The Issue Whether Petitioner’s request for extension of deadlines relating to Certificate of Need (CON) Nos. 10176 and 10231, and Exemption No. E140013 was timely filed, pursuant to Florida Administrative Code Rule 59C-1.018(3), and section 408.040(2)(c), Florida Statutes.1/
Findings Of Fact AHCA is the state agency responsible for administering the CON program, and is delegated authority to regulate and monitor CONs in the State of Florida, pursuant to the Health Facility and Services Development Act, sections 408.031-045. Delray Group, LLC, is the holder of CON Nos. 10176 and 10231, and Exemption No. E140013 On September 21, 2017, AHCA issued a letter to Delray granting their extension request submitted September 15, 2017. The letter stated that the request extended the termination date to December 1, 2017, unless another extension request was submitted to the Agency by November 16, 2017. On November 17, 2017, AHCA was hand-delivered a letter, dated November 16, 2017, requesting another extension for CON Nos. 10176 and 10231, and Exemption No. E140013. The letter stated that “this request is timely and in accordance with Subsection 408.040(2)(c), Fla. Stat. and Section 59C-1.018(3), F.A.C.” The letter bears a stamp marked “Hand Delivery, Received November 17, 2017 CON.” AHCA’s Building 1 Visitor’s Log, containing dates ranging from November 15, 2017 through November 27, 2017, shows the authorized representative for Delray, Tracy Merritt, as signing into the building on November 15, 2017, and on November 17, 2017. On November 17, 2017, AHCA responded to the request for extension by certified mail, denying the request for failure to timely file in accordance with section 408.040(2)(c), and rule 59C-1.1018(3) (2016). In a sworn affidavit, Marisol Finch, the supervisor of the CON and Commercial Managed Care Units for AHCA, testified as to the circumstances of her receipt of Delray’s request for extension. Ms. Fitch asserted that the request was denied based on her knowledge of the previous request for extension and her understanding that the new CON termination date was December 1, 2017, and the deadline for requesting another extension was November 16, 2017.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Agency for Health Care Administration enter a final order finding that Delray’s request for extension was not timely filed and that CON Nos. 10176 and 10231, and Exemption No. E140013 are now terminated by operation of law. DONE AND ENTERED this 21st day of June, 2018, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 21st day of June, 2018.
The Issue Whether Petitioner is lawfully entitled to work in a position designated by law as a position of trust or responsibility.
Findings Of Fact Petitioner is a twenty-five year old woman who resides in Chattahoochee, Florida. The Department is the state agency responsible for receiving, evaluating, and approving or denying applications for exemptions from disqualification to hold a position of trust, with regard to child care and developmentally disabled adults. The Department must screen persons working in child care and with developmentally disabled adults. When Petitioner was screened it was determined that she had committed three serious felonies when she was subject to the jurisdiction of the juvenile court. The evidence of record indicated that Petitioner committed the following offenses when a juvenile: On May 12, 1992, Petitioner was charged with an aggravated battery. She was accused of attacking another juvenile with a broken Coca Cola bottle. On June 26, 1992, she admitted the allegation. The court did not adjudicate Petitioner a delinquent but did place her in the "JASP" program and required school attendance and 20 hours of community service. On May 11, 1994, Petitioner was charged with another aggravated battery. She was accused of attacking an individual with a razor box cutter. She pled nolo contendere in juvenile court and was ordered to commit no further violations, attend school, and keep away from weapons. On June 8, 1994, Petitioner was charged in juvenile court with grand theft. This charge arose out of the theft of more than $300 from the premises of a Wal-Mart store. She again pled nolo contendere in juvenile court and once more was ordered to commit no further violations, attend school, and keep away from weapons. Petitioner presented a letter from Jerome Bryant, of Quincy, Florida, who is Petitioner's uncle. He noted that Petitioner has overcome her prior problems and is on the right track. Petitioner also completed a home health aide course on December 18, 1996; a child care training course given by Early Childhood Services, Inc. on May 17, 1997; a Parenting Young Children Program given by the Florida Cooperative Extension Service on May 21, 2002; and attended 12 sessions of the New Hope Intervention Program for Domestic Violence ending on May 28, 2002.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is RECOMMENDED: That a final order be entered which dismisses Petitioner's Petition. DONE AND ENTERED this 18th day of June, 2002, in Tallahassee, Leon County, Florida. 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 18th day of June, 2002. COPIES FURNISHED: Jaisy Bell Billins 424 Line Street, Apartment D-5 Chattahoochee, Florida 32324 John R. Perry, Esquire Department of Children and Family Services 2639 North Monroe Street Building A, Suite 104 Tallahassee, Florida 32399-2949 Katherine A. Kearney, Secretary Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 202 Tallahassee, Florida 32399-0700 Josie Tomayo, General Counsel Department of Children and Family Services 1317 Winewood Boulevard Building 1, Room 204 Tallahassee, Florida 32399-0700 Peggy Sanford, Agency Clerk Department of Children and Family Services 1317 Winewood Boulevard Building 2, Room 204B Tallahassee, Florida 32399-0700
The Issue The issue is whether the Petitioner has forfeited her rights and benefits under the Florida Retirement System (FRS).
