL SET FORTH BY THE DEPARTMENT OF REGULATION AND/OR THE PROFESSIONAL REGULATORY BOARD INDICATED ON THE REVERSE SIDE OF THIS NOTICE. I UNDERSTAND THAT WITHIN THE UPCOMING RENEWAL PERIOD, IF MY LICENSE NUMBER IS SELECTED FOR AUDIT BY THE DEPARTMENT OF PROFESSIONAL REGULATION AND/OR PROFESSIONAL REGULATORY BOARD, I MAY BE REQUIRED TO SUBMIT PROOF THAT I HAVE MET ALL APPLICABLE LICENSE RENEWAL REQUIREMENTS. I UNDERSTAND THAT PROOF MAY BE REQUIRED BY THE DEPARTMENT OF PROFESSIONAL REGULATION AND/OR PROFESSIONAL REGULATORY BOARD AT ANY TIME AND THAT IT IS MY RESPONSIBILITY TO MAINTAIN ALL DOCUMENTATION SUPPORTING MY AFFIRMATION OF ELIGIBILITY FOR LICENSE RENEWAL. I FURTHER UNDERSTAND THAT FAILURE TO COMPLY WITH SUCH REQUIREMENTS IS IN VIOLATION OF THE RULES AND STATUTES GOVERNING MY PROFESSION AND SUBJECTS ME TO POSSIBLE DISCIPLINARY ACTION AND FURTHER, THAT ANY FALSE STATEMENT IS IN VIOLATION OF SECTION 455.227, FLORIDA STATUTES, SUBJECTING ME TO DISCIPLINARY ACTION AS WELL AS THOSE PENALTIES PROVIDED BELOW. I AFFIRM THAT THESE STATEMENTS ARE TRUE AND CORRECT AND RECOGNIZE THAT PROVIDING FALSE INFORMATION MAY RESULT IN DISCIPLINARY ACTION ON MY LICENSE AND/OR CRIMINAL PROSECUTION AS PROVIDED IN SECTION 455.2275, FLORIDA STATUTES. At the time she made the foregoing affirmation, Respondent believed that she had met all of the requirements for the renewal of her license, including those relating to continuing education. She did not intend to deceive or mislead the Board regarding her eligibility for license renewal. Based upon her review of the copies of the statutory and rule provisions with which the Board of Medicine had previously provided her, Respondent was under the impression that she needed to have earned only 24 hours of continuing education credit biennially in order to be eligible for license renewal. She had earned 31 hours of such credit, 15 in 1989 and 16 in 1990, and therefore thought that she had met the continuing education requirement for eligibility for license renewal. She was unaware that Chapter 468, Part V, Florida Statutes (1987), had been amended by Chapter 87-553, Laws of Florida, to require licensed respiratory care practitioners in her situation to complete 20 contact hours of approved continuing education courses each year. Notwithstanding that she had completed less than 20 contact hours of approved continuing education courses in both 1989 and 1990, Respondent's license was renewed based, in part, upon the representations made in her Affirmation of Eligibility for License Renewal. The Board subsequently selected Respondent for audit and asked her to submit documentation establishing her compliance with the continuing education requirements referenced in her Affirmation of Eligibility for License Renewal. Due to illness and other extenuating circumstances, Respondent was initially unable to provide any documentation in response to this request, however, she ultimately provided certificates of completion for each of the continuing education courses she had taken in 1989 and 1990.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is hereby RECOMMENDED that the Board of Medicine enter a final order (1) finding that Respondent did not violate Section 468.365(1)(a), Florida Statutes, as alleged in the Amended Administrative Complaint; (2) dismissing said charge; (3) finding that Respondent violated Section 468.365(1)(j), Florida Statutes, as alleged in the Amended Administrative Complaint; and (4) disciplining Respondent for having violated Section 468.365(1)(j), Florida Statutes, by placing her on probation for a period of one year during which she must, in addition to meeting the 20 contact hour per year continuing education requirement prescribed by Section 468.357(3)(a), Florida Statutes, as amended by Chapter 87-553, Laws of Florida, complete 9 extra contact hours of approved continuing education course offerings and provide the Board with documentation, in the form of receipts, vouchers, certificates or other like papers, verifying her completion of these additional 9 contact hours. DONE AND ENTERED in Tallahassee, Leon County, Florida, this 20th day of April, 1992. STUART M. LERNER 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 20th day of April, 1992. 1/ See Chino Electric, Inc. v. United States Fidelity & Guaranty Co., 578 So.2d 320, 323 (Fla. 3d DCA 1991); Nagashima v. Buck, 541 So.2d 783, 784 (Fla. 4th DCA 1989). 2/ That Respondent was not aware of the 20 contact hour per year continuing education requirement prescribed by Section 468.357(3)(a), Florida Statutes, as amended by Chapter 87-553, Laws of Florida, does not excuse her failure to have complied with this requirement. See Moncrief v. State Commissioner of Insurance, 415 So.2d 785, 788 (Fla. 1st DCA 1982)(licensed bail bondsman could be found guilty of employing an unlicensed runner, notwithstanding his belief that "he was not required to have [the runner] licensed;" "the courts universally recognize that ignorance or mistake of law will not excuse an act in violation of the laws so long as the laws clearly and unambiguously proscribe the conduct alleged"). COPIES FURNISHED: Arthur B. Skafidas, Esquire Department of Professional Regulation 1940 North Monroe Street, Suite 60 Tallahassee, Florida 32399-0792 Pamela Sue Morgan 7324 S.W. 25th Court Fort Lauderdale, Florida 33317-7005 Dorothy Faircloth, Executive Director Board of Medicine Department of Professional Regulation 1940 North Monroe Street Tallahassee, Florida 32399-0792
