Findings Of Fact On July 9, 1986 Petitioner, a Clerk Typist Specialist employed by the Department of Health and Rehabilitative Services, signed a receipt acknowledging that she had received a copy of the Department's Employee Handbook which contains the information that an employee who is absent for three consecutive workdays without authorization may be considered to have abandoned his or her position and thereby to have resigned. On September 3, 1987 Petitioner telephoned her supervisor to advise him that she had an interview scheduled and that she would be at work by 9:30 a.m. She, however, thereafter failed to appear at work and failed to make any further contact with her supervisor on September 3, 4, 8, 9, 10, and 11, 1987. On September 11, 1987 by certified letter the Department advised Petitioner that, as of the close of business on September 9, she was deemed to have abandoned her position and to have resigned from the Career Service due to her unauthorized absence for three consecutive workdays, i.e., September 3, 4, and 8, 1987.
Recommendation Based upon the foregoing Findings Of Fact and Conclusions Of Law, it is, RECOMMENDED that a Final Order be entered deeming Petitioner to have abandoned her position and to have resigned from the Career Service. DONE AND ORDERED this 30th day of November, 1987, in Tallahassee, Florida. LINDA M. RIGOT Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987. COPIES FURNISHED: Ruby Holloway-Jenkins 649 West 4th Street Riviera Beach, Florida 33404 K. C. Collette, Esquire District IX Legal Counsel 111 Georgia Avenue West Palm Beach, Florida 33401 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700
Findings Of Fact Petitioner was employed by Respondent as a clerical worker, a permanent career service position, at all times material hereto. Prior to October 3, 1988, Petitioner experienced back problems which prevented her attendance at work. Dr. Brian M. Mitteldorf, a chiropractic physician, treated Petitioner beginning September 25, 1988, and continuing through all times material hereto. On October 3, 1988, Theresa (Terry) Bartelmo, Petitioner's supervisor, advised Petitioner in writing that Petitioner would be out of sick leave and annual leave the following day. Mrs. Bartelmo enclosed two copies of the form used to request a leave of absence and advised Petitioner that it was necessary to fill in all blanks and to return the form to her by no later than October 10, 1988. Respondent does not authorize any type of leave for unspecified or unlimited duration. Ms. Bartelmo further advised Petitioner that "... If I do not hear from you by that date, (October 10,1988) then I will assume you wish to terminate your employment with the Department and will process the necessary documentation." On October 3, 1988, Petitioner's husband, Edmund DeSilva, met with Ms. Bartelmo. During the meeting, Ms. Bartelmo gave to Mr. DeSilva the letter she had written to Mrs. DeSilva, together with the forms for the leave of absence. The form for leave of absence was signed by Petitioner on October 3, 1988. Mr. DeSilva hand delivered the form to Ms. Bartelmo prior to the deadline of October 10 set by Ms. Bartelmo. This form was forwarded by Ms. Bartelmo to Martha (Marty) Anderson, Respondent's district personnel manager. Ms. Bartelmo recommended that the leave of absence be granted. Ms. Anderson approved the leave of absence on October 13, 1988. The leave of absence form submitted by Petitioner and approved by Respondent contained a tentative return-to-work date of November 23, 1988. On October 3, 1988, the date Petitioner signed the leave of absence form, it was uncertain when Petitioner would be able to return to work because of her medical condition. On or about October 18, 1988, Ms. Bartelmo telephoned Petitioner to check on her progress. After Petitioner told Ms. Bartelmo that she did not feel well enough to talk, Ms. Bartelmo asked Petitioner to call her when Petitioner felt better. Ms. Bartelmo did not talk with Petitioner again until after Petitioner's employment was terminated. Dr. Mitteldorf called Ms. Bartelmo on November 22, 1988, at approximately 3:30 p.m. Dr. Mitteldorf told Ms. Bartelmo during that telephone conversation that Petitioner was too ill to return to work. Ms. Bartelmo asked Dr. Mitteldorf for a letter stating his opinion as to when Petitioner could return to work. Dr. Mitteldorf's letter was dated December 13, 1988. During their telephone conversation on November 22, 1988, Ms. Bartelmo did not tell or indicate to Dr. Mitteldorf that their conversation was tantamount to an extension of Petitioner's leave of absence. Ms. Bartelmo did not tell Dr. Mitteldorf that she was mailing to him the forms Petitioner needed to submit to request an extension of her leave of absence. Ms. Bartelmo can recommend approval of a request for leave of absence, but she does not have the authority to grant the approval. Ms. Bartelmo did not tell Petitioner or anyone acting on Petitioner's behalf, that Petitioner had any form of authorized leave after November 22, 1988. Other than having Dr. Mitteldorf call Ms. Bartelmo, Petitioner made no effort to have her leave of absence extended. Petitioner's authorized leave of absence ended on November 22, 1988. Petitioner was absent without authorized leave of absence beginning November 23, 1988, and continuing for more than 3 consecutive work days. By certified mailing on December 2, 1988, Petitioner was advised that her career service position was terminated as of December 1, 1988. Petitioner had been given a copy of Respondent's Employee Handbook on December 16, 1986, which provides in part: After an unauthorized absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policies. Petitioner's request for a formal hearing was timely filed.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service due to her unauthorized absence from employment for three consecutive workdays beginning November 23, 1988. DONE and ENTERED this 17th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 17, 18 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 9, 10, 15 and 16 of Petitioner's proposed findings of fact are unsupported by the evidence. COPIES FURNISHED: Larry D. Scott, Esquire Senior Attorney Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Colomba DeSilva 2019 Southwest 29th Avenue Fort Lauderdale, Florida 33312 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in the case is whether the Department of Labor and Employment Security (Department), in implementing a workforce reduction that resulted in layoffs and demotions for employees, should have adopted by rulemaking, policies related to compensation reductions that occurred during the workforce reduction.