Findings Of Fact The FRS is a public retirement system as defined by Florida law. The Respondent is the Florida agency responsible for management and operation of the FRS. At all times material to this case, the Petitioner was employed as a teacher by the Brevard County School Board (BCSB). The BCSB is an FRS-participating employer. Because of her employment, the Petitioner was enrolled in the FRS. On or about June 25, 2008, the Petitioner was arrested and charged with the following offenses: Twenty counts of unlawful sexual activity with a minor, a second degree felony, in violation of Section 794.05(1), Florida Statutes; One count of lewd or lascivious conduct, a second degree felony, in violation of Section 800.04(6)(a)1., Florida Statutes; One count of lewd or lascivious exhibition, a second degree felony, in violation of Section 800.04(7)(a), Florida Statutes; One count of lewd or lascivious molestation, a second degree felony, in violation of Section 800.04(5)(c), Florida Statutes; One count of lewd or lascivious battery, a second degree felony, in violation of Section 800.04(4)(a), Florida Statutes; and One count of delivery of cannabis to a minor, a second degree felony, in violation of Section 893.13(4)(a)-(d), Florida Statutes. The victim of the alleged crimes was a male who had been temporarily incarcerated at the Brevard Regional Juvenile Detention Center (Center). As an employee of the BCSB, the Petitioner taught science, English, and health education to detainees incarcerated at the Center. The victim was a student in the Petitioner's classroom during his incarceration at the Center. The Petitioner engaged in sexual activity with the victim between May 16, 2008, and June 19, 2008, after the victim had been discharged from the Center. The evidence fails to establish the manner in which the Petitioner and the victim made initial contact after his discharge from the Center. There is no evidence that the Petitioner was coerced or required to engage in sexual activity with the victim. On at least one occasion, the sexual activity occurred in the Petitioner's home. On July 7, 2008, the BCSB commenced proceedings to terminate the Petitioner's employment as a teacher. On July 14, 2008, the Petitioner resigned from her employment with the BCSB. In February 2010, the Petitioner executed an agreement to plead guilty to three counts of unlawful sexual activity with a minor, a second degree felony, in violation of section 794.05(1), Florida Statutes, and one count of making a false report to law enforcement officers, a first degree misdemeanor, in violation of section 837.05(1), Florida Statutes. On February 7, 2011, the Petitioner's plea agreement was filed in court, and the Petitioner was adjudicated guilty. The BCSB thereafter referred the matter to the Florida Department of Education, Office of Professional Practices. As a teacher, the Petitioner was subject to jurisdiction of the Education Practices Commission, pursuant to section 1012.795, Florida Statutes, and was required to comply with the Code of Ethics for the Education Profession in Florida (Code of Ethics) and with the Principles of Professional Conduct for the Education Profession in Florida (Principles of Professional Conduct). The Petitioner was an authority figure to her students at the Center. According to the Principles of Professional Conduct, she had an obligation to protect students from conditions harmful to learning and harmful to their health and safety and an obligation to refrain from exploiting a relationship with a student for personal gain or advantage. On May 11, 2011, the Florida commissioner of education filed an Administrative Complaint before the Education Practices Commission alleging that the Petitioner had violated provisions of the Code of Ethics and the Principles of Professional Conduct and seeking to impose a disciplinary penalty against the Petitioner's educator's certificate. On December 14, 2011, the Petitioner surrendered her educator's certificate for permanent revocation. On January 5, 2012, the Education Practices Commission issued a Final Order permanently revoking the Petitioner's educator's certificate. When the Petitioner was charged with the crimes referenced herein, the Respondent suspended the Petitioner's FRS rights and benefits and provided proper notice of the suspension to the Petitioner. After the Petitioner was adjudicated guilty, the Respondent notified Petitioner that her FRS rights and benefits had been forfeited as a result of the plea. The Petitioner timely requested an administrative hearing to challenge the suspension and forfeiture. The Petitioner has not retired from the FRS and is not receiving FRS retirement benefits.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a final order finding that the Petitioner was convicted of a specified offense pursuant to section 112.3173 and directing the forfeiture of her FRS rights and benefits. DONE AND ENTERED this 3rd day of December, 2012, in Tallahassee, Leon County, Florida. S WILLIAM F. QUATTLEBAUM 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 3rd day of December, 2012. COPIES FURNISHED: Geoffrey M. Christian, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Charles L. Handlin, Esquire Handlin and Hefferan, P.A. 12 North Summerlin Avenue Orlando, Florida 32801 Sarabeth Snuggs, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Jason Dimitris, General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
The Issue The issue is whether, pursuant to section 112.3173, Florida Statutes (2017),1/ Petitioner forfeited his Florida Retirement System Investment Plan account after he was found guilty by a jury of conspiracy to commit first degree murder.
Findings Of Fact The Florida Retirement System (FRS) is a public retirement system as defined by Florida law. See § 121.021(3), Fla. Stat. Petitioner was a state employee and a special risk class member of the FRS. Work History Petitioner was a 20-year DOC employee. Since 2004, he served as a sergeant at the Reception and Medical Center at Lake Butler, Florida (Center). A sergeant is a supervisory position whose duties include the “care, custody and control of inmates.” Retaliating against an inmate is a violation of DOC policy and the oath administered to correction officers.2/ Witnessing or having knowledge of a DOC officer’s conspiracy to murder a former inmate, and failing to report that conspiracy would also be a violation of a DOC sergeant’s duties. As explained by Petitioner, such conduct would be, “outside the guidelines. That’s not the rules. That’s not what [a DOC sergeant is] supposed to do.” Underlying Crime On August 4, 2013, Thomas Driver, a DOC corrections officer who worked at the Center at the same time as Petitioner, was involved in an altercation with an inmate (referred to as Mr. Williams). During that altercation Mr. Williams bit Mr. Driver. Charles Newcomb was a former DOC employee who knew Petitioner from the Center and also about Mr. Driver’s incident with Mr. Williams. All of the DOC employees at the Center knew about the incident between Mr. Williams and Mr. Driver. Based on information they gathered from working at the Center, Mr. Driver, Mr. Newcomb and Petitioner (collectively referred to as the conspirators) believed Mr. Williams had a contagious medical condition and intentionally bit Mr. Driver to infect him. After the incident Mr. Driver was subject to treatment for a possible infection. Mr. Williams was African-American. Although their race is not apparent from the record, in December 2014, the conspirators were members of a local chapter KKK. Joe Moore, served as a Knighthawk for the KKK. A Knighthawk is the person responsible for security at KKK events and traditionally is responsible for the security and protection of the KKK Grand Dragon (the leader of the local KKK chapter). Petitioner and his fellow KKK members (also referred to as “klansmen”) knew that Mr. Moore was a veteran and had training as a sniper. Unbeknownst to the conspirators, however, Mr. Moore was a undercover informant for the Federal Bureau of Investigations (FBI). Although Mr. Newcomb and Mr. Driver referred to each other and Mr. Moore as “Brother,” they referred to and addressed