Findings Of Fact Respondent was employed by Petitioner from December, 1982 to December, 1987 as a tariff clerk, a permanent career service position. On September 23, 1987 Respondent became ill and left work without informing her supervisor, Jill Hurd, or her co-workers. Hurd was available on September 23 and 24, 1987 if Respondent had tried to explain her absence or request leave authorization. Respondent presented Health Status Certificates to Petitioner signed by M. R. Grate, Jr., M.D., dated October 30, November 11 and 18, 1987 which certified her inability to return to work from October 27 through November 30, 1987, during which time she was under his care. On the basis of these certificates, Petitioner authorized her sick leave from October 27 to November 30, 1987. Respondent did return to work on December 2, 1987, but was again absent on consecutive work days of December 3, 4 and 7, 1987. On December 3, 1987, Respondent sent a note to Hurd, via her husband, stating she did not feel well and would not be in to work. On December 4, 1987 her husband again brought Hurd a note stating Respondent would not be in because her baby was ill. Respondent's husband called Hurd on December 7, 1987 to state that she was still ill and would not be in to work. Hurd stated that Respondent needed to get back to work. At no time did Respondent request leave for December 3, 4 and 7, 1987, nor was she approved for leave. She simply informed her supervisor, Hurd, through her husband that she was not coming to work each day. Prior to these unauthorized absences in December, 1987, Respondent had received a memorandum from Hurd on January 14, 1987 setting forth specific instructions for calling in sick following a number of unauthorized absences. Respondent was specifically instructed to call her supervisor, Hurd, each morning by 8:30 a.m. when she wanted to take sick leave. Despite this instruction, Respondent never called Hurd on December 3, 4 and 7, 1987, but simply had her husband deliver notes and messages to Hurd on her behalf. This prevented Hurd from discussing with Respondent the extent of her illness and when she expected to return to work. On November 25, 1987 Respondent had an appointment with Dr. Grate, who signed another Health Status Certificate for the period November 30 to December 11, 1987 indicating she remained under his care and was still unable to return to work. However, despite the fact she did report to work on December 2, 1987 and had been given specific instructions about how to apply for sick leave, she never presented Dr. Grate's Health Status Certificate dated November 25, 1987 to Hurd, or anyone else associated with Petitioner, until the hearing in this case. Therefore, Respondent did not present proper medical certification of illness for December 3, 4 and 7, 1987, and instead simply failed to report to work, or to in any way attempt to personally contact her supervisor. A letter dated December 7, 1987 notifying Respondent of her abandonment of position and of her right to a hearing was sent to Respondent from Petitioner's Executive Director by certified mail, return receipt requested. Respondent's husband signed for this letter on December 9, 1987, and Respondent acknowledges receipt.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter Final Order concluding that Respondent has abandoned her position with Petitioner in the career service due to her failure to report to work, or request leave, for December 3, 4 and 7, 1987. DONE AND ENTERED this 15th day of March, 1988, in Tallahassee, Florida. DONALD D. CONN 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 15th day of March, 1988. APPENDIX (DOAH Case No. 88-0161) Rulings on Petitioner's Proposed Findings of Fact: Adopted in Finding of Fact 1. Adopted in Findings of Fact 4, 7. Adopted in Findings of Fact 5, 6, 7. Adopted in Findings of Fact 7, 8. Adopted in Findings of Fact 5, 6. Adopted in Findings of Fact 7, 8, 10. Adopted in Finding of Fact 11. Adopted in Finding of Fact 8. Rulings on Respondent's Proposed Findings of Fact cannot be made since her post-hearing submission shows no indication that a copy was provided to counsel for Petitioner, despite specific instruction at hearing, and the narrative contained in her letter consists of serial unnumbered paragraphs which primarily present argument on the evidence rather than true proposed findings of fact. COPIES FURNISHED: Adis Vila Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Larry D. Scott, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 William S. Bilenky, Esquire Public Service Commission 212 Fletcher Building Tallahassee, Florida 32399-0850 Harold McLean, Esquire Public Service Commission Office of General Counsel 101 East Gaines Street Tallahassee, Florida 32399 Norma D. Saabir P. O. Box 5802 Tallahassee, Florida 32314-5802 =================================================================
Findings Of Fact At all material times, Respondent was a career-service employee of Respondent. She served as a health service representative assigned to the Seminole County Public Health Unit. Her specific task was to investigate and follow up on contacts for sexually transmitted diseases. Petitioner's Employee Handbook, which Respondent received when she was hired, states: You may request annual leave for any purpose desired, but you must obtain Your supervisor's approval before taking annual leave. If an emergency develops, tell your supervisor of the emergency and ask for verbal approval to use annual leave. When you return to work, complete the leave request form for your supervisor's signature. The Handbook also Provides that certain employees are entitled to one eight-hour personal holiday "at a time which is mutually agreeable to the individual and the immediate supervisor." The local policy of the Seminole County Public Health Unit required each employee to request leave by filling out the back of a timesheet. In this manner, the employee would show the type of leave requested, the date and time of the leave, the employee's initials. The form provided spaces for the signature of the supervisor and the date described in detail in the Paragraph 5 below. The back of the timesheet states: "All Leave and Overtime must be requested and approved in advance." The Handbook requires advance approval of annual leave. Although the blanket statement on the back of the timesheet requires advance approval of all leave and overtime, the Seminole County Public Health Unit routinely did not require advance approval for all types of leave. For instance, sick leave, overtime, and annual leave for less than a few hours were normally approved after the fact. On at least two occasions, including one involving Respondent, annual leave for an entire day was also approved after it had beef taken. However, the Seminole County Public Health Unit normally requires advance approval of annual leave for a Period of one day or more. The instructions on the timesheet direct that the date next to the supervisor's signature indicate the date of the request for leave. Consistent with the varying policies governing leave, the date beside the supervisor's signature on the timesheet was used to show the date of approval of a request for annual leave and the date of the request for sick leave and certain other types of leave. By negative implication, the Handbook also requires written approval of annual leave for nonemergencies because it expressly permits "verbal approval" for annual leave for emergencies. There are no requirements in the Handbook or the timesheets for written approval of requests for other forms of leave, and the Seminole County Public Health Unit did not maintain enforceable policies to that effect. Two persons were authorized to approve requests of Respondent for annual leave. The first person was Charlotte Blades, who was the coordinator of the sexually transmitted disease program of the Seminole County Public Health Unit. Ms. Blades was Respondent's immediate supervisor The other person authorized to approve requests for annual leave was Bernice Duncan, who was the senior community health nurse of the Seminole County Public Health Unit and Ms. Blades' supervisor. In practice, the written approval of Ms. Blades could be revoked by Ms. Duncan. On one occasion, Respondent requested eight hours' annual leave to attend her son's high school graduation on June 9, 1989. Ms. Blades signed the timesheet on May 23, 1989. Between that date and the date of the leave, Ms. Duncan told Respondent that, although Ms. Blades had signed the timesheet, the leave was not approved. Ultimately, Respondent received approval for leave through 2:30 p.m., rather than 5:00 p.m., on the day of the graduation. In late July or early August, 1989, Respondent submitted a timesheet requesting 32 hours' annual leave from August 28-31, 1989. About one week later, before Ms. Blades or Ms. Duncan had acted on the request, Respondent changed the request to September 1, which was the Friday before Labor Day weekend, and September 13-14, 1989. In addition, she requested leave with pay for September 15, 1989, as her personal holiday. According to the timesheets, Ms. Blades approved the September 1 leave request on August 25, 1989, which was a Saturday. She assured Respondent that she would discuss with Ms. Duncan the remaining requests for leave. Respondent followed up with Ms. Blades several times, explaining that she wanted the leave to attend her son's graduation ceremonies from military basic training in South Carolina. Despite her assurances, Ms. Blades had not mentioned Respondent's request to Ms. Duncan before Ms. Blades became sick and missed work from September 6-9. On the second day of Ms. Blades' absence, Respondent took her request to Ms. Duncan, who said that she had not been aware of Respondent's request. Ms. Duncan told Respondent that Ms. Blades was on sick leave and did not respond further. The following day, Respondent spoke again with Ms. Duncan, who this time assured her that if Ms. Blades were not at work on Monday, September 11, Ms. Duncan would sign the timesheet approving the leave requested for September 13-15. Ms. Blades returned to work on Monday, September 11. When Respondent asked her in the morning to sign the timesheet, Ms. Blades refused to do so and told her that it had not yet been approved. Consistent with her prior conversations with Respondent, though, Ms. Blades did not say that the request had been disapproved. Respondent then left the office for much of the day. When she returned, Ms. Blades and Ms. Duncan were both out. The next day, Tuesday, September 12, Ms. Blades spoke with Respondent, but still declined to say whether the request was approved or rejected. She continued to say merely that the request had not yet been approved. Tuesday afternoon, Respondent told a coworker to tell Ms. Blades that Respondent was going to South Carolina and would be back the following Monday morning. While still in town, Respondent telephoned both supervisors shortly after 8:00 a.m. on Wednesday, but they had not arrived at work yet. Respondent asked the receptionist to remind Ms. Blades that Respondent had gone to South Carolina and would return the following Monday morning. Both messages were delivered to Ms. Blades, who relayed them to Ms. Duncan. Respondent then departed for South Carolina, where she remained through at least September 15. At the time of her departure, Respondent knew that her request for annual leave had not been approved and that she was taking unauthorized annual leave. When she arrived back in the office on September 18, Respondent received a copy of a letter dated September 15 that had been mailed to her the prior Friday. The letter states that Respondent had been separated from State service for abandonment of position, effective at the close of business on September 15, 1989. The second paragraph of the letter contains material misstatements of fact. It states that Respondent had been advised that, due to the present work situation, her leave could not be approved. The letter also states that she did not contact her supervisor that she would be absent. No one ever advised Respondent that her leave could not be approved or in fact was rejected until after her return from South Carolina. Also, Respondent informed both supervisors, directly and through third parties, that she would be absent, where she was going, why, and when she would return. However, she did not contact them during the three-day absence. Concerning the request for leave for a personal holiday, neither Ms. Blades nor Ms. Duncan ever informed Respondent that the date was inconvenient. Under the circumstances, Respondent could reasonably infer that the date was agreeable with Ms. Blades. At no time did Respondent intend to abandon her career-service position. The facts do not support a reasonable inference that Respondent abandoned her job during the three days in question.