Findings Of Fact In 1999, a funding shortfall at the Department of Labor and Employment Security resulted in implementation of a workforce reduction plan. Petitioners Altamese Thompson and Sue Ezell were employees of the Department with permanent status in the Career Service system and whose employment and compensation were substantially affected by the Department’s workforce reduction program. Petitioner Florida Public Employees Council 79, AFSCME, represented the employees on collective bargaining issues affected in the workforce reduction. AFSCME members’ employment and compensation were substantially affected by the Department’s workforce reduction program. The 1999 workforce reduction was not the Department’s first experience with employee layoffs. In previous reductions, Department policy, set forth in LES Manual 1101.1.1.1 (October 1, 1996) was to retain, at existing salaries, as many employees as funding permitted. The Department policy was not adopted as an administrative rule. When the Department began to consider the workforce reduction of mid-1999, the Department apparently decided to increase the number of retained employees by reducing the salaries of workers who accepted "voluntary" demotions in lieu of layoff. By issuance of a "Change Notice" to LES Manual 1101.1.1.1, dated May 14, 1999, the Department redefined voluntary demotion to include "demotions requested by associates in lieu of layoff during workforce reduction pursuant to Chapter 60K-17, F.A.C." The revision also set forth a formula by which the compensation paid to employees who accepted voluntary demotion in lieu of transfer would be reduced. The change in the Department policy was not adopted as an administrative rule. Chapter 60K-17, Florida Administrative Code, sets forth the rules applicable to reduction of Career Service employees through the layoff process. The rule essentially establishes what is generally identified as the "bumping" procedure utilized by state agencies when employee levels are reduced. Rule 60K-17.004(3)(j), Florida Administrative Code, states in part, "[w]ithin 7 calendar days after receiving the notice of layoff, the employee shall have the right to request a demotion or reassignment. " Rule 60K-17.004(3)(p), Florida Administrative Code, states that "[a]n employee who accepts a voluntary demotion in lieu of layoff and is subsequently promoted to a position in the same class in the same agency from which the employee is demoted in lieu of layoff, shall be promoted with permanent status." Chapter 60K-17, Florida Administrative Code, does not prohibit salary reductions implemented as part of a voluntary demotion. Rule 60K-4.007, Florida Administrative Code, governs "demotion appointments" in the career service system. The rule states that a "demotion appointment" includes assignment to a job class having a "lower maximum salary or having the same or higher maximum salary but a lower level of responsibility. Rule 60K-2.004, Florida Administrative Code, governs salary determinations upon appointment to employment. Rule 60K- 2.004(4), Florida Administrative Code, states, "[a]n employee who is given a demotion appointment in accordance with Chapter 60K-4, F.A.C., may be demoted with or without a reduction in base rate of pay. " Rule 60K-9.005, Florida Administrative Code, addresses a Career Service employee’s right to appeal employment actions to the Public Employees Relations Commission. Generally, an employee who has attained permanent status in the Career Service System can appeal employment actions to the Public Employees Relations Commission. However, Rule 60K-9.005(5)(c), Florida Administrative Code, states than "[a]n employee who receives a reduction in pay, a demotion, or a transfer shall waive all rights to appeal such action if the employee has signed a written statement that the action is voluntary." By certified letters dated May 24, 1999, Petitioners Thompson and Ezell were advised that "[d]ue to impending budget cuts" the Department was reducing the number of positions in the Department’s Division of Jobs and Benefits (where Petitioners Thompson and Ezell worked) and that "[r]egretfully, you will be adversely affected by this work force reduction on June 30, 1999, at the close of business." The May 24 letter included a form titled "STATEMENT OF CHOICE OF OPTIONS DUE TO LAYOFF SITUATION" which set forth available jobs and included an option allowing the employee to select a layoff rather than the job demotion. The form included a signature line that stated, "I understand that by selecting demotion as an option, I am requesting a voluntary demotion in lieu of layoff, and my pay upon such voluntary demotion will be subject to the newly revised Section 1101.1.1.1.9d of the LES Personnel Manual." The evidence fails to establish the content of Section 1101.1.1.1.9d of the revised LES Personnel Manual. The documents entered into evidence at the hearing are identified as 1101.1.1.1. There is no subsection 9d. Subsection (c)2.c. addresses pay upon voluntary demotion and states as follows: Associates requesting voluntary demotions must have their base rate of pay reduced by one-half (1/2) of the percentage/salary increase received upon promotion and/or reassignment. For example, if an associate received a 10 percent promotional increase, his/her base rate of pay must be reduced by 5 percent. Permanent career service associates who have not had a promotional increase will have their base rate reduced by 5 percent. The Division Director/Commission Chairman equivalent has authority to take final action provided, however, that any variations must be submitted to the Assistant Secretary of Administration for review prior to final action. This provision also applies to demotions to classes that are higher or lower than the classes held prior to promotion and/or reassignment. Ms. Thompson noted her preferences as to the available jobs positions and signed the form. Ms. Ezell noted her preferences as to the available jobs positions and signed the form, but wrote a notation on the form indicating her disagreement with the situation, in part stating, "I am not voluntarily requesting demotion. I have absolutely no other choice after 27 years. A pay reduction should not occur. " At hearing, both Ms. Thompson and Ms. Ezell suggested that being forced to accept a demotion and pay reduction in lieu of total layoff did not present an entirely voluntary choice. There is no evidence that the Department provided copies of the cited Personnel Manual revision directly to affected employees either before or after the May 24 letters were issued. There is no evidence that either Ms. Thompson or Ms. Ezell saw the revised Personnel Manual prior to signing the "STATEMENT OF CHOICE" forms. During the spring of 1999, the Division’s Director circulated a publication entitled "Friday Fax" to employees of the Department’s Division of Jobs and Benefits. The "Friday Fax" dated March 19, 1999 indicates that an employee demoted as part of the pending reduction in force would retain their current salary. This reflects the existing policy of the Department that had been applied in prior workforce reductions. There is no credible evidence that the Division Director was explicitly authorized to restate the Department policy in the March 19, 1999 Friday Fax. There is evidence that the Department executives were considering the possibility of salary reductions during the ongoing planning for the workforce reduction. By the following week, a new Division Director had been appointed. By April 2, 1999, publication of "Friday Fax" was suspended. A new publication "Just The Facts. . ." began to be issued by the Department’s Office of Communications and was circulated to agency personnel. On May 24, 1999, the same day that the workforce reduction letters were mailed to Petitioners Thompson and Ezell, an issue of "Just The Facts" was published which stated that demotions in lieu of layoff would incur salary reductions, and referenced the revised LES Personnel Manual section as "1101.1.1.1 9.d.(1)(6)(c)2.c."
