Findings Of Fact 1. Emmons was a Residential Services Supervisor who had a predetermination/liberty interest (name clearing) hearing held on August 24, 2012. After that hearing, he was terminated effective at the close of business on August 24, 2012 and notified of that fact via correspondence dated August 27, 2012. (See, e.g., Exhibit 4). 2. On September 4, 2012, Emmons submitted a written request to ECUA’s Director of Human Resources and Administrative Services (hereinafter “HR Director”) appealing disciplinary action taken against him in his employment with ECUA. 3. That same date, ECUA requested the services of an Administrative Law Judge (hereinafter “ALJ”) from the Florida Division of Administrative Hearings (“DOAH”) to conduct an evidentiary hearing and issue a Recommended Order to ECUA’s Executive Director pursuant to the Administrative Law Judge Services Contract previously entered into between ECUA and DOAH. 4. DOAH assigned an ALJ to preside over the matter, who in turn issued a Notice of Hearing scheduling an evidentiary hearing to take place beginning at 10:00 a.m. on October 15, 2012 in ECUA’s Board Room. 5. ECUA was present and ready to proceed with the evidentiary hearing at the appointed time and place, yet neither Emmons nor anyone acting on his behalf appeared. Furthermore, no one had heard from Emmons. 6. After waiting fifteen (15) minutes after the designated start-time for the hearing, neither Emmons nor anyone acting on his behalf had been heard from. 7. Thereafter, the ALJ called the hearing to order, and ECUA proffered witness testimony and admitted exhibits into the record. The record established the following: a. Emmons was a Residential Services Supervisor in ECUA’s Sanitation Department. b. On March 28, 2012 Emmons was notified by a Sanitation Equipment Operator under his supervision that his truck (Truck #43B), had broken down. After Emmons arrived on the scene in ECUA Truck #11C, he went to sleep while on duty. c. Emmons slept for approximately twenty to thirty minutes, and his vehicle, Vehicle #11C, was idling with the air conditioner on throughout this time. d. While Emmons slept, an ECUA employee photographed him. e. This was not the first time Emmons had slept while on duty; instead, in the Summer of 2011 Emmons was observed sleeping in his ECUA-assigned vehicle by another ECUA employee. f. Furthermore, within the past twelve months Emmons was observed by ECUA employees reclined with his eyes closed for an extended period of time on two other occasions during the past twelve months. g. Additionally, in 2010 a photograph of Emmons apparently sleeping on duty was brought to one of his superiors’ attention. In this instance, Emmons was cautioned that it was completely unacceptable for a supervisor to be sleeping anywhere 3 at any time while on duty and that if this were to happen again disciplinary action would be imposed. h. ECUA issued a written notice of predetermination hearing to Emmons on August 21, 2012 regarding contemplated disciplinary action for violations of Section B-13A(4), [Conduct Unbecoming an ECUA Employee], Section B-13A(18) [Loafing], Section B-13A(21) [Neglect of Duty], Section B-13A(25) [Sleeping on Duty], and Section B-13A(33) [Violation of ECUA rules or policies] of ECUA’s Human Resources Manual. i. Section B-37(A) of ECUA’s Human Resources Manual additionally provides that ECUA employees shall avoid unnecessary vehicle idling and prohibits allowing a vehicle to idle solely to operate the air conditioner for the comfort of the vehicle’s occupants. j.._ Emmons knew of the above-referenced provisions of ECUA’s Human Resources Manual by virtue of the fact that he had received it, as well as the fact that the substantive provisions of it applicable to his sleeping on duty had been previously discussed with at least one of his superiors. k. Upon proper notice a predetermination hearing was held on August 24, 2012, and thereafter a written notice of disciplinary action was issued to Emmons on August 27, 2012 notifying him that his conduct violated Sections B-13A(4), (18), (21), (25), and (33) of ECUA’s Human Resources Manual. 8. The hearing was closed at approximately 10:27 a.m. 9. Based upon a review of the record, the evidence shows that Emmons’ conduct was violative of Sections B-13A(4) [conduct unbecoming an ECUA employee], 4 Section B-13A(8) [loafing], Section B-13A(21) [neglect of duty], Section B-13A(25) (sleeping while on duty], Section B-13A(33) [violation of ECUA rules or policies], and Section B-37 [vehicle and equipment idle reduction] of ECUA’s Human Resources Manual. (See ECUA ex. 5, 6). The evidence further shows that you were aware of these provisions within the Human Resources Manual. (See ECUA ex. 7). 10. Two days later, on September 17, 2012, R. John Westberry, Esq., entered an appearance on behalf of Emmons and filed a Notice of Voluntary Dismissal on his behalf. In neither of these filings was any justification proffered for Emmons’ having failed to appear at the scheduled evidentiary hearing. Additionally, good cause was not shown for Emmons’ attorney having failed to appear at the hearing (although it is unclear whether the attorney had been retained at that time). 1. Nevertheless, on October 18, 2012 the ALJ rendered an Order Closing File ostensibly dismissing the matter.
Conclusions Petitioner, Emerald Coast Utilities Authority (hereinafter either "ECUA" or “Petitioner”), terminated Respondent, Michael A. Emmons (hereinafter either "Emmons" or “Respondent”), from his employment with ECUA effective at the close of business on August 24, 2012. Emmons timely requested a hearing in order to appeal his termination, and his case was forwarded to Florida Division of Administrative Hearings to conduct a hearing and issue findings of fact and recommended conclusions of law. After being properly noticed, a formal hearing was held in this cause on October 15, 2012 in Pensacola, Florida, before Diane Cleavinger, Administrative Law Judge with the Florida Division of Administrative Hearings, which Emmons elected not to attend. . Three days later, on October 18, 2012, Judge Diane Cleavinger submitted an Order Closing File, which for reasons set forth below is deemed a Recommended Order. Pursuant to Section 120.57(1)(10, Florida Statutes, the Parties had 15 days within which to submit written exceptions to the Recommended Order. That time-frame has expired, with only Petitioner’s having filed a submission. Emmons also filed no response to Petitioner’s exceptions. See Rule 28-106.217(3), Florida Administrative Code (affording a party 10 days from the filing of the other party’s exceptions to respond to those exceptions).
The Issue The issue is whether Petitioner was subjected to an unlawful employment practice as a result of retaliation.