Recommendation Based on the foregoing, it is hereby RECOMMENDED that the Department of Administration enter a Final Order finding that Respondent has not abandoned her position in Career Service employment with the State of Florida. ENTERED this 28th day of February, 1990, in Tallahassee, Florida. ROBERT D. MEALE 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 28th day of February, 1990. COPIES FURNISHED: Linda L. Parkinson Attorney Department of Health and Rehabilitative Services 400 West Robinson Street, Suite 701 Orlando, FL 32801 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Augustus D. Aikens, Jr. General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Gregory L. Coler Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, FL 32399-0700 Alva J. Barfield 1010 Locust Avenue Sanford, FL 32771
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following facts are found: Respondent has been a permanent full-time employee of petitioner's for over 22 years and at the time of the alleged abandonment was employed as a Engineer Technician III in petitioner's Second District and is subject to the Career Service rules of Chapter 22A, Florida Administrative Code. Walter Henry Skinner, III, is the District Engineer, Second District, with offices in Lake City, Florida, covering a 16 county area over northeast Florida. In this instance, directly below Mr. Skinner in the chain of command is Raymond O. Humphreys, Resident Construction Engineer. His is a supervising position as contract administrator for road and bridge contracts let by the petitioner to private contracting firms for construction of roads and bridges within 9 counties of the second district. Respondent has worked within Mr. Humphreys' jurisdiction since March, 1976. The record is not clear, but apparently there is at least one other supervisor between Mr. Humphreys and respondent, the position of survey crew chief. Respondent was granted leave of absence without pay on Humphreys' recommendation on May 1, 1983 through July 12, 1983 (Petitioner's Exhibit 9); October 3, 1983 through April 2, 1983 (Petitioner's Exhibit No. 8); and again on April 3, 1984 for 6 months (Petitioner's Exhibit No. 4). Respondent returned to work before the end of this 6 months leave of absence without pay. The record does not reflect when respondent returned to work but apparently he returned to work sometime after his release from the Hamilton County Jail on July 9, 1984. The record shows that respondent was working on September 21, 1984 (Petitioner's Exhibit No. 3). Respondent was granted 4 hours annual leave on September 24, 1984, 8 hours of annual leave on September 25, 1984 and 8 hours annual leave on September 26, 1984. On September 27, 1984 petitioner placed respondent on unauthorized leave of absence without pay. On September 27, 1984 petitioner was advised by Roger Tanner, respondent's probation officer, that respondent had bean incarcerated in the Hamilton County Jail on September 26, 1984. Petitioner knew that respondent had 78.2 hours of accrued annual leave and 524.0 hours of accrued sick leave. Petitioner did not notify respondent that he had been placed on unauthorized leave without pay on September 27, 1984 until October 4, 1984 when petitioner delivered to respondent a letter from Skinner advising him that he had abandoned his position with the petitioner. Respondent had been incarcerated in the Hamilton County Jail on: (1) April 22, 1983 to July 5, 1983; (2) July 23, 1983; (3) August 11, 1983 to August 12, 1983; (4) September 22, 1983 to July 9, 1984; and (5) September 26, 1984 to October 6, 1984. The evidence reflects that respondent had a "drinking problem" of which petitioner was aware but did very little "counseling" with respondent in this regard. On October 1, 1984 Mr. Markham, Humphreys Resident Office Manager, contacted Judge John Peach's office and was informed by his secretary, after she discussed the matter with Judge Peach, that respondent's "problem would be resolved in a few days" or at least "by the weekend." Respondent worked with a survey crew taking final measurements and checking work in the field completed by the contractors. Respondent was assigned to this survey crew by Humphreys because respondent did not have a valid driver's license. Walter H. Skinner had been delegated authority to take this type action against respondent by Mr. Pappas, Secretary of the Department of Transportation and such delegation was in effect at all times material herein.
Recommendation Based upon the findings of fact and conclusions of law recited herein, it is RECOMMENDED that it be found that respondent did not abandon his position and resign from the Career Service as contemplated under Rules 22A-7.1O(2)(a) and 22A-8.O2, Florida Administrative Code and that respondent be reinstated to his position of Engineer Technician III as of September 27, 1984. DONE and ENTERED this 17th day of May, 1985, in Tallahassee, Leon County, Florida. WILLIAM R. CAVE 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 17th day of May, 1985. COPIES FURNISHED: Charles G. Gardner, Esquire Department of Transportation Haydon Burns Building, M.S. 58 Tallahassee, Florida 32301 Donald K. Hudson, Esquire Post Office Box 948 Jasper, Florida 32052 Daniel C. Brown Esquire General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32301 Paul A. Pappas Secretary Department of Transportation Hayden Burns Building Tallahassee, Florida 32301 A. J. Spalla General Counsel 562 Hayden Burns Building Tallahassee, Florida 32301 Gilda Lambert, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32301 =================================================================
The Issue Whether Respondent is guilty of an unlawful employment practice by discrimination against Petitioner on the basis of handicap.1/
Findings Of Fact Petitioner's Charge of Discrimination arises out of her employment with Respondent Children's Home Society (CHS) and a series of medical leaves in the years 2000-2001, which ultimately resulted in loss of her position. Respondent CHS is a non-profit social service organization established over 100 years ago. It is the oldest private child welfare service in Florida. It provides a range of services for the benefit of children and families throughout the state, including but not limited to counseling and support services, adoption, residential care, and home-based services. Petitioner appeared at the November 7, 2003, disputed- fact hearing using a cane. The undersigned observed that she seemed to experience pain at movement of her back and one leg. She presented no supportive medical evidence that she is currently disabled/handicapped and little to explain the cause of her present mobility problems or when they first appeared, except that one of her explanations for her current condition is that she was held against her will in a psychiatric center, in June 2002, pursuant to a circuit court Order, and at that time she fell and broke her back and leg. This occurred a year after Respondent had declared Petitioner's position vacant. Petitioner also testified that on March 29, 1999, on her way to work with CHS, her back and legs were injured, her face was crushed, and her teeth were shattered in an automobile accident that totaled her car. There is no evidence that she was off work with CHS for any period of time in 1999 or that any workers' compensation claim was made by her to CHS at that time. Petitioner did request a wage statement from CHS in connection with some automobile insurance claims in 1999. Also, in 2001, Petitioner also made a claim to CHS's insurance company for long-term disability benefits on the basis of this automobile accident, as more fully described below.3/ It is significant that her September 29, 2001 Charge of Discrimination did not list her back and legs as her handicap. Her November 14, 2002 Petition for Relief mentions the 1999 automobile accident. In 2000-2001, Petitioner was Program Supervisor I for CHS's Healthy Families Program in the Lake County area of CHS's Mid-Florida Division. She was in charge of the North Lake area, which encompasses Fruitland Park, Tavares, Leesburg, Lady Lake, Mt. Dora, Astor, Paisley, Sorrento, and other unincorporated areas of North Lake County. The Healthy Families Program is a very demanding one. Its Program Supervisors I have multiple and complicated responsibilities. As a Program Supervisor I for the Healthy Families Program, it was Petitioner's job to provide hands-on supervision to six paraprofessional Family Support Workers (FSW); ensure that rigorous program standards were maintained by them and other paraprofessionals and interns through weekly (two-hour minimum) formal staffings of each case; conduct ongoing case file reviews for quality of documentation; conduct year-end performance evaluations of supervised staff through information gained during the weekly staffings, file reviews, data related to stated objectives, home visits, and telephone quality assurance contacts with all clients; coordinate activities among and between staff (such as Christmas food and toy drives); coordinate comprehensive training and orientation for staff; provide staff with ongoing coaching throughout program implementation; oversee new case staffing and assignments with Family Assessment Workers (FAW); provide professional intervention for difficult cases; conduct joint home visits with all case load families every quarter; generate and/or oversee the reporting of program data; provide monthly comprehensive regular reports to a Program Manager on the status of all program activity; provide home visits and documentation in the absence of an FSW; cross-train to be an FAW; and assume new case assessment and documentation in the absence of an FAW. Program supervisors, with peers, conduct six to eight weeks of intensive training for each new FSW. After the initial training, the Supervisor is responsible for an additional 40 hours of ongoing training. The weekly staffing on every case is mandatory. Healthy Families Florida allows no excuses for a missed staffing on even one case in one caseload in one week. The program either meets the standard or it does not. This is also true for program objectives in which seventeen measurable goals must be met for every case. Program supervisors are required to assure constant and accurate data entry of all program information. Accuracy and timeliness of the data provide a measure of the program's success or failure in achieving program objectives. Program supervisors must meet every new family within the first month of service and conduct joint home visits with each family each quarter. Quality assurance telephone calls must be conducted with each family every quarter. Case files must be reviewed constantly to assure that the required documentation is in place. Finally, program supervisors must meet with the Health Families Program Specialist each quarter for a file audit and program review. In June 2000, Petitioner took her first Family Medical Leave Act (FMLA) leave. She was out on FMLA leave for four weeks and two days, returning in July 2000. During this period of time, Petitioner gave birth to a live male infant. The child died while Petitioner was strapped to the table in the delivery room and hospital personnel dropped the infant. Quite naturally, this tragic event, over which she had no control, caused Petitioner psychological trauma and enormous grief. She also maintained that the lack of