Recommendation Based upon the findings of fact and conclusions of law recited above, it is recommended that the petitioner's action of suspending respondent for three days without pay be AFFIRMED. DONE and ORDERED this 9th day of December, 1977, in Tallahassee, Florida. DIANE D. TREMOR Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: George L. Waas, Esquire Staff Attorney, HRS 1323 Winewood Boulevard Suite 406 Tallahassee, Florida 32303 William J. Manikas, Esquire 1215 Thomasville Road Jacksonville, Florida 32303 Mrs. Dorothy Roberts Appeals Coordinator Division of Personnel and Retirement Room 530, Carlton Building Tallahassee, Florida 32304
Findings Of Fact Respondent Jerry O. Bryan began working for the State Road Department in 1968. In 1983, he started his most recent assignment with the agency, now called the Florida Department of Transportation, as an engineering technician III, in a career service position. An employee handbook respondent was furnished in 1983 had this to say about "JOB ABANDONMENT": After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. Petitioner's Exhibit No. 1, at page 43. Perhaps with this in mind, respondent requested leave without pay when he learned he faced six months' incarceration, as a result of his criminal conviction for cultivating marijuana on federal property. Respondent's supervisor, Robert Edward Minchin, Jr. denied his request for leave without pay, in accordance with a DOT policy against granting leave to DOT employees who are incarcerated. Mr. Bryan did not request annual leave, although some 220 hours' entitlement had accumulated. Asked whether he would have granted Mr. Bryan's leave request absent "a policy of not authorizing leave while someone was incarcerated," Mr. Minchin answered in the negative, saying Mr. Bryan "was going to be needed during ... [the time] he would be out. T.22. At no time did petitioner ever take disciplinary action against respondent, who received satisfactory or higher job performance ratings, the whole time he worked for petitioner. Aware that Mr. Bryan did not desire or intend to resign, relinquish or abandon his career service position, Mr. Minchin took steps to remove him from the payroll solely on grounds that he was absent without authorized leave for three consecutive workdays.
Recommendation It is, accordingly, RECOMMENDED: That petitioner reinstate respondent and award back pay, but without prejudice to instituting any appropriate proceedings before the Public Employees Relations Commission. DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II 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 27th day of November, 1990. COPIES FURNISHED: Jerry O. Bryan Federal Prison Camp Post Office Box 600 Eglin AFB, Florida 32542-7606 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Robert Scanlon, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue The issue in this case is whether Celeste H. Tiemsanguan (Petitioner) abandoned her career service position with the Department of Health and Rehabilitative Services (Respondent).
Findings Of Fact Petitioner was employed as a clerk specialist with Respondent from October, 1988 until the end of December, 1988, and during such employment was a member of the career service system. The last day on which Petitioner worked was December 21, 1988. Petitioner brought a note to the home of her supervisor at 7:30 a.m. on December 22, 1988, stating that, "Effective this date I request six months maternity leave, with the Doctor's excuse to follow . . . ." Petitioner never provided a doctor's statement certifying her pregnancy, with specific beginning and ending dates for maternity leave, as required by the Respondent's Procedure No. 60-5 which governs leave without pay. By letter dated December 22, 1988, the Respondent attempted to notify the Petitioner that she needed to submit a doctor's statement prior to her leave being approved. This letter was sent by certified mail, return receipt requested, to Petitioner's last known address. However, it was returned to the Respondent as undeliverable. Petitioner did not report to work and made no further contacts with Respondent after December 22, 1988. She never provided a doctor's certification. On December 29, 1988, Petitioner was deemed to have abandoned her position, and notice of her abandonment was mailed to her on that date by certified mail, return receipt requested. Again, this letter could not be delivered. It became known to the Respondent on January 3, 1989, that Petitioner was in jail, and personal service of this notice of abandonment was accomplished by Betty Maddux, her immediate supervisor, on that date. Petitioner refused to sign acknowledging receipt of this letter. Petitioner did not properly request approval of maternity leave because she never provided a medical certification. She abandoned her position because she never received approval from Respondent for maternity, or any other type of leave. Therefore, between December 22 and December 29, 1988, Petitioner was absent without approved leave for three consecutive work days. Notice of the final hearing was sent to Petitioner at her last known address of record, and was not returned as undelivered. In fact, the Petitioner ordered subpoenas from the Division of Administrative Hearings on July 13, 1989. The final hearing had previously been continued one time at the request of the Petitioner.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service system. DONE AND ENTERED this 14th day of September, 1989 in Tallahassee, Florida. DONALD D. CONN Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 Filed with the Clerk of the Division of Administrative Hearings this 14th day of September, 1989. COPIES FURNISHED: Barbara McPherson, Esquire District Legal Counsel 701 94th Street North St. Petersburg, FL 33702 Celeste H. Tiemsanguan 628 88th Avenue North, #2 St. Petersburg, FL 33702 John Miller, Esquire General Counsel 1323 Winewood Blvd. Tallahassee, FL 32399-0700 R. S. Power, Agency Clerk 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Gregory Coler, Secretary 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Larry Scott, Esquire 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel 435 Carlton Bldg. Tallahassee, FL 32399-1550 A. J. McMullian, III Interim Secretary Dept. of Administration 435 Carlton Bldg. Tallahassee, FL 32399-1550
The Issue Whether the Respondent's layoff of Petitioner was in compliance with Chapter 11, Florida Statutes and Chapters 22A-10 Florida Administrative Code. Whether the Respondent's layoff of Petitioner should be sustained.
