The Issue Proposed transfer of Bernice Ino, as specified in letter of Anthony Ninos, Director of Division of Hotels and Restaurants, dated July 27, 1976. This is an appeal of a career service employee pursuant to Section 110.061, Florida Statutes. The appeal was referred to the Division of Administrative Hearings by the Career Service Commission on November 24, 1976.
Findings Of Fact By the General Appropriations act emanating from the 1976 state legislative session, 38 employee positions of the Respondent's Division of Hotel and Restaurants were abolished. Although the specific positions were not identified in the appropriations act, the Division director was informed by a staff representative of the legislative committee on appropriations that 25 Hotel and Restaurant Inspector I positions and six Inspector II positions should be among those eliminated. The Division previously had 103 Inspectors of the two classes. Respondent identified the positions statewide to be eliminated and requested the Secretary, Department of Administration, to approve the concept that the competitive area for layoff of employees be statewide within the Division. Approval of this plan was secured and Respondent proceeded to abolish the positions and to layoff Inspectors in its various districts throughout the state. Since the Division at the time had eight vacancies for Inspector positions only 23 employees were actually eliminated. Layoffs were carried out under a retention point system based on length of service and performance evaluations, computed and applied under the provisions of Department of Administration Emergency Rule 22AER76-1, Subject "Emergency Rule Governing Layoff of Career Service Employees". As to Inspectors I, the 83 such positions in the state were placed on a numerical list, according to total number of retention points of each employee, and those with the lowest numbers were selected for layoff. Seven employees were terminated in District I (Jacksonville) and one in District IV (Ft. Lauderdale). (Testimony of Ninos, Dorn, Exhibits 1, 9-12) As a result of the abolishment of Inspector positions, there was an imbalance in manning levels in the various state districts. In Jacksonville, there had been eight inspector positions. The abolishment of three of these left five vacancies that had to be filled. On the other hand, there were negative vacancies in the Ft. Lauderdale district. The Division director therefore instructed the Respondents' personnel officer, Lee Dorn, to reapportion the state to effectively cover all inspection areas. Specifically, he directed that five Inspector I positions be transferred to Jacksonville, 3 of them to come from the Ft. Lauderdale district. In a Memorandum to Dorn, dated July 15, 1976, the director identified the three positions in Ft. Lauderdale for transfer as those held by A. V. Maloni, Bernice N. Ino, and J. F. Friedman. The retention points of these employees had been calculated respectively at 210, 169, and 165. These three employees, and two others to be transferred to Jacksonville from District V, were those Inspectors who had the lowest number of retention points after those having less retention points had been laid off. It was stipulated by the parties that the number of retention joints calculated for Petitioner is correct based on the criteria set forth in the Department of Administration's Emergency Rule. (Testimony of Ninos, Dorn, Exhibit 2) It thereafter developed that of the three Ft. Lauderdale employees, Petitioner was the only one who would actually have had to take an involuntary transfer to Jacksonville. Mr. Friedman, who had less retention points, secured a new position with another agency. Maloni, who had more retention points than Petitioner, was reassigned to a position in the Ft. Lauderdale district that was vacated when the incumbent, in turn, was reassigned to another position made vacant by the illness and eventual separation of its incumbent, John W. Murray. The person replacing Murray, A. J. Pergament, had 792 retention points. (Testimony of Ninos, Dorn, Smith, Exhibits 4, 6-8, 14-21) Petitioner was orally informed in late June of her proposed transfer by her District Supervisor, Chauncey D. Smith. This was followed by a letter, dated July 27, 1976, from the Division director that formally advised her of the transfer of her position to the Jacksonville district, effective August 1, 1976. The letter gave as a basis for the transfer the fact that legislative abolishment of positions made it necessary for the Division to reapportion its staffing to effectively cover all inspection areas and that the proposed changes were being made to obtain "equity, effectiveness, and efficiency within our districts". The letter further advised Petitioner of her right to appeal the transfer to the Career Service Commission. Although this letter did not reach Petitioner through the mail due to an incorrect address, a copy was personally served on her on July 29. Petitioner acknowledges that the incorrect address was due to her negligence in advising Respondent correctly as to the same. In a memo to Petitioner, dated July 28, Smith had conveyed Division instructions for her to report to Jacksonville on August 2. Petitioner declined to accept the transfer. She filed her appeal by letter of July 31, 1976 and thereafter resigned, effective August 2, 1976. Her appeal letter stated that she had not been given sufficient notice to relocate and that the transfer would be a great financial hardship due to the fact that she had purchased a home in the area recently. (Testimony of Dorn, Smith, Ino, Exhibits 3, 13, 22-23) At a meeting with Smith and the Division's Chief of Enforcement, B. E. Fernandez, in early August, Petitioner was informed that she would be given the next opening in Ft. Lauderdale. In fact, Inspector Murray was not separated until November but his job had been filled on a temporary basis by Maloni. When Murray was finally separated, Maloni stayed in the position. Petitioner had been told by Smith that it would be a hardship for Maloni to suffer a transfer because of family considerations, but would not be so difficult for her because she could obtain unemployment compensation and she need not be concerned because her husband was working. When Murray finally departed, Petitioner called the Division director regarding the promise that she would have the next opening and he wrote her in December, 1976, that, although she was next in line for any vacancy, Maloni had received Murray's job because he had more retention points. Also, during this period, Fernandez and Smith offered Petitioner openings in Gainesville and Daytona Beach, but she declined to accept them because she wished to stay in Broward County. Smith also suggested that she get a job as a hostess or cocktail waitress because she was cute and petite. (Testimony of Ino, Smith, Fernandez, Exhibit 4) Petitioner testified that she was of the opinion her sex was a factor in the matter because nothing was done for her by Division personnel and because of the comments made by Smith concerning her eligibility for unemployment compensation and his comments concerning the possibility of her becoming a cocktail waitress. (Testimony of Ino) Petitioner was employed by Respondent from June 1, 1973 to August 2, 1977. She had performed her duties in an exemplary manner. (Testimony of McCulley)
Recommendation It is recommended that the Career Service Commission deny the appeal. DONE and ENTERED this 23rd of March, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Lawrence D. Winson Staff Attorney Department of Business Regulation The Capitol Tallahassee, Florida 32304 Roger D. Haagenson 800 E. Broward Building Suite 610 Ft. Lauderdale, Florida 33301
The Issue The issue is whether Ms. Khan abandoned her career service position by failing to report for work, or to apply for and obtain leave for three consecutive days.
