The Issue Whether the Motions for Rule Challenge Proceedings (referred to as Petition(s)) filed in each of the above-cited cases meet the requirements both in form and substance, pursuant to Subsection 120.56(4)(a), Florida Statutes (2004); Whether Respondent, Florida Commission on Human Relations (FCHR), has inherent authority to reconsider a Final Order it has issued; and Whether FCHR should adopt a rule which would permit the granting of a motion to reconsider a Final Order.
Findings Of Fact On August 17, 1992, Petitioner Donald filed a Charge of Discrimination alleging that Respondent Winn Dixie was guilty of an unlawful employment practice, to wit, racial discrimination in failure to "promote" Petitioner from a part-time position to a full-time position because he is black, the most recent non-promotion date being July 22, 1992. After investigation, the Florida Commission on Human Relations entered and mailed a Notice of Determination: No Cause and Determination: No Cause on March 23, 1993. That Notice contained the following pertinent language: If redetermination is not requested, the Request for Hearing/Petition for Relief must be filed within 30 days of the date of mailing of this Notice and should be in compliance with the provisions of Rule 22T-9.008 and Chapter 22T-8, Florida Administrative Code . . . Failure of Complainant to timely file either a request or petition will result in the dismissal of the complaint pursuant to Rule 22T-9.006, Florida Administrative Code. (See "Exhibit A" attached to, and incorporated in, this Recommended Order). Petitioner mailed his Petition for Relief and it was stamped in as filed at the Florida Commission on Human Relations on April 28, 1993. The Commission did not enter an order of dismissal or otherwise reject the petition as untimely. On May 5, 1993, the Commission transmitted the Petition to the Division of Administrative Hearings (DOAH) for formal hearing pursuant to Section 120.57(1), F.S. On May 5, 1993, and simultaneously with its transmittal of the Petition to DOAH, the Commission served/mailed the Petition to Respondent with a Notice to Respondent of Filing of Petition for Relief from an Unlawful Employment Practice. The Commission's transmittal of Petition had included a Notice to Respondent containing the following specific language: You are required to file an answer with the Commission within 20 days of the date of service of the Petition. Your attention is directed generally to Chapter 22T-8, Florida Administrative Code, which pertains to general procedures before the Commission. You are also referred to Rule 22T-9.008(5) which sets forth those matters which must be included in the Respondent's answer. Please note that the filing of a motion to dismiss does not toll the time for filing an answer. (See "Exhibit A" to this Recommended Order). On May 11, 1994, DOAH's Clerk mailed an Initial Order to both parties. The parties were charged by Rule 60Q-2.003(6), F.A.C. and by DOAH's Initial Order in this case with serving upon each other a copy of every pleading either party filed with DOAH. The Initial Order also permitted the parties to advise the undersigned hearing officer of dates and locations they preferred for scheduling the de novo evidentiary hearing on the merits. Petitioner responded to the Initial Order. Respondent did not. Respondent also filed no Answer to the Petition for Relief within 20 days as required by Rule 22T-9.008, F.A.C., [renumbered 60Y-5.008(5)(a), F.A.C.]. If a Respondent fails to file a timely answer, such failure shall be deemed to constitute an admission of the material facts alleged in the petition. See, renumbered Rule 60Y-5.008(5)(d) F.A.C. By DOAH Notice of Hearing mailed May 27, 1993, the cause was scheduled for formal hearing on the merits for October 18, 1993. Simultaneous with that Notice of Hearing, an Order of Prehearing Instructions was entered and mailed. The Order of Prehearing Instructions was directed to both parties and was very specific as to what was required of them, including but not limited to listing witnesses and exhibits, clarifying which issues of material fact were disputed, and listing any pending motions. A copy of the entire order is attached and incorporated in this Recommended Order by reference as "Exhibit B". A joint prehearing stipulation was not timely filed as required by the order of prehearing instructions, and neither party filed a unilateral statement on or before September 29, 1993 as permitted by the order of prehearing instructions. In short, neither party timely complied with the first Order of Prehearing Instructions. On October 1, 1993, certain unsigned, confusing, contradictory, and incomplete papers were filed. This filing, which turned out to be filed by Petitioner (see Finding of Fact 22) among other things requested that the hearing officer subpoena the listed witnesses, listed "stipulations" not signed by anyone, and listed motions never filed at DOAH. This ambiguous item not only was unsigned, but did not reflect who, if anyone, it had been served upon. Common practice and procedure require subpoenas to be sent by DOAH to a party for service by that party on witnesses, and subpoenas may not be served upon witnesses by the hearing officer. The October 1, 1993 filing prompted the entry and service upon both parties of an order on October 12, 1993 which had attached to it the unsigned filings of October 1, 1993. The October 12, 1993 order, with the unsigned and ambiguous attachments is attached and incorporated in this recommended order by reference as "Exhibit C". That order cancelled the October 18, 1993 formal hearing on the merits, subject to rescheduling of the formal hearing on the merits upon clarification of the unsigned papers filed. This order was entered instead of automatically precluding either party from presenting evidence, an option permitted by the prior Order of Prehearing Instructions. The order gave both parties an equal opportunity to do what was procedurally necessary to advance the case to formal hearing on the merits. The October 12, 1993 order granted both parties 45 days in which to confer with one another and file the joint prehearing stipulation contemplated by the prior order of prehearing instructions and to submit several agreeable dates for rescheduling formal hearing on the merits. In further pertinent part, the October 12, 1993 order provided that if a joint stipulation could not be agreed upon between the parties, they could still proceed to formal hearing on the merits by timely submitting unilateral statements listing their respective exhibits and witnesses. The order