Findings Of Fact Petitioner D'Angelo A. Sullivan is a black male who worked for Respondent from January 14, 1999, until November 2002 as a blooming onion cook at Respondent's restaurant in Pensacola, Florida. Respondent Aussie Restaurant Management is a company that operates an Outback Steakhouse in Pensacola, Florida. Respondent employs more than 15 people. In a letter dated September 6, 2002, Petitioner requested a paid vacation. Petitioner believed he was entitled to a paid vacation. He departed on vacation on September 23, 2002. Upon returning on September 30, 2002, he was told that he would not be paid during the time he was on vacation. Respondent has a policy that provides paid vacations to employees who have worked 32 hours per week for the six weeks prior to the time requested for a vacation. Petitioner averaged 30.20 hours per week for the six weeks prior to his request for a vacation. He was, therefore, not entitled to a paid vacation. On October 11, 2002, Petitioner filed a Complaint Form with the Escambia-Pensacola Human Relations Commission. In the "Nature of the Complaint" section the blocks "race" and "color" were checked. The "other" block was completed with the words "promotion, pay raise." In this complaint, Petitioner recited that he was not given paid leave, that his work schedule had been reduced, and that he had been given a $.25 per hour pay raise instead of the annual $.50 per hour pay raise that he had received in prior years. The complaint also asserted that only one black had been employed "out front" among the customers. In the complaint he alleged mistreatment by a manager identified as "Donnie." Petitioner suggested as a remedy, that Respondent cease discrimination, that Petitioner be given a pay raise, a paid vacation, and a W-4 tax form. He also suggested that he should be trained so that he could get a promotion. No evidence was offered demonstrating that Respondent was aware of the existence of the complaint. Petitioner testified that he was advised by the person who took his complaint to refrain from telling Respondent he had complained, and that he followed that advice. In November 2002, subsequent to an automobile accident, and upon the advice of the attorney representing Petitioner as plaintiff in a personal injury lawsuit arising from the accident, Petitioner determined that he should not continue to work. This decision was based in part upon his belief that working might lessen his chances of prevailing in the ongoing lawsuit. In June 2003 Petitioner approached the manager of Respondent's restaurant, Nicholas Loizos, on at least four occasions and asked to be hired as a "take away" person in the "front of the house." Although his former position of blooming onion cook was offered to him, Petitioner insisted that he wanted the "take away" position. Mr. Loizos told Petitioner that in order to be a "take away" person, he would have to take the "Front-of-the House Selection Test." Petitioner was provided the opportunity to take this test. Petitioner did not avail himself of this opportunity. No evidence was adduced that would indicate that Respondent engaged in racial discrimination against Petitioner, or any of Respondent's employees. No evidence was adduced that would prove that Respondent was aware that Petitioner had filed a discrimination complaint. Because Respondent was unaware of the discrimination complaint, Respondent could not have engaged in retaliation against Petitioner.
Recommendation Based upon the Findings of Fact and Conclusions of Law, it is, RECOMMENDED that the Petition be dismissed. DONE AND ENTERED this 16th day of March, 2005, in Tallahassee, Leon County, Florida. S HARRY L. HOOPER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of March, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 D'Angelo A. Sullivan 1006 West Hayes Street Pensacola, Florida 32501 Maria A. Santoro, Esquire George, Hartz, Lundeen, Fulmer, Johnstone, King & Stevens 863 East Park Avenue Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway Tallahassee, Florida 32301
The Issue The issue in this case was to determine whether Respondent violated Sections A-5(B) and F-4(4), (19), (27) and (33) of the ECUA Human Resources Policy Manual.
Findings Of Fact In 2000, Respondent was employed by Petitioner. At the time, Respondent was given a copy of the employee handbook, receipt of which was acknowledged by Respondent. The Handbook is a summary of Petitioner’s human resource policies. Specific human resources policies are contained in Petitioner’s Human Resources Policy Manual. Both documents reference a Code of Ethics that is to be adhered to by employees (page 2 of the Employee Handbook and page 5 of the Human Resources Policy Manual). Likewise, both documents contain provisions for discipline of an employee (page 32 of the Employee Handbook and page 52 of the Human Resources Policy Manual). The Human Resource Manual states, in relevant part, as follows: Section A-5 Code of Ethics * * * * B. No ECUA employee shall use or attempt to use their position to secure special privilege or exemptions for themselves or others, except that which may be provided by policy and/or law. * * * * Section F-4 Disciplinary Offenses * * * * (4) Conduct Unbecoming an ECUA Employee Any act or activity on the job or connected with the job that involves moral turpitude, or any conduct, whether on or off the job, that adversely affects the employee’s effectiveness as an ECUA employee. . . . Conduct unbecoming an ECUA employee includes any conduct which adversely affects the morale or efficiency of the ECUA, or any conduct which has a tendency to destroy public respect or confidence in the ECUA, in its employees, or in the provision of ECUA services. * * * * (19) Unauthorized use of ECUA Property or Equipment The unauthorized use of any ECUA property or equipment for any reason other than ECUA business. * * * * (27) Theft or Stealing The unauthorized taking of any material or property of the ECUA, other employees, or the public with the intent to permanently deprive the owner of possession or to sell or to use for personal gain. * * * * (33) Violation of ECUA Rules or Policies or State or Federal Law. The failure to abide by ECUA rules, policies, directives or state or federal statutes. This may include, but is not limited to, misuse of position, giving or accepting a bribe, discrimination in employment, or actual knowledge of failure to take corrective action or report rule violations and employee misconduct. * * * * Sometime in 2003 or 2004, Respondent moved to his residence located at 280 East Ten Mile Road. The home had a 10,000 gallon pool. The home’s waterline was attached to a metered water tap on a three-inch ECUA waterline. At some point Respondent became dissatisfied with his home water service and wanted to connect his home’s waterline to a 12-inch ECUA water line that also ran in front of his home. Respondent asked Steve Castro, a crew supervisor for Region 1, the region Respondent’s house was in, about “what I needed to do” to transfer his house waterline from the three- inch line to the 12-inch line. Respondent was informed that when the work in that region was caught up, Mr. Castro would have the new tap put in. About two days later, Jeremy Stewart, an ECUA service technician, installed a tap on the 12-inch line in front of Respondent’s home. No meter was installed on the new tap. At the time, Respondent’s houseline was not hooked to the new tap, leaving the tap unused. In 2004 and 2005, the Pensacola area was hit with multiple hurricanes that caused damage to Respondent’s home. His pool developed black algae, which generally requires pressure washing and chemical treatment to remove. In preparation for removal of the algae, Petitioner drained his pool about half way. Sometime in late March or early April, 2006, Petitioner asked Harry Shoemore, his supervisor, to find out how to apply for water service from the 12-inch line and how much it would cost in fees to obtain the new water service. Mr. Shoemore obtained the information for Respondent and radioed him with the information. The fees for the new service would exceed 1000.00 dollars and had to be paid prior to service being installed. On April 9, 2006, Respondent, with full knowledge that he had not paid for any tap, hooked a waterline to the 12-inch tap that had been installed earlier. The line ran around the house to the backyard and into the pool. He did not attach a meter to the tap and did not pay any fees to ECUA. Respondent used water from the tap to pressure wash his pool and fill it. An estimated amount of water used by Petitioner to accomplish these tasks would be over 7,000 gallons of water. On April 10, 2006, Mr. Dawson received a telephone call that there was an unmetered tap at 280 Ten Mile Road. Mr. Dawson and Mr. Shoemore drove to the address to investigate the call. They arrived at Respondent’s house around 8:30 a.m. and saw the ECUA’S one-inch black service tubing from the 12- inch line attached to white PVC piping extending to the backyard of Respondent’s home and emptying into Respondent’s pool. The pool was being filled and water had overflowed into the backyard. There was no meter on the service line. Respondent’s father met Mr. Dawson and Mr. Shoemore at the door to the house. He advised them that he had called Respondent and that Respondent was on his way to his house. Respondent drove up to the house in an ECUA work truck. As he approached Mr. Dawson and Mr. Shoemore, Respondent stated, “You caught me.” Respondent also admitted to attaching the PVC pipe to the line and using the water to pressure wash and fill his pool. He admitted he was wrong for making the attachment and using the water without paying for it. Respondent indicated he was willing to pay for the water and service. There is no question that Respondent illegally connected to and used ECUA property, stole water from ECUA, and deprived ECUA, as well as the County, the connection and impact fees related to such use. Respondent was immediately placed on Administrative Leave with Pay, pending further investigation by Petitioner. Later Respondent was afforded his due process rights by ECUA. Petitioner did review prior disciplinary action against other employees who were allegedly “caught stealing,” including two past incidents that Respondent indicated had not resulted in termination of the employee. One of the incidents could not be verified. The other incident was vague, was not brought to the attention of the past administration for discipline and occurred well prior to the current administration’s policy against theft and employee conduct. Respondent also referenced two employment actions that involved the falsification of time records. At least one of these actions resulted in some form of hearing. However, the evidence was vague regarding these disciplinary actions and any similarity between these cases cannot be determined from the evidence.