The Issue The central issue in this case is whether the Respondent committed the violation alleged in the corrected administrative complaint; and, if so, what penalty should be imposed.
Findings Of Fact The Respondent, Charles Harry Kent, is a licensed physician in the State of Florida, license no. ME 0037235. The Petitioner is the state agency charged with the responsibility of regulating and disciplining licensed physicians. In connection with a prior disciplinary case against this Respondent the Agency issued a final order placing the Respondent on two years probation and requiring Respondent to pay an administrative fine in the amount of $2,000.00. Such fine was to be paid not later than March 5, 1995. As of March 28, 1996, the Respondent had not paid the administrative fine nor had he provided any explanation for the failure to timely remit payment. Efforts to notify the Respondent regarding the unpaid fine were unanswered by the Respondent. Ultimately, the administrative complaint in this case was filed against the Respondent and notice of the non-payment provided by way of allegations set forth in paragraphs 6 through 12. On October 3, 1995, the Respondent executed an election of rights which disputed the allegations and listed his address as 3605 Juan Ortiz Circle, Fort Pierce, Florida 34947. Attempts to personally contact this Respondent by an Agency investigator proved fruitless. Respondent has not responded to mail addressed to his address of record.
Recommendation Based on the foregoing, it is, hereby, RECOMMENDED: That the Agency for Health Care Administration, Board of Medicine, enter a final order suspending Respondent's medical license until such time as the administrative fine at issue in this cause is paid in full; imposing an additional fine in the amount of $5,000.00; and extending Respondent's period of probation by an additional two years. DONE AND ENTERED this 16th day of May, 1996, in Tallahassee, Leon County, Florida. JOYOUS D. PARRISH, 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 16th day of May, 1996. APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-5535 Rulings on the proposed findings of fact submitted by Petitioner: 1. Paragraphs 1 through 10 are accepted. Rulings on the proposed findings of fact submitted by Respondent: 1. None submitted. COPIES FURNISHED: Albert Peacock Senior Attorney Agency for Health Care Administration 1940 North Monroe Street Suite 60 Tallahassee, Florida 32399-0792 Charles Harry Kent, M.D. Post Office Box 2478 Fort Pierce, Florida 34947 Dr. Marm Harris Executive Director Agency for Health Care Administration, Board of Medicine Division of Medical Quality Assurance Boards 1940 North Monroe Street Tallahassee, Florida 32399-0342
Findings Of Fact John R. Sutton (Sutton) has been an employee of the Seminole County School Board (School Board) for approximately ten years. At the time of his suspension, he was working as an electrician's helper. Sutton's work hours were seven to three-thirty, including summers when school was not in session. Generally, his duties did not bring him into contact with students. To the extent possible, repairs and wiring work were done when the students were not around. Sutton lives in his own home with his two children, ages three and five, his sixty-eight-year-old mother, and his fifty-year-old mentally retarded sister, whom he takes care of. He needs his job. (Petitioner's exhibit 1, p.9) Sutton's property borders on a tree farm owned by Miami Land Division. On August 10, 1993, around five-thirty p.m., Sutton was in the woods behind his house examining three small marijuana plants when he was arrested by officers of the Florida Game and Fresh Water Fish Commission. He gave permission for them to search his home and they found some baggies of marijuana. Sutton was charged with cultivation of marijuana and possession of greater than 20 grams, a felony. He admits the charges. Sutton was not prosecuted, but rather was referred to the pretrial intervention program conducted by the State's Attorney. Under his pretrial intervention contract, he was required to be supervised for twelve months, submit to random drug testing, complete fifty hours of community service, and pay