Findings Of Fact Petitioner, Vernon K. Yon, was laid off by Florida State University on June 12, 1975 and has subsequently been unemployed. The layoff of Petitioner came as the direct result of the elimination of Petitioner's position, Stores Manager, Legislative Position Number 20156, from the working capital account of Respondent. The deletion of Petitioner's position and the layoff of Petitioner was approved by the Respondent's personnel director, the Chancellor of the State University System and the State Personnel Director. Petitioner was the only employee within the classification of Stores Manager in the Respondent Agency. The Agency reported to the State Personnel Director the name of Petitioner and Petitioner was placed on the appropriate State Layoff Register. The Agency's funded vacant positions do not include the position of Stores Manager and the Agency has taken no action to recreate such a position or to interview or employ any individual in the position since its elimination on June 12, 1975. The State Personnel Information Vacant Position Report dated January 5, 1976 showed Position Classification 0625, Stores Manager, Pay Grade 22, at Florida State University vacant. The Position Classification of Stores Manager was removed from the working capital account of the Agency but was retained in the University Auxiliary Reserve Account in the University Budget Office. Thus, the Position is subject to being re-established, and should such position be re- established, Petitioner Yon would have had first right of recall to that position if such position had been established within twelve (12) months from the date of layoff. Two positions were abolished at the time that Petitioner's position was abolished - the position of Stores Manager and the Storekeeper position. There were twenty-two (22) layoffs at the time of the reorganization, some of whom went to other positions with Respondent Agency but all left the Maintenance Section in which Petitioner was employed. Petitioner contends: That his position has not been abolished as required by Chapter 110, Florida Statutes; that the Respondent Agency continues to hold the Position in its Auxiliary Reserve Account; that the Department of Administration Division of Personnel Procedures of Florida Statutes 110, do not support the procedure of holding abolished positions in a Reserve Position status. The position is shown on the personnel records to be vacant. That the evidence does not show that there was a shortage of funds or a material change in the organization of the agency. That the Petitioner was not granted fully re-employment rights as to demotion or reassignment in lieu of layoff. Respondent Agency contends: That the listing of Petitioner's position as "vacant" is through an error not of the Respondent Agency's making, but is a list kept by the State Personnel Director in the Department of Administration. That Respondent's prior position "Stores Manager" is not a funded position and the retention of such a position as an Auxiliary Position is a mere method or device so that a position of similar or different classification could be established in the future when working capital funds might become available to the Agency. That the Respondent Agency has deleted its sole position of Stores Manager, the position occupied by the Petitioner; that there is no intent to re-establish the position; that no funds are available for re-establishing the position and that Petitioner's layoff came as direct result of the elimination of Petitioner's position through a reorganization caused by a shortage of University funds; that a reallocation of the workload and a reassignment of the responsibilities to a different unit is a more efficient use of University funds. That the action of Respondent Agency is not an action based upon dismissal for cause. That all the procedural requirements were followed and the layoff is valid. The Hearing Officer further finds: That the layoff of Petitioner was a direct result of a shortage of Agency funds and a reorganization brought about as a result of an attempt to conserve Agency funds. That the layoff of Petitioner is not a disciplinary action. That the Respondent Agency has abolished the position of Stores Manager held by Petitioner. That the Respondent Agency has properly followed the requirements of the Florida Statutes and the rules promulgated thereunder.