appropriate after-care at that time might have resulted in her subsequent need for FMLA leave and a hysterectomy, as more fully described below. CHS's FMLA policy was contained in its Employee Handbook. In 1995, Petitioner acknowledged, in writing, receipt of the Employee Handbook. In 1996, CHS's leave policies were amended, and a clear equal employment opportunity and anti- discrimination policy was added to the Handbook. Petitioner maintained that she had signed the receipt for the Handbook before the foregoing amendments. That testimony by Petitioner is credible, but it is also clear that Petitioner subsequently became aware of CHS's leave policy via explanations in a series of letters to her from CHS's Human Resources Department over the course of her second FMLA leave of absence, which began in November 2000. FMLA leave is calculated on a twelve-month rolling calendar period. Under the FMLA, Petitioner was guaranteed reinstatement to her former position as Program Supervisor I or an equivalent job with the same pay, benefits, terms, and conditions of employment as long as her total FMLA leave (including all leave periods) did not exceed twelve weeks in a twelve-month period. CHS characterizes all medical leave as FMLA leave if the employee is eligible for FMLA leave. CHS requires that accrued paid vacation and sick leave be utilized before utilizing unpaid FMLA leave. This allows the employee to draw full salary and continue to receive health insurance benefits as long as possible before having to resort to unpaid leave, but it means that FMLA leave, vacation leave, and sick leave are depleted simultaneously. CHS automatically offers any employee who is on FMLA leave for a serious health condition an opportunity to convert the leave to disability leave after his or her FMLA leave expires. Under this CHS leave policy, an employee does not have to be handicapped or disabled to qualify for disability leave. At all times material, Julie Ormond, Healthy Families Program Manager, was Petitioner's immediate supervisor. Ms. Ormond reported to Glenna Osborne. Glenna Osborne was the Director of Program Operations for CHS's Mid-Florida Division. She supervised three programs: Family Builders, Healthy Families, and Responsible Fatherhood. Ms. Osborne was in charge of 77 employees and 10 supervisors. Ms. Osborne has a Master's Degree in Human Development and 25 years' experience in management. On or about October 11, 2000, Ms. Ormond wrote a memo to two Healthy Families supervisors, one of whom was Petitioner. The memo detailed certain problems with both supervisors' areas: supervision duties, data entry requirements, and report completions. Ms. Ormond requested that the problems be corrected and in place no later than October 30, 2000. On November 3, 2000 and November 7, 2000, Ms. Ormond copied Ms. Osborne with memos sent only to Petitioner on the same dates, detailing that some of Petitioner's programs had serious problems, now including complete absences of some data entry, late data entry, and both failure to classify and inaccuracy of classification of some clients. There also were problems in Petitioner's area with meeting State requirements and registering childhood immunizations. Petitioner was instructed to resolve the problems in her area as soon as possible. Ms. Ormond also copied Ms. Osborne with a memo along the same lines, dated November 7, 2000, from another CHS employee, Jean Plescow. When data entry is incomplete or late, it is not always possible to readily determine whether the problem is just a delayed data entry or if there also has been an actual failure to accomplish the act, plans, staffings, trainings, and immunizations for which the data was supposed to be entered. Over time, as related more fully below, it appeared that there were more problems with Petitioner's job performance, and the performance of the staff she supposedly had trained, than merely a failure to transpose information to a computer from other records. Before her work problems had been resolved, Petitioner went out a second time on leave associated with a medical problem. It was Petitioner's affirmative duty to apply for leave initially and to seek extensions, if necessary, of any leave granted. Although Petitioner testified that she filled out all the vacation and sick leave forms necessary before going out on "medical leave"; that she left in October 2000; and that when she left, she fully intended to be back at work before her accrued vacation and sick leave ran out, the following facts are found upon the greater weight of the credible evidence as a whole. At Petitioner's request dated November 21, 2000, CHS again placed her on FMLA leave as of that date. Petitioner's last day of work before this second period of FMLA leave was November 19, 2000. On November 21, 2000, Petitioner informed CHS that she expected to return to work on or about January 23, 2001. Ms. Osborne's testimony was credible to the effect that she believed that Petitioner was going out on leave in November 2000 for surgery related to the June 2000 birth of Petitioner's child and not for surgery related to any prior automobile accident. Ms. Osborne is also credible that although she knew that Petitioner had been in an automobile accident in 1999, she never knew the extent of Petitioner's injuries from that accident and had never received any doctors' reports or any requests for accommodation of a handicap from Petitioner. Ms. Osborne did not perceive Petitioner as handicapped for any reason at any time between 1999 and November 19, 2000. Petitioner claimed that she only took the Program Supervisor I job on the condition "that if it were too hard, I could have my old [CHS] job back." Petitioner testified about how excellent she believed she performed her Program Supervisor I job prior to November 19, 2000, and that her work was up to date and commendatory when she took her second medical leave. She further stated that, as of November 19, 2000, she had accrued enough vacation and sick leave to cover the time she expected to be out on her second medical leave. Upon the facts found in Findings of Fact 23 and 24, it is further found that Petitioner never requested or received from CHS any workplace accommodations for a handicap dealing with her back or legs prior to her absence beginning in November 2000. Furthermore, all the medical excuses Petitioner supplied to CHS after November 19, 2000, support a finding that iron deficiency anemia from a uterine fibroid and a surgical hysterectomy with resultant recovery time caused Petitioner's absence from work after November 19, 2000, even though Petitioner supplied a different explanation to CHS's long-term disability insurance company after her leave ran out, as more fully discussed below. As Director of CHS's Mid-Florida Division's Human Resources Department, Linda Barry was responsible, in 2000-2001 for implementing and interpreting CHS's policies and procedures; benefits administration; approving transfers and promotions; approving and administering FMLA leaves and other leaves of absence; making termination decisions; and keeping apprised of CHS's hiring needs. On November 28, 2000, Ms. Barry sent, and Petitioner received, a letter advising that because of her June 2000 leave, only seven weeks and two days remained of Petitioner's FMLA leave and requesting that Petitioner complete and return the FMLA paperwork. In the meantime, Ms. Osborne assessed the North Lake staffing situation and documented her concerns in a November 30, 2000 memo to Ms. Ormand. Ms. Osborne noted some of Petitioner's program documentation was satisfactory and some was exemplary, but that there still existed serious problems with missing, incomplete, or inaccurate program documentation and inadequate training and supervision of Petitioner's team. Ms. Osborne requested that Ms. Ormand bring these deficiencies to Petitioner's attention as soon as Petitioner returned from FMLA leave, and that if Ms. Osborne's observations were confirmed by Ms. Ormand, the problems should be addressed at that time by Ms. Ormond in Petitioner's evaluation. During Petitioner's absence beginning November 19, 2000 and continuing into 2001, three other area supervisors performed their own full-time responsibilities and divided Petitioner's job responsibilities among themselves. Janie Counts, Sumter County Supervisor, traveled several times a week to provide fill-in supervision for two of Petitioner's FSWs. The South Lake Supervisor, Stephanie Ellis, provided fill-in supervision for two more of Petitioner's FSWs. Ms. Ormand traveled from Tavares to Leesburg to provide fill-in supervision for Petitioner's two remaining FSWs. If one of the three fill- in supervisors was ill or on leave, the remaining two fill-in supervisors oversaw Petitioner's two remaining FSWs, continued to cover their own teams, and covered the other absent supervisor's six FSWs. In the course of scrambling to carry on CHS's regular workload in Petitioner's absence, these three supervisors reported to Ormand and Osborne more problems they uncovered in Petitioner's operation. Ms. Counts sent Ormand and Osborne written reports. Her December 10, 2000 report reflected that Petitioner had left behind inadequate program documentation, had failed to prepare her supervision notes, had missing family support plan updates, had late data and missing data, and had failed to provide adequate training to her FSWs. Ms. Counts reported to Ormand and Osborne in a December 15, 2003 memo that she had uncovered even more problems that had existed in Petitioner's program before Petitioner went on leave. She also related that Petitioner had come to the office that day for the office's Christmas Lunch. CHS's FMLA leave policy required the existence of a "serious health condition." A doctor's certification supporting an FMLA leave is required. Physicians are provided an instruction sheet explaining the definition of "serious health condition", so they can categorize the patient's illness. Sometime in December 2000, Petitioner's doctor, Dr. Grousse, provided Ms. Barry with medical certifications to support Petitioner's then-current FMLA leave. Dr. Grousse listed Petitioner's condition as severe iron deficiency anemia and stated that she needed a hysterectomy soon. Dr. Grousse advised that Petitioner could not perform any work at that time. On December 20, 2000, Ms. Barry sent Petitioner a memo explaining her FMLA leave rights and requesting a medical certification from her surgeon. She also informed Petitioner of CHS's policy of applying vacation and sick leave concurrent with FMLA leave and stated the balance of Petitioner's FMLA leave remaining after her leave in June 2000 had been seven weeks and three days. She noted that as of CHS's December 15, 2000 payroll, Petitioner had 313.32 hours accrued vacation time and 124.22 hours accrued sick time. On December 27, 2000, Dr. Boggus provided Ms. Barry with medical certification to support Petitioner's FMLA leave. He indicated that Petitioner needed pelvic surgery, that she could not perform any work at that time, and that she would need six weeks off work after the surgery for recovery. He categorized Petitioner's condition as a "1" and "2", which meant that her condition required a stay in the hospital and a work absence plus treatment. He did not categorize her condition as "chronic" (requiring periodic treatment), nor did he categorize her condition as "permanent/long