Petitioner as “Sarge” based on his position as a DOC sergeant at the Center. On December 6, 2014, Mr. Driver and Petitioner approached Mr. Moore at a KKK event. As they spoke, Mr. Newcomb stood nearby to ensure that the other klansmen would not interrupt or overhear the conversation. Mr. Driver and Petitioner showed Mr. Moore a picture of an African-American male. The picture was on an 8” x 10” piece of paper that looked as if it had been printed from a database. It was apparent to Mr. Moore at the time that it was a picture of an inmate. After speaking with Petitioner and Mr. Driver, Mr. Moore believed they wanted his help to harm or kill Mr. Williams. Mr. Moore immediately notified the FBI of his conversation with Petitioner and Mr. Driver. At the FBI’s request, Mr. Moore began wearing a microphone and secretly, but legally, taping and transmitting his conversations with the conspirators. Eventually, it was confirmed that the conspirators wanted Mr. Williams put “six-feet under.” Mr. Driver explained to Mr. Moore the graphic nature of the altercation, his subsequent blood treatment as a result of Mr. Williams’ attack, and the fact Mr. Williams served very little time for the attack before he was released on probation. Mr. Driver clearly wanted revenge. Mr. Driver: Yeah, it pissed me off. If I could I’d kick his fricking throat out. Mr. Moore: That’s not necessary I’m all over it we’re all over . . . how do you want [it] done? Mr. Driver: Well. I’m going to tell you like this: If it was me personally and I had another chance at him I’d stomp his larynx. On January 30, 2015, Petitioner, Mr. Newcomb, and Mr. Moore met at a prearranged location and time to drive to the area of Mr. Williams’ home. Mr. Williams had been released and was no longer in custody at the Center. Mr. Driver was intentionally absent from this drive so that he would not come under suspicion for the actions Petitioner and Mr. Newcomb were planning to take that night. In fact, based on his knowledge from working at the Center, Petitioner assured the group that Mr. Driver was working the night shift at the Center and, therefore, had an alibi. Petitioner clearly knew the purpose of the drive was to attempt to kill Mr. Williams. Prior to the drive, Petitioner asked when they were going to “grab him” and discussed with the others whether he should bring his gun on the ride. He told the others that he had obtained the gun, a nine-millimeter, from “the guy that I work with.” Petitioner also wanted to wear protective clothing because he knew, presumably from his work as a DOC sergeant at the Center, that Mr. Williams had a contagious infection or disease. During the car ride, Petitioner discussed the best way to terminate Mr. Williams without raising suspicion. Mr. Newcomb suggested abducting Mr. Williams, injecting him with insulin, and leaving him near the water with a fishing pole. Petitioner said this would look suspicious unless Mr. Williams was known to go fishing. The men also discussed how to dispose of Mr. Williams’ body. Petitioner suggested a “complete disposal” by chopping up the body. At some point that night Mr. Newcomb indicated a recent picture of Mr. Williams would be helpful; Petitioner agreed to “go to work and pull up [Mr. Williams’] picture.” When they arrived in Mr. Williams’ neighborhood, Petitioner made numerous offensive and stereotypical remarks about African-Americans. Neither Petitioner nor the others took any action against Mr. Williams the night of the January 30 drive; and Mr. Williams was never harmed.3/ On March 19, 2015, Mr. Moore met with Petitioner and showed him a staged picture of Mr. Williams’ body lying on the ground in a pool of blood. Upon seeing the photo of what he believed was Mr. Williams’ dead body, Petitioner laughed and stated, “I love it. F—king p-d on himself . . . good f-king job.” During that same meeting, Mr. Moore asked Petitioner if he was happy with the results. Petitioner seemed elated: Mr. Moore: And, we need to make sure that everybody was happy with it. Petitioner: Hell yeah . . . uh Brother I love you, man. . . . I will call [Mr. Driver] as soon as I get – dude you don’t know how happy . . . I love you, brother. I love you, brother. I love you brother. At the final hearing, Petitioner claimed he did not intend to hurt Mr. Williams, but only went along with the others because he believed it was part of the KKK initiation process; and that he was entrapped by the FBI. He also argued he did not know the victim was Mr. Williams or that he was a former inmate. Petitioner’s assertions are not credible and his testimony is unbelievable for a number of reasons. First, the evidence at the underlying criminal trial established the conspirators did not want KKK leaders to know about the plan to attack Mr. Williams. Petitioner admitted the KKK oath includes a promise not to commit acts of violence. These facts contradict the assertion that Petitioner was pretending to plan the death of an African-American (who coincidentally happened to be a former inmate) just to prove his loyalty to the KKK. Second, although he claimed he was unaware of the purpose of the January 30 car ride or that Mr. Williams was a former inmate, the transcripts of the taped recordings clearly establish this is not true. In fact, Petitioner not only knew who the intended victim was, but knew he had attacked Mr. Driver and that he allegedly had an infectious disease. Third, Petitioner’s testimony that he was a passive participant induced by the FBI informant into planning the death of Mr. Williams is also implausible. Again, Petitioner offered to bring a gun along on the ride, offered advice on how to possibly set up the attack so that it looked like an accident, and suggested how to dispose of Mr. Williams’ body. Petitioner’s reaction to seeing Mr. Williams’ body in the photo also contradicts any contention that he did not intend harm to Mr. Williams or that he did not derive any pleasure from his death. Finally, Petitioner testified he was not racist. This was clearly contradicted by the statements he made about African- Americans during the January 30 car ride. Similarly, his testimony that he was a passive KKK member who only participated in its social aspects (i.e., picnics and “fellowship”) was belied by his own acknowledgment that his wife did not want him to be a member of the KKK, and that he participated in cross-burnings.4/ On August 11, 2017, a jury found Mr. Moran guilty of Conspiracy to Commit Murder in the First Degree.5/ Findings of Ultimate Fact The evidence clearly establishes there is a nexus between Petitioner’s employment as a DOC correctional sergeant at the Center and the commission of the felony of conspiracy to commit murder. Petitioner’s actions were intentional and he knew his participation in the conspiracy was illegal. Petitioner knowingly violated his obligation as a sworn correctional officer by participating in the conspiracy and not reporting the criminal activity committed by the other conspirators. Petitioner defrauded the public from receiving the faithful performance of his duties as a DOC sergeant. The public had a right to expect that one entrusted with guarding inmates would not act as a violent vigilante to exact revenge for a fellow correctional officer. Petitioner realized a profit, gain, or advantage from the commission of the crime in the form of self-gratification and comradery with and respect from Mr. Driver. Petitioner used his power, rights, privileges, and the knowledge accessible to him through his work as a correctional officer to facilitate his crime.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the State Board of Administration issue a final order finding that Petitioner was a public employee convicted of a specified offense committed prior to retirement; and that pursuant to section 112.3173, he has forfeited all of his rights and benefits in his Florida Retirement System Investment Plan account, except for the return of his accumulated contributions as of the date of his termination. DONE AND ENTERED this 15th day of May, 2018, in Tallahassee, Leon County, Florida. S HETAL DESAI Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 15th day of May, 2018.