Findings Of Fact Olwen B. Khan was employed by the Department of Health and Rehabilitative Services as a Public Assistance Specialist in the medically needed program in Broward County, Florida. Ms. Khan is Jamaican, and cares for her elderly father. In order to provide for his care, she arranged to go to Jamaica to sell some property there. On March 1, 1988, Ms. Khan requested, and was granted, 32 hours of leave for March 7 through the close of business on March 10, 1988. Ms. Khan had accumulated annual leave and sick leave so that the annual leave requested did not exhaust the leave available to her. Ms. Khan purchased an airline ticket to Jamaica which would have resulted in her return the evening of March 10, 1988. On March 9, 1988, it became clear that Ms. Khan's business could not be concluded by March 10 and she would have to remain in Jamaica a few more days. She was then in Maninbay, Jamaica, where telephone service is not sophisticated. She had to go to the local telephone company office to make an overseas call when a line was available. She did so at approximately 2:45 p.m. on March 9 but when she reached the HRS office, she was placed on hold for an extended period of time. She then terminated the call and attempted to place another call on March 10 but was not able to get through to the HRS office. The evening of the 10th she made a collect call to her home in Fort Lauderdale at about 5:45 p.m., Eastern Standard Time. The purpose of the call was to have her daughter request additional leave so she could conclude her business in Jamaica. Ms. Khan's ex-husband answered the phone, which surprised her. He agreed to make the request to the Department for additional leave. The following Tuesday Ms. Khan spoke with her ex- husband again, and he said that the message had been given and the additional leave had been taken care of. In fact, no one ever contacted the Department on Ms. Khan's behalf to explain her failure to report to work on Friday, March 11; Monday, March 14; or Tuesday, March 15, 1988. Ms. Khan's supervisor, Norma Levine, did ask one of Ms. Khan's coworkers if she knew where Ms. Khan was. The coworker, Judy Fiche, did not know. After three days had passed with no word from Ms. Khan, Ms. Levine discussed the matter with her supervisor, Mr. Moran. Mr. Moran recommended termination for abandonment of position because no one had heard from Ms. Khan since her approved leave had ended on Thursday, March 10, 1988. A memorandum setting out the facts was prepared for the personnel office, and through the personnel office a certified letter was sent to Ms. Khan on March 17, 1988, informing her that as of the close of business on March 15, 1988, her employment had been terminated for abandonment of her position. When Ms. Khan did return on March 16, she was informed that her position had been terminated. She attempted to see Mr. Moran that day but he was unavailable. She eventually did speak with him but was unsatisfied with his response and ultimately spoke with the personnel officer for HRS District X, Mr. Durrett, on March 30, 1988. Mr. Durrett maintained HRS's position that Mr. Khan had abandoned her job and was unmoved by her explanation that she had been out of the country to take care of a family problem and had thought that her message about needing additional leave had been relayed to the Department. When Ms. Khan was first employed by the Department, she signed a receipt for an employee handbook setting out its policies. The policy on absences requires that an employee who does not report to work notify the employee's supervisor by 8:30 a.m., and if that supervisor is not available, the employee is to notify another supervisor that the employee will not be in to work and state why. The employee performance appraisal for Ms. Khan completed in November 1988, was the last appraisal before her termination. It shows that she was regarded as achieving prescribed performance standards.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED that a final order be entered finding that under Rule 22A- 7.010(2)(a), Florida Administrative Code, Olwen B. Khan abandoned her position by being absent without authorized leave for three consecutive workdays. DONE AND RECOMMENDED in Tallahassee, Leon County, Florida, this 8th day of August, 1988. WILLIAM R. DORSEY, JR. Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1050 (904) 488-9765 Filed with the Clerk of the Division of Administrative Hearings this 8th day of August, 1988. APPENDIX The burden of all proposed facts contained in Ms. Khan's proposed finding of fact have been adopted. COPIES FURNISHED: Larry Kranert, Jr., Esquire Department of Health and Rehabilitative Services 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Lawrence D. Zietz, Esquire 8181 West Broward Boulevard #380 Plantation, Florida 33324 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 John Miller, Esquire Acting General Counsel Department of Health and Rehabilitative Services 1323 Winewood Boulevard Building One, Room 407 Tallahassee, Florida 32399-0700 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
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department. On May 10, 1991 the Petitioner was arrested and placed in isolation without any outside contact except in the evenings by phone. By letter dated May 15, 1991, mailed to Petitioner's home address, the Department advised Petitioner that having been absence from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned his position and resigned from career services. Additionally, this letter advised the Petitioner that he had 20 calendar days from receipt of the notice to petition the State Personnel Director for a review of the facts to determine if the circumstances constituted abandonment of position. The return receipt for this letter appears to be signed by Vickie Carpenter but does not indicate the date it was signed by her. A copy of this same letter was mailed by the Department to the Petitioner at the jail but no return receipt was ever received by the Department. However, the Petitioner testified at having received the letter around May 23, 1991. On May 23, 1991 the Respondent was released from jail and was available for work beginning on May 24, 1991. However, the Department had already terminated the Petitioner based on abandonment of position. By letter dated June 6, 1991 the Petitioner requested the State Personnel Director to review his case. By letter dated June 12, 1991 and received by Petitioner on June 14, 1991, the Department again advised Petitioner that the Department assumed that he had abandoned his position and again outlined the review process. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. By letter dated August 27, 1991 the Department advised Petitioner that it was withdrawing the action of abandonment of position, and that he was reinstated to his position effective August 30, 1991. However, by letter dated August 29, 1991 the Department advised Petitioner that he was to report for work on September 3, 1991 rather than August 30, 1991, and that he was to report to Ft. Myers rather than to his old job in Punta Gorda. Additionally, Mark M. Geisler, Subdistrict Administrator, the author of the letter, advised the Petitioner that since the issue of back pay had been discussed with DeLuccia it was best for Petitioner to contact him in that regard. Petitioner was reinstated by the Department on September 3, 1991. Petitioner did not at any time agree to forego any back pay in order for the Department to reinstate him. The Petitioner has never received any back pay for the period beginning Friday, May 24, 1991 (the day he was able and ready to return to work) through Monday, September 2, 1991 (the day before Petitioner returned to work). Petitioner's wife, Vickie L. Carpenter was, at all times material to this proceeding, employed by the state of Florida, and because she and Petitioner both were employed by the state of Florida their health insurance was furnished by the state of Florida at no cost to them. Upon the Department terminating the Petitioner his wife was required to pay for her health insurance until Petitioner was reinstated on September 3, 1991. Petitioner was unable to report to work during the period from May 10, 1991 through May 23, 1991, inclusive, due to being incarcerated, and was on unauthorized leave of absence during this period. Therefore, Petitioner is not entitled to any back pay for this period, and so stipulated at the hearing. However, Petitioner is entitled to receive back pay for the period from May 24, 1991 through September 2, 1991, inclusive. There is sufficient competent substantial evidence to establish that the Department was aware of Petitioner's incarceration and that it was not Petitioner's intent to abandon his position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Administration enter a Final Order (1) confirming the action of the Department that Petitioner did not abandon his position with the Department, and (2) reimbursing Petitioner for back pay for the period from May 24, 1991 through September 2, 1991, inclusive, and for any other benefit that Petitioner was entitled to during this period, including, but not limited to, health insurance benefits. DONE and ENTERED this 12th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1991. COPIES FURNISHED: Thomas J. Carpenter 1669 Flamingo Blvd. Bradenton, FL 34207 Susan E. Vacca, Qualified Representative Department of Health and Rehabilitative Services P.O. Box 1415 Punta Gorda, FL 33951-1415 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Anthony N. DeLuccia, Esquire Department of Health and Rehabilitative Services P.O. Box 06085 Fort Myers, FL 33906
The Issue The issue for determination is whether Petitioner’s position was properly reclassified by Respondent under the Service First Initiative from Career Service to Select Exempt Service.
Findings Of Fact Ms. Blow-Beasley was employed with DCFS, formerly known as Department of Health and Rehabilitative Services, hereinafter HRS, in Broward County, Florida from February 1, 1988 to June 7, 2002. From August 3, 2000 to July 2001, as part of her employment with DCFS, Ms. Blow-Beasley worked for Economic Services. On September 29, 2000, Ms. Blow-Beasley was hired as a Public Assistance Specialist Supervisor by DCFS, which was a Career Service position. From September 29, 2000 to July 2001, a Public Assistance Specialist Supervisor was a supervisory position with HRS and/or DCFS. From September 29, 2000 to July 1, 2001, in her role as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley supervised two or more employees. As part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as a Public Assistance Specialist Supervisor, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. By letter dated June 15, 2001, Ms. Blow-Beasley was notified by DCFS that her position in Career Service was being “transferred” to SES, effective July 1, 2001. Her position in Career Service was reclassified as a SES position. Ms. Blow-Beasley informed her supervisor that she did not want to remain in SES and would accept a demotion to be in Career Service. Her request was not granted. From July 2001 to June 7, 2002, as part of her employment with DCFS, Ms. Blow-Beasley worked for the Economic Self-Sufficiency, hereinafter ESS, Program. From July 2001 to June 7, 2002, Ms. Blow-Beasley’s position title was, and she was employed as, ESS Supervisor Specialist. From July 2001 to June 7, 2002, an ESS Supervisor Specialist was a supervisory position with DCFS. As part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed and approved employee time (work time, sick leave, annual leave, vacation, etc.) of employees under her supervision. Also, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley reviewed the work and performance of employees under her supervision. Additionally, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision met certain DCFS’ performance standards and measures. Further, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley was responsible for ensuring that employees under her supervision complied with certain state and federal laws. Furthermore, as part of her duties as an ESS Supervisor Specialist, Ms. Blow-Beasley conducted, approved and/or executed performance evaluations for those persons whom she supervised. Ms. Blow-Beasley does not dispute that, from September 29, 2000 to June 7, 2002, she was a supervisor and had been in both Career Service and SES as a supervisor. Ms. Blow-Beasley does not dispute that, when her position was reclassified from Career Service to SES, her duties and responsibilities did not change, but remained the same. No direct evidence was presented to demonstrate that Ms. Blow-Beasley had the authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. However, an inference is drawn and a finding of fact is made that, based on her duties, she had the authority to effectively recommend the action to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline subordinate employees. Approximately one year after the reclassification, on June 7, 2002, Ms. Blow-Beasley was dismissed from employment with DCFS. On the said date, she signed a letter acknowledging receipt of the notice of dismissal from DCFS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Children and Family Services enter a final order finding that Ms. Sherry A. Blow-Beasley’s Career Service position was properly reclassified as a Select Exempt Service position. DONE AND ENTERED this 18th day of November 2008, in Tallahassee, Leon County, Florida. ERROL H. POWELL Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of November, 2008.