also went on to specifically provide as follows: Failure of either party to submit at least the names of witnesses to be called by that party and a list of exhibits to be introduced by that party will result in exclusion of that evidence at formal hearing in this cause. Under the terms of the October 12, 1993 order, the date for filing of unilateral witness and exhibit lists was November 26, 1993. Neither party timely filed witness or exhibit lists. On December 14, 1993, which was eighteen days after the last date for compliance with the October 12, 1993 order had passed with Petitioner and Respondent each failing to timely comply therewith, another order was entered. That order advised the parties that since, by the terms of the October 12, 1993 order, both parties were now precluded from presenting any evidence in support of, or contrary to, Petitioner's claim, it appeared that there was no need to conduct an evidentiary hearing. However, the order also granted the parties 30 days in which to show cause why Petitioner's Petition for Relief should not be dismissed for failure to comply with the October 12, 1993 order. A copy of the December 14, 1993 order is attached and incorporated in this recommended order as "Exhibit D". That same day, Petitioner filed a request for 22 blank subpoenas and to reschedule formal hearing, but no witness or exhibit list. A copy of this item is attached and incorporated in this recommended order by reference as "Exhibit E." The date for filing of responses to the December 14, 1993 order to show cause was January 13, 1994. Respondent did not file any response to the December 14, 1993 order or the December 14, 1993 pleading. 1/ However, on January 13, 1994, Petitioner timely filed a paper captioned "Pleadings Motions". This paper, a copy of which is attached and incorporated in this recommended order as "Exhibit F," was similar, but not identical to, the unsigned papers filed October 1, 1993. It again requested subpoenas be served by the hearing officer, listed names and addresses of potential witnesses, and requested that the case not be dismissed because Petitioner was without legal counsel and because it is "a very hard case". It specifically stated, "Please consider hearing my testimony and others on this matter." Petitioner's January 13, 1994 pleading could be read as a motion to allow Petitioner to testify and present witnesses and exhibits. In an abundance of caution, the undersigned mailed a copy of it to Respondent on January 18, 1994. Respondent did not file any response to Petitioner's January 13, 1994 pleading. As required by law, the undersigned had served Respondent with all DOAH orders and notices. Also, in an abundance of caution, the undersigned had served Respondent with Petitioner's January 13, 1994 pleading and the unsigned October 1, 1993 papers at the address of record for Respondent's "in-house" counsel, which name and address was provided in the Florida Commission on Human Relations referral papers. No documents were returned to the Division of Administrative Hearings, creating the legal presumption that all materials had been received by Respondent. Still, Respondent had failed to comply with any DOAH order whatsoever and for nine months had not taken any affirmative action to defend against the Petition for Relief. No Answer to the Petition for Relief, timely or otherwise, had ever been filed by Respondent. The record, as reviewed by the undersigned as of February 3, 1994, also indicated that Petitioner's original Charge of Discrimination before the Florida Commission on Human Relations had been directed to Respondent, not at a Jacksonville address, but at a Quincy address. Therefore, because the law and the undersigned are loathe to cut off any legitimate litigation, and in a further abundance of caution, the undersigned determined that Petitioner and Respondent should have one last opportunity to explain why they had not timely complied with prior orders and why, if at all, a formal hearing with witnesses and exhibits on the merits of the Petition for Relief should be rescheduled. To that end, and still in an abundance of caution, an order was entered on February 3, 1994, a copy of which order is attached and incorporated in this recommended order by reference as "Exhibit G". The decretal portion of that order read: A hearing on the limited issue of whether or not either party should be permitted to present evidence at a rescheduled formal hearing will be held at 10:00 a.m., March 1, 1994, at the Division of Administ- rative Hearings, the DeSoto Building, 1230 Apalachee Parkway, Tallahassee, Florida.* Witnesses need not appear at that time. Only parties or their legal counsel shall appear. Failure of Petitioner to appear in person or through legal counsel at that date, time and place WILL result in dismissal of this cause. Failure of Respondent to appear in person or through legal counsel at that date, time and place WILL result in the exclusion of all of Respondent's witnesses and evidence. 4. [sic] Whether or not a formal hearing on the merits will be rescheduled at all will be determined by an order entered after the undersigned has heard what the parties may have to say at the hearing now scheduled for March 1, 1994. (Emphasis in the original). Still in an abundance of caution, the foregoing order was served by the undersigned upon Respondent at both its Quincy and Jacksonville addresses. No court reporter was present at the March 1, 1994 interlocutory hearing. Petitioner appeared and represented himself at the March 1, 1994 hearing. Respondent's "in-house" counsel from Jacksonville did not appear at the Tallahassee hearing but authorized Winn-Dixie's District Manager W. E. Carroll and its Quincy Store Manager Terry Miller to appear. Mr. Carroll works in Tallahassee. Mr. Miller drove 23 miles from Quincy for the hearing. After examination by the undersigned in open court pursuant to Rule 60Q-2.008, F.A.C., Mr. Carroll was accepted as a qualified representative for Respondent. Inquiry was also made by the undersigned at the March 1, 1994 hearing as to any reason a formal hearing on the merits should be rescheduled. Each prior order and pleading 2/ was explored orally in open court. Oral argument was also invited as to why either party should be permitted to present evidence. Oral admissions and stipulations of the parties were received. At that hearing, Petitioner contended that he had not understood the prior orders and that the unsigned papers filed October 1, 1993 (see Findings of Fact 8-9 supra.) were his attempt to provide a witness list. Petitioner also contended that