The Issue Was Petitioner denied a promotion on account of her gender?
Findings Of Fact Petitioner has been employed by the Department since 1991. Petitioner is a Field Biologist, Grade Level I. Among other things, she monitors surface water quality by collecting water in various environments and analyzing it in a laboratory. Early in 1994, there was a reorganization of her section and she began to work in the laboratory under the supervision of Jerry Owen. In the middle of 1994, Jim Wright became the supervisor of the laboratory section and, thus, Petitioner's supervisor. Subsequent to Mr. Wright becoming her supervisor, she experienced problems with regard to work assignments. Petitioner had been trained to operate the section's motorboats in 1991, and had operated them in the past. In January 1995, there were questions about Petitioner operating the boats. Subsequently, Environmental Specialist III Lee Banks told her she could no longer operate the boats. Under the supervision of Mr. Wright, Petitioner was assigned many secretarial duties. She was criticized for her lack of skill in filing. Mr. Wright suggested that she get some advice on how to properly file. She was instructed to learn to type and criticized when she failed to learn that skill. She was told that she couldn't travel to meetings and seminars until she completed a typing tutorial. During this period at least two informal documents were circulated in the section which were derogatory toward women. They could be considered offensive to someone with tender feelings, but they contained no vulgarity and were not outrageous. The origin of the documents was not demonstrated. Mr. Wright sometimes belittled the employees who were under his and he or others in the section sometimes told jokes, including "dumb blonde" jokes. On October 15, 1996, Petitioner learned that a co- worker, Pat O'Conner, a Field Biologist, Grade Level I, had his position upgraded to Field Biologist, Grade Level II. Pat O'Conner is a male and had less seniority in the Department than Petitioner. The position upgrade was not advertised and was not open to competition. Petitioner complained about this and was told to "sit tight" until an ongoing investigation of Mr. Wright was completed. Mr. Wright was removed from his position in March 1997. Petitioner prepared a complaint with the Jacksonville Equal Opportunity Commission, which was signed on September 20, 1997, and filed sometime shortly afterward. Petitioner's complaint with the Florida Commission on Human Relations was filed on November 14, 1997.
Recommendation Based upon the Findings of Fact and Conclusions of Law, and because of the reasons set forth in paragraphs 21 and 28, it is RECOMMENDED: That a final order be entered which dismisses Petitioner's claim of discrimination based upon gender. DONE AND ENTERED this 16th day of February, 2001, in Tallahassee, Leon County, Florida. 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 February, 2001. COPIES FURNISHED: Azizi M. Coleman, Clerk Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149 Amy B. Kalmbacher 600 Domenico Circle, A-10 St. Augustine, Florida 32086 Marshall G. Wiseheart, Esquire Department of Environmental Protection 3900 Commonwealth Boulevard Tallahassee, Florida 32399-6515 Dana A. Baird, General Counsel Florida Commission on Human Relations 325 John Knox Road Building F, Suite 240 Tallahassee, Florida 32303-4149
The Issue The issue is whether Respondent engaged in an unlawful employment practice pursuant to chapter 760, Florida Statutes, against Petitioner due to his age.
Findings Of Fact Petitioner was employed by Respondent as an Employee Relations Specialist from July 30, 2007, to March 7, 2008. Petitioner’s position as an Employee Relations Specialist was a full-time salaried exempt position. Throughout Petitioner’s employment, Mary Campbell was the Director of Human Resources for Respondent, and William Davis was the Human Resources Manager for Respondent. Campbell was Petitioner and Davis’s direct supervisor. On March 6, 2008, Petitioner submitted a letter of resignation to Campbell, effective Friday, March 7, 2008. Pursuant to Respondent’s termination policy, salaried exempt employees are expected to provide a minimum of four weeks’ notice of their resignation, and failure to do so could block their eligibility for rehire and payment of accrued paid time off (PTO). Petitioner failed to provide the required four weeks’ notice when he resigned his employment with Respondent. Petitioner understood that resigning with less than four weeks’ notice would block his eligibility for rehire, but, despite that understanding, he chose to resign on such short notice because he was starting a new job the next Monday. Petitioner expressed that understanding in his resignation letter, stating: “I understand the ramification of my early resignation but my future employer will not hold a position for thirty days.” (Resignation letter, Respondent’s Ex. 1). On March 7, 2008, Campbell signed a Personnel Action Notice relating to Petitioner’s resignation of employment, stating that “Dwayne Clark resigned his position for another opportunity without proper notice, accepting the consequences of losing PTO and rehire eligibility.” Campbell, without the involvement of Davis, classified Petitioner as ineligible for rehire on March 7, 2008. At hearing, Petitioner acknowledged this action was not discriminatory. The Monday after his resignation, Petitioner began working for Citizens Property Insurance as a Human Resources Generalist, and was involuntarily terminated after six weeks of employment with Citizens. In July 2009, Davis was promoted to Director of Human Resources after Campbell resigned from her employment with Respondent. On April 15, 2011, Richard Rivera was hired by Respondent as the Human Resources Manager. Prior to that, Rivera was employed by University of Florida Shands Medical Center’s (UF Shands) Human Resources Department, which shares the same building with Respondent’s Human Resources Department. Rivera knew Petitioner as a human resources employee of Respondent in 2007/2008. However, they had never spoken prior to mediation of this matter in 2017. Since becoming Director of Human Resources, Davis has received several requests for an exception to the termination policy from former employees classified as ineligible for rehire. Though he has the authority to do so, Davis has never made an exception to the termination policy or rehired anyone who had been classified as ineligible for rehire. In July 2010 and early 2012, Petitioner asked Davis to make an exception to the termination policy and reclassify him as eligible for rehire. However, Davis did not reclassify Petitioner as eligible for rehire because “[w]hen you make an exception, you have problems enforcing the policy going forward, so that’s why I do not make exceptions.” Petitioner claims that while he was employed with Respondent, Campbell made two exceptions to the termination policy and allowed the rehire of two former employees who had been classified as ineligible for rehire. However, other than their gender and race, Petitioner could not name or otherwise identify the two former employees in a way that would allow Respondent to attempt to verify his claim. Petitioner asserted that a physician assistant (PA) had been rehired by Respondent after providing less than four weeks’ notice of her resignation. Respondent was able to identify that individual as Allison McFauls. Ms. McFauls has worked as a Senior PA since 1998 and has never been an employee of Respondent or subject to Respondent’s termination policy. Ms. McFauls has always been employed by UF Shands, which is a separate entity from UF Jacksonville Physicians, Inc., with a separate human resources department and separate personnel policies. Neither Davis nor Rivera is aware of any employee of Respondent receiving an exception to the termination policy. Davis classified Hubert Collins, an Employee Relations Manager, who is nearly 20 years younger than Petitioner, and Christy Wright, who is even younger than Collins, as ineligible for rehire due to their failures to comply with the required resignation notice period in the termination policy. During their conversation in July 2010, Petitioner asked Davis if Respondent would be interested in contracting with Petitioner’s consulting company to assist with the Office of Federal Contract Compliance Programs (OFCCP) compliance review. Respondent did not contract with Petitioner because Respondent performed compliance review work and completed its Affirmative Action Plan in-house. Davis did not ask Petitioner questions regarding his age and does not recall having a conversation with Petitioner about retirement since Petitioner’s employment with Respondent. Even if such topics of conversation occurred, Petitioner agreed he may have been the one to raise them. On September 12, 2016, Petitioner applied online for a vacant Employee Relations Specialist position with Respondent. However, due to Petitioner’s failure to comply with Respondent’s four-week notice requirement, Petitioner was ineligible for rehire with Respondent in September 2016. On September 14, 2016, Rivera reviewed the applications and selected which applicants would be interviewed and considered for the open Employee Relations Specialist position. Because Petitioner was ineligible for rehire, Rivera removed Petitioner from further consideration. Rivera did not base his decision on Petitioner’s age, and there was no persuasive evidence of record that Rivera was biased against Petitioner because of his age. On September 14, 2016, Rivera rejected Petitioner’s application in the online application system and entered “ineligible for rehire” as the reason for rejecting Petitioner’s application. The same day, Petitioner was sent a form email notifying him that his application had been removed from consideration for the Employee Relations Specialist position. No one but Rivera was involved in the decision to remove Petitioner from consideration for the position. Rivera did not inform Davis or anyone else that Petitioner had applied for the Employee Relations Specialist position. Likewise, Davis never directed Rivera or anyone else to reject applications from Petitioner. Petitioner did not communicate with Davis, Rivera, or any other employee about his September 12, 2016, application. Nor did Petitioner request an exception to the termination policy from Davis or anyone else in 2016. Davis did not know that Petitioner had applied for the Employee Relations Specialist position until November 2016, when Respondent was notified by the Commission that Petitioner had filed a charge of discrimination. After receiving Petitioner’s charge of discrimination in November 2016, Davis reviewed Petitioner’s September 2016 application, and noticed that Petitioner stated that he had resigned from his employment with Citizens Property Insurance, which Davis knew to be false. If Petitioner had been hired for the Employee Relations Specialist position, Davis would have terminated Petitioner’s employment for falsifying his application.
Recommendation Based on the foregoing Findings of Facts and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 30th day of November, 2017, in Tallahassee, Leon County, Florida. S W. DAVID WATKINS 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 30th day of November, 2017. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations Room 110 4075 Esplanade Way Tallahassee, Florida 32399 (eServed) Margaret P. Zabijaka, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Jesse D. Bannon, Esquire Constangy, Brooks, Smith & Prophete, LLP Suite 1700 200 West Forsyth Street Jacksonville, Florida 32202 (eServed) Dwayne E. Clark, Sr. 11334 Bridges Road Jacksonville, Florida 32218 (eServed) Cheyanne Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399 (eServed)
The Issue The issue is whether the Respondent committed an unlawful employment practice under section 760.10, Florida Statutes (2011), by discriminating against Petitioner on the basis of race or sex, and if so, what remedy should be ordered.
Findings Of Fact Apalachee Center is a not-for-profit health center providing mental health and substance abuse services in the Big Bend region of North Florida, which employs over 15 people. One of its facilities is a 16-bed mental health residential facility in Tallahassee, Florida, primarily housing men who suffer from severe mental illness. Ms. Sandra Johnson, an African–American woman and Petitioner in this case, has been a Licensed Practical Nurse (LPN) since 1984. She began working for Respondent in 2009 as the only LPN on duty on “B Shift Days” from 7:00 a.m. to 7:00 p.m. at the Forensic Residential Program. Another LPN, Ana Degg, was a white woman who worked on the “A” shift, and was the lead forensic nurse and Petitioner’s acting supervisor, though she was not actually present during the shift Petitioner worked. Most of the residents in the facility in which Petitioner worked have been found incompetent by the criminal justice system and have been sent to the program by court order. Petitioner maintained their medications, monitored their health, and helped to ensure that they did not leave the facility. At the time she was hired, Petitioner was made aware of Apalachee Center’s policies prohibiting discrimination and had been advised to immediately report any suspected discrimination to the Human Resources Department. Ms. Candy Landry, the Human Resources Officer at Apalachee Center, is proud of Apalachee’s diversity record. Apalachee employs more African-Americans than whites. Ms. Degg had some conflicts with Petitioner immediately after they began working together, but later came to the conclusion that it was just a reflection of Petitioner’s personality. Ms. Degg said that she still continued to receive some staff complaints, mostly about Petitioner’s demeanor. She testified that Petitioner “came off as gruff.” Ms. Degg was very credible. Ms. Degg consulted Ms. Jane Magnan, Registered Nurse (RN) who was the Director of Nursing, and Ms. Jeanne Pope, the Director of Residential Services, as to the best way to handle the situation. Ms. Magnan and Ms. Pope each testified that they advised Ms. Degg to start with basic lines of communication and mentoring on a one-to-one level to see if the problem could be handled before anything went to the written stage. Ms. Degg provided some handouts on interpersonal relations and “soft skills” to Petitioner and her unit and tried to coach Petitioner on how to be a bit more professional in her interactions. Ms. Degg told Petitioner that staff was saying that Petitioner was rude and she asked her to talk to people a little differently. She said Petitioner responded by