STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DEPARTMENT OF JUVENILE )

JUSTICE, )

)

Petitioner, )

)

vs. ) Case No. 04-2275

)

YVETTE DEMERITTE, )

)

Respondent. )

)

RECOMMENDED ORDER

Robert E. Meale, Administrative Law Judge of the Division of Administrative Hearings, conducted the final hearing in Miami, Florida, on October 14, 2004.

APPEARANCES

For Petitioner: Linville Apkins

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

For Respondent: Elizabeth Judd, Qualified Representative

99 Northwest 183rd Street, Suite 224 Miami Gardens, Florida 33169

STATEMENT OF THE ISSUE

The issue is whether Petitioner is entitled to recover salary that it claims that it overpaid Respondent.

PRELIMINARY STATEMENT

By letter dated June 22, 2004, Petitioner informed Respondent that it had overpaid her salary in the total amount

of $3805.02 for four consecutive two-week pay periods, the last ending May 6, 2004. Respondent timely requested a formal hearing.

At the hearing, Petitioner called two witnesses and offered into evidence eight exhibits: Petitioner Exhibits 1-8.

Respondent called one witness and offered into evidence ten exhibits: Respondent Exhibits 1-10. All exhibits were admitted.

The parties did not order a transcript. Petitioner filed a proposed recommended order on October 25, 2004.

FINDINGS OF FACT

1. Petitioner employs Respondent as a detention care worker in a juvenile detention center in Miami. She is presently classified as a Senior Juvenile Detention Officer. Respondent's highest education is a high school diploma. She has worked 27 years for Petitioner and its predecessor agency, the Department of Health and Rehabilitative Services.

2. In early January 2004, Respondent was hospitalized at least a couple of times for surgery. Upon her release from the hospital, Respondent's physician directed her to rest and not to return to work. She remained under these doctor orders, and thus out of work, continuously until April 29, 2004, when Respondent returned to work.

3. Respondent exhausted her sick and annual leave prior to returning to work. The sole issue in this case is whether Respondent and her coworkers effectively completed transfers of their sick leave to her. Due to its payroll administration procedures, Petitioner paid Respondent her normal salary for a period of time for which Petitioner did not work and had no remaining sick or annual leave, so, absent an effective transfer of sick leave from coworkers, Respondent would have received overpayments during this time.

4. The salary payments in dispute are $409.70 for the pay period ending March 25, 2004; $1399.71 for the pay period ending April 8, 2004; $1477.53 for the pay period ending April 22, 2004; and $518.08 for the pay period ending May 6, 2004. These payments total $3805.02.

5. Petitioner has adopted a policy governing the transfer of sick leave between employees. Petitioner Policy 1002.03, Part III.F, Procedures for Sick Leave Transfer (Sick Leave Transfer Policy), sets forth the procedures applicable to leave donors, leave recipients, and Petitioner's Bureau of Personnel. With respect to the leave recipient, Sick Leave Transfer Policy provides:

   In order to receive donation of sick leave, the employee (recipient) must complete the Interagency Sick Leave Transfer Request (Request to Use) Form (Attachment 2) and submit it to the Bureau of Personnel on or

   before the pay period the employee is eligible to use the leave. The receiving employee (recipient) must submit medical certification to the Bureau of Personnel of the continued illness of the employee and the inability to return to work, by completing the Sick Leave Transfer Request (Request to Use) Form.

   
   

6. The Request to Use Form is incorporated into the Sick Leave Transfer Policy. It is a one-page preprinted form consisting of two parts. Entitled "Request to Use Donated Sick Leave," Part I is a signed, dated statement from the employee that states the date on which the absence began or will begin and adds:

   I certify that I have suffered an illness, accident or injury. I further certify that I have expended all my personal leave credits and this is to request use of donated sick leave hours to cover my absence due to my current personal illness, accident or injury.

   
   

   I authorize my employer to use my name and release a general description of the medical circumstances in order to determine my eligibility in accessing this benefit.

   
   

7. Entitled "Medical Documentation," Part II of the Request to Use Form comprises two subparts. The first part of the form consists of a statement from the employee that he or she is seeking donated sick leave and authorizes any medical practitioner to complete Part II and answer any questions concerning the employee's eligibility.

8. The second part of Part II of the Request To Use Form follows a line stating: "To Be Completed by the Treating Medical Practitioner Only." The information to be supplied by the practitioner is identifying information, the "date of which patient was first examined for current condition," the "date patient is expected to recover or be released to duty," and any restrictions imposed upon the patient's release to duty.

9. The last line of Part II states in boldface: "Return this form (marked confidential) to:"

   Instructions for Authorized Use of this Form: In order for the patient to comply with eligibility requirements, the treating medical practitioner must complete this form and return it to the patient's employer directly or via the patient.

   
   

10. In smaller print, immediately following the last statement, the Request to Use Form states: "Return to Bureau of Personnel, Benefits, 2737 Centerview Drive, Tallahassee, FL 32399-3100."