Findings Of Fact Respondent employs petitioner as a youth counselor II in Ft. Pierce, Florida. Petitioner attained permanent career service status in May of 1972. In addition to "carrying a normal caseload," i.e., supervising 85 to 88 youngsters in the customary fashion, petitioner met four times weekly with children who had been referred by courts or school authorities for intensive counseling. These groups counseling sessions began at six o'clock in the evening and lasted from one to one and a half hours. John B. Romano became petitioner's immediate supervisor on March 18, 1977. With the acquiescence of Mr. Romano's immediate predecessor, Ben Robinson, petitioner ordinarily reported for work between half past nine and half past ten in the morning. The week Mr. Romano started as petitioner's supervisor, he noticed that petitioner arrived for work between half past nine and ten in the morning. When he spoke to petitioner about this, petitioner told him of an accommodation that had been reached with Mr. Robinson, on account of petitioner's staying at work late to conduct group counseling. Mr. Romano told petitioner that he should report for work at half past eight in the morning, until a youth counselor's vacancy that then existed in the office could be filled. Subsequently, on at least one occasion before May 31, 1977, Mr. Romano spoke to petitioner about being late for work. On May 31, 1977, by which time another counselor had been hired, petitioner reported for work at approximately half past ten. On June 7, 1977, after petitioner had been suspended, Mr. Romano issued a written reprimand to petitioner, characterizing petitioner's arrival at half past ten on May 31, 1977, as "an insubordinate offense." Respondent's exhibit No. 5. One Harry Greene told Earl Stout, a service network manager for respondent and Mr. Romano's superior, that a boy whom petitioner had supervised had accused petitioner in open court of selling drugs and smoking marijuana. Messrs. Greene, Stout and Romano visited the facility at which petitioner's accuser was incarcerated and interrogated him. On May 13, 1977, a Friday, Mr. Romano told petitioner to meet him at nine o'clock the following Monday, but did not explain why. Present at the meeting on May 16, 1977, were petitioner, Mr. Romano, Mr. Greene and Mr. Stout. Petitioner was told of the accusations against him, but the accuser's identity was withheld. Mr. Stout gave petitioner the choice of resigning his position or taking annual leave for the duration of a formal investigation. Petitioner refused to resign. Mr. Stout instructed petitioner to tell no one that he had been asked to take leave or that he would be the subject of an investigation. When petitioner left this meeting he promptly told his fellow youth counselors that the had been suspended. For this petitioner received a written reprimand dated June 7, 1977. Respondent's exhibit No. 6. Petitioner subsequently availed himself of grievance procedures to raise the question whether he should have been permitted to take administrative leave instead of annual leave; and it was decided that he was entitled to take administrative leave. On June 8, 1977, Earl Stout wrote petitioner a letter which began "On June 1, you were advised by me that effective June 2, you were being suspended for insubordinate acts . . . ." This letter was sent to petitioner by certified mail. Mr. Stout testified without contradiction that blanket authority had been delegated to him to suspend employees under him.