certain costs of investigation and supervision. He was also required to attend Narcotics Anonymous meetings. He has satisfied all of the conditions except for the full twelve months of supervision, which have not expired. After successful completion of his contract, the charges will be dismissed. On August 12, 1993, Sutton's charge of cultivation of marijuana appeared in the "News of Record" section of the Daytona Beach News-Journal, in small print, with the usual notices of criminal charges, suits filed, divorces, births and hospital admissions occurring recently in Volusia County. John Reichert performs duties of the personnel director for the Seminole County School District. He doesn't read the News-Journal, but his counterpart in Volusia County read it and told him of Sutton's arrest. Reichert obtained information about the arrest and presented the findings to the School Board's professional standards committee. The committee recommended that Sutton be terminated. He was placed on leave without pay, pending the outcome of this proceeding on the superintendent's recommendation to the School Board. Discipline of non-instructional personnel of the School Board is governed by the collective bargaining agreement dated July 1, 1992-June 30, 1995. This agreement provides, in pertinent part: REGULAR EMPLOYEES Section 4. * * * B. An employee who has been hired for four (4) or more years may only be terminated for just cause except as otherwise provided in A. above. [reduction in force] The decision not to renew the employee for the ensuring year shall be for just cause. * * * DISCIPLINE AND TERMINATION Section 5. A. Regular employees who have been hired for a minimum of three (3) of the last five (5) years (without a break in service) shall not be disciplined (which shall include repri mands), suspended or terminated except for just cause. * * * An employee may be suspended without pay or discharged for reasons including the following (or substantially similar offenses) providing just cause is present: Violation of School Board Policy Violation of work rules Insubordination--Refusal to follow a proper directive, order, or assignment from a supervisor While on duty, the possession and/or the use of intoxicating beverages or controlled substances after reporting for work and until after the employee leaves the work site after the equipment, if applicable, has been checked in. Endangering the health, safety or welfare of any student or employee of the District The conviction of a felony in the State of Florida or notice of conviction of a substantially parallel offense in another jurisdiction An act committed while off duty, which because of its publication through the media or otherwise adversely affects the employee's performance or duties, or disrupts the operations of the District, its schools or other work/cost centers Excessive tardiness Damage to School Board property Improper use of sick leave Failure to perform assigned duties Other infractions, as set forth from time to time in writing and disseminated by the Superintendent or designee. (Petitioner's Exhibit 2, emphasis added) Counsel for the School Board stipulated at hearing that Sutton's termination is not based on any of the twelve items in paragraph Section 5, C., above. Rather, the School Board's position is that "just cause" is not limited to those items. The School Board has adopted a drug free work place policy, prohibiting possession, use, sale, distribution or being under the influence of alcohol or narcotic drug, marijuana or other controlled substance, before, during or after school hours, at school or in any other school district location. The record does not reflect when the policy was adopted; Sutton has never seen the policy. Further, it does not address Sutton's offense. Sutton knows of other non-instructional employees who have been arrested for felony offenses and are still employed. On the other hand, the School Board has disciplined other employees (teachers and non-instructional employees) for drug offenses committed off of school premises and off hours. However, the School Board did not, in this proceeding, establish its policy with regard to employees, such as Sutton, who are not teachers, who are arrested after their employment, and who are not convicted of a felony or are not guilty of any of the enumerated offenses in the collective bargaining agreement. Sutton has never been disciplined before. His supervisor considers him a "[d]ecent worker, maybe not the best, but definitely a good worker." (Transcript, p.28) His attendance record is fine or average; he has not been observed arriving to work or during work, "stoned" or otherwise intoxicated or impaired. Sutton freely admits that he owned the three plants and the marijuana found in his house. He smoked infrequently and did not sell or distribute the marijuana.