saying that that was “just the way she was.” Petitioner’s conduct did not change and complaints continued. Ms. Magnan, who had hired Petitioner, believed that Ms. Degg found it difficult to discipline Petitioner. Ms. Magnan also believed there was some resistance from Petitioner in acknowledging Ms. Degg, a fellow LPN, as Petitioner’s supervisor. Petitioner had no “write–ups” from the time of her employment at Apalachee in August or September of 2009 until January of 2011. On January 21, 2011, Petitioner was presented a memorandum dated January 7, 2011, to document a Written Supervisory Session on two incidents. First, the memorandum stated that Petitioner had been counseled for failure to give a report to the oncoming nurse who had arrived late for her shift. Second, it stated that Petitioner had been counseled for being rude and unprofessional in a telephone conversation with the Dietary Supervisor. The memorandum was signed by Petitioner and by Ms. Degg. Ms. Degg testified that in response Petitioner had denied that she had failed to give a report to the oncoming nurse, but that the other staff people had corroborated what the oncoming shift nurse had told her, so she believed it had happened. At hearing, Petitioner continued to deny that she had failed to give a report to the oncoming nurse and denied that she had been rude or unprofessional in her conversation with the Dietary Supervisor. In the months following the January “write-up,” Ms. Degg did not notice any change in Petitioner’s demeanor and continued to receive complaints. She noted that she did not personally consider Petitioner’s behavior to be rude, but others did, and she could understand why. On May 18, 2011, Petitioner was presented a memorandum dated May 10, 2011, to document another Written Supervisory Session. The memorandum indicated that Petitioner had been unprofessional in communications to a Mental Health Assistant (MHA) whom Petitioner supervised. It stated that Petitioner had used phrases such as “shut up” and “get out of my face” to the MHA and that Petitioner had previously been counseled regarding this issue. The Memorandum was signed by Petitioner and by Ms. Magnan and Ms. Pope. Ms. Magnan and Ms. Pope offered Petitioner training and assistance. On the memorandum, Petitioner wrote that she did not agree with the statement and that she was willing to learn. On May 27, 2011, Petitioner’s Employee Performance Evaluation for the period April 23, 2010, through May 15, 2011, was presented to Petitioner. It indicated “Below Performance Expectations” or “Needs Improvement” in several areas, including supervision of MHAs, training of staff, unit management, acceptance of responsibility, and attitude. Hand-written notes by Ms. Magnan and Ms. Dianne VanZorge, the RN supervising the forensic unit, commented on difficulties in communicating with staff, compromised staff morale, and lack of leadership. The report noted that various employees had brought Petitioner’s attitude to the attention of the Program Director and Director of Nursing. The evaluation was signed by Petitioner, Ms. Magnan, and Melany Kearley, the Chief Operations Officer. In conjunction with this unfavorable Employee Performance Evaluation, and in accordance with Apalachee policy, Petitioner was placed on a Corrective Action Plan, a 60-day period of Conditional Probationary Status. The memorandum advising Petitioner of this action explained that Petitioner should immediately take action to maintain a friendly and productive work atmosphere, demonstrate respect and courtesy towards clients and co-workers, and demonstrate initiatives to improve Petitioner’s job and the program. The memorandum advised that any further non-compliance could result in disciplinary action or termination of employment. Petitioner’s supervisor was changed to Ms. VanZorge. Petitioner knew Ms. VanZorge because they had worked together many years earlier. Petitioner was advised in the Corrective Action Plan that Ms. VanZorge would meet with her on a weekly basis to provide any needed assistance. At the time Petitioner was placed on probation, Ms. Magnan testified that Petitioner became angry. Petitioner asked if they wanted her to quit. Ms. Magnan encouraged Petitioner not to quit, telling her that that “we are going to work this out.” Ms. Magnan and Ms. VanZorge testified that they made sure that Petitioner acknowledged that resources and coaching were available to help her. Petitioner testified that leadership, nursing management, and supervisory resources were not subsequently provided to her as promised. On June 29, 2011, Mr. Alphonzo Robinson, an African-American MHA who worked under Petitioner’s supervision, submitted complaints about Petitioner to Ms. VanZorge and Ms. Pope. Ms. VanZorge and Ms. Pope then met with Petitioner regarding these complaints. A memorandum documenting the meeting with Petitioner, prepared the same day, states that an MHA reported that Petitioner had eaten a resident’s lunch. The MHA alleged that the resident had gone out on a morning community pass, asking staff to save his lunch for him until he returned. The memorandum states that when the resident returned, the MHA went to get his lunch for him, only to find Petitioner eating the last of the resident’s food in the staff kitchen. The MHA indicated that Petitioner denied eating the resident’s lunch, saying that it had been thrown away, and directed the MHA to give the resident another patient’s meal instead. Only an empty tray without food was found in the garbage. The MHA noted that another patient’s lunch could not be substituted because the first resident was diabetic and had special dietary needs. The memorandum also indicates that several other complaints were made against Petitioner by the MHA and discussed with her at the meeting. It was alleged that the Petitioner was continually rude to staff, asked residents to run errands for her, left the commode dirty with urine and feces, and used her hands to get ice from the ice machine. The memorandum noted that at the meeting, after an initial denial, Petitioner finally had admitted that she had eaten the resident’s lunch. It also noted that Petitioner had admitted that “a while back” she had asked residents to get Cokes for her, but that now she drank water. The memorandum concluded by noting that the expectations on Petitioner’s Corrective Action Plan had been reviewed, and that it was further discussed that Petitioner was not to eat any resident meals or ask them to perform errands. Petitioner had been instructed to buy a meal ticket or bring her own, clean up after herself, and adhere to infection control policy and universal precautions. At hearing, Ms. VanZorge testified that during the meeting Petitioner admitted having eaten the resident’s lunch, but stated she had not done that for a long while prior to that. Ms. VanZorge stated that Petitioner also admitted she had gotten ice with her hands once. Ms. Pope testified that Petitioner had initially denied eating the resident’s food, but then later during the course of the meeting had admitted that she had eaten it, and also admitted that she had sent residents to run errands for her. MHA Kim Jenkins, a white woman and the second MHA under Petitioner’s supervision, testified that she knew nothing about the allegations that Petitioner ate a resident’s lunch. She testified that the bathroom was a