he thought he was represented by legal counsel at one point and to support that assertion, he presented a December 6, 1993 letter he had received from Legal Services of North Florida, Inc. The original of this letter (exhibit) is attached and incorporated in this recommended order as "Exhibit H". At that hearing, no clear explanation was given of why Respondent had failed to Answer the Petition for Relief and also had filed no response to any prior DOAH order or pleading by Petitioner. Still in an abundance of caution, and because the undersigned is loathe to enter defaults or impose sanctions at any time, each party was permitted 10 days after the March 1, 1994 formal hearing in which to file any further written clarification of the record or pleadings. Petitioner filed a response dated March 10, 1994 on March 10, 1994, but Respondent still filed no Answer to the Petition for Relief, despite numerous questions by the undersigned at the March 1, 1994 hearing concerning what facts asserted in the Petition for Relief were admitted and which were denied by Respondent and inquiring why no Answer had been filed by Respondent. On March 4, 1994, Respondent filed a written response dated March 3, 1994. A copy of Petitioner's March 10, 1994 response, without attachments, is attached and incorporated herein as "Exhibit I." A copy of Respondent's March 4, 1994 response, without attachments, is attached and incorporated herein as "Exhibit J." Respondent's March 4, 1994 letter ("Exhibit J") was directed primarily to providing the hearing officer with a history of settlement negotiations and copies of proposed settlement documents. This is a practice contrary to Section 90.408, F.S., The Florida Evidence Code. Respondent had filed no Motion to Dismiss the Petition for Relief and no Answer, and although by rule, even a motion to dismiss may not toll the 20 days provided by rule for Respondent to answer the Petition for Relief, Respondent's March 4, 1994 letter response also raised, for the first time, the untimeliness of the Petition for Relief as grounds to dismiss this cause. However, Respondent's March 4, 1994 allegations based on untimeliness of the Petition were not persuasive, in that the rule that Respondent cited in support thereof applied only to what the Florida Commission on Human Relations or its Executive Director may do either sua sponte or upon motion regarding Requests for Redetermination. The rule cited therein was inapplicable to the legal principle for which Respondent cited it. Therefore, Respondent's argument against the Petition was incorrect or incomplete. Also, due to the complexity of the several statutes and rules involved, ruling on the issue of untimeliness vel non of the Petition for Relief required the taking of factual evidence. For instance, there is a Commission rule which tolls the 30 days for filing the Petition if the Petitioner applies for, or the Commission grants, an extension of time for filing the Petition. Consequently, Petitioner was entitled to an opportunity to present all the facts concerning his filing of the Petition in response to the allegations of the Respondent's March 4, 1994 letter. The representations of Respondent's qualified representative at the March 1, 1994 hearing and the materials filed after that hearing by Respondent's "in house" counsel ("Exhibit J") did not show good cause why Respondent should be permitted to put on a defense by way of undisclosed oral testimony or exhibits. Likewise, Petitioner did not demonstrate by his oral argument, exhibit, and post-hearing response ("Exhibit I"), any legal good cause why his noncompliance with prior orders should be excused so as to permit him to call any witnesses or put in evidence any exhibits not disclosed to Respondent. More specifically, the date and contents of the December 6, 1993 letter to Petitioner from Legal Services (original is "Exhibit H" hereto) did not support Petitioner's oral assertions at the March 1, 1994 hearing that he had been represented in this case by legal counsel, had relied on a lawyer to meet his November 26, 1993 filing date, or that Legal Services' retention of his documents at a critical time had prevented his timely compliance with any of the prior orders herein. Accordingly, an order was entered on April 21, 1994. A complete copy of that order is attached and incorporated in this recommended order by reference as "Exhibit K". That order provided, in pertinent part, as follows: The representations of Respondent's qualified representative at the March 1, 1994 hearing and the materials filed after that hearing by Respondent's legal counsel have not shown good cause why Respondent should be permitted to put on a defense by way of undisclosed oral testimony or exhibits. Likewise, Petitioner has not demonstrated good cause why his noncompliance with prior orders should be excused so as to permit him to call any witnesses or put on any exhibits not disclosed to Respondent. However, since Petitioner clearly has always been an appropriate witness and his oral testimony could be reasonably anticipated by Respondent, a formal evidentiary hearing pursuant to Section 120.57(1) F.S. will be convened solely for the taking of Petitioner Donald's oral testimony, subject to cross examination by Respondent. Also, the materials filed by Respondent's counsel after the March 1, 1994 hearing state for the first time that Respondent believes the Petition for Relief is subject to discretionary dismissal for untimeliness, pursuant to Rule 22T-9.07 F.A.C. [new number, if one exists, was not given]. However, Respondent still did not see fit to put this observation or belief in the form of a motion. Jurisdictional issues may be raised at any time. The jurisdictional issue requires evidence to sustain a motion, if a motion is made. Should Respondent see fit to defend on that issue by motion and evidence, Respondent remains free to do. (Emphasis supplied) Simultaneous with the entry of the April 21, 1994 Order, a Notice of Hearing was mailed to the parties. It provided for a formal hearing on June 13, 1994 and stated the issues as: "As set forth in the order entered simultaneously herewith. [The only witness will be K.E. Donald.]" Despite the language employed in the April 21, 1994 order, which still permitted Respondent to assert the untimeliness of the petition for Relief as a bar or jurisdictional issue, Respondent did not file a written motion or submit supporting documentation (evidence) on that issue prior to the June 13, 1994 formal hearing. At formal hearing on June 13, 1994, Respondent moved orally to dismiss the Petition for Relief