term" (requiring supervision). In the meantime, Petitioner's job duties still had to be covered and her team re-educated and brought up to grade if CHS's program objectives were to be met. Ms. Barry sent, and Petitioner received, a certified letter dated January 10, 2001, advising Petitioner that her FMLA leave would expire on January 12, 2001; extending her leave to January 22, 2001, as unpaid disability leave; advising her that she could continue to use any remaining accrued vacation time; and requesting that she submit a physician's statement for any leave she would require beyond January 22, 2001. The FMLA does not require that employees who are absent more than 12 weeks in a 12 month-period be returned to the same or a comparable position. Significantly, Ms. Barry's January 10, 2001 letter stated that although it was not guaranteed that Petitioner's Program Supervisor I position would be available when she was ready to return from leave, an effort would be made to place Petitioner in her previous position or a comparable one, or if no such position were available when Petitioner was ready to come back, she might be eligible for re- hire should a position later become available and her past work history warranted re-hire. The crucial point here is that CHS expressed no obligation to hold Petitioner's job for her after her FMLA leave ran out, but stated that it would try to give her a job in the same capacity when she returned. In fact, on January 12, 2001, Petitioner had her hysterectomy, which, according to Dr. Boggus's December 27, 2000 certification, meant that Petitioner would have then needed an additional six weeks, or until approximately February 23, 2001, before she could return to work in any capacity. However, Petitioner's FMLA leave expired on January 12, 2001. She did not contact CHS until after that date, and only then did she send in medical information about the date of her surgery. (See Finding of Fact 45.) By the time Petitioner's FMLA leave had expired on January 12, 2001, the fill-in supervisors had reported to Ms. Osborne that they were burned out with having to work their own full loads and also deal with the deficiencies left behind by Petitioner. One fill-in supervisor found it impossible to find the time to retrain the two FSWs assigned her from Petitioner's team while trying to maintain her own workload as a full-time supervisor. Another fill-in supervisor requested a transfer to a less demanding program and a demotion. By the middle of January 2001, Osborne and Barry had concluded that the undue hardship on the fill-in supervisors was so great that it was impossible to hold Petitioner's position open any longer. They felt to do so would seriously compromise the extent and quality of services that CHS could offer its clients and would jeopardize the well being of the other supervisors who were covering for Petitioner. Faced with Petitioner's not returning to work in any capacity for an indeterminate period of time, Barry and Osborne decided they had no choice but to replace Petitioner when her FMLA leave expired. According to Ms. Barry, Dr. Neil Finkler provided a medical certification update on behalf of Petitioner to her "toward the end of January 2001." Because Dr. Finkler's undated certification is referenced in her January 23, 2001 letter to Petitioner (see Finding of Fact 46), it is concluded that Ms. Barry received Dr. Finkler's certification before January 23, 2001, and probably received it by the January 22, 2001 date she had required in her January 10, 2001 letter for a reply from Petitioner. Dr. Finkler's certification advised that surgery had been performed on January 12, 2001, and that Petitioner would be incapacitated until February 23, 2001. Dr. Finkler categorized Petitioner as a "1", which is defined as requiring a stay in the hospital and a work absence plus subsequent treatment. Dr. Finkler did not categorize Petitioner's condition as chronic, requiring periodic treatment or as a permanent/long term condition requiring supervision. On January 23, 2001, Ms. Barry sent, and Petitioner received, a certified letter confirming that CHS had received Dr. Finkler's certification; notifying Petitioner that CHS had extended her leave to February 23, 2001, as unpaid disability leave, but that Petitioner could continue to use any remaining accrued vacation time; notifying her that as of CHS's January 15, 2001 payroll, her vacation balance was 269.54 hours; and advising that when Petitioner was ready to return to work she would have to provide a fitness-for-duty certification. The letter also stated: Because the operations of CHS require that vacant positions be filled, a disability leave of absence does not guarantee that your job will be available when you return. An effort, however, will be made to place you in your previous position or a comparable one. If no such position is available, you may be eligible for re-hire should a position become available for which you are qualified and your work history warrants rehire. The representation that an effort would be made to return Petitioner to her former position was probably untrue, given that Ms. Barry already knew that a replacement had to be hired soon. However, comparable positions might be available. (See Findings of Fact 48 and 49.) On January 26, 2001, Ms. Counts submitted a report of her fill-in supervision for Petitioner to Ms. Ormand. She reported that Petitioner's subordinates had not been trained by Petitioner on charting requirements and had not even been given certain forms. Effective January 29, 2001, after the automatic extension to January 22, 2001, given Petitioner in Ms. Barry's January 10, 2001 letter, had expired, but before the February 23, 2001 extension specified in Ms. Barry's January 23, 2001 letter, had been reached, CHS selected Belinda Henson to replace Petitioner as the Program Supervisor I for the Healthy Families Program in Lake County. Ms. Hensen would be on probation for six months, but she was considered a permanent employee as of her date of hire, to the extent that she would not be ousted from Petitioner's old Program Supervisor I position even if Petitioner chose to return to work. Although Petitioner was replaced as Program Supervisor I in her area on January 29, 2001, CHS still considered Petitioner to be an employee on leave status. CHS did not foreclose the possibility that it could have other Program Supervisor I openings available when Petitioner was ready to return from her leave. On February 16, 2001, Ms. Ormand sent a memo to Ms. Barry and Ms. Osborne, stating the problems with Petitioner's past job performance as expressed by the fill-in supervisors. When Petitioner's extended leave expired on February 23, 2001, Ms. Barry sent, and Petitioner received, a letter of that date, stating that CHS had not received any further medical certification to authorize leave beyond February 23, 2001, and that if Petitioner needed to continue her leave, she must provide an updated physician's statement showing such leave to be necessary. Ms. Barry's letter also informed Petitioner that her previous position had been filled, but Should you be able to return to work, an effort will be made to place you in a comparable position, should one be available. If no such position is available, you may be eligible for rehire as a new employee if you should apply for an available position in the future. On February 27, 2001, Petitioner faxed Ms. Barry a copy of a note from Dr. Boggus, advising, "No lifting over 5 lbs for one month. She may return 25 hours/wk for next one month." Dr. Finkler also provided a note stating that Petitioner could return to work on February 27, 2001, "but only work up to 25 hours/week with no heavy lifting for the next 1 month." There were no part-time openings in the Mid-Florida Division as of February 27, 2001. Petitioner's accrued paid vacation leave must have run out at about this time. Ms. Barry sent, and Petitioner received, a certified letter dated March 5, 2001, advising Petitioner that Ms. Barry had received the two doctors' notes restricting Petitioner to part-time work and that there were no part-time positions currently available in CHS's Mid-Florida Division. However, Ms. Barry extended Petitioner's leave for one month to March 27, 2001, the time period of her restriction to part-time work. Petitioner could have applied in other CHS divisions for any available part-time position for which she was qualified. The record is silent as to whether there were any such part-time positions available then, but it affirmatively appears that Petitioner did not inquire into, or apply for, any part-time positions that may have been available outside of the Mid-Florida Division. Petitioner testified that she drove to a CHS office in Orlando either to get copies of her records or to apply for a position (her purpose is not entirely clear from her testimony). Because the parking lot was undergoing excavation, she just drove away. This is not a reasonable explanation for not applying for a position.4/ As set out above, Petitioner had established a pattern of not taking affirmative action to timely supply the necessary medical information to Ms. Barry. Petitioner repeatedly had waited until her leave expired before submitting any medical documentation. Nonetheless, CHS still considered her an employee through March 27, 2001.5/ Petitioner testified that she made an unemployment compensation claim and CHS fought it. She further testified that she was denied her unemployment compensation benefits, but someone in the Governor's Office intervened and she was then paid one unemployment compensation check only. The testimony concerning the Governor's Office is uncorroborated and not credible. However, Exhibit P-7, shows that on January 3, 2002, an Unemployment Compensation Appeals Referee entered a "Decision", which reads, in pertinent part, as follows: Issues involved: SEPARATION: Whether the claimant [Petitioner] was discharged for misconduct connected with work or voluntarily left work without good cause (including cause attributable to the employing unit or illness or disability of the claimant requiring separation); pursuant to Sections 443.101(1), (9), (10), (11); 443.036(29), Florida Statutes; and Rule 38B- 3.020, Florida Administrative Code. LEAVE: Whether the claimant's unemployment is due to a leave of absence voluntarily initiated by the claimant, pursuant to Sections 443.036(28) and 443.101(1)(c), Florida Statutes. Findings of Fact: the claimant became employed by a children's home in August, 1994. Her last position was program supervisor. The employer was subject to the terms of the Family Medical Leave Act (FMLA). In June, 2000, the claimant used four weeks and two days of FMLA leave. That left a remaining balance of FMLA leave of seven weeks and three days to be used within 12 months. Effective November 21, 2000, the claimant again began FMLA leave which expired on January 12, 2001. At that time the claimant was unable to return to the full duties of her position because of a temporary disability. The employer had no part-time, light duty work for the claimant. The employer did not terminate her employment, but could no longer guarantee the claimant her position would be held open for her after the FMLA leave expired. The claimant underwent surgery on January 12, 2001. When she was released by her physician for full duty work, her position had been filled. The claimant filed an initial