Recommendation Upon consideration of the foregoing, it is RECOMMENDED: That the suspension be upheld. DONE and ENTERED this 9th day of March, 1978, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: Mr. J. Wayne Jennings, Esq. 2871 Forth-Fifth Street Gifford, Florida 32960 Mr. K.C. Collette, Esquire Forum 3, Suite 800 1665 Palm Beach Lakes Boulevard West Palm Beach, Florida 33401
Findings Of Fact Mr. Sherman Merrill began his position at Sunland Training Center in Orlando, Florida, on March 27, 1981 as an employee of the Department of Health and Rehabilitative Services. His last day on the job was August 7, 1982. As a behavioral program specialist, Mr. Merrill is responsible for supervising subordinate staff and for the behavior programming of HRS client residents in a residential living unit at the Sunland Training Center. He develops, monitors, and implements behavioral programs which are contained in each resident's habilitation plan. These plans are designed to eliminate inappropriate behavior and teach daily living skills. Mr. Merrill's responsibilities are professional and managerial. They do not require strenuous physical activity. On August ,12, 1982 Noel F. Windsor, the Superintendent of the Sunland Center, granted Mr. Merrill a temporary leave from his responsibilities without pay pending a diagnosis and prognosis from Dr. Robert C. Mumby on Respondent's physical ability to perform his responsibilities. Respondent asserted that he was no longer able to work due to back pain. An appointment with Mr. Mumby was scheduled for Respondent on August 17, 1982. On August 11, 1982 Mr. Merrill's immediate supervisor, Ms. Sharon Blume, limited Mr. Merrill's responsibilities to eliminate lifting any weight under any circumstances including emergencies. Prior to examining Mr. Merrill Dr. Mumby requested permission to see Mr. Merrill's x-rays which had previously been taken of his back. Mr. Merrill refused the request and as a result Dr. Mumby cancelled the examination appointment. The Sunland Center then scheduled an appointment for Mr. Merrill to be examined by Dr. Bott on August 19, 1982. Mr. Merrill did not keep this appointment and it was rescheduled for August 25, 1982. The August 25, 1982 appointment was kept and as a result of that appointment Dr. Bott reported in his findings that Mr. Merrill was able to return to work with restrictions. 1/ On October 15, 1982 HRS requested Respondent to return to work on October 19, 1982. He did not appear as requested. On October 25, 1982 Mr. Windsor wrote a letter to Respondent stating that he would continue to be carried in a leave without pay status until such time as Dr. Bott has evaluated the x-rays in relation to the examination conducted on August 25, 1982. The foregoing letter was sent to Respondent by certified mail, return receipt requested. It was later returned to the Department of Health and Rehabilitative Services as unclaimed after attempts to deliver it were made on October 26 and October 30. On November 19, 1982 a copy of the October 25, 1982 letter was sent to Respondent by certified mail, return receipt requested. HRS again requested a release of Respondent's earlier x-rays for review by Dr. Bott. On December 10, 1982 Mr. Windsor wrote to Respondent a letter which stated in part: In accordance with the recommendation by Dr. Paul Raymond, your family practice physician in Cresson, Pennsylvania, we have scheduled an appointment for you with Dr. William K. Bott, Orthopedic Surgeon, 87 West Underwood Street, Orlando, Florida 32806, on Tuesday, December 21, 1982 at 10:00 A.M. As you are aware, we made an appointment for you with Dr. Bott on August 19 which you did not keep, and again on August 25, 1982. After the examination of August 25, Dr. Bott advised this agency that you were able to return to work with restrictions. He also advised us that he would re-evaluate you after reviewing your x-rays. You refused to allow Dr. Bott to make x-rays, and you also refused to authorize the release of previously made x-rays. Enclosed for your information is a copy of Chapter 22A-8 of the Florida Personnel Rules and Regulations. Please be advised that all fees for this visit will be paid by Sunland Center. Mr. Merrill did not see Dr. Bott on December 21, 1982, but was examined by him on January 4, 1983. On February 15, 1983 Mr. Merrill was told to report to work on February 21, 1983. Mr. Merrill did not report as ordered, but instead requested another leave of absence without pay. This request was denied on February 22, 1983 on which date Mr. Merrill was notified that he was absent without leave and that if he did not report to work by February 23, 1983 he would be deemed to have abandoned his position and voluntarily resigned from the career service system pursuant to Section 22A-8.02, Florida Administrative Code. Mr. Merrill did not report for work within the time allowed, three consecutive days after February 21, 1983. Mr. Windsor wrote him a letter on February 25, 1983 which stated: As you were advised in our letter of February 22, 1983, your request for an additional six (6) months leave of absence has been denied. Further, you were notified in that letter that you were to report to your work station prior to 3:15 P.M., February 23, 1983. You were examined by Dr. William K. Bott on August 25, 1982 and released to return to restricted duty. You failed to do so. You were re-examined on January 4, 1983 by Dr. Bott, and again, released to return to your Behavioral Program Specialist duties with restrictions. He indicated that you are able to perform sedentary type duties, you should not do repeated activities, repeated lifting or pulling using the lift [(sic) should be "left"] upper extremity (copy of diagnosis attached). You were advised by our letter of February 15, 1983 to return to your duties at Sunland Center, February 20, 1983 at approximately 2:00 P.M., you telephoned Living Unit 1E and left the message that you would not be reporting to work on February 21. At approximately midnight on February 20, 1983, you presented yourself on the Living Unit 1E to review the Personnel Rules and Regulations. On February 21, 1983, you presented your immediate supervisor with a request for additional leave of absence and left the facility. On February 23, 1983 at 1:50 P.M., during a meeting with your supervisors, you advised Ms. Patricia L. Gleason, Resident Life Program Supervisor, and Ms. Sharon Blume, Resident Life Unit Supervisor and your immediate supervisor, that you would not be coming to work. As you have failed to report to work for three (3) consecutive days, we must assume that you have abandoned your position with Sunland Center.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Department of Administration enter a Final Order determining that Respondent Sherman Merrill has abandoned his position in the State Career Service System as a Behavioral Program Specialist. DONE and RECOMMENDED this 16th day of December, 1983, in Tallahassee, Florida. MICHAEL P. DODSON Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 16th day of December, 1983.