Recommendation Dismiss the appeal. DONE AND ENTERED this 15th day of June, 1976 in Tallahassee, Florida. DELPHENE C. STRICKLAND Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 Filed with the Clerk of the Division of Administrative Hearings this 15th day of June. COPIES FURNISHED: Mr. Vernon K. Yon 4105 Arklow Drive Tallahassee, Florida 32303 Robert D. Bickel, Esquire Suite 309 Westcott Building Florida State University Tallahassee, Florida 32306 Ronald A. Mowrey, Esquire Post Office Box 3021 Tallahassee, Florida 32303
Findings Of Fact On July 8, 1986, Respondent, Department of Health and Rehabilitative Services, sent Petitioner, Shirley Johnson, a letter to confirm her separation from employment as a Human Services Worker II in Pierce Cottage, Unit II, Facility IV, at the Gulf Coast Center in Ft. Myers. At the time, Johnson was a permanent employee of HRS. Her job at Pierce Cottage was to help care for 29 severely profoundly mentally retarded persons. On or about May 6, 1986, HRS' Gulf Coast Center instituted new policies for applying for authorization for leave from work. /1 No longer would Petitioner and fellow employees be required to notify their immediate supervisor, Twila Bevins, of their absence or tardiness. Instead, the employees are responsible only to notify the group shift supervisor on duty at Pierce Cottage. The employee only advises the group shift supervisor of the employee's intent to apply for authorization for leave and the amount and time the leave would be taken. The group shift supervisor does not approve leave. Authorization for leave must be obtained directly from the immediate supervisor, Twila Bevins, by explaining the reasons for the leave request which would entitle the employee to authorization for leave. Application for authorization for leave can be made either before or after the group shift supervisor is notified. However, no leave can be authorized for an employee who did not personally give notification of anticipated absence unless the employee is incapacitated. Petitioner is a mother of six. She also cares for her father, who has heart disease, and for her mother, who is overweight and has limited mobility. After a separation she has been reconciled with her husband, who, after being out of work, is now employed and contributes to the support of the family. On July 2, 1986, Petitioner and her immediate supervisor agreed that Petitioner would have July 3 and 4 off, but would work from 6:30 A.M. to 2:30 P.M. on July 5. Petitioner also was scheduled to work on July 6, 7 and 8, 1986. During the early morning hours of Saturday, July 5, between approximately 1:00 A.M. and 4:30 A.M., Petitioner's father had a heart attack and Petitioner and her husband went with him to the hospital and stayed there while he was being cared for. When they returned home at approximately 4:30 A.M., they were told by Petitioner's mother that Petitioner's brother was in jail in Ocala and that she was very concerned about her son. At her mother's request, Petitioner and her husband agreed to drive to Ocala to bail her brother out of jail. When they arrived in Ocala, Petitioner's husband, who was driving when they arrived in Ocala, was arrested for driving with a license under suspension and was himself put in jail. Petitioner herself then had to drive back to Ft. Myers to get money to bail her husband out of jail, drive back to Ocala to bail him out, and drive her husband back to Ft. Myers, a drive of a total of approximately 600 miles. Petitioner did not work and did not call in to work on Saturday, July 5. She was absent without authorized leave. On Sunday, July 6, 1986, Petitioner called into work at 6:30 A.M. to explain to the shift supervisor why she had been absent the previous day, and to notify him that she would not be in until approximately 10:00 A.M. However, tired from her ordeal the previous day and developing a severe headache, Petitioner did not work on Sunday, July 6. She called in later in the morning and spoke to one of the women working in Pierce Cottage but did not speak to the group shift supervisor. She was again absent without authorized leave. On the following morning, Monday, July 7, 1986, Petitioner called in at 6:25 A.M. to tell the group shift supervisor she would be late getting in to work. However, her headache got worse, and the pain traveled down to her neck and down one side of her body. The pain was so severe that she was crying uncontrollably. Although she still told her husband that she wanted to go to work to avoid any disciplinary problems, he talked her into letting him telephone Pierce Cottage to say that she would not be able to work on July 7. At approximately 6:45 A.M., her husband telephoned the group shift supervisor and told him that Petitioner would not be at work at all that day because of her physical condition. On Tuesday, July 8, 1986, Petitioner still was in approximately the same physical condition. At approximately 7:00 A.M., her husband telephoned the group shift supervisor at Pierce Cottage, reported her physical condition, and reported that Petitioner would not be in to work on July 8. Petitioner's husband also reported that Petitioner would probably have to see a doctor that day. Petitioner did indeed go to the Lee County Health Department on July 8, 1986, to be seen for her physical condition. Petitioner went to the Lee County Health Department because she and her husband could not afford to pay a private doctor. When Petitioner arrived at the Health Department at approximately 2:00 P.M., there was no doctor available to see her. She left at approximately 3:00 P.M. with a note confirming the she had been at the Health Department between 2:00 and 3:00 P.M., and that she needed a follow-up appointment. Although Petitioner still was suffering from a severe headache on Wednesday, July 9, 1986, she went to work, turning in her note from the Health Department. However, upon arriving, she was advised of HRS' July 8 letter confirming her separation from her employment. After reciting the grounds upon which HRS had taken the position that Petitioner should be deemed to have abandoned her position, the letter stated: "In the event it was not your intention to resign from employment, you are instructed to immediately contact me and provide a reasonable and acceptable explanation for your unauthorized absence from your employment." Petitioner was absent without authorized leave on July 5 and 6, 1986. Petitioner was not incapacitated from telephoning her group shift supervisor on July 7 and July 8, 1986. However, under the circumstances, it was reasonable for her to have her husband telephone for her. She did not intend to abandon her position. As of July 2, 1986, Petitioner had 27 hours of annual leave and 8 hours of compensatory time in her accumulative leave records and available for use July 5 - 8, 1986. She also would earn an additional 5 hours of annual leave and 4 hours of sick leave by July 10, 1986. This would have been enough to cover her absences and permit her to be paid during her absences if authorized and approved.
Recommendation Based upon the foregoing Findings of Fact' and Conclusions of Law, it is recommended that the Department of Administration enter a Final Order granting the petition in this case and ruling that the circumstances of this case do not constitute an abandonment of Petitioner's position. RECOMMENDED this 3rd day of November, 1986, in Tallahassee, Florida. J. LAWRENCE JOHNSTON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 3rd day of November, 1986.
The Issue Whether Petitioner is entitled to participate in the Deferred Retirement Option Program (DROP) of the Florida Retirement System (FRS), for the period September 1, 1998, through and including September 30, 1999.