Conclusions For Petitioner: John E. Griffin, Esquire Carson & Adkins 2958 Wellington Circle, North Suite 200 Tallahassee, Florida 32308-6885 For Respondent: Marc Hughes 280 East Ten Mile Road Pensacola, Florida 32534
The Issue The issue in this case is whether Respondent has failed to comply with the personnel policy established by Emerald Coast Utilities Authority.
Findings Of Fact ECUA was created in 1981 pursuant to chapter 81-376, Laws of Florida. By law, it provides utility services throughout Escambia County, Florida. In 1995, Respondent was hired by Petitioner as a utility service technician II. The position involved skilled work of average to considerable difficulty in the installation, maintenance, and repair of water and waste service lines. The job also required a significantly strong person with sufficient strength, fitness and mobility to work in a field environment involving all types of weather and temperature conditions and with slippery, uneven or rough surfaces and terrain. Additionally, the job required a person who could walk, stand, and sit for prolonged periods of time; frequently stoop, bend, kneel, crouch, crawl, climb, reach, twist, grasp, and make repetitive hand movements; and lift, carry, push, and/or pull moderate to heavy amounts of weight, which could exceed 50 pounds. Finally, the job required a person to be able to drive commercial vehicles and maintain a commercial driver's license. Around June 28, 2012, Respondent was given a copy of the ECUA’s revised Human Resources Manual and Employee Handbook. The manual is a publication containing all of Petitioner's human resource policies, including discipline and termination of employees. The manual states, in pertinent part, as follows: B-13(10) - Failure to maintain job qualifications: Failure to maintain required licenses, certifications, or other similar requirements such that an employee is no longer qualified for a position or can no longer perform assigned duties. * * * B-13(33) – Violation of ECUA rules or guidelines or state or federal law. The failure to abide by ECUA rules, guidelines, directive, or state or federal statutes. * * * D-16 A.2. - Leave * * * Employees will return to work anytime they are medically able, up to six (6) months from the date of injury. At that point, if unable to return to work the employee must retire, resign, or be terminated. The department head, after consultation with the Human Resources Director, may extend this time based on evaluation of the employee's ability to return to work. On December 18, 2013, while repairing an ECUA line, something snapped in Respondent’s right arm which caused him severe pain in that arm to the extent he could not lift it or perform his job duties. That same day, Respondent reported the injury to ECUA and saw Dr. Bruce Albrecht, M.D., at Sacred Heart Medical Group. Dr. Albrecht initially diagnosed Respondent with a strain of the right shoulder and released Respondent to return to work with light duty conditions, including no lifting, pushing or pulling over 15 pounds with both arms (5 pounds with the right arm), no stooping, kneeling, climbing or crawling, and no commercial driving. Such conditions prevented Respondent from performing the essential requirements of his job. As a result of the injury, Respondent took authorized leave beginning December 19, 2013, and continued to be followed by medical staff over the next several months. He also received physical therapy for his shoulder and arm. Around January 23, 2014, Dr. Albrecht recommended that Respondent be seen by an orthopedic specialist. By that time, Respondent’s diagnosis included rupture of the right biceps tendon. Ultimately, after evaluation by an orthopedic specialist and some unspecified delay due to the approval process used by ECUA’s workers’ compensation coordinator, Respondent was referred to an orthopedic surgeon and scheduled for surgery on March 14, 2014. The surgery was to reconstruct Mr. Billups’s shoulder by performing a biceps tenodesis and revision acromioplasty, as well as debriding a torn labrum (cartilage rim of the shoulder socket). Biceps tenodesis is a procedure that removes part of the biceps tendon and cuts the normal attachment of the biceps tendon on the labrum of the shoulder socket. After detachment, the biceps tendon is reattached to the arm bone, thereby removing the pressure of the biceps attachment off of the shoulder socket labrum. Revision acromioplasty is a surgical reshaping of the acromion, the bone which forms the point of the shoulder blade that covers the shoulder joint. As indicated, Respondent’s surgery was scheduled for March 14, 2014. However, that surgery was delayed due to cardiovascular concerns over Respondent’s ability to undergo surgery. Ultimately, Respondent had surgery on his right shoulder and bicep on April 16, 2014. After the surgery, Respondent’s physician, Dr. Kirby Turnage, M.D., prescribed physical therapy to build up strength and increase range of motion in his shoulder and arm. Additionally, Respondent was not released by his doctor to return to work even at a sedentary level. By May 27, 2014, slightly more than five months after Respondent went on leave, he was released to work but only at a sedentary or light duty level. Respondent’s physician indicated that it would be at least six (6) weeks before Respondent could possibly return to work without restrictions. At the time, ECUA did not have any light duty jobs that Respondent could perform and it was unlikely that such jobs would be available in the future given the nature of the work performed by ECUA and the department in which Respondent was employed. During Respondent’s leave, the Pensacola area experienced a 100-year rain event which placed significant pressure on ECUA’s wastewater system creating a backlog of repairs and wastewater compliance requirements placed on ECUA by the Florida Department of Environmental Protection. At some point, temporary employees were assigned to help in the work Respondent’s section had to perform. However, the temporary employees were insufficient to meet the work loads of that section and a fully trained utility service technician was needed in the department. Due to the utility service department’s needs, Respondent’s supervisor determined that Respondent’s position needed to be filled by a person who could physically perform all of the duties the position required. On June 3, 2014, Respondent’s supervisor advised Respondent that, if he could not return to work by June 18, 2014, six months from the date of his injury, he would be terminated under sections B-13(10), B-13(33) and D-16 of ECUA’s employee handbook. The letter also scheduled a predetermination hearing for June 19, 2014, to provide Respondent the opportunity to demonstrate that he was released for work or demonstrate circumstances for extending Respondent’s inactive work status beyond the six months permitted in the employee handbook. The predetermination hearing was held on June 19, with Respondent in attendance. Up to that date, ECUA had not received a medical clearance for Respondent to return to full duty. Respondent indicated that his physical therapy was proceeding well and he felt that he would be cleared to return to work very soon. In light of Respondent’s representation, he was given until June 20, 2014, to provide medical clearance for work to ECUA. On June 20, Respondent provided a letter from Sacred Heart Occupational Health Strategies, his physical therapy provider. The letter stated that Respondent’s shoulder was improving and that the physical therapist anticipated Respondent could possibly return to work without restrictions following completion of such therapy. However, the physical therapist further stated that a medical release to full duty from Dr. Turnage was required before such return to work. However, his next appointment with Dr. Turnage was not scheduled until July 8, 2014, more than seven months after the date of Respondent’s injury. Further, the evidence did not demonstrate that Respondent was medically cleared by Dr. Turnage to perform full work duties without restriction at the July appointment. Notably, the evidence showed that Respondent was not discharged from physical therapy until August 13, 2014, almost eight months after his injury. These facts demonstrate that Respondent could not perform the essential requirements of his job after six months of inactive status. Additionally, the evidence did not demonstrate a reasonable basis to extend Respondent’s inactive work status beyond the six months already provided. Such inability to perform his work duties caused Respondent not to comply with sections B-13(10), B-13(33) and D-16.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Executive Director of the Emerald Coast Utilities Authority find that Respondent could not return to work within six months from the date of his injury, did not comply with ECUA’s human resources policy B-13(10), B-13(33) and D-16, and impose such action as determined appropriate under the provisions of the Human Resources Manual and Employee Handbook. DONE AND ENTERED this 27th day of October, 2014, in Tallahassee, Leon County, Florida. S DIANE CLEAVINGER Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 27th day of October, 2014. COPIES FURNISHED: Roderick E. Billups 6613 Black Oak Place Pensacola, Florida 32526 Cynthia S. Sutherland Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311 John Edmund Griffin, Esquire Carson and Adkins 2930 Wellington Circle, North, Suite 201 Tallahassee, Florida 32309 (eServed) Joseph L. Hammons, Esquire The Hammons Law Firm, P.A. 17 West Cervantes Street Pensacola, Florida 32501-3125 (eServed) Steve Sorrell, Executive Director Emerald Coast Utilities Authority 9255 Sturdevant Street Post Office Box 15311 Pensacola, Florida 32514-0311
The Issue The issues to be resolved in this proceeding concern whether the Petitioner was subjected to an act of employment discrimination based upon his termination from employment rather than allegedly having his disability (blindness) accommodated by the Respondent employer in such a way as to allow his continued employment.