due to its late filing. Hearing Officer Composite "Exhibit A" was admitted in evidence. Hearing Officer Composite "Exhibit A" consisted of The Florida Human Relations Commission Transmittal of Petition (one page), Charge of Discrimination (one page), Petition for Relief (three pages), Notice of Determination: No Cause (two pages) and Determination of No Cause (two pages). The original of this composite exhibit as received in evidence at formal hearing is attached and incorporated in this recommended order as "Exhibit A" to this Recommended Order. At formal hearing, Petitioner testified that he had not moved the Florida Commission on Human Relations for an order extending his time to file his petition, no order extending time had been entered, and he had neither a postmark nor any clear recollection of the date he mailed his Petition to the Commission. If Florida Commission on Human Relations Rules 60Y-4.004, 60Y- 4.007(1), 60Y-4.008(2), F.A.C., are not applicable, the Petition for Relief should have been filed with the Commission on April 22, 1993, a Thursday, and was filed late by six days, since it was filed with the Commission on April 28, 1993, the following Wednesday. These foregoing rules provide that when a document is received by mail, the date of filing shall relate back to the date of the postmark, provide three days for mailing where notice is mailed, and provide an extra day for filing when the last day falls on a Saturday, Sunday, or legal holiday. If those rules apply, then the Petitioner's delay is shorter than six days or indeterminable. The Petition for Relief was admittedly received by Respondent's "in- house" counsel on or before May 6, 1993. Respondent was specifically asked by the undersigned hearing officer how the late filing of the Petition for Relief had prejudiced Respondent's position. Respondent asserted that Respondent could not have foreseen that Petitioner would ultimately have been permitted to testify on his own behalf, and that, but for the Petition for Relief being filed six days late, Respondent might have filed an answer, would not have assumed that the Petition was barred and would not have, due to a conflict in the rules, failed to respond to all pleadings and orders, might have secured "out of house" counsel, would not have expended the cost of trying to negotiate a settlement with Petitioner after the cancellation of the October 18, 1993 formal hearing, and would not have incurred "enormous expense" during the Florida Commission on Human Relations' investigatory phase, in sending Messrs. Carroll and Miller to the March 1, 1994 DOAH hearing, and in filing its only written materials on March 4, 1994. Since the investigatory phase before the Florida Commission on Human Relations predated that agency's March 23, 1993 Determination of No Cause and also predated the filing of the April 28, 1993 Petition for Relief, that portion of Respondent's argument related to incurring enormous expense is patently absurd, as is Respondent's assertion that Respondent could not have foreseen that Petitioner would be permitted to testify on his own behalf. The expense incurred by Respondent in having one layman travel twenty three miles to Tallahassee and the other travel across town to formal hearing, even considering the value of those gentlemen's time to the corporation, and in having "in-house" counsel file Respondent's March 4, 1994 letter is de minimus, and these expenses have no nexus to the lateness by six days of the April 28, 1993 Petition for Relief. Respondent failed to demonstrate how the filing of the Petition for Relief on April 28, 1993 instead of on April 22, 1993 could have reasonably prevented Respondent from filing an Answer within 20 days as required by Rule 22T-9.008(5), F.A.C., [now renumbered as 60Y-5.008(5), F.A.C.], and as specifically instructed by the Florida Commission on Human Relations in its Transmittal of the Petition to Respondent. (See Finding of Fact No. 4, supra and "Exhibit A"). Respondent also failed to demonstrate how, under the circumstances of the language contained in the Florida Commission on Human Relations Transmittal of Petition and the DOAH orders, Respondent could have been misled by conflicting language in Rules 22T-9.07 [now renumbered 60Y- 5.007(9) and (12)], 22T-9.08 [now renumbered 60Y-5.008(1) and (5)] and 60Q- 2.004(5), F.A.C., 3/ into not answering the Petition for Relief for more than thirteen months, indeed, never answering it, or how such circumstances prevented Respondent responding to other motions and orders or prevented Respondent from obtaining "out of house" counsel. Settlement negotiations are not cognizable by the trier of fact, are always undertaken at the parties' mutual risk, and have never been deemed sufficient to toll filing dates. See, Section 90.408, F.S. After Respondent had been given the opportunity to present any further evidence on its oral motion to dismiss the Petition for Relief, the oral motion to dismiss was taken under advisement for resolution in this Recommended Order. (See Conclusions of Law, infra.) Respondent then orally moved for clarification of the April 21, 1994 Notice of Hearing and Order Limiting Scope of Formal Hearing, which was resolved by rereading that order and notice into the record. Respondent next orally moved for leave to present witnesses, contrary to the decretal portion of the April 21, 1994 order. No good cause was shown to vacate the April 21, 1994 order limiting evidence. To permit Respondent to put on undisclosed witnesses while Petitioner was precluded from doing so after Petitioner had appeared at formal hearing believing that Respondent's failure to answer constituted an admission of the material facts alleged in the petition and Petitioner had come prepared only for direct and cross-examination of himself would be unduly prejudicial. The motion was denied. The facts that Rule 60Y-5.008(5)(d) F.A.C. presumes admitted under the unanswered Petition for Relief are those set out in the Petition itself. They are fully set out in "Exhibit A" hereto and provide, in part, as follows: "The company had followed discriminatory hiring assignment and promotion policies against minority group members on an equal basis with white people. My fourteenth amendment were [sic] violated. That white get hired off the street and get full time without any training, the first day. * * * Discriminatory hiring, firing, assignment and promotion policies against Negroes using their position and power to destroy black worker jobs in order to bestow them on white workers." ("Exhibit A") Petitioner's unrefuted testimony elaborated on