unisex bathroom and that Petitioner did leave it in an unsanitary condition almost every time she used it, although she had been too embarrassed for Petitioner to ever discuss that with Petitioner. Ms. Jenkins said she did try to discuss all of the other recurring issues with Petitioner. She testified that Petitioner was rude on a daily basis. She testified that she had seen Petitioner going through other staff members’ mail and opening it. She testified that Petitioner did get ice with her bare hands on several occasions. On cross-examination, Ms. Jenkins stated that she did not document any of these incidents and could not remember dates on which they occurred. Pressed to provide dates, Ms. Jenkins testified that the only approximate date she could remember was the time that Petitioner sent a client with a staff member to get two hot dogs for Petitioner and the client had ended up paying for the hot dogs. Ms. Jenkins said that she knew this occurred in October because Ms. Jenkins had been assigned to the unit for only about two weeks when it happened. Ms. Jenkins testified that she clearly remembered when this occurred because Ms. Jenkins had been “written up” by Petitioner shortly afterwards for stopping at a McDonald’s drive–through on the way back from a client’s doctor’s appointment to allow the client to buy some ice cream. Ms. Jenkins testimony was very credible. Petitioner testified at hearing that the allegations in the June 29, 2011, letter of Alphonzo Robinson were not true. She testified that she did not eat a patient’s food, never asked patients to buy sodas or candy for her, never left urine and feces on the toilet seat, and that he never caught her sleeping on the job. She testified that it was a public bathroom, and noted that anyone could have left it in that condition. She also stated that someone should wonder, “[W]hy was Alphonzo Robinson in ladies’ bathroom watching toilet seats? Apparently he needs to be monitoring the patient and not the lady bathroom.” Petitioner noted that in all of the allegations against her, “[I]t is their word against mine.” In a memo dated July 1, 2011, to Ms. Kearley, Ms. Pope recommended the termination of Petitioner’s employment with Apalachee Center. Ms. Magnan, Ms. VanZorge, and Ms. Pope were unanimous in this recommendation. On or about July 6, 2011, Ms. Pope accompanied Petitioner to the office of Ms. Candy Landry, the Human Resources Officer, where Petitioner was informed that her employment was terminated. Ms. Landry testified that Petitioner had violated policies of Apalachee and that the disciplinary process and termination of employment with respect to Petitioner had followed standard procedures. Ms. Landry testified that Petitioner’s replacement was also African-American. Petitioner filed a complaint with the Florida Human Relations Commission (Commission), alleging that Apalachee Center had discriminated against her based upon her race and sex on August 15, 2011. Her complaint alleged that non-African- American employees had never been disciplined without reason, as she had been. Her complaint stated an employee had made unwelcome comments that she was “fine,” “sexy” and “beautiful.” On December 20, 2011, Petitioner filed a Petition for Relief, which was referred to the Division of Administrative Hearings. At hearing, Petitioner presented no evidence regarding similarly situated white employees. Petitioner presented no evidence that anyone ever made comments that she was “fine,” “sexy” or “beautiful.” She did testify that she made a note on June 20, 2011, regarding Alphonzo Robinson. Her testimony was as follows: Okay. Ready for Alphonso Robinson. This is what he states, “I’m looking for a wife. Bring your friend down here so I can look at her.” I informed Robinson to sit in day room with client. Let Kim Jenkins come from back there with the men. He states, “I don’t want to deal with the men. When I worked at Florida Hospital, we punish inmate.” I told him we don’t do that here. Social Service case managers do that. Group coordinator recommend –- group coordinators recommend treatment, member, nurse, case manager, and Ms. Pope. Robinson state, “I used to be a man that – that – I used to be a man that a husband was having problem with sex, I took care of his wife.” I stopped talking to him and just restrict everything to work only with Mr. Alphonzo Robinson. I gave this note to Ana Degg. I asked her please to address it with Ms. Pope. I never heard anything else about that. I did my job as I was told. I went by the instructions what the facility asked me to do. Petitioner testified that she prepared the note with this information on June 20, 2011, and gave it to Ms. Degg. This would have been a bit more than one week prior to Mr. Robinson’s complaints about her performance. Under cross-examination, Mr. Robinson denied that he had been sleeping on the job or had made inappropriate sexual remarks. He denied that he made the allegations against Petitioner because he was fearful he would be terminated and was attempting to get Petitioner fired first: Q You said – you made sexual statements, you told me that you had a new lady, that her husband had problems with sex, and you took care of the lady. After that I learned that, to stay out from around you, because I am a married lady. I have been married for 37 years. I don’t endure stuff like that. So after that, then later on you was in the room and you made a sexual comment. You – I said that is inappropriate, that’s not the kind of behavior – we do not come to work for that kind of behavior. * * * Q So Alphonzo – A Yes. Q -- after you made that comment, and then you said those statements, and then after that I approached you and told you that you cannot be sleeping at the desk, and then you decided to make these statements, to go to Dianne, Kim’s friend and all that, so they can get me fired before you get terminated, is that not true? A No, that’s not. Q You had never been sleeping at the desk? A No, I haven’t. There is no evidence that Petitioner mentioned the note or showed it to anyone at the Florida Commission on Human Relations in connection with her complaint of discrimination. She did not provide a copy of the note to the Division of Administrative Hearings or to Respondent prior to hearing. Petitioner testified that she found the note in her papers when she went through them. Ms. Degg was no longer Petitioner’s supervisor on June 20, 2011. Ms. Degg testified that she could not recall Petitioner ever complaining about anyone in the workplace sexually harassing her. Ms. Degg testified that she had received a written complaint about MHA Jenkins, but that she had never received any written complaint about MHA Robinson. Ms. Degg’s testimony that she did not receive the note was credible, and is accepted as true. Ms. VanZorge testified that Petitioner never complained to her about any type of sexual harassment by Mr. Robinson. Ms. Pope testified that Petitioner never complained to her about any sexual harassment. Ms. Candy Landry, the Human Resources Officer, testified that Petitioner never complained to her that she had been subjected to sexual harassment. She further testified that she was never aware of any allegations of sexual harassment of Petitioner from any source. The facts do not support the conclusion that Respondent discriminated against Petitioner on the basis of race or sex.