claim for unemployment benefits effective March 18, 2001. Conclusions of law: The law provides that a claimant shall be disqualified for benefits for any week of unemployment due to a leave of absence, if the leave of absence was voluntarily initiated by the claimant. A bona fide leave of absence exists only when the employer and claimant have agreed upon a specific term and the claimant is guaranteed reinstatement to the same or a substantially similar position upon expiration of the leave. The testimony in this case shows that the employer did not guarantee reinstatement to the clamant after her FMLA leave expired on January 12, 2001. Therefore, the claimant was not on a bona fide leave of absence after January 12, 2001, and she was not on a bona fide leave of absence when she filed her initial claim for unemployment benefits. When the claimant did not return to work upon the expiration of the bona fide leave of absence, she became separated from her employment. Because it was the claimant who did not return to her full duty position at that time, and not the employer preventing her from returning to her full duty position, the job separation is considered a voluntary leaving. The law provides that a claimant who has voluntarily left work without good cause as defined in the statute shall be disqualified from receiving benefits. "Good cause" includes only such cause as is attributable to the employing unit or which consists of an illness or a disability of the claimant requiring separation from the work. The term "work" means any work, whether full- time, part-time or temporary. The record and evidence in this case show that the claimant voluntarily separated from her employment on January 13, 2001, because she underwent surgery on January 12, 2001, and she was unable to return to work due to a temporary disability. Thus, the claimant became separated from her employment due to a disability requiring separation. Accordingly, it is held that the claimant voluntarily left her employment with good cause consisting of a disability requiring separation, and she is not disqualified from receiving unemployment benefits. Decision: The determination of the claims adjudicator dated April 16, 2001, is MODIFIED to hold that the claimant voluntarily left her employment with good cause consisting of a disability requiring separation. [Bracketed material and emphasis supplied] It is not certain from the record herein that the foregoing January 3, 2002, unemployment compensation decision ever became final, pursuant to Chapter 120, Florida Statutes. Even if final, and therefore binding on the parties, the decision was made under statutory definitions and tests different from those found in Chapter 760, Florida Statutes, and therefore, the decision is not binding in this case. However, the decision remains instructive as to matters of timeline, such as when CHS knew that Petitioner was claiming to be handicapped and from what cause. (See, below.) Clearly, it appears that Petitioner was not acknowledging any back and leg trouble to the unemployment compensation forum at least as late April 16, 2001, and probably not as of January 3, 2002. Accordingly, it is found, on the basis of Exhibit P-7, that on March 18, 2001, Petitioner filed an initial claim for unemployment compensation benefits. Exhibit P-7 shows that the claim was apparently defended through CHS's Winter Park Office, and the record is unclear as to when Ms. Barry, whose office was located in Jacksonville, or Ms. Osborne, whose office was located in Tavares, found out about the claim. (However, see Findings of Fact 67 and 74.) Because Ms. Barry had not received any further medical certification from Petitioner before Petitioner's leave extension expired on March 27, 2001, she legitimately could have terminated Petitioner's employment on the basis that Petitioner had neither returned to work nor requested an extension of her leave. Instead, On April 3, 2001, Ms. Barry sent, and Petitioner received, a letter advising that CHS had not received any further medical certification indicating Petitioner needed leave beyond March 27, 2001, and stating that Petitioner needed to provide medical certification if she had a continued medical need preventing her from returning to work or that required continued restrictions in the type of work she could perform. The letter further stated that if Petitioner were able to return to work, she must submit a fitness-for-duty certification. Ms. Barry requested that Petitioner submit any documentation regarding her medical status no later than April 16, 2001. On April 4, 2001, Ms. Barry received a telephone call from an attorney, Mr. Larry Colleton, requesting information on how Petitioner could apply for long-term disability insurance benefits. Ms. Barry did not believe Petitioner was eligible for long-term disability benefits because Petitioner had already been released for part-time work (see Finding of Fact 52), but she sent Petitioner an explanation of long-term disability benefits, including information that they applied to any employee who was disabled for six months or longer; an explanatory booklet; and forms to apply directly to the insurance company for that type of benefit. Ms. Barry copied Mr. Colleton with her explanatory cover letter to Petitioner. Exhibit P-7 shows Mr. Colleton as Petitioner's lawyer in the unemployment compensation case. The record is silent as to whether Ms. Barry knew, on April 4, 2001, that there was an unemployment compensation claim or of Mr. Colleton's involvement therein. Ms. Barry testified that she did not interpret Mr. Colleton's telephone request concerning long-term disability benefits to be notification of a handicap or a request for an accommodation for a handicap. On April 11, 2001, Petitioner faxed Ms. Barry a March 28, 2001 letter from Dr. Boggus advising that although Petitioner had been "completely and totally disabled from her usual occupation through March 23," she was now cleared to return to work. The fax also included a copy of Petitioner's completed application form for long-term disability benefits directed to CHS's insurance company. This form, signed by Petitioner, represented that she was disabled due to the 1999 automobile accident and the absence of any jobs within CHS that fit her limitations. Upon receiving the application for long-term disability benefits signed by Petitioner, Ms. Barry assumed that Petitioner would thereafter deal directly with CHS's insurance company to support her application for long-term disability benefits, including sending it a medical excuse dated after the March 28, 2001 release by Dr. Boggus, which Ms. Barry had received. Ms. Barry submitted the employer portion of the long- term disability paperwork to the insurance company on April 30, 2001. Exhibit P-7 shows that on April 16, 2001, an unemployment compensation claims adjudicator entered an order, which held Petitioner ineligible for unemployment compensation benefits. The undersigned is persuaded that this would be the last date reasonable to suppose that Ms. Barry did not know about the unemployment compensation claim. By letter dated May 9, 2001, the long-term disability insurance company sent Petitioner a letter requesting a statement from her doctor to support her long-term disability application. Ms. Barry received a copy of this letter. By letter dated June 4, 2001, the insurance company advised Petitioner that because Petitioner had previously been asked for proof of disability, and disability documentation had not been received, the insurance company was closing her file on long-term disability benefits. Ms. Barry received a copy of this letter, too. The last medical release that Ms. Barry ever received from Petitioner was Dr. Boggus's unrestricted return to work release, dated March 28, 2001, which Ms. Barry received on April 11, 2001. (See Finding of Fact 65.) By letter dated June 11, 2001, Ms. Barry notified Petitioner that she was being removed as an active CHS employee and that CHS was closing her personnel file because she had not submitted any doctor's certification indicating a medical need for a continued leave of absence and she also had not applied for any vacant open positions within CHS. This letter was the effective termination of Petitioner by Respondent. The decision to terminate Petitioner was made by Ms. Barry and Ms. Osborne. There is no persuasive evidence that, between March 28, 2001, when she was medically released to return to work and June 11, 2001, when she was terminated, Petitioner had applied for any CHS positions. Barry and Osborne each credibly testified that they had no reason to believe at any time material that Petitioner was handicapped, because Petitioner's physician, Dr. Boggus, had released her as being fully able to perform the functions of her job on March 28, 2001, and as of the date of her termination, Petitioner had never complained to Barry or Osborne that she believed that she was being discriminated against on any basis. On June 19, 2001, after the first unemployment compensation decision which apparently went against her (see Finding of Fact 67), Petitioner wrote Heidi Burkett, an employee in the same Jacksonville CHS Human Resources Office as Ms. Barry. The letter referenced Petitioner's unemployment compensation claim number. By this letter, Petitioner requested reinstatement to the position of "Program Supervisor in the Lake County area or an elevated position." This letter mentioned nothing about any handicap. On June 19, 2001, there were no Program Supervisor I openings in CHS, and Petitioner was not qualified for a position above Program Supervisor I. Petitioner testified that she had a "Paralegal Master's," but in Ms. Osborne's view, that degree would not render Petitioner eligible for any open elevated position. Petitioner would have had to have an advanced degree in a field related to childcare or in social work in order to fit the qualifications of any higher position with CHS. Furthermore, Petitioner would not have been promoted to an elevated position until her supervisors had an opportunity to work with her to make sure she had resolved the performance issues which were uncovered in her Program Supervisor I position while she was on leave. There is no evidence that Petitioner made any further contacts after her June 19, 2001 letter in an attempt to return to CHS, or that she applied for, or expressed any interest in, any positions below Program Supervisor I inside or outside of Lake County. The September 29, 2001 Charge of Discrimination was the first notice Ms. Barry had that Petitioner was claiming discrimination. Petitioner claims that after June 2001, she was gainfully employed as a teacher "for a while" by the Lake County School Board and/or a technical institute. She did not demonstrate that any accommodation for handicap was necessary in these employments. The record is silent as to her earnings since her separation from CHS.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Florida Commission on Human Relations enter a final order dismissing the Petition for Relief and Charge of Discrimination. DONE AND ENTERED this 4th day of March 2004, in Tallahassee, Leon County, Florida. S ELLA JANE P. DAVIS 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 4th day of March, 2004.
The Issue The issue to be resolved in this proceeding concerns whether the Petitioner has just cause to terminate the employment of the Respondent.