Findings Of Fact Petitioner is a former employee of the School Board of Miami-Dade County (School Board) and is a retired member of FRS. In September 1998, Petitioner became eligible to participate in DROP by virtue of reaching 30 years of service with the School Board. In September 1998, Petitioner asked Respondent for an estimate of her retirement benefits. In January 1999, the estimate of Petitioner's retirement benefits was prepared by Respondent and mailed to Petitioner. During the 1998-99 school year, Petitioner had difficulties in her dealings with a new school principal. 1/ Petitioner testified that she delayed applying for DROP because she believed that her relationship with her employer would improve and she could continue to work as a teacher. Petitioner also testified that School Board administrators gave her erroneous information and misled her as to their intention to permit her to continue to teach. Petitioner argues that she would have elected to participate in DROP beginning September 1, 1998, had her employer told her the truth about her employment status. In this proceeding, Petitioner argues that she be permitted to participate in DROP effective September 1, 1998, on equitable grounds, without specifying the equitable principles upon which she relies. On October 27, 1999, Petitioner completed her application to participate in DROP and filed the application with the School Board's personnel office. Respondent received the completed application via facsimile on November 3, 1999. The first application sent in by Petitioner requested that her DROP participation start retroactive to September 1, 1998. Respondent, through its staff, denied that request and informed Petitioner that she would have to submit a second application, referred to by staff as a corrected application, requesting a start date of October 1, 1999. Pursuant to those instructions, Petitioner submitted a second application requesting that her start date be October 1, 1999. Petitioner's challenge to Respondent's denial of her request to accept her participation in DROP retroactive to September 1, 1998, was timely. Petitioner was later terminated from her position with the School Board. 2/ Respondent has been paid her drop benefits for the period beginning October 1, 1999, and ending when the School Board terminated her employment. Petitioner has not been employed by a FRS employer since the School Board terminated her employment.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Respondent enter a final order denying Petitioner's request for benefits under DROP for the period September 1, 1998 to September 30, 1999. DONE AND ENTERED this 10th day of August, 2001, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON 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 10th day of August, 2001
Findings Of Fact Based upon all of the evidence, the following findings of fact are determined: Background This case involves a claim by petitioner, Robert Jones (Jones or petitioner), that he was denied employment by respondent, Department of Labor and Employment Security (DLES), on account of his handicap. It is undisputed that Jones has diabetes, he is insulin-dependent, and he has had at least one toe amputated because of the disability. As such, he does not enjoy, in some measure, the full and normal use of his physical facilities, and he is accordingly deemed to be a handicapped person within the meaning of the law. The parties also agree that DLES is an employer subject to the Florida Human Rights Act of 1977, as amended, which governs this dispute. DLES denies it acted in a discriminatory manner and contends generally that (a) the handicap played no role in its employment decision since it was unaware that Jones was a disabled person when the employment decision was made, and (b) a more qualified person was hired for both positions sought by Jones. A preliminary investigation by the Florida Commission on Human Relations (Commission) found reasonable cause to believe that an unlawful employment practice had occurred. Since October 3, 1982, petitioner has been employed as an investigator specialist II at the Commission. He also worked for DLES from May 1980 until October 1981, and at the Florida State Employment Service from October 1981 until April 1982. Prior to working with the state, Jones served in the U. S. Marine Corps from which he was honorably discharged with a medical disability in 1977. He is a graduate of Florida State University having received a degree in political science in December 1985. Between 1982 and 1991, respondent made application for employment at DLES on at least four or five occasions but was never hired. On July 16, 1991, he wrote a letter to the agency head, then Frank Scruggs, complaining about his inability to get a job, advising that he was a disabled veteran, and asking for a "fair shake" on his applications. Later that year, he applied for the positions of management review specialist and senior management analyst II. Although he was interviewed for one of the two positions, he was not selected for either job. In his application filed with DLES, Jones described his health as "excellent." Attached to his application papers was a certification from the Veterans Administration indicating he had a service-related disability rated at 30 percent or more. Also, he included a handwritten statement that he was a "veteran with a compensable service-connected disability." There was no indication, however, as to the nature of the disability. After receiving two rejection letters from DLES on February 10, 1992, regarding his job application, Jones filed a complaint of discrimination with the Commission on July 23, 1992, alleging he had "been discriminated against because of (his) Handicap, Diabetes." He later filed a petition for relief in which he charged that DLES' employment decision was based not only on his handicap, but also on account of his "gender, race, veteran status or any other unlawful reason." As to the grounds raised after the Commission had concluded its initial investigation, they have been disregarded as being untimely. Senior Management Analyst II Position On January 9, 1992, respondent published a job opportunity announcement for the position of senior management analyst II in the office of civil rights and minority affairs. The position had been created to assist the director of that office, Deidre Kyle, in her day-to-day responsibilities. Kyle was also the individual responsible for the hiring decision. The advertised position required as minimum qualifications that the applicant have "a bachelor's degree and four years of professional experience in systems administrative work, employment and training, employment security, grants management, education, vocational counseling, vocational placement, occupational analysis, employment selection and referral activities, program planning, program evaluation or program monitoring." Petitioner met the minimum qualifications. Besides Jones, approximately fifty persons applied for the position of senior management analyst II, including Carolyn W. Franklin, a non-handicapped African-American female then working under Kyle's supervision and filling an Other Personal Services (OPS) slot as a civil rights specialist III in Kyle's office since September 1991. Franklin had previously worked for over twelve years in the Governor's Office, principally as a governmental analyst in the Citizens Assistance Office, and mostly under the direct supervision of Shirley Gooding, who later served as inspector general, and then assistant secretary, and finally as secretary of DLES in July 1992. She had also served as the affirmative action officer