Recommendation Upon consideration of the above findings of fact and conclusions of law, it is RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing Petitioner's complaint. DONE AND ENTERED this 10th day of April, 2012, in Tallahassee, Leon County, Florida. S F. SCOTT BOYD 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 10th day of April, 2012. COPIES FURNISHED: Sandra Johnson 284 Centerline Road Crawfordville, Florida 32327 Thomas A. Groendyke, Esquire Douberley and Cicero 1000 Sawgrass Corporate Parkway, Suite 590 Sunrise, Florida 33323 tgroendyke@dc-atty.com Chris John Rush, Esquire Rush and Associates 1880 North Congress Avenue, Suite 205 Boynton Beach, Florida 33426 cjrushesq@comcast.net Lawrence F. Kranert, Jr., Esquire Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 kranerl@fchr.state.fl.us Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 violet.crawford@fchr.myflorida.com
The Issue The issue in this case is whether the Respondent discriminated against the Petitioner on the basis of age for the reasons stated in the Charge of Discrimination and Petition for Relief in violation of Section 760.10(1), Florida Statutes.
Findings Of Fact The Petitioner was born in 1953. At the time of the events which form the basis for his claim, he was more than forty years old. The Petitioner was born in Cuba and spent most of his life in Cuba. The Petitioner came to the United States of America approximately two years before the events which form the basis for his claim. The Petitioner speaks fluent Spanish, but does not speak English. In October of 1999, the Petitioner was hired by the City of Hialeah Gardens as a laborer in the Parks Department at a pay rate of $6.50 per hour. The Petitioner is still employed by the City of Hialeah Gardens as a laborer in the Parks Department at a pay rate of $6.50 per hour. The Petitioner's pay rate has never been changed during his employment with the City of Hialeah Gardens. During his employment with the City of Hialeah Gardens, the Petitioner has never held either the position of "Maintenance Supervisor" or the position of "Assistant Parks Director." During his employment with the City of Hialeah Gardens, the Petitioner has never been demoted from either the position of "Maintenance Supervisor" or the position of "Assistant Parks Director." The Mayor of the City of Hialeah Gardens has the sole authority and responsibility to make employment decisions. The Mayor appointed Nivaldo Rodriguez (Rodriguez) to the position of Assistant Parks Director. At the time of the appointment, Rodriguez was in his late twenties. At the time of the appointment, Rodriguez spoke fluent English and Spanish. At the time of the appointment, Rodriguez was a friend of the Mayor and the Mayor was aware of his qualifications for the position. The Mayor appointed Rodriguez to the position of "Assistant Parks Director" because he thought he was qualified for the position. The Mayor also thought that the Petitioner was not qualified for the position because, among other things, the Petitioner did not speak English. It is necessary to be able to speak English in order to fulfill all of the duties of the position of "Assistant Parks Director." The Mayor had credible non-discriminatory reasons to appoint Rodriguez as "Assistant Park Director," and not to appoint the Petitioner to that position. There is no credible evidence that the Mayor's reasons for appointing Rodriguez were pretextual. Age was not a factor in the decision to appoint Rodriguez rather than the Petitioner. The evidence regarding the Respondent's hiring and termination practices does not establish any pattern of age based discrimination.
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 dismissing the petition in this case and denying all relief sought by the Petitioner. DONE AND ENTERED this 3rd day of January, 2002, in Tallahassee, Leon County, Florida. MICHAEL M. PARRISH 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 3rd day of January, 2002.
The Issue Is Respondent employer guilty of an unlawful employment practice, pursuant to Section 760.10, F.S., for discrimination on the basis of handicap, to wit: diabetes?
Findings Of Fact At all times material, Petitioner was employed part-time at Respondent Jackson County Hospital as an x-ray aide. In this position, he transported patients to and from the x-ray department. Petitioner had diabetes when he was hired by Respondent. He disclosed his diabetes on his initial health information sheet. The employer was aware of Petitioner's diabetes when he was hired. However, on his initial health information sheet Petitioner also represented his health status as "excellent" and denied having any physical condition which impaired his body as a whole. He further represented that he had no defect "which may prevent your performance in the job. . . ". Accordingly, the employer did not know that he had a handicap, if any, when it hired Petitioner. While he was employed as an x-ray aide, Petitioner had two "reactions" on the job due to his diabetes, and he was laid off immediately prior to having a third "reaction." Petitioner did not describe the nature of his diabetic "reactions", and no other record evidence revealed their symptomatology. Nonetheless, Petitioner felt that he did his job well and got along well with everyone. This testimony was unrefuted. Indeed, both of Respondent's witnesses acknowledged that Petitioner performed his job duties acceptably. Petitioner went to Respondent hospital's emergency room as soon as he had these reactions. He assumed that some of the x-ray technicians whom he worked with in the hospital x-ray department talked to Wayne Austin, the head of the x-ray department, about his situation. No other witnesses supported his assumption. No forms reporting either of Petitioner's "reactions" were received by Jim L. Treglon, Respondent hospital's assistant administrator. Wayne Austin knew of Petitioner's diabetes but had no knowledge of either of Petitioner's "reactions" prior to laying him off. When Mr. Austin laid Petitioner off on August 15, 1994, he told Petitioner that it was due to the hospital's economic restructuring. Petitioner believed, upon the basis of conversations with other employees who were not called to testify, that he was laid off due to his diabetes. According to Mr. Treglon and Mr. Austin, the employing hospital underwent a personnel restructuring process by reduction of work force for financial reasons, and Petitioner was laid off as part of the larger financial conservation scheme. Petitioner had the least seniority and was a part-time employee, so his position was eliminated. There is no evidence that Petitioner's position was ever recreated or refilled. At the same time Petitioner's position was eliminated, another x-ray aide with more seniority was allowed to work weekends only, thereby reducing the hours for which that aide was paid. It is possible, but not proven, that this other aide's hours were eventually increased or restored when the hospital's economic situation improved. At the same time Petitioner's position was eliminated, the x- ray department's clerk-secretary was allowed to resign, and that position was not filled. As part of the employer's restructuring process, a total of 17 employees were eliminated from the employer's total work force based only upon seniority at approximately the same time Petitioner's position was eliminated. Mr. Treglon testified that as of the date of formal hearing, the employer employed at least 40 people who have disclosed disabilities. The definition of "disability", as used in his testimony, was not given.
Recommendation Based upon the findings of fact and the conclusions of law, it is, RECOMMENDED: That the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief herein and determining that Petitioner recover nothing thereby. DONE and ENTERED this 26th day of March, 1996, in Tallahassee, Leon County, 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 26th day of March, 1996.