Findings Of Fact The Petitioner, Alfred Greenberg, has held the position of a veterinary aide since approximately November, 1967. During October 1974, he was converted from OPS status to a regular career service employee subject to the normal six month probationary period. By letter dated June 24, 1976, from J. Patrick McCann, Division Director, Petitioner was advised that based on "action by the 1976 legislature, we most regretfully inform you that it will be necessary to abolish your position effective the close of business, June 30, 1976. In lieu of two weeks notice, you will receive two weeks termination pay." (See Respondent's Composite Exhibit Number 1). Within a few days, the Petitioner was converted back to an OPS position receiving the same hourly pay and was advised that he would be offered any vacancy which occurred within the department to which he qualified within the following 12 month period. Petitioner, through his attorney, timely appealed the Respondent's actions essentially contesting his conversion from the career service status to the OPS status and thereby losing social security benefits, retirement benefits and the accrual of vacation and sick leave. He further complained about the manner in which he was served his layoff notice. Specifically, he complained that his letter was hand delivered whereas personnel rules and regulations require that layoff notices etc. be sent by certified mail. In this regard, evidence reveals that by letter dated August 3, 1976, by certified mail, return receipt requested, Petitioner was advised that he was then being provided notice in accordance with the requirement in the department's personnel rules and regulations. Pursuant to emergency rules governing the layoff of career service employees, 22AER76-1, the Petitioner was advised that his position was abolished pursuant to action taken by the 1976 legislature. Evidence adduced during the course of the hearing reveals that the Petitioner's layoff was effected via the procedures as outlined in the above referred emergency rule and he was immediately converted to an OPS position, a position he now holds, at the same rate of pay. Evidence clearly reveals that Petitioner's layoff was effected pursuant to and authorized by the foregoing emergency rule. In view thereof, and in the absence of any evidence which would provide basis for a contrary finding, the action of the Department in effecting the Petitioner's layoff was proper and I shall accordingly recommend that such action be sustained. It is therefore recommended that the action of the Division of Pari-Mutuel Wagering, in effecting the layoff of the Petitioner, Alfred Greenberg, pursuant to emergency rule 22AER76-1, as published in the Florida Administrative Weekly on June 11, 1976, and adopted by the Administration Commission that same date, be sustained. RECOMMENDED this 28th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 James W. Pritchard, Esquire 1038 Alfred I. DuPont Building 169 East Flagler Street Miami, Florida 33131 Mrs. Dorothy B. Roberts Room 443, Carlton Building Tallahassee, Florida 32304
The Issue The issue presented for decision herein is whether or not Petitioner was unlawfully discriminated against, by being separated from her employment with Respondent, because she sustained a back injury which Respondent perceived as a potential problem and whether she was the subject of disparate treatment as relates to the treatment Respondent afforded its other employees.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received and the entire record compiled herein, I hereby make the following relevant factual findings. Petitioner, Joyce A. Dykes, was employed by Respondent, Quincy Telephone Company, for a period of approximately thirteen (13) years where she served as a service representative/cashier and an operator. Petitioner was laid off on May 27, 1983 based upon a company-wide employment reduction mandated by economic factors. Prior to her employment with Respondent, Petitioner was formerly employed as a bookkeeper with Higdon Furniture Company for approximately 17 years. Petitioner's first date of employment with Respondent was September 28, 1970. Approximately 7 years later, i.e., on November 21, 1977, Petitioner, during the course of her duties as an operator, left her work area and, upon return, sat down in a chair which she described as "wobbly." Petitioner fell backwards from the chair and "landed on her buttocks." Ann Kirkland, a fellow employee, was summoned to the scene of the incident and took Petitioner to the hospital for an examination. Petitioner stayed in the hospital approximately 3 days and returned to work. Since she returned to work, Petitioner has not requested any special treatment such as a convenient parking space, less strenuous duties or other more favorable treatment based on her "back problem." Petitioner expressed that she was leery of complaining to Respondent, and/or its agents, based on her back problem and therefore refused to make noises about that problem. During the summer of 1981, Petitioner experienced a traumatic incident involving the drowning of her son at the pool of a local motel. Petitioner's fellow employees, including Bladis Crow, an employee of Respondent during December, 1980 to October, 1981, and who was in overall charge of Petitioner, attempted to console her during her period of mourning by suggesting that she return to work where she would be in the company of fellow employees who could console her during this low period in her life. During the period of 1980-81 when Petitioner was under the supervision of supervisor Crow, she was "cross-trained" such that she could fill in for other employees during periods of other employee absences including vacations and other leaves. Petitioner, like other employees who were "cross-trained" did not like the idea of learning new tasks and being assigned to perform other duties temporarily. Supervisor Crow perceived Petitioner to be a valuable employee and considered that she got along well with other employees. One other employee, Eunice Hancock, a cashier and service representative, recalled Petitioner bringing in a heating pad and, on occasion, voicing complaints about a backache. During her period of employment with Respondent, Petitioner was perceived as a divisive employee in the minds of Respondent's managerial employees. (Testimony of supervisor Geary 1/; Lila D. Corbin, president and general manager; and Ann Kirkland, a former supervisor and business representative). Petitioner was viewed as an employee with a morale problem and often appeared unhappy and was a source of constant bickering between other employees. Petitioner was reprimanded by Bill Geary, who served as Respondent's supervisor for approximately one year from mid-1982 to the time of her layoff on May 26, 1983. Supervisor Geary interviewed Petitioner respecting a written reprimand he issued her on January 21, 1983. All of the items listed on that reprimand were discussed with Petitioner. Among