Recommendation Based on the foregoing, it is hereby RECOMMENDED: That the School Board of Seminole County enter its final order rejecting the recommendation for termination of John Sutton, removing him from suspension, and restoring back pay. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 11th day of May 1994. MARY CLARK 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 11th day of May 1994. APPENDIX The following constitute specific rulings on the findings of fact proposed by the parties: Petitioner's Proposed Findings Rejected as unnecessary. Adopted in Paragraph 1. 3 & 4. Adopted in Paragraph 8. 5 & 6. Adopted in Paragraph 4. 7. Adopted by implication in Paragraph 2. But the more specific finding is that such contact was merely incidental, and not direct. 8-11. Addressed in Preliminary Statement as background of the proceeding. Respondent's Proposed Findings Respondent's "Findings of Fact" comprise a single paragraph outlining the background of this proceeding and stating his position, which position is generally accepted in the recommendation, above. COPIES FURNISHED: Ned N. Julian, Jr., Esquire Post Office Box 4848 Sanford, Florida 32772-4848 Thomas C. Greene, Esquire Post Office Box 695 Sanford, Florida 32772-0695 Douglas L. "Tim" Jamerson Commissioner of Education The Capitol Tallahassee, Florida 32399-0400 Dr. Paul Hagerty, Superintendent Seminole County School Board 1211 South Mellonville Avenue Sanford, Florida 32771
The Issue Should discipline be imposed against Respondent's license to practice medicine for violation of Section 458.331(1)(b) and (kk), Florida Statutes (2005)?
Findings Of Fact Petitioner is the state department charged with the regulation of the practice of medicine pursuant to Chapter 20.43, Florida Statutes; Chapter 456, Florida Statutes; and Chapter 458, Florida Statutes. Respondent is Gina Marie Dieudonne, M.D. Respondent is a licensed medical doctor in the State of Florida, having been issued license ME 89209. Respondent's mailing address-of-record is 48 Goldfield Cove, Jackson, Tennessee 38305. The Illinois Department of Financial and Professional Regulation (IDFPR) is the licensing authority regulating the practice of medicine in the State of Illinois. On or about January 4, 2006, the IDFPR entered an Order indefinitely suspending Respondent's license to practice as a physician and surgeon in the State of Illinois. The IDFPR disciplined Respondent for failing to pay Illinois individual income tax for the tax years of 1999 and 2003. On March 27, 2006, Respondent executed a Petition for Restoration in front of a Notary Public in Illinois, seeking to have her Illinois license to practice medicine reinstated. On or about July 10, 2006, the Respondent signed a Stipulation and Recommendation for Settlement that, if approved by the IDFPR, would lift the suspension and allow the Respondent to renew her Illinois license, while placing her Illinois medical license on indefinite probation, until such time as the Respondent satisfactorily completed the payment of delinquent state income taxes and satisfactorily completed repayment of her Illinois Student Assistance Commission student loans outstanding. The Stipulation and Recommendation for Settlement was approved by the Medical Disciplinary Board on August 2, 2006. On or about October 18, 2006, the Director of the IDFPR signed an Order adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including the indefinite probation. The January 4, 2006, Order entered by the IDFPR, which indefinitely suspended Respondent's license to practice as a physician and surgeon in the State of Illinois, constitutes disciplinary action against the Respondent's Illinois medical license. The October 18, 2006, Order entered by the IDFPR adopting the Stipulation and Recommendation for Settlement, subject to the terms therein, including the indefinite probation, constitutes disciplinary action against the Respondent's