Findings Of Fact The Petitioner is the School Board of Lake County, Florida (Board)(Petitioner). It is charged with operating and managing the public school system in Lake County, Florida, otherwise known as the Lake County School District. The Respondent, at times pertinent hereto, was employed by the Board as a school guidance counselor at Sawgrass Elementary School. Her principal was Rhonda Hunt. During the 2005-2006 school year, the Respondent missed 71 days from her job. In the 2006-2007 year, she missed 97 days. In the 2007-2008 school year, the Respondent missed 87 days from work. The contract for a guidance counselor requires that they work for 221 days per school year. During these times, especially in the 2007-2008 school year, the Respondent had been making repeated requests for leave. Ms. Hunt, her principal, became concerned and in May of 2008 reported the situation about extensive absences, and leave requests, to Ms. Rebecca Nelsen, the Board's Supervisor of Compensation, Benefits and Employee Relations. In the 2007-2008 school year, when Ms. Hunt brought the issue to Ms. Nelsen's attention, the Respondent had missed work the number of days found above, which represented all the days in the school year from February 13th through the end of the school year. In the previous year, she had missed work from the middle of January through the end of the school year. Ms. Nelsen prepared a memo to Deke DeLoach, the Board's Chief of Human Resources, apprising him of the situation regarding the Respondent's absences. She explained to him the situation involving the excessive absences over a 5-year period. She explained to Mr. DeLoach that when an employee has been on extended unpaid leave that, according to Board policy 6.50, her return to employment is dependant upon a position being available. Therefore, while an individual is on extended leave, which is approved, their position becomes available to be filled at the decision of an individual school administrator. Moreover, unpaid leave, the status applicable to the Respondent's situation, must be approved in advance. An employee may not go off-duty on unpaid leave and then get approval for it at a later time. Approval must be requested in advance. A formal request must be made to the Superintendent, for the Superintendent's recommendation to the Board. Extended Illness Leave is a leave category that is required to be approved by the Board as well. Ms. Nelsen therefore explained to Mr. DeLoach that the Respondent had been on extended unpaid leave and, according to the above-referenced Board policy, her return to employment was dependent upon a position being available. Employees are required to have approval for some form of leave before they take leave or miss time from work. If an employee does not have approval for some form of leave and does not come to work, then under Board policy they are deemed to be absent without leave. If that is the situation, the employee can be terminated under Board policy. The School Board must have a recommendation from the Superintendent in order to be able to act on any sort of leave request. Under Board policies, an Extended Illness Leave is required to be approved by the Board. The school fiscal year ends June 30th. July 1, 2008, therefore, was the beginning of the new fiscal year for the 2008-2009 school year. The regular school session then began near the end of August 2008. Ms. Nelsen wrote to Ms. Chavous on August 19, 2008, explaining to her that she had been on unpaid sick leave numerous days, and giving her options to consider. Ms. Nelsen informed her that she must report to work or be considered absent without approved leave, that she could explain to her supervisor any accommodations that she may need, or that she could request Extended Illness Leave. That communication, from Ms. Nelsen to Ms. Chavous, references a July 29, 2008, request for sick leave. Ms. Chavous completed the July 29, 2008, request for sick leave on a Request for Leave of Absence form, which is the form required to be completed by employees who are requesting any kind of leave from the School Board. The July 29, 2008, leave form depicted a request for leave from August 4, 2008, through August 19, 2008. The reason for the leave requested was indicated as "Illness of self.” The Respondent did not have any sick leave available to her at that time. In the 2008-2009, school year, the Respondent was not eligible for leave under the Family Medical Leave Act. This was because she had not worked enough days in order to trigger eligibility under that law. This leave request was denied because the Respondent was on unpaid sick leave the prior year, had missed 87 days, and had never offered an explanation for her need to use sick leave. Therefore, the Board had no basis on which to approve the additional leave request and the Respondent's approved leave ended June 30, 2008. Any leave that the Respondent would have received for any extended illness would have been for the previous school year which was over at the end of the fiscal year, June 30, 2008. Ms. Nelsen gave the Respondent two options in her August 19, 2008, letter: To report to work or be considered absent without approved leave, or To submit a leave request form asking for extended illness leave for the remainder of the year. On August 28, 2008, a request was faxed from the Respondent seeking extended illness leave. The attached doctor's note did not explain the nature of the medical situation or condition, in terms of providing justification for the leave requested. The Respondent submitted a leave request form with that August 28, 2008, request. It did not confirm that she was asking for extended illness leave for the school year. Instead she requested leave from August 4, 2008, until October 30, 2008. Since School Board policy required the Respondent, in this situation, to request leave for the remainder of the school year, Ms. Nelsen sent an e-mail to the Respondent telling her that she had no available sick leave to use and again telling her that she had the option to either report to work or to request an extended illness leave for the remainder of the year. That communication was sent on August 29, 2008, the day after the Respondent faxed the form requesting leave through October. The Respondent then sent Ms. Nelsen another leave request form in response to the August 29, 2008, e-mail. It again requested leave from August 4, 2008, through October 30, 2008. On September 9, 2008, a letter was sent from the Superintendent to the Respondent, explaining that the Respondent had not reported to work and that she had not requested extended illness leave. Consequently she was informed that she was now considered “absent without approved leave” and would be recommended to the School Board for termination of employment. When the Superintendent sent the letter to the Respondent, on September 9, 2008, the Respondent was not on approved leave. She was absent without leave under the terms of the School Board policy. Pursuant to that policy she was therefore subject to being terminated. Ms. Nelsen received three leave request forms from the Respondent, none of which requested leave for the remainder of the school year, and none of which gave an explanation for the basis of the medical condition. The Respondent's response to these facts was her statement to the effect that "[I]t was just always told to me that you can't request for more leave than what your doctor has put on the form. So, therefore, that's why I put the dates there." She also acknowledged that sometimes she does not remember some things or doesn't respond as fast as she should. Therefore she simply stated that she believed, in effect, that she had submitted everything that she could and had explained her situation to the best of her ability at the time. The collective bargaining agreement between the Lake County School District and the Lake County Education Association includes the position of guidance counselor. That contract references the Board policy which makes it a terminable offense to be absent without leave. The recommendation to the Board, prior to the Respondent making a Request for Hearing, was that she be terminated for being absent without leave. The Respondent's prior leave had expired at the end of the 2007-2008 school year. When the first day of school started in the current school year of 2008-2009, the Respondent did not report to work. The Respondent probably would have been unable to work because of her illness before January 2009. She would therefore have missed all of August, September, October, November, and December.
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, RECOMMENDED that a Final Order be entered by the Lake County School Board finding that the employment of the Respondent, Latonya Chavous, be terminated for just cause. DONE AND ENTERED this 26th day of June, 2009, in Tallahassee, Leon County, Florida. S P. MICHAEL RUFF Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 2009. COPIES FURNISHED: Stephen W. Johnson, Esquire McLin & Burnsed Post Office Box 491357 Leesburg, Florida 34749-1357 Latonya Chavous 136 Desiree Aurora Street Winter Garden, Florida 34787 Dr. Susan Moxley, Superintendent Lake County Schools 201 West Burleigh Boulevard Tavares, Florida 32778-2496 Deborah K. Kearney, General Counsel Department of Education Turlington Building, Suite 1244 325 West Gaines Street Tallahassee, Florida 32399-0400 Dr. Eric J. Smith Commissioner of Education Department of Education Turlington Building, Suite 1514 325 West Gaines Street Tallahassee, Florida 32399-0400
Findings Of Fact At all times material, Petitioner was employed by the Department of Corrections as a full-time career service employee. On July 13, 1984, he was ranked as a Correctional Officer I at Florida State Prison (FSP). On March 2, 1990, Petitioner had been placed on workers' compensation due to a back injury. On Thursday, April 5, 1990, Dr. W. David Sikes of the Bradford Chiropractic Center signed a medical release permitting Petitioner to return to light duty on Monday, April 9, 1990. Dr. Sikes was apparently the authorized treating physician to whom the agency had currently obligated itself pursuant to Chapter 440 F.S. [The Florida Workers' Compensation Act]. A previous physician had released Petitioner for full-duty work on April 3, 1990. Petitioner was present in the office of Personnel Manager Marion Bronson on Friday, April 6, 1990. At that time, Mr. Bronson told Petitioner to report for work on the first shift (8:00 a.m. to 5:00 p.m.) on Monday, April 9, 1990. This meant Petitioner would be doing mail room duty during the day instead of his regular duties on his regular shift of midnight to 8:00 a.m. Petitioner told Mr. Bronson he could not work the first shift due to his needing to be home to take of his invalid wife. To this, Mr. Bronson replied that the first shift was the only light duty available. On Friday, April 6, 1990 Petitioner did not refuse to come in to work the first shift on Monday, April 9, and he did not tell Mr. Bronson that he was already signed out on annual leave for that date. Nonetheless, Mr. Bronson was left with the impression at the end of their meeting that Petitioner would not come back to light-duty work on Monday. Petitioner did not report for work on the first shift on April 9, 10, or 11, 1990 (Monday, Tuesday and Wednesday). On Wednesday, April 11, 1990, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: You have been carried in unauthorized leave without pay status since April 9, 1990. You were also carried on unauthorized leave without pay on April 3, 1990. You are hereby instructed to return to duty at 8:00 a.m. the day after you receive this letter. If you do not return to duty on that date it will be deemed that you have abandoned your position at Florida State Prison and you will be dismissed. In the past, the FSP personnel office usually made further efforts to contact missing employees after such a letter had been sent, but no such attempts were made in this instance. Normally, FSP gives employees an opportunity to call in and rectify absentee problems but deems it abandonment if the employee does not respond. At no time subsequent to April 6, 1990 did Petitioner contact anyone at FSP regarding his absence. Petitioner did not actually receive the April 11 letter until Friday, April 13. Petitioner did not report for work on Saturday, April 14, Sunday, April 15, or Monday, April 16. Saturday would have been a regular workday for Petitioner. However, Petitioner's usual days off were Sunday and Monday, and nothing had been said by Mr. Bronson about altering Petitioner's workdays. On Monday, April 16, Mr. Bronson mailed Petitioner a letter that read, in pertinent part: This is to inform you that in accordance with Section 22A-7.010(2), F.A.C., you have been deemed to have abandoned your position as Correctional Officer I and resigned from the Career Service System effective April 14, 1990. A copy of Section 22A-7.010(2) is enclosed for your information. You have been absent from duty for at least three consecutive workdays without authorized leave as follows: April 10, 11, and 12, 1990. Please be advised that you have been dropped from the payroll effective the close of business April 14, 1990. Unbeknownst to Mr. Bronson, Petitioner had exercised preapproved annual leave for the period of April 10-14, 1990. None of Petitioner's superiors advised Mr. Bronson of this fact. There was no notation to this effect in Petitioner's personnel file in Mr. Bronson's office. It was Mr. Bronson's testimony that it was better personnel management and he would have preferred to have Petitioner drawing annual leave during this period than to be paying him full pay for makeshift light duty. If Petitioner had requested annual leave on April 6, 1990, Mr. Bronson would have granted it. As of April 14, 1990, Petitioner had "banked" 119.75 hours of annual leave time which would have been sufficient to cover his April 10-14, 1990 vacation or "no show" days. Additionally, he also had available 26.5 hours of sick leave but this sick leave was subject to certain deductions and adjustments which had allowed the agency to keep Petitioner on at full pay the previous week while technically he was only eligible for a reduced amount based on workers' compensation. In accord with standard FSP policy, Petitioner had previously submitted an annual leave request form on October 16, 1989 to request leave for the week of April 10 through April 14, 1990. This form had been approved by his immediate superior, who at that time was his shift supervisor, Officer Gaskin. Officer Gaskin was the correct superior to make such approval. Mr. Bronson has nothing to do with the approval of leave under such circumstances. Harry Tison, who became Petitioner's shift supervisor in April 1990 while Petitioner was still out on workers' compensation leave, was not aware of Petitioner's preapproved annual leave until Mr. Bronson's office began making inquiries after the April 16 letter, but at that time, Tison was able to refer to a leave calendar posted in his area which showed that Petitioner was expected to be out on annual leave on those days. From that information, Officer Tison, by reason of his familiarity with the FSP system and hierarchy, could infer that Petitioner's leave had been approved by FSP's highest command figure, "the Colonel." Some witnesses alluded to FSP policy that even preapproved annual leave requests constituted only tentative approval unless the employee checked with his supervisor a week before actually exercising his leave so as to be sure that the preapproved leave had not been revoked due to an employee crunch, but there is no such rule or printed policy of the Department of Corrections or FSP, and the evidence is insufficient to establish such a vague policy as uniform or binding on Petitioner. Also, in this instance, the week before, Petitioner was away from work most of that week on workers' compensation disability, and there is no evidence of any employee crunch which would have altered the prior annual leave approval.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Corrections enter a Final Order finding that Petitioner has not abandoned his position and returning him to the appropriate position with back pay and emoluments, subject to any appropriate setoffs under the Workers' Compensation Act and any mitigation from other employment. DONE and ENTERED this 19th day of August, 1990, at Tallahassee, Florida. ELLA JANE P. DAVIS, 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 19th day of August, 1990. APPENDIX TO RECOMMENDED ORDER The following constitute specific rulings pursuant to Section 120.59(2) F.S. upon the parties' respective proposed findings of fact (PFOF): Petitioner's PFOF: Petitioner has filed only a "Final Argument" and that is essentially legal argument and proposed conclusions of law as opposed to proposed findings of fact which are entitled to a ruling pursuant to Section 120.59(2) F.S. Moreover, the format does not lend itself to intelligible rulings since no sentence is numbered. Respondent's PFOF: 1-6 Accepted. Accepted except for the last sentence, which does not comport with the testimony heard. Accepted. Rejected in FOF 13, which reflects the greater weight of the credible evidence. Accepted but subordinate. - 15 Accepted. COPIES FURNISHED: Perri M. King Assistant General Counsel Department of Corrections 2601 Blair Stone Road Tallahassee, Florida 32399-2500 Rodney W. Smith, Esquire Gloria W. Fletcher, Esquire 515 North Main Street, Suite 300 Post Office Box 1208 Gainesville, Florida 32602 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Richard L. Dugger, Secretary Department of Corrections 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether the petitioner abandoned her position and resigned from the Career Service System under the circumstances of this case.