Findings Of Fact The Petitioner, at times pertinent hereto, was an employee of the Respondent, City of Pensacola, (ESP). He had been employed by the Respondent since 1993. He was promoted to the position of field service technician in 1998. The Petitioner was assigned to ESP and had been working in that capacity sometime in 1998. When the Petitioner was promoted to the position of field service technician in 1998 he was required to obtain a commercial driver's license. Part of the qualifications for his position was that the holder have a commercial driver's license. In order to obtain a commercial driver's license, Mr. Avery was required to pass a visual acuity test and was required to have good vision in order to keep the license to drive. The requirement for having a commercial driver's license remained in force for the position of field service technician through the dates of Mr. Avery's employment in that position until his termination. There is no evidence that there was any field service technician employed by ESP who did not possess a commercial driver's license while working there. The Petitioner was assigned to work in the ESP gas meter shop, calibrating and repairing city gas meters. From time to time, however, he was required to work in the field in various capacities. Indeed, all field service technicians such as Mr. Avery, were always subject to being told to perform various duties at ESP, including duty in the field, depending upon where or the city needed the worker most at the time. When field service technicians were required to work outside the shop, the majority of time they worked alone and were therefore required to be able to and be licensed to operate various kinds of motor vehicles. They were required to operate trucks and other motor vehicles, as well as backhoes, ditching machines, and other equipment. Mr. Avery's job description as a field service technician required him to be able to safely operate backhoes and ditching machines. Because of his vision difficulty, Mr. Avery admitted that he could only operate a backhoe safely if no other persons were around. He also admitted that he was unable to perform any of the job duties required of a field service technician outside the meter shop because they all involved driving or operating vehicles which he became unable to do because of his vision problem. Mr. Avery was diagnosed with diabetes many years preceding his employment with ESP. Sometime in the year 2000 he sustained an injury, and when released to return to work full- time, in June of 2000, ESP allowed him to do so. In April 2001, he told his supervisor, Ms. Nickerson, that he was having trouble with his vision and thought it might be attributable to some medication that he was taking. In fact, the evidence indicates that it may have been attributable to his long-term diabetes condition. In any event, in July 2001, Mr. Avery was asked to take a company truck and go alone to spot the location of some city gas lines. During this assignment Mr. Avery ran a red light in a company truck. He received a traffic ticket for running the red light and told his supervisor afterward that he was not able to drive responsibly any longer until he found out what was occurring with his vision difficulty. Subsequent to this conversation with Ms. Nickerson, in July of 2001, Mr. Avery returned to work in the meter shop. A few days later he was required to go out on a "crew truck" for several days. While working on the crew truck, Mr. Avery sustained and orthopedic injury to his clavicle and was restricted from working, beginning sometime in late July of 2001. After the injury, in late July 2001, he never actually returned to work for ESP until the date of his termination. The Petitioner was not released to return to full duty at work from his orthopedic injury by his physician until December 2001. At that point the Respondent required that he pass a vision screening test in order to return to his position as a field service technician, because of his past driving difficulty related to his vision. The vision screening test was performed by Dr. Herron. Dr. Herron opined in December 2001, that Mr. Avery was legally blind and could not drive an automobile. The doctor measured the Petitioner's visual acuity as 20/200, the standard for legal blindness, and stated that his condition was not likely to improve. The Petitioner was terminated from his position on March 22, 2002, because he was unable to perform his job because he could not maintain the required driver's license due to his visual difficulty. The Petitioner maintains that he should have been "accommodated" regarding his inability to drive a vehicle, due to his visual handicap, by permanent assignment to the meter shop and thus never having to drive a motor vehicle or motor equipment. He contends that he would not need a commercial driver's license with such an assignment. However, the requirement to have a commercial driver's license and to operate various vehicles and equipment is a significant part of the requirements of the field service technician's position. Indeed, Mr. Lupton in his testimony, established that work outside the meter shop was a routine, regularly-requested job duty, for field service technicians such as the Petitioner. Field service technicians have to be able to drive vehicles and motor equipment in order to go out, pick-up, and deliver meter parts, spot gas lines, do excavations and other functions requiring the ability and the license to operate and drive equipment or vehicles. Indeed, Mr. Lupton's testimony establishes that no one would be able to perform most of the many tasks of a field service technician at ESP if he permanently lost the ability to drive a vehicle. A non-driving employee could work in the meter shop only; however, a substantial portion of the duties of field service technicians do not involve work in the meter shop but rather in field duties. After his termination in 2002 Mr. Avery applied for and received Social Security Disability entitlement and benefits due to his blindness. In order to establish one's claim for Social Security Disability Benefits, one must prove to the Social Security Administration that the applicant is not able to perform in any employment. The Petitioner can perform most of the activities of daily living satisfactorily except those which depend upon his eyesight. His eyesight is sufficiently impaired to constitute a significant impairment to an activity of daily living (i.e. seeing). This is especially critical as to his inability to drive a vehicle, although his does have some vision. In fact, when his eyes are examined currently, he is able to read the first line of an eye chart, the second line and then a letter or two of the third line. The Petitioner admits that he is unable to obtain a driver's license because his eye sight is insufficient. He is not able to perform any job with the Respondent that requires a driver's license. If his employment with ESP were so protected as to be confined to the meter shop duties only he may be able to perform those functions. However, a major portion of the duties of the field service technician involve the requirement that he be able to drive and operate motor vehicles and equipment. This the Petitioner is unable to do. The Petitioner contends that his termination was actually due to reasons of personal dislike of him by his supervisors. He has applied for many other jobs unsuccessfully in the Pensacola area since his termination. He contends that this is due to an "unspoken law" in Pensacola that effectively "blacklists" former employees of the city, county or state governments who have been terminated from those positions. Other than his own opinion testimony, he offered no documentary evidence or testimony of other witnesses to corroborate this belief on his part. The Petitioner attempted to assert that another ESP employee, Mr. Myers, was a similarly-situated, exemplar employee who had not been terminated when he suffered a disability or handicap during his employment, but was rather retained in ESP's employment as a field service technician. However, as established by the testimony of Mr. Lupton, Mr. Myers suffered severe burns in an accident and was medically restricted from contact with direct sunlight. Mr. Myers, however, continued to be able to drive a car, a tractor, a dump truck, and other equipment to, from, and around work sites. He continued to qualify for and retain his commercial driver's license. His employer was able to accommodate his disability or medical restriction involving reduced contact with direct sunlight because even with that restriction he was still able to perform the duties of his job. Therefore, Mr. Myers was not terminated and was continued in his employment with the accommodation concerning the restriction from contact with direct sunlight. Thus, because of the differences in Mr. Myers situation and condition, particularly the fact that he could remain licensed to and could physically operate vehicles and equipment, he is not truly a similarly-situated employee who was disparately and more favorably treated than was the Petitioner.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED: That a final order be entered by the Florida Commission on Human Relations dismissing the Petition for Relief in its entirety. DONE AND ENTERED this 11th day of August, 2005, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF 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 11th day of August, 2005. COPIES FURNISHED: Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Debra Dawn Cooper, Esquire 1008 West Garden Street Pensacola, Florida 32501 Millard L. Fretland, Esquire Conroy, Simberg, Ganon, Krevans, & Apel, P.A. 125 West Romana Street, Suite 150 Pensacola, Florida 32521
The Issue Whether Respondent committed an unlawful employment practice in violation of Sections 760.10(1), Florida Statutes.