the foregoing admitted facts to show that Respondent employed fifteen or more employees and that Petitioner, a black male, had been employed part-time for nearly four years by Respondent in its Quincy store managed by Mr. Terry Miller; Mr. Miller's assistant had hired Petitioner as a member of a truck unloading crew. Petitioner also showed that other white workers were hired off the street without job training for full-time positions. However, Petitioner was hired by Mr. Miller as a full-time employee effective June 9, 1994, four days before formal hearing. Petitioner admitted that at some time before June 9, 1994, he had been "written up" for not meeting the employer's dress code and appearance standards and had also been "written up" for not meeting the employer's performance standards of moving at least 45 cases per hour. Petitioner maintained, without refutation, that these "write-ups" were unwarranted, pretextual citations because he was black. Petitioner testified, without refutation, that on at least one occasion he was "written up" in a category that did not include his regular job duties. This admission is no different that the expanded allegations included in an attachment to the Petition ("Exhibit A"), all of which allegations have been admitted by Respondent by its failure to answer the Petition. Petitioner also conceded, upon cross-examination, that in July 1992 there were some black full-time associates in the Quincy store and that promotions have been based on job performance, not seniority. However, no similarity of these other black full-time employees' employment situations or job duties was drawn to compare with Petitioner's personal employment situation or job duties. Consequently, the "write-ups" of Petitioner are found to be pretextual reasons for the employer's refusal to promote him. No stipulation or order bifurcating damage evidence from evidence of discrimination was entered in this case. Petitioner asserted that he was entitled to "compensation" from July 22, 1992 to June 9, 1994, but he presented no evidence of his pay rate per hour in either the full time or part time positions, nor any other nexus upon which lost compensation damages could be calculated. There also is no record evidence of what increases and/or decreases occurred in pay, pay rate, or emoluments for either position over that period of time. Likewise, there is no record evidence of how many hours Petitioner worked or could have worked in either the part-time or full-time position so that damages based on a pay differential can be calculated. Respondent orally moved to dismiss for failure of Petitioner to state a prima facie case. That motion was also taken under advisement for resolution in this Recommended Order.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is RECOMMENDED That the Florida Commission on Human Relations enter a final order FINDING: That Petitioner has shown a prima facie violation of the Human Rights Act of 1977, Section 760.10 F.S. [1989], to wit: failure of a covered employer to "promote" Petitioner-employee to a full-time position because he is black; That Respondent has articulated, but has not substantiated, legitimate nondiscriminatory reasons for the actions complained of; and That Petitioner has shown the articulated reasons to be pretextual; AND ORDERING: That Respondent employ Petitioner in a full-time position. RECOMMENDED this 15th day of August, 1994, at Tallahassee, Florida. ELLA JANE P. DAVIS 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 15th day of August, 1994.
The Issue Whether Petitioner should be granted the exemption from disqualification from employment that she is seeking.
Findings Of Fact Based upon the evidence adduced at hearing and the record as a whole, the following findings of fact are made: Petitioner is now, and has been since 1992, a Florida- certified nursing assistant (CNA). She presently works part-time as a CNA for Quality Care Nursing Services, Inc., and is attending school (Sheridan Vocational School) to become a licensed practical nurse. In August of 1994, Petitioner was the owner/administrator of Arianism Home, an Adult Congregate Living Facility,3 located at her residence at 741 Northeast 177th Street in Miami, Florida (Petitioner's ACLF). She had a standard license issued by Respondent to operate her ACLF. The license had an effective date of March 20, 1994, and an expiration date of March 19, 1996. It allowed her to house a maximum of six residents at the facility at any one time. At the time (August of 1994), Petitioner shared her residence with her then 18-year-old daughter, Demetri Kinchen, and Ms. Kinchen's two young children. Ms. Kinchen helped Petitioner operate the ACLF. Also assisting Petitioner was a paid employee, Larome Hall, who, in August of 1994, was 21 years of age. Petitioner also owned the residential structure and property located adjacent to her ACLF (at 751 Northeast 177th Street). During the period that her license was in effect, Petitioner had at least six residents at her ACLF at all times. The residents suffered from mental disorders and received social security disability income and optional state supplementation (OSS) benefits. Although Petitioner had a standard license and not a limited mental health license, she received payments from the state (OSS payments) for these residents (notwithstanding that a limited mental health license was required in order to receive such payments for these residents). Because of their mental illness, the residents of Petitioner's ACLF needed to be supervised 24 hours a day, seven days a week. On August 8, 1994, a neighbor of Petitioner's reported to the Department of Health and Rehabilitative Services (HRS) that the residents of Petitioner's ACLF were receiving inadequate supervision. According to the reporter, residents of the ACLF had knocked on the reporter's door "many times" during the day and "as late as 10:00 or 11:00 p.m.," and, the day before, one resident, S. K., came to the reporter's door "bleeding from both legs, her elbow and her face" and told the reporter that she (S. K.) had been "hit by a car." At the time of the accident, Petitioner was away from the facility. She had gone shopping, leaving the task of supervising the residents to Ms. Kinchen and Mr. Hall, neither of whom, it appears, had received the requisite training to fulfill this responsibility.4 The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-073142) and investigated by Jeanette Henad, a protective services investigator for HRS. As part of her investigation, Ms. Henad visited Petitioner's ACLF and conducted several interviews. In