Illinois medical license. Respondent failed to report, in writing, to the Board within thirty (30) days of the January 4, 2006, suspension of her medical license by the IDFPR. Respondent reported the October 18, 2006, order of stipulated indefinite probation of her medical license by the IDFPR to the Board on February 12, 2007. The report letter dated February 12, 2007, had a copy of the disciplinary documents from Illinois attached to it and was received by DOH Licensure Services Unit on February 15, 2007. On April 3, 2007, an order was entered by IDFPR terminating the earlier order of probation on Respondent's Illinois' license pertaining to Respondent's failure to repay student loans. Other restrictions imposed on the license remained in force and effect. Prior Disciplinary History Respondent's Illinois medical license was subjected to disciplinary action in two prior cases. In Case No. 92-2870 Respondent's Illinois medical license was placed on probation by terms of a Consent Order signed by Respondent on September 14, 1992, for failure to repay student loans. The probation was terminated by Consent order approved March 26, 1993. In Case No. 96-4999, an Order was issued, effective July 31, 1996, ordering that her license not be renewed for failure to repay student loans. Her license was restored by Order to Restore dated August 20, 1996.
Recommendation Based upon the findings of facts found and the conclusions, it is RECOMMENDED: That a final order be entered reprimanding Respondent's medical license, imposing an administrative fine of $4,000.00, and placing Respondent's license on probation until she presents evidence to the Florida Board of Medicine that her Illinois medical license is free and unencumbered. DONE AND ENTERED this 19th day of June, 2008, in Tallahassee, Leon County, Florida. S CHARLES C. ADAMS 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 19th day of June, 2008.
Findings Of Fact 12. The factual allegations contained in the Order of Penalty Assessment issued on February 1, 2010, the Amended Order of Penalty Assessment issued on March 18, 2010, the 2nd Amended Order of Penalty Assessment issued on September 28, 2010, and the 3rd Amended Order of Penalty Assessment issued on December 28, 2010, attached as “Exhibit A”, “Exhibit B”, “Exhibit D“, and “Exhibit F”, respectively, and fully incorporated herein by reference, are hereby adopted as the Department’s Findings of Fact in this case.
Conclusions THIS PROCEEDING came on for final agency action and Jeff Atwater, Chief Financial Officer of the State of Florida, or his designee, having considered the record in this case, including the request for administrative hearing received from Wine Warehouse of St. Petersburg, Inc., the Order of Penalty Assessment, the Amended Order of Penalty Assessment, the 2nd Amended Order of Penalty Assessment, and the 3rd Amended Order of Penalty Assessment, and being otherwise fully advised in the premises, hereby finds that: 1. On February 1, 2010, the Department of Financial Services, Division of Workers’ Compensation (hereinafter “Department”), issued an Order of Penalty Assessment in Division of Workers’ Compensation Case No. 09-360-D3-OPA to Wine Warehouse of St. Petersburg, Inc. The Order of Penalty Assessment assessed a total penalty of $26,455.55 against Wine Warehouse of St. Petersburg, Inc. for its failure to secure workers’ compensation for its employees as required by Chapter 440, Florida Statutes. The Order of Penalty Assessment included a Notice of Rights wherein Wine Warehouse of St. Petersburg, Inc. was advised that any request for an administrative proceeding to challenge or contest the Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 2. On February 4, 2010, the Order of Penalty Assessment was served on Wine Warehouse of St. Petersburg, Inc. by certified mail. A copy of the Order of Penalty Assessment is attached hereto as “Exhibit A” and incorporated herein by reference. 