Findings Of Fact The Respondent, Beard Equipment Company, Inc., sells and maintains heavy equipment in Panama City, Florida. The Petitioner, Robert G. Harrison began employment with the Respondent in Panama City, Florida, in September, 1988. The Petitioner was employed as a janitor. Petitioner's duties included running numerous and varied errands which required driving of a motor vehicle. In April of 1989, Petitioner was hospitalized in order to adjust his medication for what he indicated was a bipolar disorder. However, at the hearing, Petitioner produced no expert testimony to establish that he was mentally handicapped or had bipolar disorder. At that time, Respondent became aware that Petitioner had a medical problem. Later, Petitioner was hospitalized in order to adjust his medication on two more occasions in 1989, and twice in 1992. On each occasion the Respondent accommodated Petitioner by making arrangements to hire temporary employees or readjust other employees' duties so that they could perform Petitioner's duties while he was hospitalized. In early 1992, the Respondent's liability insurance company conducted a random audit of employee driving records. The Respondent was notified by its insurance company that no coverage would be provided for any accident where the employee/driver had a DUI conviction. This random audit prompted Respondent to conduct a complete company- wide internal audit of driving records of all employees. The driving record audit resulted in some transfers for those employees for whom driving was an essential part of their job duties, but whose driving records would prohibit them from being covered under Respondent's liability policy. Employees who could not fulfill the duties of a non-driving position were terminated. Respondent could not afford to allow employees to drive who could not be insured by Respondent's liability carrier. The in-house driving record audit revealed that Petitioner had a DUI conviction on his record. Respondent had no other non-driving positions for which the Petitioner was qualified. Respondent was therefore forced to discharge the Petitioner since he could no longer fulfill the duties of his employment. Petitioner was discharged in November of 1992. When Petitioner was terminated, Petitioner was advised by Mark Veal, his supervisor, that the driving record audit had revealed that Petitioner had a DUI conviction, and because he would not be covered under the company insurance policy, they had no alternative but to discharge him. Within a day or so, Petitioner's wife called and requested his discharge letter in writing. Veal prepared the letter, indicating that due to Petitioner's medical history, his operating a motor vehicle would be too much of a liability. Although the real reason for Petitioner's discharge and the reason given him at the time was the DUI conviction, Veal tried to write the discharge letter in such a way as to minimize any embarrassment for the Petitioner due to his DUI conviction. Therefore, the termination letter does not support the conclusion that Respondent discriminated against Petitioner based on a mental handicap. In fact, there was no substantial evidence that Respondent terminated Petitioner based on a mental handicap. The evidence clearly showed Respondent was terminated for his driving record and his lack of qualifications to fill any other non-driving position. Moreover, Petitioner failed to establish that his position was filled by a person not in a protected class or that Respondent is an employer employing more than 15 employees. Given these facts, Petitioner has not established a prima facie case that Respondent committed an unlawful employment practice.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is accordingly, RECOMMENDED that the Florida Commission on Human Relations enter a Final Order finding that Petitioner did not prove by a preponderance of the evidence that he was discriminated against because of his alleged handicap in violation of the Florida Human Rights Act and that the petition be dismissed. DONE AND ORDERED this 22nd day of December, 1994, in Tallahassee, Florida. DIANE CLEAVINGER 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 22nd day of December, 1994.
The Issue Whether Respondent violated the Florida Civil Rights Act of 1992, as alleged in the Employment Complaint of Discrimination filed by Petitioner on February 24, 2014.
Findings Of Fact Respondent operates one of the largest continuing care retirement communities in the country with about 2,400 residents and just over 1,000 employees on a single site in Fort Myers, Florida. Petitioner describes herself as "Indo-Guyanese" and testified that she is a member of the Catholic denomination. Petitioner is an articulate woman who projects an air of dignity and refinement. These qualities, when combined, can easily be interpreted by some individuals as producing an arrogant personality type. On June 6, 2013, Petitioner began employment with Respondent and was assigned to work at The Arbor, which is one of Respondent's assisted living facilities. Petitioner was employed as a hospitality care assistant (HCA) and worked on a PRN, or "as needed/on-call," basis. Petitioner's final date of employment with Respondent was May 8, 2014. Petitioner's employment relationship with Respondent ended after Petitioner refused to return to work after being cleared to do so by her authorized workers' compensation treating physician. During her employment by Respondent, Petitioner was supervised by Stacey Daniels, the registered nurse manager assigned to The Arbor. Ms. Daniels has held this position for 15 years. In her capacity as registered nurse manager, Ms. Daniels supervised seven licensed practical nurses, approximately 35 HCAs and resident care assistants, and two front-desk staff. In addition to Petitioner, Ms. Daniels also supervised Marjorie Cartwright, who works at The Arbors as a full-time HCA. Alleged Harassment by Marjorie Cartwright Petitioner, in her Complaint, alleges that she "endured on-going harassment by Marjorie Cartwright." According to Petitioner, Ms. Cartwright would tell Petitioner things like "we don't allow terrorists to have keys and [a] radio," would ask Petitioner if she is "Muslim," and referred to Petitioner as "that bitch nigger" when speaking with other staff. The Complaint also alleges that Ms. Cartwright told co-workers that she "hate[s Petitioner] to the bone." Olna Exantus and Nadine Bernard were previously employed by Respondent, and each woman worked with both Petitioner and Ms. Cartwright. Ms. Exantus testified that she witnessed an incident between Ms. Cartwright and Petitioner, during which Ms. Cartwright called Petitioner "stupid" and an "idiot" because Petitioner did not deliver to Ms. Cartwright the number of lemons that were requested. Ms. Exantus also recalled an incident where she was working with Ms. Cartwright and Petitioner when, out of the presence of Petitioner, Ms. Cartwright said that she hates Petitioner to the bone or words of similar import. Ms. Bernard testified that Ms. Cartwright referred to Petitioner as "stupid" on one occasion, and on another occasion, she called Petitioner a "bitch." Ms. Bernard also testified that she heard Ms. Cartwright state that she hates Petitioner to the bone or words of similar import. Both Mses. Exantus and Bernard testified that they heard Ms. Cartwright say that the reason why she hates Petitioner to the bone is because Petitioner thinks that "she is a rich lady" and is, therefore, better than everyone else. Neither Ms. Exantus nor Ms. Bernard testified to having heard Ms. Cartwright refer to Petitioner as either a "nigger" or a "bitch." Ms. Cartwright, who is not