03-004234SED Marie-Michelle Edouard vs. Department Of Health Status: Closed Recommended Order on Friday, April 16, 2004.

Summary: Petitioner spent majority of her time on the job performing supervisory duties, consistent with the position she held, and the position was properly reclassified from a Career Service System position to a Selected Exempt Service position.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MARIE - MICHELLE EDOUARD, )

)

Petitioner, )

)

vs. ) Case No. 03 - 4234SED

)

DEPARTMENT OF HEALTH, )

)

Respondent. )

_________________________________)

RECOMMENDED ORDER

Pursuant to notice, a formal hearing was held in this case

on Fe bruary 4, 2004, in Miami, Florida, before Patricia Hart

Malono, a duly - designated Administrative Law Judge of the

Division of Administrative Hearings.

APPEARANCES

For Petitioner: Marie - Michelle Edouard, pro se

6143 Northwest 183 rd Lane

Miami, Florida 33015

For Respondent: Stephen W. Foxwell, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

Reynaldo Velazquez, Esquire

Allen, Norton & Blue, P.A.

121 Majorca, Suite 300

Coral Gables, Florida 33134

STATEMENT OF THE ISSUE

Whether the Petitioner's position o f employment with the

Respondent was properly reclassified from Career Service to

Selected Exempt status.

PRELIMINARY STATEMENT

In a letter dated July 21, 2003, Marie - Michelle Edouard was

notified that she had the right to request an agency review of

the d ecision to reclassify her position of employment with the

Department of Health ("Department") from a Career Service System

position to a Selected Exempt Service position. 1 Dr. Edouard

timely filed a Petition with the Department requesting a

hearing. The Department forwarded the matter to the Division of

Administrative Hearings for the assignment of an administrative

law judge. Pursuant to notice, the final hearing in this case

was held on February 4, 2004.

At the hearing, the Department presented the tes timony of

Mary Jo Trepka, M.D.; Yukosava Petrovic; Hilda Ortiz; and Juan

Carlos Santana. Respondent's Exhibits 1 through 5 were offered

and received into evidence. Dr. Edouard testified in her own

behalf, and Petitioner's Exhibit 1 was received into evid ence.

The one - volume transcript of the proceedings was filed with

the Division of Administrative Hearings on March 8, 2004. The

Department requested and was granted an extension of time to

file proposed findings of fact and conclusions of law, and the

Dep artment timely filed its proposed findings of fact and

conclusions of law, which have been considered in the

preparation of this Recommended Order; Dr. Edouard did not file

a post - hearing submittal.

FINDINGS OF FACT

Based on the oral and documentary evide nce presented at the

final hearing and on the entire record of this proceeding, the

following findings of fact are made:

1. Dr. Edouard is a physician who was employed by the

Department as the Senior Human Services Program Manager for the

Miami - Dade Count y Childhood Lead Poisoning Prevention Program.

This program operates under a grant from the federal Centers for

Disease Control, and Dr. Edouard worked out of the Epidemiology

and Disease Control Department of the Miami - Dade County Health

Department.

2. Prior to July 2001, Dr. Edouard's position was

classified as a Career Service System position.

3. As Senior Human Services Program Manager, Dr. Edouard

supervised a staff of four to five persons, including an

epidemiologist, an environmental specialist, a nurse, and a

secretary specialist, and she spent the majority of her time

supervising these employees: Dr. Edouard prepared the work

assignments for her staff; trained the members of her staff;

monitored the progress of the staff members in completing th eir

assignments; prepared evaluations for each staff member and made

recommendations for improvement; approved or disapproved

requests for leave; had the authority to recommend members of

her staff for disciplinary action; had the authority to

recommend sa lary increases and/or to recommend promotion for

members of her staff; and prepared the budget for her program

grant.

4. Dr. Edouard was considered by her supervisor to be a

very creative, hardworking, dedicated healthcare professional

who established Mia mi - Dade County's Childhood Lead Poisoning

Prevention Program.

5. In July 2001, Dr. Edouard's position was reclassified

from a Career Service System position to a Selected Exempt

Service position because the position included substantial

supervisory respon sibilities. After the reclassification, the

formal job description for the Senior Human Services Program

Manager position remained the same in all material respects as

the job description for the Career Service System position.

6. Dr. Edouard was termina ted from her position several

months after it was reclassified.

7. At the time Dr. Edouard's position was reclassified

from a Career Service System position to a Selected Exempt

Service position, there were other supervisory employees of the

Epidemiology and Disease Control Department of the Miami - Dade

County Health Department whose positions were not reclassified

but remained Career Service System positions. These employees

were registered nurses serving as nursing program specialists.