Findings Of Fact Petitioner was employed as a permanent full-time employee in the Bureau of Workers' Compensation within the Division of Risk Management in the Department of Insurance. Her job title was Secretary Specialist. Her immediate supervisor was Lawrence Sharp, Chief of the Bureau. However, on February 6, 1985, Mr. Sharp was on annual leave, and Ms. Peggy Veigas was the acting supervisor. On February 6, 1985, Petitioner took two hours of authorized leave from work from 8 a.m. to 10 a.m., in order to attend a Leon County Court hearing on charges of cashing bad checks. The checks had been repaid in advance of the hearing: however, petitioner was immediately adjudicated guilty of writing bad checks, sentenced to 12 days in jail, and taken into custody. Petitioner was due to return to work at 10:00 a.m., but was unable to do so because of circumstances beyond her control. She was taken directly from her court appearance to the Leon County Jail. However, prior to being transported to the jail, she was able to ask her husband, who had accompanied her to court, to call her employer and ask for emergency leave to cover the 12 days she would be serving her sentence. Mr. Penney called petitioner's office at about 2 p.m. on February 6, 1985, and in the absence of Mr. Sharp the call was referred to Ms. Veigas, the acting supervisor. Mr. Penney explained that Mrs. Penney would not be at work for the next eight to ten days and requested emergency leave for that period of time. Mr. Penney was very vague about the nature of the emergency and Mrs. Penney's whereabouts. He did not explain that Mrs. Penney was in jail because he felt it would be embarrassing to Mrs. Penney. Ms. Veigas stated that emergency leave could be granted but she would have to talk to Mrs. Penney. She told Mr. Penney to have Mrs. Penney call her. Mr. Penney stated that Mrs. Penney could not call in and implied that Mrs. Penney was out of town. Ms. Veigas explained that Mrs. Penney needed to call her as soon as she could get to a phone and, if necessary, for her to call collect. Mr. Penney interpreted Mrs. Veigas' statement, that she could grant the leave but Mrs. Penney would have to call as soon as possible, as meaning that the leave was approved and that Mrs. Penney had to call work as soon as she was able to do so. However, in making the statement, Mrs. Veigas meant only that there was a possibility that leave would be granted and Mrs. Penney needed to call and explain the nature of the emergency. The subsequent actions of both Mr. Penney and Mrs. Veigas were consistent with their respective conceptions of the conversation. That afternoon, after the telephone call, Ms. Veigas went to the personnel office and discussed the matter with Ms. Cooper. Ms. Veigas wanted to find out how she should handle the request for leave and whether she should wait for Mr. Sharp to return from his vacation. Mr. Yohner, the Chief of Personnel Management, was consulted, and he stated that when Mrs. Penney called, Ms. Veigas would have to determine whether she would approve the leave or not. Ms. Veigas was told by Ms. Cooper to wait until Ms. Veigas heard from Mrs. Penney "so we would know whether it was an illness or whatever it was." (T-47) However, the nature of the emergency was determined without the necessity of a call from Mrs. Penney. Within a short period of time after the call from Mr. Penney, Ms. Veigas mentioned the request for emergency leave to Ms. Benefield. Ms. Benefield told Ms. Grissom about the call from Mr. Penney, and the two speculated that Mrs. Penney might be in jail. They were aware that Mrs. Penney had financial problems. While Ms. Grissom stood by, Ms. Benefield telephoned the jail and was told that Mrs. Penney was in jail for passing bad checks. They immediately communicated the information to Ms. Veigas, and the three of them, along with a woman named Edna, discussed the situation for about five or ten minutes. Ms. Veigas then conveyed the information to Mr. Yohner, Ms. Cooper and Mr. Beardon, the Director of the Division of Risk Management, who had previously been informed of the call from Mr. Penney. The following day Mr. Sharp returned to work and was informed of the entire situation. Mr. Sharp discussed the matter with Mr. Beardon. Mr. Beardon had his assistant call the State Attorney's Office to verify that Mrs. Penney was in jail. Thus, by the end of the workday on February 7, 1985, Mrs. Penney's co-workers, her immediate supervisor, the Chief of Personnel Management, and the Director of the Division of Risk Management were all aware that Mrs. Penney, through her husband, had requested emergency leave, and they were all aware that the emergency leave had been requested due to Mrs. Penney's incarceration. On either February 6th or 7th, Mr. Yohner notified Mr. Gresham, the Director of the Division of Administration and Mr. Yohner's supervisor, that a possible abandonment of position situation existed. Mr. Gresham was not informed that petitioner had requested emergency leave. On Friday, February 8th, or on the following Monday, Mr. Sharp called a friend of his in the Department of Administration, Don Bradley, to gain advice on application of the rule relating to abandonment of position. He was told that when someone missed three days of work without having authorization, it was the same thing as resigning and required termination. Mr. Sharp relayed the information to Mr. Beardon. Mr. Sharp did not consider petitioner's leave request and did not know whether he had the authority to approve the leave since at least a portion of the leave requested would have been without pay.2 After three days expired and Mrs. Penney had neither reported for work nor called the office, Mr. Beardon contacted Mr. Yohner to discuss the situation. He also discussed the situation with his superior in the Department. Though Mr. Beardon was aware that Mrs. Penney had requested leave through her husband and was aware that she was absent from work only because she had no choice, Mr. Beardon did not consider her request for leave. His reason was that Mrs. Penney did not personally request the leave. He did not consider the possibility that Mrs. Penney was not able to call in person. Mr. Beardon felt that a call from Mrs. Penney was necessary to find out "all of the pertinent facts and why the request was needed." However, it is apparent that Mr. Beardon already knew why the requested leave was needed and had already discovered the pertinent facts. Nevertheless, Mr. Beardon determined that, under the abandonment rule,3 petitioner had abandoned her job and her employment should be terminated. He recommended that the personnel office proceed with the action in accordance with the rule. Mr. Yohner informed Mr. Gresham of Mr. Bearden's recommendation that petitioner be terminated from the Career Service via the abandonment rule. A letter was prepared for Mr. Gresham's signature, notifying Petitioner of her termination from the Career Service. Mr. Gresham signed the letter and mailed it to petitioner at her home address. By the letter dated February 11, 1985, and then by an amended letter dated February 12, 1985, petitioner was notified that she had been absent without authorized leave for three consecutive days, and therefore she was deemed to have abandoned her position pursuant to Rule 22A-7.10(2)(a), Florida Administrative Code, and to have resigned from the Career Service. Meanwhile, Mr. Penney was under the impression that the emergency leave had been granted. He was able to speak with his wife for the first time on February 9, 1985, and the first question petitioner asked her husband was whether the leave had been granted. He told her that it had been, and she displayed visible signs of relief at the knowledge. Petitioner's husband also told her that she should call Ms. Veigas at her earliest opportunity. Mrs. Penney made diligent attempts to contact her employer both before and after she spoke with her husband on February 9, 1985. On each day of her incarceration she made written requests to the Captain at the jail for permission to use the telephone to call her employer. However, she received no response. In accordance with jail policy, which allowed one phone call per week at a set time, she was permitted use of the telephone on only one occasion, on February 11, 1985 at about 11 p.m. in the evening. Mrs. Penney's sentence was reduced by Judge McClamma and she was released from jail on February 14, 1985. She received the termination letter that evening when she got home. The next morning she called Mr. Yohner and stated that she wanted to return to work. Mr. Yohner informed her that she was no longer an employee of the Department. Mrs. Penney's position was advertised on February 19th and readvertised on March 4, 1985. Sometime after March 4, 1985, a replacement was hired. Although the workers compensation bureau had a very heavy case load, Mrs. Penney's work performance had been satisfactory. Indeed, she had been promoted to the position of Secretary Specialist from her previous position of Clerk-Typist III with the bureau. Petitioner had no intent to abandon her position in the Career Service, and she had no intent to resign her position. The Department had actual knowledge of the petitioner's whereabouts during her absence from work, and had actual knowledge that she intended to return to work as soon as she could. Further, the Department was aware that petitioner had requested leave to cover the period of time she would be gone. However, instead of taking action on the request, one way or the other, the Department left the request in limbo. A decision was never made to approve or disapprove the request. The only explanation given for not considering the request was that Mrs. Penney had not made it personally. However, it is quite clear that at the time of Mr. Penney's call the Department considered the call a legitimate request for leave from Mrs. Penney even though the call was not made by her. Ms. Veigas did not tell Mr. Penney that the leave could not be granted because Mrs. Penney had not called in person. Indeed, the first thing Ms. Veigas did after the telephone call was go to the personnel office to find out how she should "process the request". The only reason that the Department wanted to talk to Mrs. Penney personally, prior to determining whether leave should be granted, was to discover the nature of the emergency. Although Mr. Penney explained that there was an emergency, that Mrs. Penney was unable to call, and that leave was being requested to cover the period of time that Mrs. Penney would be unable to work, he was very vague about the nature of the emergency. The Department understandably wanted to know the reason for the request before deciding to grant leave. However, once the Department discovered Mrs. Penney's circumstances, it was in a position to make an informed decision on the leave request, and there was no rational basis for its failure to do so. Although the granting of leave is discretionary, the discretion must be exercised. Apparently, the Department officials believed that Mrs. Penney's absence from work for three consecutive days mandated termination notwithstanding the pending request for leave. Because the Department failed to take any action on the leave request, Mrs. Penney was never notified that her request for leave had been denied. Upon consideration of the facts and circumstances of this case, it must be concluded that Mrs. Penney did not abandon her position.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented by this case do not constitute abandonment of position as contemplated by Rule 22A-7.10(2)(a) and directing that the petitioner be reinstated to her former position as of February 15, 1985. DONE and ENTERED this ;26th of December, 1985, in Tallahassee, Leon County, Florida. DIANE A. GRUBBS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, FL 32301 (904) 488-9675 FILED with the Clerk of the Division of Administrative Hearings this 26th day of December, 1985.