Indo-Guyanese, has been employed by Respondent for approximately six years as a full-time HCA. Although Ms. Cartwright testified for only a few minutes during the final hearing, she projects a personality type that can best be described as "feisty." Ms. Cartwright and Petitioner worked together approximately ten times during Petitioner's period of employment with Respondent. Ms. Cartwright testified that she never referred to Petitioner using either the word "nigger" or "Muslim." Ms. Cartwright did not deny that she referred to Petitioner as "stupid" or called her an "idiot." Ms. Cartwright also did not deny that she stated that she hates Petitioner to the bone. Petitioner was informed by Mses. Exantus and Bernard that she was disliked by Ms. Cartwright, and they suggested to Petitioner that she should take appropriate steps to protect her food items from possible contamination by Ms. Cartwright. Although Petitioner was warned to take such steps, there is no evidence that Ms. Cartwright engaged in any behaviors designed to cause harm to Petitioner. The evidence is clear, however, that Ms. Cartwright disliked Petitioner during Petitioner's period of employment by Respondent. Petitioner contemporaneously prepared personal notes as certain events happened during her employment by Respondent, including issues she claimed to have had with Ms. Cartwright. None of Petitioner's contemporaneous notes indicate that Ms. Cartwright, or anyone else employed by Respondent, referred to her as either a "nigger" or a "Muslim." The evidence does not support Petitioner's claim that Ms. Cartwright referred to Petitioner as a "bitch nigger" or as a "Muslim" as alleged in the Complaint. Stacey Daniel's Alleged Failure to Act on Complaints Petitioner alleges in her Complaint that she attempted to report Ms. Cartwright's behavior to their joint supervisor Ms. Daniels, but was told by Ms. Daniels that she "didn't have time to listen" to Petitioner's complaints. On December 13, 2013, Ms. Daniels met with Petitioner to discuss Petitioner's possible workers' compensation claim. During the meeting, Petitioner mentioned to Ms. Daniels that she was upset with her because approximately three months earlier, on or about September 4, 2013, Ms. Daniels refused to immediately meet with Petitioner to discuss the problems that Petitioner was having with Ms. Cartwright. Ms. Daniels had no recollection of Petitioner approaching her with concerns about Ms. Cartwright. Petitioner acknowledged that she only approached Ms. Daniels once to discuss her concerns about Ms. Cartwright. During the meeting on December 13, 2013, Ms. Daniels reminded Petitioner that she (Ms. Daniels) is very busy during the workday, that it may be necessary to bring matters to her attention more than once, and that she is not always able to stop what she is doing and immediately meet with employees to address work-related disputes. She apologized to Petitioner for the oversight and immediately offered to mediate any dispute between Petitioner and Ms. Cartwright. Petitioner refused Ms. Daniels' offer because Ms. Cartwright, according to Petitioner, would simply lie about her interaction with Petitioner. Petitioner never complained to Ms. Daniels about Ms. Cartwright referring to Petitioner as either a "nigger" or a "Muslim." Petitioner Complains to Karen Anderson Karen Anderson is the vice-president of Human Resources, Business Support, and Corporate Compliance and has been employed by Respondent for approximately 18 years. On November 21, 2013, Petitioner met with Ms. Anderson to discuss matters related to a workers' compensation claim. During this meeting with Ms. Anderson, Petitioner complained, for the first time, about Ms. Cartwright and the fact that Ms. Cartwright had called Petitioner "stupid" and had also referred to Petitioner as a "bitch." At no time during this meeting did Petitioner allege that she had been referred to by Ms. Cartwright as a "nigger" or a "Muslim." Additionally, at no time during her meeting with Ms. Anderson did Petitioner complain about Ms. Daniels, Petitioner's immediate supervisor, refusing to meet with her in order to discuss her concerns about Ms. Cartwright. Denied Promotion on Three Occasions In her Complaint, Petitioner alleges that she "was denied promotions to Registered Medical Assistant 3 different times" by Ms. Daniels. This allegation is not supported by the evidence. Ms. Daniels testified that Petitioner was never denied, nor did she ever seek, a transfer to the position of registered medical assistant. Ms. Daniels also testified that the only conversation that she and Petitioner had about the position of registered medical assistant occurred before Petitioner was hired by Respondent. Petitioner offered no credible evidence to refute Ms. Daniels' testimony. Retaliatory Reduction in Hours Worked In her Complaint, Petitioner alleges that "[o]ut of retaliation for complaining to Ms. Stacey about Ms. Marjorie, they cut my hours back to 2 days a week without my request." As previously noted, Petitioner worked for Respondent on an "as needed/on-call" basis. Typically, Respondent's on-call staff members are presented with a work schedule that has already been filled in with work times for the full-time staff members. Any work times not filled by full-time staff are then offered to on-call staff. In addition, on-call staff may be called at the last minute, if there is a last minute schedule change by a full-time staff member. On-call HCAs do not have set work schedules and are offered work hours on a first-come, first-served basis. After Petitioner was cleared to return to work following her alleged work-related injuries, Ms. Daniels, along with Amy Ostrander, who is a licensed practical nurse supervisor, tried to give Petitioner notice of the availability of work shifts that were open on upcoming schedules at The Arbor. Ms. Daniels encouraged Petitioner to provide her with an e-mail address in order to provide Petitioner with a more timely notice of available work shifts, but Petitioner refused to do so. E-mail communication is the most typical form of communication used by the rest of the on-call staff and serves as the most efficient and quickest way for Ms. Daniels to communicate with HCA staff. Because Petitioner would not provide an e-mail address, she was at a disadvantage, because other on-call staff members were able to learn of the availability of work shifts and respond faster to the announced openings. Because Petitioner would not provide an e-mail address and indicated that she preferred to receive the notice of work shift availability by mail, Ms. Daniels complied and sent the schedule of availability to Petitioner by U.S. mail. The evidence establishes that any reduction in the number of hours worked by Petitioner resulted exclusively from her own actions and not as a result of any retaliatory animus by Ms. Daniels or Respondent.
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 finding: that Respondent, Shell Point Retirement Community, did not commit an unlawful employment practice as alleged by Petitioner, Ghanshaminie Lee; and denying Petitioner's Employment Complaint of Discrimination. DONE AND ENTERED this 23rd day of March, 2015, in Tallahassee, Leon County, Florida. S LINZIE F. BOGAN 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 23rd day of March, 2015.
The Issue The issues in these cases are whether the Agency for Health Care Administration (AHCA or Agency) should renew the assisted living facility (ALF) and limited nursing services (LNS) licenses held by Avalon's Assisted Living, LLC, d/b/a Avalon's Assisted Living (Avalon), and whether AHCA should fine Avalon for alleged statutory and rule violations.