3. On March 18, 2010, the Department issued an Amended Order of Penalty Assessment to Wine Warehouse of St. Petersburg, Inc. The Amended Order of Penalty Assessment assessed a total penalty of $12,368.81 against Wine Warehouse of St. Petersburg, Inc. The Amended Order of Penalty Assessment included a Notice of Rights wherein Wine Warehouse of St. Petersburg, Inc. was advised that any request for an administrative proceeding to challenge or contest the Amended Order of Penalty Assessment must be filed within twenty- one (21) days of receipt of the Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. 4. On March 24, 2010, the Amended Order of Penalty Assessment was served on Wine Warehouse of St. Petersburg, Inc. by certified mail. A copy of the Amended Order of Penalty Assessment is attached hereto as “Exhibit B” and incorporated herein by reference. 5. On April 14, 2010, Wine Warehouse of St. Petersburg, Inc. filed a request for an administrative hearing (“Petition”) with the Department, which was forwarded to the Division of Administrative Hearings and assigned DOAH Case No. 10-6375. A copy of the Petition is attached hereto as “Exhibit C”. 6. On September 28, 2010, the Department issued a 2nd Amended Order of Penalty Assessment to Wine Warehouse of St. Petersburg, Inc. The 2nd Amended Order of Penalty Assessment assessed a total penalty of $10,169.99 against Wine Warehouse of St. Petersburg, Inc. 7. On September 29, 2010, the Department filed a Motion to Amend Order of Penalty Assessment with the attached 2nd Amended Order of Penalty Assessment with the Division of Administrative Hearings in DOAH Case No. 10-6375. On December 23, 2010, Administrative Law Judge B. J. Staros entered an Order granting the Department’s Motion to Amend. A copy of the 2nd Amended Order of Penalty Assessment is attached hereto as “Exhibit D” and incorporated herein by reference. 8. On December 28, 2010, the Department issued a 3rd Amended Order of Penalty Assessment to Wine Warehouse of St. Petersburg, Inc. The 3rd Amended Order of Penalty Assessment assessed a total penalty of $10,037.97 against Wine Warehouse of St. Petersburg, Inc. 9. On December 28, 2010, after receiving written notification from Wine Warehouse of St. Petersburg, Inc. that it did not wish to proceed to an administrative hearing in this matter, the Department filed a Joint Motion to Relinquish Jurisdiction in DOAH Case No. 10-6375. As a result, Administrative Law Judge B. J. Staros entered an Order Closing File, relinquishing Jurisdiction of this matter to the Department. A copy of the Order Closing File is attached hereto as “Exhibit E”, 10. OnJanuary 13, 2011, the Department and Wine Warehouse of St. Petersburg, Inc. entered into a Settlement Agreement wherein Wine Warehouse of St. Petersburg, Inc. agreed to pay the Department the penalty assessed in the 3rd Amended Order of Penalty Assessment in the amount of $10,037.97. 11. On January 27, 2011, the 3rd Amended Order of Penalty Assessment was served by certified mail on Wine Warehouse of St. Petersburg, Inc. The 3rd Amended Order of Penalty Assessment included a Notice of Rights wherein Wine Warehouse of St. Petersburg, Inc. was advised that any request for an administrative proceeding to challenge or contest the 3rd Amended Order of Penalty Assessment must be filed within twenty-one (21) days of receipt of the 3rd Amended Order of Penalty Assessment in accordance with Sections 120.569 and 120.57, Florida Statutes, and must conform to Rule 28-106.2015, Florida Administrative Code. A copy of the 3rd Amended Order of Penalty Assessment is attached hereto as “Exhibit F” and incorporated herein by reference.
The Issue Whether Respondent committed the unlawful employment practice alleged in the Employment Complaint of Discrimination filed with the Florida Commission on Human Relations (FCHR) and, if so, the appropriate relief for such action.