for the Governor's Office for four years. Except for these latter duties, Franklin had no experience in equal employment or civil rights. Out of the fifty applicants, only four were selected for an interview with Kyle, and none was handicapped. Jones was not selected for an interview. In choosing the top candidates for an interview, Kyle relied upon the duties and responsibilities contained in the career service system position description as well as certain review criteria which she had prepared. The review criteria were: (a) extensive knowledge of equal employment and affirmative action rules and regulations, (b) thorough knowledge of Title VII of the Civil Rights Act, (c) knowledge of the Americans with Disabilities Act, (d) experience in conducting federal program compliance reviews, (e) familiarity with American Standards Institute standards, (f) effective oral and written communication skills, and (g) personal computer experience (Word Perfect and/or Lotus Preferred). The qualifications of the three individuals other than Franklin selected for the final interview are not of record. Also, the record does not show how Jones' qualifications compared with those of the final candidates (other than Franklin). Thus, there is no way to determine if Jones was more or less qualified than the others on the final list, or whether he ranked fifth or even fiftieth out of all of the candidates filing applications. Kyle made no effort to determine whether any of the applicants, including petitioner, had a handicap. Therefore, when she made the decision to reject Jones and the other forty-five candidates through the initial screening process, she was unaware of the fact that he had diabetes. Indeed, she did not learn of this fact until Jones filed his complaint. The position sought by Jones was ultimately filled by Franklin. In selecting Franklin, Kyle noted that Franklin had served in an OPS position with "similar" job responsibilities, she had worked under Kyle's direct supervision for the preceding four months, and she had working knowledge of the duties and responsibilities of the position "that would allow her to begin work immediately." Contrary to petitioner's assertion, Kyle was not told by her superiors to hire Franklin. She concedes, however, that there were "suggestions" by then inspector general Gooding to hire Franklin, a former colleague of Gooding at the Governor's Office. In considering DLES' assertion that the reason for hiring Franklin was that she was the most qualified person, it is noted that earlier that year Franklin had applied for a lower-graded career service position in Kyle's office but was rejected because Kyle was unimpressed with Franklin's "communicative skills." After her rejection, Gooding "suggested" that Kyle hire Franklin for the OPS slot, a suggestion which Kyle followed. Based on these facts, it may be reasonably inferred that Kyle's true motive in hiring Franklin was to satisfy, albeit reluctantly, the wishes of her superior, Gooding, who wanted to place her friend in the agency, rather than hiring the best qualified person for the job. While friendship or even cronyism was the decisive factor in Franklin getting the job, there is insufficient evidence, either direct or circumstantial, that would support an inference that petitioner's handicap was the reason why he was not selected. Indeed, there is no evidence to support a finding that Jones would even have made the short list had Franklin not applied for the job, or would have been considered if Kyle had rejected the suggestions of her superior. Therefore, while the final employment decision may not have been fair, it is found that there was no discriminatory animus in DLES' employment decision to reject Jones. Management Review Specialist Positions On October 17, 1991, respondent published a job opportunity announcement for two management review specialists (position numbers 1158 and 5420) in its office of inspector general, then run by inspector general Gooding. At that time, the office had two sections: management review and investigations. When the announcement was published, the office was unsure whether both positions would be used for management reviews or whether one would be management review and the other for investigations. The minimum qualifications for the positions were a bachelor's degree and 4 years of professional experience in systems analysis, management analysis, program planning, program research, program evaluation, engineering or administrative work. Petitioner met the minimum qualification requirements. The management review slot required the successful applicant to be experienced in management reviews, which are very comprehensive and involve an evaluation of the following management functions: planning, organization, staffing, directing and controlling. The specialist is also required to prepare rather comprehensive reports. On the other hand, the specialist in the investigative section performs more traditional investigative duties with a much more narrow focus than management review. The record shows that Jones was not fully qualified to fill a slot in the management section since his main experience had been investigating discrimination complaints for the Commission for the preceding ten years. Jones and some ninety other persons filed applications for these positions. A preliminary screening process of all applications was conducted by Kitty J. Convertino, who headed the management review section, and Gary Sanford, who headed the investigation section. Because of his investigative experience with the Commission, Jones was placed on the list of some fifteen to seventeen persons to be initially interviewed. It was contemplated that after these initial interviews were conducted, a short list of five candidates would be picked from those interviewed, and they would be invited back for a second interview. Although Convertino ostensibly had authority to make a hiring decision, the final say-so rested with her superior, inspector general Gooding. During the initial interview, each candidate was asked "interview questions" from a list prepared by Convertino. Among other subjects, the applicants were asked about their computer skills since specialists were required to prepare much of their own work. Although Jones says he uses a microcomputer in his present work, his computer skills did not meet Convertino's expectations. At the conclusion of the interview, Jones was asked to provide a writing sample, and he later funished a copy of an investigative report he had written for the Commission in 1986. This writing sample reinforced Convertino's opinion that Jones was more qualified for the investigation section than the management review section. During the selection process, a member of Convertino's management review team was transferred from her team to Sanford's investigation team. When this occurred, the management review specialist vacancy on Sanford's investigation team was eliminated leaving both vacancies in the management review section. The decision to transfer the position was made by inspector general Gooding. Because no position was open in the investigation section, and the qualifications of the chosen candidates for the management section exceeded those of petitioner, Jones was not invited back for a second interview. There is no evidence to support a finding that the transfer was made to prevent petitioner from being considered for the vacant position in the investigative section. Among the candidates for the two management review positions was Jane Steele, a former collegue of Gooding at the Governor's Office, who had performed administrative work for the City of Altamonte