Findings Of Fact Avalon's Assisted Living, LLC, d/b/a Avalon's Assisted Living (Avalon) holds a biennial assisted living facility (ALF) and limited nursing services (LNS) license issued by AHCA. Avalon's ALF is in a residence at 1250 Willow Branch Drive in Orlando, Florida. It has a licensed capacity of six beds. There are six bedrooms in the residence. Four are designated as "licensed" on the ALF's floor plan. Two bedrooms are designated as "unlicensed." In February 2013, Avalon applied to AHCA to renew its license for the years 2013 through 2014.3/ In July 2013, AHCA conducted a biennial survey to determine whether Avalon's license should be renewed. Several deficiencies were noted, including: Tag A0007, Class III, admitting a resident who was ineligible due to inability to transfer from bed to wheelchair with assistance; Tag A0008, Class III, a missing AHCA Form 1823 health assessment; Tag A0009, Class IV, failure to have a resident sign a contract for six months after admission; Tag A0030, Class III, using bedrails without a doctor's order to confine a resident in bed; Tag A0076, Class III, not having a written policy requiring staff to immediately contact hospice if a resident receiving hospice services suffers cardiopulmonary arrest; Tag A0083, Class III, not having documentation that staff on duty had current CPR and first-aid training; and Tag A0162, Class III, not having documentation of a resident's informed consent as to whether a nurse would oversee Avalon's assistance with self-administration of medication. Avalon did not take issue with the deficiencies or classifications at the time and took prompt action to correct them.4/ In September 2013, AHCA conducted a follow-up survey, which disclosed that the deficiencies noted in July 2013 were corrected or no longer existed. As a result, Avalon was not fined for those deficiencies. However, during the follow-up survey, it came to the attention of AHCA that an individual, identified by his initials, R.M., to preserve confidentiality, went missing from an ALF operated nearby at 13230 Early Frost Circle by Avalon's Assisted Living II, LLC, d/b/a Avalon's Assisted Living II (Avalon II). Avalon and Avalon II had the same administrator, Chiqquittia Carter-Walker, who had a controlling interest in both facilities. R.M. could not be found despite an all-out police search. As a result, AHCA initiated a complaint investigation and declined to grant Avalon's renewal application pending completion of the investigation.5/ In October 2013, while the September 2013 incident was being investigated, another apparent deficiency came to the attention of AHCA's surveyors. They noticed that an 81-year-old resident of Avalon's ALF, who is identified by her initials, D.D., to preserve confidentiality, had metal surgical staples in her scalp from her forehead to the crown of her head. There appeared to be dried blood around the staples. At about this time, Avalon's administrator, Mrs. Carter-Walker, observed that D.D. was unable to transfer from bed to wheelchair, which was not normal for her, and appropriately decided to arrange for the resident to be taken to the hospital by ambulance. Further investigation into the metal staples revealed to the surveyors that they had been placed in the resident's scalp when she was hospitalized in July 2013 for medical attention to a head wound incurred when she fell while a resident of Avalon. AHCA initiated a complaint investigation into the reason why the staples remained in the resident's scalp for three months, which became another reason for AHCA's denial of Avalon's renewal application pending completion of the investigation. September 2013 Complaint Investigation Regarding R.M. The R.M. investigation resulted in six alleged deficiencies: Tag A025 (Resident Care - Supervision), Class II, inadequate resident care and supervision; Tag A0004 (Licensure - Requirements), unclassified, placing R.M. in an unlicensed room and/or exceeding licensed bed capacity at Avalon's ALF; Tag A077 (Staffing Standards - Administrators), Class III, inadequate supervision of the ALF by the administrator; Tag A079 (Staffing Standards - Levels), Class III, inadequate staffing for the residents, including R.M.; Tag A160 (Records - Facility), Class III, not listing R.M. as a resident on the admission/discharge log; Tag A167 (Resident Contracts), Class III, not having a resident contract for R.M.; Tag A190 (Administrative Enforcement), Class III, having staff not cooperate with AHCA's investigation; and Tag AZ815 (Background Screening; Prohibited Offenses), unclassified, letting Robert Walker provide personal care or services directly to R.M. after being arrested and awaiting disposition on several felony charges. Essential to all of the charges arising out of the September complaint investigation is R.M.'s alleged status as a resident. Avalon's position is that he was a non-resident renter of one of the unlicensed beds, not a resident of its ALF. Avalon's first contact with R.M. was through the discharge staff at Florida Hospital, where he had been admitted after being involuntarily committed under the Baker Act. After telephonic communication about whether Avalon could accept R.M. as a resident in its ALF, Mrs. Carter-Walker and her husband, Robert Walker, went to the hospital on July 19, 2013, to meet Mary Loftus, a social worker on the hospital's discharge team, and R.M. At the time, Mr. Walker had pending felony charges that disqualified him from working at the ALF or having direct contact with residents.6/ During the meeting, R.M. was cooperative, pleasant, with euthymic (normal) mood and constricted affect, and some confusion in thought process. R.M.'s participation ended when he agreed to go to Avalon's ALF and stated he would look forward to seeing Mrs. Carter-Walker and her husband on the following Monday. The social worker then further discussed the discharge plan with Mrs. Carter-Walker and her husband and noted R.M.'s "exit-seeking behavior" upon admission at the hospital - meaning, he would try to leave the hospital without being discharged. They also discussed finances, including R.M.'s $1,400 a month Social Security benefit and possible eligibility for Veteran Administration benefits, and R.M.'s nearest relatives, his foster "son" and his "daughter-in-law," Jacqueline Renea Fulcher, who lived in Polk County. The social worker then telephoned to arrange for Mrs. Fulcher also to be at the hospital for the planned discharge. When Mrs. Carter-Walker and her husband arrived at the hospital for the discharge on July 23, 2013, they were given an AHCA Form 1823, signed by R.M.'s psychiatrist the day before. The form stated R.M.'s needs could be met in an ALF that is not a medical, nursing, or psychiatric facility. The form stated that R.M. was born in 1934, had dementia, was forgetful, required fall precautions, required daily observation for his well-being and whereabouts, and required daily reminders for important tasks. The form also listed R.M.'s medications, including 81 mg aspirin, 10 mg simvastatin, 25 mg sertraline, and 50 mg hydroxyzine hydrochloride. The form stated that R.M. did not need help with taking his medications and could use a pill box. The form stated that R.M. could make phone calls independently and could prepare meals, shop, and handle personal and financial affairs with assistance. From the discussions and Form 1823, it was clear to the Florida Hospital discharge team that R.M. was being discharged to Avalon's ALF.7/ This also was the clear understanding of Mrs. Fulcher. She had asked for a letter signed by R.M.'s psychiatrist to use when they went to the bank to access R.M.'s funds to pay for the ALF. She thought she would need it to explain to bank officials in the event R.M. acted out. She understood that is what happened when staff of R.M.'s previous ALF, Sunrise, took him to the bank to access his funds, which resulted in his involuntary commitment and admission to Florida Hospital on July 3, 2013. The letter she received stated that R.M. was diagnosed with dementia disorder with behavioral disturbances and mood disorder and was unable to make decisions for daily living. R.M. was discharged to Avalon's ALF on July 23, 2013. Mrs. Carter-Walker and her husband drove to Florida Hospital to pick R.M. up and drive him to the ALF. R.M. got into the vehicle with them, and Mr. Walker drove.8/ Mrs. Fulcher followed in her car. They made a stop at a Walmart to get clothing for R.M. While Mrs. Fulcher was parking her car, the other vehicle parked, and R.M. jumped out and walked quickly or ran into the store, away from Mrs. Carter-Walker and her husband. Mrs. Fulcher went into the store after R.M., who seemed agitated and did not seem to know or trust them. Mrs. Fulcher tried to calm him down and explain the situation to him. It was decided that R.M. should continue on in Mrs. Fulcher's car. They then stopped at a bank to try to access R.M.'s funds to pay Avalon, but they were unsuccessful in doing so because they did not have acceptable identification for R.M. From there, they continued on to Avalon,9/ where Mrs. Fulcher was shown the room R.M. would be staying in, and they discussed R.M.'s medications, which Mrs. Carter-Walker said she would obtain from the pharmacy, and his identification, which Mr. Walker said he would retrieve from Sunrise ALF. The next day, Mrs. Fulcher was supposed to return to the bank with R.M. and his identification to obtain funds to pay Avalon, but she had