CONCLUSIONS OF LAW

8. The Division of Administrative Hearings has

jurisdiction over the subject matter of this proceeding and of

the parties thereto pursuant to Sections 120.569 and 120.57(1),

Florida Statutes (2004).

9. The Department, as the party whose action changed the

status quo, has the burden of proving by a preponderance of the

evidence that Dr. Edouard's position was appropriately

reclassified from a Career Service System position to a Selected

Exempt Service position. See Board of Trustees of the N.W.

Florida Community Hosp. v. Department of Management Servs., Div.

of Retirement , 651 So. 2d 170, 172 (Fla. 1st DCA 1995)( hearing

officer correctly determined that employer's decision to treat

Brown as an independent contractor established status quo and

that Divisi on of Retirement had burden to demonstrate that Brown

was in fact an employee)(citing Florida Dep't of Transp. v.

J.W.C. Co., Inc. , 396 So.2d 778, 788 (Fla. 1st DCA 1981)(" In

accordance with the general rule, applicable in court

proceedings, 'the burden of proof, apart from statute, is on the

party asserting the affirmative of an issue before an

administrative tribunal.'").

10. Section 110.205, Florida Statutes (2001), provides in

pertinent part:

(1) CAREER POSITIONS. -- The career service

to which this par t applies includes all

positions not specifically exempted by this

part, any other provisions of the Florida

Statutes to the contrary notwithstanding.

(2) EXEMPT POSITIONS. -- The exempt positions

that are not covered by this part include

the following

* * *

(x) Managerial employees, as defined in

s. 447.203(4), confidential employees, as

defined in s. 447.203(5), and supervisory

employees who spend the majority of their

time communicating with, motivating,

training, and evaluating employees, and

plannin g and directing employees' work, and

who have the authority to hire, transfer,

suspend, lay off, recall, promote,

discharge, assign, reward, or discipline

subordinate employees or effectively

recommend such action, including all

employees serving as superv isors,

administrators, and directors. Excluded are

employees also designated as special risk or

special risk administrative support and

attorneys who serve as administrative law

judges pursuant to s. 120.65 or for hearings

conducted pursuant to s. 120.57( 1)(a).

Additionally, registered nurses licensed

under chapter 464, dentists licensed under

chapter 466, psychologists licensed under

chapter 490 or chapter 491, nutritionists or

dietitians licensed under part X of chapter

468, pharmacists licensed under c hapter 465,

psychological specialists licensed under

chapter 491, physical therapists licensed

under chapter 486, and speech therapists

licensed under part I of chapter 468 are

excluded, unless otherwise collectively

bargained.

11. Based on the findings of fact herein, the Department

has proven by a preponderance of the evidence that Dr. Edouard's

position as the Senior Human Services Program Manager for the

Miami - Dade County Childhood Lead Poisoning Prevention Program

included supervisory functions, as d efined in

Section 110.205(2)(x), Florida Statutes (2001), and that

Dr. Edouard actually engaged in supervisory activities during

the majority of the time she spent on the job.

12. Dr. Edouard's complaint that nurses in the

Epidemiology and Disease Control Department of the Miami - Dade

County Health Department cannot be addressed in this

administrative forum. The exclusion of registered nurses from

the category of managerial, confidential, and supervisory

employees is included in Section 110.205(2)(x), Flor ida Statutes

(2001), and this statutory exclusion can only be changed by

legislative action.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is RECOMMENDED that the decision to reclassify the

position of employment with t he Department of Health formerly

held by Marie - Michelle Edouard be sustained.

DONE AND ENTERED this 16th day of April, 2004, in

Tallahassee, Leon County, Florida.

S

________________________________ ___

PATRICIA HART MALONO

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 April, 2004.

ENDNOTE

1 / This notice was apparently sent as a result of the decision

in Reinshuttle v. Agency for Health Care Administration , 849

So. 2d 434 (Fla. 1st DCA 2003).

COPIES FURNISHED:

Marie - Michelle Edouard

6143 Northwest 183rd Lane

Mi ami, Florida 33015

Reynaldo Velazquez, Esquire

Allen, Norton & Blue, P.A.

121 Majorca, Suite 300

Coral Gables, Florida 33134

Stephen W. Foxwell, Esquire

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1703

R. S. Power, Agency Clerk

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

William W. Large, General Counsel

Department of Health

4052 Bald Cypress Way, Bin A02

Tallahassee, Florida 32399 - 1701

Dr. John O. Agwunobi, Secretary

Depa rtment of Health

4052 Bald Cypress Way, Bin A00

Tallahassee, Florida 32399 - 1701

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this recommended order. Any exceptions

to this recommended order should be filed with the agency that

will issue the final order in this case.