Findings Of Fact For purposes of this case, the Petitioner began his employment with the Respondent in July of 2007. Although the Petitioner had worked for the Respondent in prior years (at another location), he had voluntarily left the company to pursue other opportunities. When the Petitioner returned to employment with the Respondent in connection with this case, it was ten years after a heart transplant. At the time of hiring, the Respondent knew the Petitioner's medical condition and age. The Petitioner is approximately 61 years of age. The Respondent is a national corporation with several sites for engineering and manufacture of its products. The Respondent is an equal opportunity employer and maintains policies prohibiting unlawful discrimination. One of the Respondent's facilities, Sykes Creek, is located in Brevard County, Florida. The Petitioner was hired to work at the Sykes Creek facility in the role of engineering supervisor. The Sykes Creek site builds luxury power yachts ranging from 50–to-60 feet in length. The price of these yachts runs from approximately $900,000 to $2,000,000 each. Typically, the yacht is ordered and customized to the buyer's specification. The Petitioner was responsible for supervising and directing work at Sykes Creek and reported to Kevin Shaw, his immediate supervisor. Mr. Shaw in turn reported to the plant manager, Steven Fielder. The Petitioner reviewed the work and attendance of approximately 21 hourly employees. When the Petitioner was hired (2007), the Sykes Creek facility produced 116 yachts and employed approximately 575 people. Within the Petitioner's department (engineering) there were 26 people; four others like Petitioner were salaried employees. The economic crunch that struck most of the nation drastically reduced the Respondent's business. In 2008 the Respondent instituted unpaid furloughs and layoffs due to the lack of business. By 2009 the economic condition in the industry had not improved. Accordingly, the Respondent had to make additional cuts to its staff. To that end, Mr. Fielder advised Mr. Shaw that the Petitioner's department would have to be cut to reduce the number of hourly employees and one salaried employee. To determine who should be cut, the Respondent looked to the number of years of service with the company and the skill set/education they provided for the facility. The Petitioner had the shortest length of service with the Respondent except for an employee named Julie Halesma. That person was not chosen for lay-off because she was a credentialed industrial engineer. The Petitioner did not have those credentials. The Petitioner was not offered a lower, hourly paid position because he did not have the skill set to perform the work as well as the hourly employees who were already doing the jobs. A number of employees were laid off the same day the Petitioner was dismissed. The Petitioner's job position was eliminated and has not, as of the date of hearing, been restored. The Respondent has continued to lay off workers. In 2009 the Sykes Creek facility was down to 175 employees. The engineering department was down to 15 people. Absent a return to more prosperous times, it is not expected that the facility will be able to rehire employees. The job tasks that the Petitioner performed are now shared by other employees at the facility. Throughout his time at the Sykes Creek facility, the Petitioner was allowed to take time off as needed to attend to medical issues. Based upon the frequency of the medical leave, the Respondent knew or should have known that the Petitioner's medical condition required monthly treatment. The extent of the medical treatment, however, was unknown to the Respondent. As a salaried employee the Petitioner did not have to "punch the clock." The Respondent allowed the Petitioner to complete his work as he might dictate so that he was free to leave the facility to attend to his medical needs. Clearly, the Respondent knew the Petitioner had had the heart transplant at the time of hiring but that medical condition did not impede the Petitioner's ability to perform his job assignments. The medical situation required that he be absent, but there is no indication that Petitioner could not perform his job. The cost of the Petitioner's medical care was unknown to the persons charged with making the lay-off decisions. The cost of the Petitioner's medical care played no part in the decision to eliminate the Petitioner's job. Similarly, the Petitioner's age did not play a part of the Respondent's decision to eliminate the Petitioner's job. The Respondent articulated legitimate business reasons for eliminating the Petitioner's job position. Clearly the Respondent knew of the Petitioner's age at the time of hiring. The Respondent did not replace the Petitioner with a younger employee. The Respondent's explanation for whom it chose to retain in employment was not based upon an employee's age but rather legitimate business interests. Episodes during which the Petitioner required medical attention at the facility did not rise to a level to cause the Respondent to be concerned for Petitioner's medical well-being. Incidents of the Petitioner being light headed or with low blood sugar did not cause the Respondent to seek to eliminate the Petitioner's job position.
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 no cause for an unlawful employment practice as alleged by the Petitioner, and dismissing his employment discrimination complaint. DONE AND ENTERED this 9th day of March, 2009, in Tallahassee, Leon County, Florida. S J. D. PARRISH 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 9th day of March, 2009. COPIES FURNISHED: Rolf J. Bierman 1035 Palmer Road Rockledge, Florida 32955 Brian W. Koji, Esquire Bona M. Kim, Esquire Allen, Norton & Blue, P.A. 324 South Hyde Park Avenue, Suite 225 Tampa, Florida 33606 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