Springs for some eighteen months prior to seeking employment with DLES, and who had prior stints with the Department of Insurance, Department of Transportation, and Governor's Office of Planning and Budgeting. When Steele's qualifications did not initially comply with the job description for position 5920, the job description was rewritten midway through the evaluation process so that Steele could satisfy the qualifications. Whether this change was made at the behest of Gooding is not of record. In any event, there is no evidence to show that this manipulation in the qualification process was for an unlawful discriminatory purpose. Steele was ultimately selected to fill one of the two management review specialist positions. According to Convertino, Steele was selected because of her prior experience in performing compliance audits for a state agency and writing audit reports. In addition, she was computer literate, was a "good" writer, having published several articles, and had a masters degree in public administration. Although Steele once worked with Gooding at the Governor's Office, there is no evidence that Convertino consulted with Gooding prior to making her employment decision. Indeed, Convertino flatly denied that any conversations took place. Ronald J. Rigby, an African-American who also has diabetes and is hearing impaired, was selected for position 1158. He had previously performed compliance reviews for DLES in the Job Training Partnership Act program, which experience Convertino believed would be compatible with the work required of position 1158. Although Rigby was placed under investigation by the State Controller in mid-January 1992 for "wage claim discrepancies," and this prevented him from assuming the job for several months, the matter was resolved sometime after April 10, 1992, and he was then allowed to report to work. When the decision to hire Rigby was made, Convertino did not know that Rigby had diabetes, although she knew that he was hearing impaired. Jones says his medical condition was discussed during the interview process, and he advised the interviewers that the disability was controlled by medication. Neither Convertino nor Sanford recalled any such discussion, and Convertino says she was unware of Jones' condition until the complaint was filed. In any event, there is no evidence, either direct or circumstantial, that would support a finding that Jones' handicap played any part in the employment decision. While the investigative slot may have been filled through a transfer on account of friendship or cronyism, that decision was not predicated on a desire to keep a handicapped person from being considered for the job. Moreover, the evidence shows that both Steele and Rigby had more experience in performing compliance audits than did Jones, and thus they were the more qualified individuals to fill those positions. Miscellaneous Employment records received in evidence show that petitioner's annual pay was $22,000 at the time his application was filed in October 1991. His salary since that time is not of record. The position of management review specialist paid in the range of $2,407.49 to $4,056.63 per month while the position of senior management analyst II paid in the range of $2,740.51 to $4,653.39 per month. Respondent apparently did not document, nor could it produce, the written basis for its hiring decisions, as required by its own personnel manual. Even so, this lack of documentation is insufficient to raise an inference that an unlawful discriminatory animus motivated DLES in its employment decisions.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the Commission enter a final order denying the petition for relief. DONE AND ENTERED this 20th day of February, 1995, in Tallahassee, Florida. DONALD R. ALEXANDER 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 20th day of February, 1995. APPENDIX TO RECOMMENDED ORDER, CASE NO. 94-2754 Petitioner: 1. Partially accepted in finding of fact 1. 2-3. Partially accepted in finding of fact 2. 4. Rejected as being unnecessary. 5. Partially accepted in finding of fact 19. 6. Rejected as being unnecessary. 7. Partially accepted in finding of fact 3. 8. Partially accepted in finding of fact 4. 9. Partially accepted in finding of fact 3. 10. Rejected as being unnecessary. 11. Rejected as being cumulative. 12. Rejected as being unnecessary. 13. Partially accepted in finding of fact 4. 14-16. Partially accepted in finding of fact 16. 17-19. Partially accepted in finding of fact 18. 20-21. Partially accepted in finding of fact 16. 22. Partially accepted in finding of fact 18. 23-24. Partially accepted in finding of fact 4. 25. Rejected as being unnecessary. 26. Partially accepted in finding of fact 18. 27-28. Partially accepted in finding of fact 24. 29. Partially accepted in finding of fact 19. 30-34. Partially accepted in finding of fact 20. 35-39. Partially accepted in finding of fact 21. 40. Rejected as being unnecessary. 41-44. Partially accepted in finding of fact 21. 45. Partially accepted in finding of fact 22. 46. Partially accepted in finding of fact 23. 47. Rejected as being unnecessary. 48-55. Partially accepted in finding of fact 23. 56. Partially accepted in finding of fact 18. 57-59. Partially accepted in finding of fact 6. 60-61. Partially accepted in finding of fact 6. 62-63. Rejected as being unnecessary. 64-67. Partially accepted in finding of fact 9. 68. Partially accepted in finding of fact 7. 69. Rejected as being unnecessary. 70. Partially accepted in finding of fact 4. 71. Rejected as being unnecessary. 72-73. Partially accepted in finding of fact 8. 74-77. Partially accepted in finding of fact 14. 78. Partially accepted in finding of fact 13. 79-81. Partially accepted in finding of fact 9. 82. Partially accepted in finding of fact 13. 83-84. Partially accepted in finding of fact 12. 85-87. Partially accepted in finding of fact 8. 88. Partially accepted in finding of fact 14. 89-90. Partially accepted in finding of fact 5. 91-92. Covered in preliminary statement. Rejected as being unnecessary. Covered in preliminary statement. Rejected as being unnecessary. Rejected as being contrary to the evidence. 97-98. Partially accepted in finding of fact 26. Respondent: Partially accepted in finding of fact 16. Partially accepted in finding of fact 18. 3-4. Partially accepted in finding of fact 4. 5-7. Partially accepted in findings of fact 18 and 19. Partially accepted in finding of fact 19. Partially accepted in finding of fact 20. Partially accepted in finding of fact 22. Partially accepted in finding of fact 23. Partially accepted in finding of fact 6. Partially accepted in finding of fact 8. 14-15. Partially accepted in finding of fact 9. Partially accepted in finding of fact 12. Partially accepted in finding of fact 11. Partially accepted in finding of fact 5. Rejected as being unnecessary. Partially accepted in finding of fact 5. Partially accepted in finding of fact 1. Note - Where a proposed finding has been partially accepted, the unused part has been rejected as being unnecessary to reach a resolution of the issues, irrelevant, cumulative, subordinate, not supported by the more credible and persuasive evidence, or a conclusion of law. COPIES FURNISHED: Bruce A. Minnick, Esquire Pamela H. Page, Esquire Post Office Box 11127 Tallahassee, FL 32302-3127 Edward A. Dion, Esquire Department of Labor and Employment Security 307 Hartman Building 2012 Capital Circle, S.E. Tallahassee, FL 32399-2152 Sharon Moultry, Clerk Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149 Dana A. Baird, Esquire Commission on Human Relations 325 John Knox Road Suite 240, Building F Tallahassee, FL 32303-4149