the written "investigative decision summary" (IDS) Ms. Henad prepared following the conclusion of her investigation, she described, as follows, the "observations" she made during her visit: All residents were interviewed, 7 clients in 751 NE 177th Street and 4 clients in 741 [NE 177th Street] as follows: S. K.; C. W.; T. M.; and L. S. The four above stated clients were found in 741. Daughter of Cynthia Lee, Demetri[] [Kinchen] and Demetri's 2 month old baby w[ere] located in 751. There was no one available in 741. In 751 the home had a lock on the refrigerator and lunch was observed, but the lunch was not what was posted on the menu. Medication book was observed but the last medication entry was for 8/2/94 and it was now 8/9/94. Home met minimal standards of cleanliness and there was food available for human consumption. . . . . Ms. Henad's IDS reflected that Ms. Kinchen had made the following "statements" when interviewed: My mother is not here right now; 2) I am taking care of the clients; 3) Most of the clients from 741 come over here during the day. Most of the clients come and go as they please; 4) Larome Hall administers the medications but he is not here right now. He administers the meds twice a day; 5) All of the clients like it here. We get our clients from Locktown, and other agencies; 6) I know that the medications have been given. I do not know why the med book is not updated; 7) If clients refuse to take their medications, it is noted and client's physician is notified; 8) The clients take care of themselves. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS: Case is proposed confirmed; 2) Maltreatment of neglect verified. Although no harm came to any individual involved, technically according to the alleg. matrix, neglect due to lack of supervision must be verified. Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 073142 was classified as confirmed, with Petitioner named as the perpetrator. On August 17, 1994, HRS received a second report of inadequate supervision at Petitioner's ACLF. This report was from an employee of Respondent's Quality Assurance and Licensing unit, who advised that there were four mentally ill "clients" of Petitioner in the residential structure located on the property adjacent to the ACLF (at 751 Northeast 177th Street) and that these clients were "not being supervised." According to the reporter, Ms. Kinchen, along with her two children, were "next door" at 741 Northeast 177th Street. Petitioner, once again, had gone shopping and was not present at either the 741 Northeast 177th Street location or the 751 Northeast 177th Street location. The reporter's report was assigned a Florida Protective Services System (FPSS) Report Number (94-076483). Ms. Henad was delegated the task of investigating this report as well. As part of her investigation, she paid a return visit to the facility and, as she had done as part of her earlier investigation, conducted several interviews. In the IDS she prepared following the conclusion of her investigation of this second report, Ms. Henad described, as follows, the "observations" she made during her return visit to the facility: All four clients were observed in the home located next to the ACLF which is licensed. Cynthia Lee escorted [the protective investigator] to the location of 741 NE 177th Street. Home was clean, and clients appeared appropriately dressed. Clients assessed level of risk is intermediate due to the lack of supervision. . . . Ms. Henad's IDS reflected that Petitioner had made the following "statements" when interviewed: The clients usually come to 751; 2) Larome Hall is sometimes with them; 3) The clients are allowed to come and go as they please; 4) I usually am in 751 but I check on the clients on a regular basis; 5) The clients have been with me for a long time and I take good care of them; 6) 741 is not licensed but I have applied for a license;5 7) I am licensed for 76 but I have 10 clients; 8) I get my clients from Locktown and other mental facilities. Based upon her investigation, Ms. Henad made the following "findings," which were set forth in her IDS: Case is proposed confirmed; 2) Maltreatment of neglect verified; 3) Unsupervised caretaker present: Verified; although no harm came to any individual involved, according to the allegation matrix, due to lack of supervision, must be verified; . . . Petitioner requested that this proposed confirmed report of adult neglect be expunged. Her expunction request was denied on May 2, 1995. She did not, because of monetary considerations, request an administrative hearing on the matter. Accordingly, in the "Final Report of Investigation" produced by HRS (which incorporated Ms. Henad's IDS), FPSS Report Number 94- 076483 was classified as confirmed, with Petitioner named as the perpetrator. Petitioner's license to operate her ACLF expired on March 19, 1996. Her application to renew her license was denied because of the two confirmed reports of adult neglect (FPSS Report Number 94-073142 and FPSS Report Number 94-076483) in which she had been named the perpetrator.7 Petitioner has nonetheless continued to operate her ACLF. In August of 1998, Petitioner was arrested and charged, in Dade County Circuit Case Number F98029861, with operating a nursing facility without a license. On October 22, 1998, she pled no contest to the charge and was placed on probation for two years and ordered to pay $1,000.00 to the Adult Emergency Trust Fund. Adjudication of guilt was withheld. While Petitioner may be "of good moral character" and "not represent a danger to the health, safety, and welfare of the patients while working as a CNA" (as Respondent has determined, as reflected in its May 25, 1999, letter to Petitioner8), it has not been demonstrated that, subsequent to the incidents described in FPSS Report Number 94-073142 and FPSS Report Number 94-076483, Petitioner has taken any measures (such as undergoing additional training related to the operation and maintenance of an Assisted Living Facility) designed to make her a better educated and more responsible Assisted Living Facility administrator who can be counted on to discharge the supervisory responsibilities of that position in a manner that does not place residents at risk.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent issue a final order denying Petitioner's request that she be granted an exemption that would allow her to be employed as an Assisted Living Facility administrator. DONE AND ENTERED this 12th day of May, 2000, in Tallahassee, Leon County, Florida. STUART M. LERNER 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 May, 2000.