the items discussed were Petitioner's fellow employees' complaints about her activities including moodiness, low morale and other problems dealing with the quantity and quality of Petitioner's work. Throughout the discussions with supervisor Geary, Petitioner repeatedly attempted to digress from the purpose of her interview and attempted to compare her work with that of other employees. From the time that Petitioner was employed by Respondent, Respondent has undergone three changes of ownership and is presently owned by Teledata Systems (TDS). With the change in ownership by TDS, a number of changes were instituted, some of which stem from the deregulation of the telephone industry. Upon becoming the owner, TDS immediately commissioned an overall forecast study of the operations in Quincy. Following that study, TDS determined that cutbacks in operating costs were necessary to insure profitability. The decision was therefore made to reduce employees and, in some instances, to reclassify positions or redefine the duties of its employees. In keeping with that goal, TDS, through its management, issued a directive to implement a work force reduction during May of 1983. Ms. Corbin, then the president and general manager, first learned of TDS' plans to institute the work force reduction during March of 1983. The plan was divulged to other supervisory and management employees during the week of approximately May 22, 1983. Pursuant to the company-wide reduction plan, TDS determined that of its complement of 83 employees when it took over during January of 1983, the work force needed to be reduced by approximately 11 employees. When the policy directive was issued to managers and supervisors, they were told to rid themselves of employees who did not meet certain criteria deemed critical by management such as the skills of each employee; the difficulty in replacing certain skilled employees and in training replacements; customer relationship; productivity level; ability to learn new skills; ability for overtime work, if and when needed; attendance; salary level; ability to work as a member of a new organizational structure and to be a team player; and the overall attitude toward company, customer and fellow employees. (Respondent's Exhibit 1) Those employees considered as fitting within the category of employees needing to be laid off were employees who came in late and left early; were repeatedly absent; performed sloppy work; wasted time and material; engaged in personal telephoning; stretched breaks and lunch hours; spent too much time in the washrooms and talked to other employees about personal activities; rudeness that causes customer irritation and costly work errors. (Respondent's Exhibit 1) During the time when the work force reduction was implemented, Petitioner was on vacation. Prior to that time, she had been afforded training as a keypunch operator. Of the 3 employees who were given keypunch training with Petitioner, Petitioner was tested as having the least leadership skills of the three. When the work force reduction was implemented, 11 employees were laid off. Presently that number has increased from 11 to 19. The only area where there has been one (1) employee hired is an employee trained to operate the Respondent's "complex" PBX and PABX systems. It is true that there were employees with less seniority than Petitioner who were retained, however seniority (length of service) was considered to be only a factor if it is also indicative of the experience gained and versatility (of the employee). Respondent considered that there were other factors more paramount which would influence the retention decision. (Respondent's Exhibit 1, paragraph 2) Respecting Respondent's claim that the Respondent perceived her back injury as a handicap or a potential problem, the evidence fails to sustain her claim in that regard. What the facts show is that while Petitioner did sustain an on-the-job injury during 1977, evidence fails to support Petitioner's claim that the injury was perceived the Respondent as a problem it needed to rid itself of or that it was a physical handicap which could or would be the source of a problem for Respondent. Noteworthy is the fact that Petitioner never requested any preferential treatment in her job assignments based on this claimed handicap other than one isolated incident wherein she spoke to her then- supervisor Geary at the time that she was asked if she desired training as a keypunch operator. For all of these reasons and the wide range of layoffs implemented by this Respondent during May of 1983, Petitioner's claim does not appear meritorious but was rather necessitated by changes in the telephone industry which continues today to have an economic impact on the Respondent. Respondent developed nondiscriminatory criteria which were given to all management types to use in determining what employees should be retained. The criteria was not designed to weed out or eliminate troublesome employees but, rather, to determine those employees to be retained and the criteria which guided that retention decision. That decision appeared to have been based solely on economic and business decisions of the Respondent company as a whole. 2/ Petitioner failed to establish that she was the subject of unlawful disparate treatment.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Florida Commission on Human Relations enter a Final Order dismissing Petitioner's Petition for Relief from an Unlawful Employment Practice. RECOMMENDED this 25th day of March, 1985, in Tallahassee, Florida. JAMES E. BRADWELL 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 25th day of March, 1985.
Findings Of Fact Petitioner was employed for 22 years at G. Pierce Wood Memorial Hospital (GPWMH) as a human services worker I. She was a permanent career service employee. It is undisputed that Petitioner failed to report to work or to seek approval for leave after March 5, 1987. A notice was sent to Petitioner on or about April 14, 1987 by M. H. Townsend, Personnel Manager at GPWMH, informing her that an employee who is absent without authorized leave for three consecutive work days is deemed to have abandoned her position. On April 16, 1987 Petitioner signed a return receipt acknowledging receipt of this notice. She continued to be absent from her position without authorized leave and was notified on April 27, 1987 that she was deemed to have abandoned her position. Petitioner was therefore separated from her position with GPWMH. Petitioner offered no evidence to explain her unauthorized absence from March 5, 1987 to her separation on April 27, 1987. She testified she was not physically able to work, but did not support this testimony with any medical evidence. To the contrary, medical records introduced on behalf of Respondent indicate Petitioner was examined and determined to be able to return to light duty work in February, 1987. Respondent had thereafter assigned Petitioner to a light duty program consistent with her medical evaluation.