a family medical emergency and had to fly to Virginia, where she remained for two weeks. When she returned, she tried to contact Avalon by telephone and left messages but did not get a call back from Avalon. On August 22, 2013, R.M. signed a document making Mrs. Carter-Walker his Social Security benefit payee, and she began receiving his Social Security benefits at Avalon. At some point in time, she generated statements showing that Avalon was charging R.M., as "tenant," $774.10 as rent for July 2013 (at the monthly rental rate of $2,000, prorated), and $2,400 for August and September 2013 (at the monthly rental rate of $2,400). While AHCA surveyors were at Avalon on Willow Branch Drive on September 11, 2013, conducting a follow-up survey on the deficiencies noted in July 2013, they learned that R.M. had walked away from Avalon II's ALF on Early Frost Circle, refused to come back when asked by the sole staff on duty at the time, did not return, and could not be found despite an all-out police search. Avalon's staff denied having any knowledge about R.M. and deferred all questions to Mrs. Carter-Walker. Mrs. Carter- Walker took the position that R.M. was not a resident of Avalon. She testified that she conducted her own assessment of R.M. and, without notifying either Florida Hospital or Mrs. Fulcher, determined that he did not require the services of an ALF but could be an independent renter of one of Avalon's unlicensed beds. She showed surveyors a pillbox she said R.M. used independently for his medications. The position taken by Avalon as to R.M.'s status is inconsistent with clear and convincing evidence to the contrary. Myrtus Furbert was the sole staff on duty at Avalon II on September 10, 2013. She testified that R.M. spent the previous night there, having been brought there by Mrs. Carter-Walker with a bag of clothing, but no medications. When Ms. Furbert asked about his medications, Mrs. Carter-Walker told her he had no medications because Avalon was not being reimbursed for them. R.M. had no cell phone, wallet, or personal or ALF identification because Mrs. Carter-Walker did not trust him not to lose them. He also did not have a key to either Avalon on Willow Branch Drive or Avalon II on Early Frost Circle. When R.M. absconded, Ms. Furbert notified Mrs. Carter-Walker, who notified the police, essentially following Avalon's elopement policy for ALF residents. Ms. Furbert also testified convincingly that she and other staff were instructed by Mrs. Carter-Walker to be cautious about discussing potential deficiencies with surveyors and to defer those kinds of questions, and in particular questions regarding R.M., to her. Consistent with that testimony, staff at Avalon told AHCA's surveyors that they knew nothing about R.M., and Ms. Furbert was not forthright initially when questioned about him. Mrs. Carter-Walker testified, and Avalon took the position, that staff did not know anything about R.M. because he was an independent boarder, not an ALF resident. Her testimony and Avalon's position are rejected as implausible and contrary to the clear and convincing evidence to the contrary. R.M. was a resident of Avalon's ALF, notwithstanding Avalon's position to the contrary and its failure to give him the services he should have had. The facts alleged in the deficiency tags arising out of the September 2013 complaint investigation were proven by clear and convincing evidence. October 2013 Complaint Investigation Regarding D.D. Avalon gave excuses for not having the metal staples removed from D.D.'s scalp for over three months. Mrs. Carter- Walker testified that the doctor who came monthly to Avalon's ALF stopped accepting D.D.'s insurance and that she tried to telephone D.D.'s son to get the name of her doctor, got no answer at first, and later talked to him and learned that D.D. had no other doctor. She testified that she then asked the Florida Hospital doctor who placed the staples to remove them, but that doctor declined. She testified that she did not take D.D. to a walk-in clinic or emergency room to have the staples removed because D.D.'s son had a durable power of attorney, and he would have to be present to authorize the removal of the staples. D.D.'s son did not recall getting any telephone calls from Mrs. Carter-Walker before October 10, 2013, and that he first learned about the staples when he went to Florida Hospital the next day. His testimony was clear and convincing and is accepted. Her testimony was self-serving and is rejected, if it was intended to mean that she took appropriate steps to notify the son about the staples and ask him to give consent to have them removed prior to October 10, 2013. The evidence was clear and convincing that it was inappropriate medically for the staples to remain in D.D.'s scalp for three months. Although there was no clear and convincing evidence that the staples caused an infection or that skin grew over them so as to require additional surgery to remove them, both were possible results from leaving the staples in too long. D.D.'s son relied on Avalon to care for his mother. Avalon should have taken appropriate steps to have the staples removed before October 10, 2013. Pattern of Deficient Performance The tags noted in the July 2013 re-licensure survey reflect several relatively minor deficiencies, some little more than paperwork deficiencies, which were corrected promptly. They do not, in themselves, reflect a pattern of deficient performance. The tags from the September 2013 complaint investigation involving R.M. arose from an isolated incident, in that there was no evidence that any resident eloped before or since. However, the tags include more than just an elopement. The deficiencies actually arose from a decision by Mrs. Carter- Walker, whether before or after the elopement, not to treat R.M. appropriately as an ALF resident or provide the ALF services he should have been given, while she and Avalon collected R.M.'s Social Security benefits intended to pay for those services. Avalon's decision was not disclosed to Florida Hospital, to Mrs. Fulcher, or to AHCA. This decision contributed to R.M.'s ultimate elopement. When Avalon's actions were disclosed through R.M.'s elopement, Mrs. Carter-Walker attempted to manage the consequences through her instructions to her ALF staff not to provide certain information to AHCA's surveyors, except through her. The tags from the October 2013 complaint investigation involving D.D. arose from an isolated incident, in that there was no evidence that any resident was medically neglected before or since. However, these deficiencies also arose from a decision by Mrs. Carter-Walker not to provide the ALF services D.D. should have been given. D.D.'s son, who was her health care surrogate, was not kept apprised of D.D.'s medical condition or asked to cooperate in having the metal staples removed from his mother's scalp. Avalon also did not disclose metal staples to AHCA directly or by making reference to them in D.D.'s ALF records. AHCA happened to become aware of them when its surveyors happened to notice the staples while they and Mrs. Carter-Walker were attending to D.D. for an apparent change in her medical condition that occurred while a survey was being conducted. When the staples were noticed and investigated, Mrs. Carter-Walker and Avalon attempted to avoid responsibility by blaming D.D.'s son and her Florida Hospital doctor. The tags arising out of the R.M. and D.D. investigations, while relatively small in number, reflect a troubling pattern of deficient performance involving inadequate supervision and lack of appropriate attention to the needs of ALF residents, together with attempts to hide the deficient performance from family members and AHCA, and the development of an unhealthy relationship with the AHCA surveyors and regulators that has resulted in a mutual lack of trust. Avalon III Amended Final Order Mrs. Carter-Walker had a controlling interest in Avalon and in Avalon III, which applied for a license to operate an ALF at a third location in Orlando. AHCA gave notice of intent to deny the application for licensure on several grounds, including: unlicensed operation of an ALF at 1812 Crown Hill Boulevard in Orlando in July and August 2009; expiration of the applicant's lease on the facility to be licensed; and the disqualification of Mr. Walker, who was a controlling interest, administrator, and financial officer on the application. Avalon III requested a hearing, and a Recommended Order of Dismissal was entered on the ground that Mrs. Carter-Walker and Mr. Walker took the Fifth and declined to answer discovery questions relevant to the grounds for denial of Avalon III's application. As a result, Avalon III essentially chose not to meet its burden to prove entitlement to licensure. The Recommended Order of Dismissal was adopted in an Agency Amended Final Order. Avalon III appealed, and the First District Court of Appeal issued a per curiam affirmance on December 17, 2014. Avalon, etc. v. AHCA, Case 1D13-5972, per curiam aff'd (Fla. 1st DCA Dec. 17, 2014). There was no request for rehearing, and the Mandate issued on January 5, 2015. Id.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that AHCA enter a final order denying Avalon's license renewal application and fining Avalon $5,500. DONE AND ENTERED this 21st day of January, 2015, in Tallahassee, Leon County, Florida. S J. LAWRENCE JOHNSTON 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 January, 2015.