Findings Of Fact On February 19, 1993, Respondent, AHCA, published in the Florida Administrative Weekly, Volume 19, No. 7 at Page 859, a request for proposal "to provide identification and recoupment of medicaid overpayments to hospital vendors for the period prior to January 19, 1991." The RFP noted that all determinations or identification must be made and provided to the Department within sixty (60) days of the date of contract signing. The RFP provided that all proposals were to be provided no later than 3:00 p.m. on March 19, 1993. In the RFP, the Department "reserved the right to reject any and all proposals." The RFP generated four (4) bids (proposals) of which Petitioner submitted one. Petitioner's proposal was discussed by AHCA who in turn consulted with the United States Attorney for the Northern District of Florida for an opinion. Petitioner's proposal was reviewed with Gary Clark, the Assistant Secretary for Medicaid, and Terry Flynn, an Assistant United States Attorney in Florida. Petitioner's proposal to AHCA proposed to the Department of Health Rehabilitative Services' medicaid unit that, for a forty percent (40 percent) finders' fee, they would identify and recover medicaid overpayments made to certain unnamed hospitals which had been stockpiling funds in the event that the overpayments were discovered by medicaid. Approximately 55 percent of Florida's medicaid funds comes from the federal government. Assistant Secretary Clark requested a written opinion from the United States Attorney from the Northern District (of Florida). By letter dated April 12, 1993, the United States Attorney's Office for the Northern District formalized its opposition to such a contract for the following reasons: Title 31, U.S. States Code, Section 3730 allows for qui tam actions to be initiated by individuals. Should the federal government elect to pursue the qui tam action, the individuals who provide evidence to initiate the action can be awarded up to ten percent (10 percent) of proceeds recovered. (In recovery actions under the Federal Tort Claims Act, damages can be assessed in the amount of triple the face amount of false claims). If the federal government does not elect to pursue the qui tam action, the individual may pursue the case on its own and can be awarded up to twenty percent (20 percent) of the proceeds. The U.S. Attorney's Office inquired of Petitioner the source of their knowledge of overpayments. They refused to disclose. The U.S. Attorney's Office officials questioned whether the proposers had any civil or criminal liability and whether they were knowing participants in obtaining medicaid overpayments for any such hospital. The U.S. Attorney opined that it would be inappropriate for AHCA to enter into such a proposal. The conclusion was buttressed by the fact that the State of Florida was without authority to bind the federal government with such agreement as it would not preclude a federal grand jury from subpoenaing necessary evidence and testimony nor would it preclude the U.S. Attorney's Office from prosecuting civil and criminal violations which might surface from information gleaned from the proposal. Based on the U.S. Attorney's Office opposition, as related to AHCA, and Respondent's inability to determine whether or not the proposers had any civil or criminal liability, either state or federal, AHCA made the decision to reject any and all bids submitted in response to the RFP. The notice of rejection of all bids by AHCA was served on all parties on April 19, 1993. That notice was also posted at the site of the bid letting. In addition to rejecting all proposals, the RFP was withdrawn and negotiations with all proposers were suspended. Throughout the RFP, which was prepared by Karen Kutrer, a planner for AHCA, AHCA reserved the right to reject any and all proposals. Some of these reservations are set forth on pages 10, 11 and 23 of the RFP. Subsequent to the rejection of all bids by AHCA, the U.S. Attorney's Office advised AHCA that it was no longer opposing such a contract although it was still uncertain whether the proposers had "clean hands." AHCA further discussed the matter with its staff but decided that it would no longer initiate proposals pursuant to the subject RFP and declined to negotiate further with the proposers based on its determination that it was not in the agency's best interest to enter into such an agreement with proposers like Petitioner. This was done since it could not grant any immunity from prosecution in the event that the proposals provided the source for civil or criminal prosecution. AHCA also determined that the Petitioner had other alternatives, i.e., they could initiate qui tam actions on their own.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that: Respondent (AHCA) enter a Final Order rejecting Petitioner's bid protest filed herein. DONE AND ENTERED this 8th day of November, 1993, 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 8th day of November, 1993. COPIES FURNISHED: Roger Maas, Esquire Senior Attorney 1317 Winewood Boulevard Building 6, Room 271 Tallahassee, Florida 32399-0700 Richard K. Slavin Project Director 1400 Miami Gardens Drive, #210 North Miami Beach, Florida 33179 Sam Power, Agency Clerk Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303 Douglas M. Cook, Director Agency for Health Care Administration 2727 Mahan Drive Tallahassee, Florida 32308 Harold D. Lewis, Esquire Agency for Health Care Administration The Atrium, Suite 301 325 John Knox Road Tallahassee, Florida 32303
Recommendation Upon consideration, it is RECOMMENDED: That a final order be entered which denies the license renewal for Morris Manor to operate as an Assisted Living Facility. DONE AND ENTERED this 19th day of May, 1999, in Tallahassee, Leon County, Florida. 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 May, 1999. COPIES FURNISHED: Thomas W. Caufman, Esquire Agency for Health Care Administration 6800 North Dale Mabry Highway 220 Tampa, Florida 33614 Wilhelmena Morris, Administrator Morris Manor Post Office box 309 Ocklawaha, Florida 32179 Sam Power, Agency Clerk Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308 Paul J. Martin, General Counsel Agency for Health Care Administration Fort Knox Building 3, Suite 3431 2727 Mahan Drive Tallahassee, Florida 32308
The Issue Whether this cause is barred by a release of all claims.