Recommendation The final hearing in this case was held on August 6, 1987, in Arcadia, Florida before Donald D. Conn, Hearing Officer with the Division of Administrative Hearings. The parties were represented as follows: Petitioner: Marjorie R. Miller, pro se 1002 Rainbow Avenue Arcadia, Florida 33221 Respondent: George Oujevolk, Esquire Post Office Box 129 Arcadia, Florida 33221 The issue in this case is whether Marjorie R. Miller (Petitioner) abandoned her position at G. Pierce Wood Memorial Hospital by being absent without authorized leave for three consecutive work days. Petitioner has requested the Department of Administration to review the facts of this case and to issue a ruling as to whether the circumstances constitute an abandonment of her position. At the hearings Petitioner testified on her own behalf and also called Georgia Edwards and May Robinson. Respondent called M. H. Townsend, Louise Bell, Denise Wood, and Ellen Walters. Respondent introduced eight exhibits. No transcript or proposed findings of fact have been filed.
The Issue The issue to be resolved in this proceeding concerns whether the Respondent abandoned his position in the career service employment system of the State of Florida in the manner envisioned by Rule 22A-7.010, Florida Administrative Code, and therefore, whether that employment position is any longer available to him.
Findings Of Fact The Petitioner, Thomas J. Atwell, was employed by the Department of Highway Safety and Motor Vehicles in its regional office in Tampa, Florida. Most of his employment duties were located in the Clearwater, Florida, area. His duties involved inspection of mobile homes at sites where those homes were manufactured. His immediate supervisor was Melvin Hinson, Sr., the Assistant Regional Administrator of the Division of Motor Vehicles Regional Office in Tampa, Florida. On October 19, 1988, the Petitioner injured his back while on duty in the process of jumping to the ground from the door of a mobile home he was inspecting. He was placed on disability leave and received worker's compensation benefits as a result of the injury which occurred within the course and scope of his employment. Sometime after being placed on disability leave, he began a course of treatment at Shands Hospital in Gainesville, Florida. At about the same time, he encountered marital discord with his wife, became separated from her, and moved to Tallahassee, Florida, to live with relatives. Upon arriving in Tallahassee, he began to be treated by Dr. Charles Wingo, who became his treating physician for worker's compensation purposes. Dr. Wingo ultimately notified his employer that he could return to light-duty work in a sedentary capacity, sitting and standing, without doing any carrying, if such work were available to him. This notification was by letter dated October 2, 1989. The Respondent, as a result of this communication, issued a letter to the Petitioner on November 3, 1989 advising him that he should report to the Tampa Regional Office of the Division of Motor Vehicles on November 13, 1989 to begin light-duty employment. The letter stated that the Petitioner would be "assisting in answering the telephone, filing, making xerox copies, and performing other light duties that may be assigned by your supervisor." According to the testimony of Buck Jones, the Respondent had a genuine need for someone to perform these duties and it was a true open position in the Tampa Regional Office. The Respondent did not have a need for someone to perform such light duties in the Tallahassee area, however. Indeed, there is no regional office in Tallahassee, with the closest regional office being in Ocala, Florida. In any event, a few days after the November 3, 1989 letter, the Petitioner telephoned Buck Jones, the Chief of the Bureau for Mobile Home and Recreational Vehicle Construction. The Petitioner told Mr. Jones that he could not get the required medical treatment in Tampa. Mr. Jones told the Petitioner that he would investigate the matter of the availability of medical treatment in Tampa. The Respondent later confirmed that medical treatment was indeed available in the Tampa area, which was suitable for the Petitioner's condition. On November 16, 1989, Mr. Jones wrote the Petitioner another letter stating that medical treatment was available in Tampa and requiring him to report for duty at the Tampa office on November 20, 1989. The letter also expressly stated that should the Petitioner fail to report for duty within three (3) days of that date, November 20, 1989, he would deemed to have abandoned his position and resigned from the Department. The letter invited the Petitioner to contact Mr. Jones should he have any questions about the matter. The Petitioner never contacted Mr. Jones before his employment reporting date of November 20, 1989. He did not report for work on November 20, 1989, as ordered, or at anytime thereafter. Around November 3, 1989, the Petitioner had called Mr. Hinson to discuss his worker's compensation case and his job and was told by Mr. Hinson that he should be contacting the Tallahassee office because he had already been told to call "headquarters." On November 27, 1989, the Respondent notified the Petitioner that he had been absent without authorized leave for three (3) consecutive workdays and was, therefore, deemed to have abandoned his position and resigned from the career service.
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 Department of Administration declaring that the Petitioner, Thomas J. Atwell, has abandoned his employment position and resigned from the career service. DONE AND ENTERED this 23rd day of August, 1990, in Tallahassee, Leon County, Florida. P. MICHAEL RUFF 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 23rd day of August, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-7058 Respondent's Proposed Findings of Fact 1-15. Accepted. Accepted, but not material to resolution of disputed issues. Accepted. COPIES FURNISHED: Aletta Shutes Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr., Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Leonard R. Mellon Executive Director Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Enoch Jon Whitney, Esq. General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building Tallahassee, FL 32399-0500 Thomas J. Atwell, pro se 2320-J Apalachee Parkway Box 455 Tallahassee, FL 32301 Michael J. Alderman, Esq. Assistant General Counsel Department of Highway Safety and Motor Vehicles Neil Kirkman Building, A-432 Tallahassee, FL 32399-0504