11. This case turns on whether Petitioner timely received the Request to Use Form. Petitioner does not dispute that it timely received sufficient Request To Donate Forms to cover the amount of the claimed salary overpayments.

12. On March 31, 2004, Respondent faxed a seven-page package of documents to George Sumpter, who was Petitioner's Sick Leave Donations Coordinator in Petitioner's Benefits group

    in the Bureau of Personnel in Tallahassee. This package consisted of executed Request to Donate Forms. Respondent faxed these forms to 850-921-6700.

13. On April 30, 2004, the day after she returned to work, Respondent faxed a 12-page package of documents to

    Mr. Sumpter. This package included an executed Request to Use Form and medical certification. Respondent's Bureau of Personnel thus received sufficient documentation to process the sick leave transfers during the pay period that ended May 6, 2004, as the policy requires that the documentation be submitted "on or before the [subject] pay period."

14. Respondent faxed an executed Request to Use Form in late February or early March. She faxed the materials to the lone Bureau of Personnel liaison present in the Miami facility at which Respondent worked. Respondent believed either that submitting the materials to the Miami liaison would suffice or, if not, the Miami liaison would forward them to where they needed to go.

15. It is difficult to determine what happened to these forms. No one in the Bureau of Personnel was very helpful to Respondent, who was able to obtain copies of the Request to Donate and Request to Use forms from a friend in the Department of Education. Somehow, while still recuperating from surgery and ill health, Respondent was able to obtain a copy of a list

    of telephone and fax numbers for various groups within Petitioner's Bureau of Personnel in Tallahassee, but the list was old and did not have Mr. Sumpter's name on it, nor did the list clearly indicate which fax number to use for submitting the Request to Use and Request to Donate forms.

16. Learning that Mr. Sumpter claimed not to have received the first package, Respondent refaxed the package to him in March. At some point, Mr. Sumpter acknowledged that he had received the Request to Use Form package, but he told Respondent that he had received it too late for her to be able to use any of the donated sick leave. When Respondent persisted in asking that he allow her to use the donated sick leave, Mr. Sumpter told her to file a complaint with Petitioner's Inspector General's Office. Respondent contacted the Inspector General's Office, where no one was able to help her.

17. Mr. Sumpter did not testify at the hearing. However, a document maintained in the Bureau of Personnel files discloses that Petitioner had received the Request to Use Form on April 1, 2004. However, the same form states that Petitioner did not receive the "Medical Documentation Form" until May 28, 2004.

18. Prior to April 1, 2004, Respondent repeatedly sent faxes to Bureau of Personnel representatives in Miami and Tallahassee. Included in these faxes were all of the documentation necessary to process the sick leave transfers from

    the donors to Respondent. During the period in question, Petitioner was undergoing significant employee turnover.

19. On this record, it is more likely than not that Respondent timely submitted, by no later than the first pay period in question in this case, all of the duly executed documentation necessary to effect a transfer of the donated sick

    leave to her.

    
    

    CONCLUSIONS OF LAW

    
    

20. The Division of Administrative Hearings has jurisdiction over the subject matter. §§ 120.569 and 120.57(1), Fla. Stat. (2004).

21. Petitioner has the burden of proof. Department of Transportation v. J. W. C. Company, Inc., 396 So. 2d 778 (Fla. 1st DCA 1981).

22. Florida Administrative Code Rule 60L-34.0042(5) authorizes a state agency to establish a sick leave transfer plan. Nothing in the Florida Administrative Code requires or prohibits the requirement, adopted by Petitioner in its sick leave transfer plan, that all documentation for a transfer be received no later than the pay period to which the request applies.

23. Petitioner's own files establish that it had received the Request to Use Form by April 1, 2004. Although the Administrative Law Judge has resolved adversely to Petitioner

the factual question whether its Bureau of Personnel had also received the medical documentation by April 1, 2004, Florida Administrative Code Rule 60L-34.0042(4)(c) requires that an employee provide medical documentation after ten consecutive days of missed work due to illness or injury and after each 30 consecutive days of missed work due to illness or injury.

Assuming that Petititioner had complied with this law in monitoring Respondent's long absence from work, Petitioner already had current medical documentation as to Respondent's absence.

RECOMMENDATION

It is

RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing its claim of salary overpayment to Respondent.

DONE AND ENTERED this 26th day of October, 2004, in Tallahassee, Leon County, Florida.

S

ROBERT E. MEALE

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 26th day of October, 2004.

COPIES FURNISHED:

Anthony Schembri, Secretary Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building

2737 Centerview Drive

Tallahassee, Florida 32399-3100

Linville Apkins

Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Elizabeth Judd, Qualified Representative

99 Northwest 183rd Street, Suite 224 Miami Gardens, Florida 33169

Yvette Demeritte

1730 Northwest 1st Court, Apartment 7

Miami, Florida 33136

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 must be filed with the agency that will issue the final order in this case.

Docket for Case No: 04-002275

Orders for Case No: 04-002275