Findings Of Fact On January 16, 2019, on her last day of employment with Respondent, Petitioner executed a General Release. Petitioner does not dispute that she signed the General Release, which states, in pertinent part: I knowingly and voluntarily release and forever discharge [Respondent] of and from any and all claims, known and unknown, anticipated and unanticipated, asserted and unasserted, which I have or may have against the [Respondent] as of the date of execution of this General Release. These released claims include, but are not limited to, any alleged violation of ... Title VII of the Civil Rights Act of 1964; the Americans with Disabilities Act; the Age Discrimination in Employment Act; the Family and Medical Leave Act; ... [and] the Florida Civil Rights Act[.] * * * By signing below, I am knowingly and freely waiving and releasing all claims I may have against the [Respondent]. I further affirm I have been given a sufficient amount of time to consider whether to sign this General Release. The subject complaint of discrimination was brought by Petitioner, after she signed the General Release, pursuant to the FCRA, which is specifically referenced as a released claim in the General Release. By executing the General Release, Petitioner released Respondent from the claims that were the basis for her complaint of discrimination. Petitioner asserts that the General Release was signed under duress, she did not give up her rights because she had not yet received her final paycheck or belongings, and that there is no proof that she received consideration for signing the general release.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a Final Order dismissing Kathy L. McKethan’s Petition for Relief due to a lack of jurisdiction. DONE AND ENTERED this 28th day of October, 2020, in Tallahassee, Leon County, Florida. S JODI-ANN V. LIVINGSTONE 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 28th day of October, 2020. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399-7020 (eServed) Keith L. Hammond, Esquire Law Office of Keith L. Hammond, P.A. Post Office Box 547873 Orlando, Florida 32854 (eServed) Kathy McKethan Post Office Box 953304 Lake Mary, Florida 32795 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 1075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
The Issue The issue in this case is whether the Petition for Relief, charging the Respondent with illegal discrimination on the basis of a perceived handicap (a history of back surgery and mild hypertension), should be granted.
Findings Of Fact On or about April 30, 1991, the Petitioner, Malcolm L. Deane, II, applied for a job as a tanker driver with the Respondent, Fleet Transport Company, Inc., at its Tampa, Florida, terminal. Tankers transport gasoline, which is classified as a hazardous material. The Respondent hired the Petitioner, who had extensive tanker experience, conditioned on passing the physical and written examinations required by the Florida Department of Transportation (the DOT). He passed the written examination. The Respondent's physician examined the Petitioner and determined that the Petitioner had mild hypertension, which the Petitioner believes was caused by stress in his personal life at the time. Under DOT guidelines, a systolic blood pressure reading of between 161 and 180, or a diastolic blood pressure reading of between 91 and 104, is considered mild hypertension. The Petitioner's blood pressure was 140/104. In accordance with DOT regulations, the physician qualified the Petitioner to drive a tanker for three months, during which time the Petitioner would be required to reduce his blood pressure to 160/90, or better, in order to continue to be qualified, physically, to drive a tanker. The Respondent's physician also prepared a medical report of his examination of the Petitioner. In it, he not only reported the Petitioner's mild hypertension, he also reported that the Petitioner had back surgery January 3, 1991, which was "O.K. now," and made the comment: "I advise Mr. Malcolm [sic] to refrain from doing heavy lifting due to his recent back surgery." After the Petitioner's back surgery, the Petitioner successfully attended an eight-week back school and was released by his physician on or about March 6, 1991, to return to work driving a truck full-time with no restrictions. Once the Petitioner received his three-month Medical Examiner's Certificate, the Respondent hired him. He started training, with another driver, on May 1, 1991. Training continued on May 2, 3 and 4, 1991. After a day off, the Petitioner began working solo. He worked May 6, was off the next day, worked May 8 and 9, was off the weekend of May 10-12, and worked May 13 through 21, at which point he was "out of hours" for the month under DOT regulations and was required to take off. Throughout his work with the Respondent, the Petitioner's work was satisfactory and merited commendations and exhortations to keep up the good work. Neither his mild hypertension nor his back hampered his ability to perform the work in any way. At the end of the work day on May 21, 1991, the Respondent's terminal manager approached the Petitioner to tell him that the Respondent was terminating his employment. The manager conceded that the Petitioner's work had been excellent but that the company considered him a medical risk the company could not afford to take, due to the mild hypertension and the prior back surgery. The Petitioner was able to confirm through others in the company what the terminal manager had told him. The Respondent pays its drivers between $500 and $550 a week. The Petitioner was unemployed for four weeks after the Respondent terminated him. (He did not collect unemployment compensation.) He then got a job as a heavy equipment operator for a landfill, making $330 a week. Under the circumstances of his discharge, he does not seek to be rehired by the Respondent. He believes that his discharge by the Respondent has made it impossible for him to be hired by any other company as a tanker driver. On or about August 30, 1991, the Respondent (and other related companies) filed a petition for relief under Chapter 11 of the federal Bankruptcy Code and became a protected debtor in possession. Creditors were given notice of commencement of the proceeding and notice of the possible operation of Section 362 of the Bankruptcy Code (which prohibits some creditors from taking certain actions against a debtor in possession).
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is recommended that the Florida Commission on Human Relations enter a final order granting the Petition for Relief filed in this case, prohibiting the Respondent from the practice of discriminating against the Petitioner on the basis of a perceived handicap, and requiring the Respondent to pay the Petitioner $2,000. RECOMMENDED this 26th day of March, 1993, in Tallahassee, Florida. J. LAWRENCE JOHNSTON 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 26th day of March, 1993. COPIES FURNISHED: Malcolm L. Deane, II 727 Brook Street Largo, Florida 34640 Norman Block, Esquire Spengler Carlson Gubar Brodsky & Frischling 520 Madison Avenue New York, New York 10022 Ronald M. McElrath Executive Director Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Dana Baird, Esquire General Counsel Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570 Margaret Jones Clerk Human Relations Commission 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32399-1570