The Issue At issue herein is whether or not the Petitioner's suspension of Respondent on March 6, 1979, 1/ from his employment duties without pay based on conduct set forth hereinafter in detail, was proper.
Findings Of Fact Based upon my observation of the witnesses and their demeanor while testifying, the documentary evidence introduced, the arguments of counsel and the entire record compiled herein the following relevant facts are found. Otha Reddick, Respondent, was employed by the Leon County School Board, Petitioner, as a Systems Analyst during November of 1974, a position he held until his suspension on March 6. His rate of pay at the time of his suspension was $1,326.00 per month. On April 11, Petitioner's superintendent, Dr. N.E. (Ed) Fenn, filed a Notice of Charges against Respondent. At its meeting of April 17, the School Board referred the matter to the Division of Administrative Hearings for a formal hearing pursuant to Section 120.57(1)(a), Florida Statutes. The Notice of Charges alleged in pertinent part that: Respondent, Otha Reddick, was absent from work for the period February 15 through March 2, during which period he willfully neglected his duties at the Data Processing Center. On or about March 1, Respondent committed misconduct in office in that he represented to his supervisor, Ott Carraway, that because of medical reasons he was unable to return to work when, in fact, he was operating a private business, Top Bookkeeping Services, during regular school work hours. The Respondent, Otha R. Reddick, is guilty of willful neglect of duties and misconduct in office in that he operated a private business, Top Bookkeeping Services, during regular school work hours. Based on these charges, the Petitioner seeks to convert its suspension of Respondent into a permanent termination of his employment. Respondent's duties as a Systems Analyst with Petitioner included supervising programmers in the Data Processing Center. His work hours consisted of a normal eight hour day. In addition to his employment by Petitioner, Respondent owned two businesses: Top Bookkeeping Services, a business engaged primarily in the preparation of tax returns and related bookkeeping functions; and Twin Oaks Production, a company involved in the promotion of bands and live burials. Respondent's operation of and duties connected with his ownership of Top Bookkeeping Services occurred after his regular hours of employment by Petitioner. Respondent used what is commonly referred to as seasonal or casual employees on an as needed basis for the operation of Top Bookkeeping Services. According to Respondent, the bookkeeping service has been operating at a loss since its inception. Respondent utilizes a similar employment arrangement in his operation of Twin Oaks Productions. On the morning of February 13, Respondent, while at work, became visibly upset when he was advised by his supervisor, Ott Carraway, that the payroll function of the Data Processing Center would be contracted out to a private agency. Respondent disagreed with this decision and made known his disagreement, since in his opinion, the Data Processing Systems Division was capable of and had in fact been properly carrying out the payroll functions for the School Board. Before leaving for his lunch break on February 13, Respondent Reddick inquired of the production control and leave clerk, Janet Guthrie, the amount of accrued sick and annual leave he had. During his lunch break, Respondent went home, took two Valium pills (one more than his prescribed dosage), laid across his bed and went to sleep. Before doing so, Respondent summoned to his apartment for medical assistance Theresa Fountain, his secretarial assistant at Top Bookkeeping Services. Then Ms. Fountain arrived at Respondent's apartment, she noticed that he was visibly upset, was red in the face, appeared stressed and his speech was slurred. Ms. Fountain, a former hospital employee assigned to a psychiatric ward, related that Respondent exhibited symptoms of a person suffering a nervous breakdown (TR. 208-210). After a few minutes, Ms. Fountain was able to get Respondent calm and they discussed the problem relating to the letting of the payroll function to a private entity. She suggested that the Respondent get some rest. Ms. Fountain was aware of Respondent's ulcer disease and stomach problems and phoned Respondent's daughter-in-law in Bonifay. Ms. Fountain asked Respondent's sons to come to Tallahassee (from Bonifay) to get medical attention for their father. Ms. Fountain phoned Respondent's supervisor, Ott Carraway, and informed him that in view of Respondent's nervous condition, she was of the opinion that he needed medical attention and, therefore, would be unable to return to work. Respondent's sons, Douglas and Ronald Elvin Reddick, drove to Tallahassee the evening of February 13 to pick up their father. Respondent's sons drove to Tallahassee in a van which has a sofa bed in the rear that Respondent used to lie down on for the trip to Bonifay. Upon arrival at Respondent's apartment, his sons assisted him out of the bed to the van. Respondent slept most of the entire trip from Tallahassee to Bonifay. Respondent spent the following day, February 14, lounging around his house in Bonifay, where he remained until approximately 10:00 p.m. the following day. He then drove to the Dallas-Ft. Worth, Texas, area accompanied by Country Bill White, the person used in the live burials. While in the Dalla-Ft. Worth area, Respondent spent the next two evenings enlisting support in the form of pledges from local tavern owners and selling magazine subscriptions and newspaper ads to finance the live burial act. During the next few days, Respondent drove to Houston, Texas, to visit his brother. He remained in Houston two days and returned to the Dallas-Ft. Worth area. The live burial which was then scheduled to take place in the Dallas-Ft. Worth area was postponed due to inclement weather. In this regard, the evidence revealed, and Respondent admitted, that he had planted to request leave to attend the live burial act in Texas on the scheduled dates of February 22 and 23, 1979. Respondent credibly testified that he had no planned (active) role in the scheduling of the live burial act. (Testimony of Respondent and his sons, Douglas and Elvin Reddick. TR. 172-176.) When the live burial act took place, Respondent was not present in Texas. On Sunday, February 25, Respondent drove to New Orleans where he briefly frequented several bars. He later drove to Bonifay, where he arrived at his home at approximately 9:00 p.m. He remained in Bonifay until the following morning, when he returned to Tallahassee. On Monday, February 27, Respondent phoned his supervisor, Cecil "Ott" Carraway, to inquire if he could pick up his paycheck. A lengthy telephone conversation ensued between Respondent and Supervisor Carraway during which conversation Respondent was advised by Carraway that in view of his protracted absence, he (Carraway) would be requiring Respondent to secure a doctor's excuse to substantiate his illness before his paycheck would be released. Chapter 6 GX 37-2, Rule 2.14(7), Florida Administrative Code, Leon County Rules and Regulations. Respondent explained to supervisor Carraway that it was necessary for Respondent to receive his paycheck inasmuch as he had requested and was granted leave by Centel, through the close of business on February 27, to pay his telephone bill or his service would be interrupted. Supervisor Carraway stood fast on his insistence that a doctor's excuse be submitted before releasing Respondent's paycheck. it was not until the following day, February 28, that Respondent was able to obtain a doctor's excuse from his regular physician, Dr. Norbert J. Wegmann, of Chipley, Florida. Respondent's residence phone service was interrupted by Centel on February 27 and was not restored until March 3. During the period when Respondent's phone service was interrupted, he used his office phone at Top Bookkeeping Services. During the conversation between Respondent and Supervisor Carraway on February 28, Respondent requested an additional two days leave. There is a dispute with regard to the type of leave Respondent requested and supervisor Carraway granted February 28. Respondent's version is that he simply requested time off, whereas supervisor Carraway's version is that he explained to Respondent that he had exhausted his sick leave and, therefore, it was necessary for him to use one day of annual leave which he had recently been credited with as of March 1. On February 27, Respondent spent most of the day lounging around his apartment. The next day Respondent went to his office at Top Bookkeeping Services (located at Park Twenty West) to have access to a phone and to begin work on his personal income tax return. On March 1, Respondent, while on what he considered to be annual leave status, prepared an income tax return for Mr. and Mrs. Ward, employees of Petitioner's key punch operations. The return was completed approximately 8:00 p.m. On the afternoon of March 1, Respondent received a telephone call from Charles Johnson and Linda Jordan, employees and agents of Petitioner, who scheduled an appointment to get their tax returns prepared at Top Bookkeeping Services during the afternoon of March 2. Employees Jordan and Johnson used the fictitious name of "Susie Jones" to secure the appointment. On March 2 Linda Jordan, Director of Personnel, and Charles Johnson, the then Director of Employee Relations, for the Leon School District, visited the offices of Top Bookkeeping Services at the agreed upon time. Another employee of Respondent's at Top Bookkeeping Services had been assigned to prepare the tax returns for "Susie Jones", who later turned out to be Petitioner's employees, Jordan and Johnson. The most that can be said about Respondent's presence at Top Bookkeeping Services is that he was in fact present. There were no customers at Top Bookkeeping Services at the time, nor did attorney Johnson, who testified, indicate that the Respondent even appeared to have been preparing tax returns when he and Director Jordan visited the Top Bookkeeping Services office (TR. 117). Attorney Johnson did not see what Respondent was in fact doing other than the fact that he was simply present. Attorney Johnson explained to Respondent that he thought that his job might well be in jeopardy by his presence at Top Bookkeeping Services while he was on leave. Attorney Johnson suggested that Respondent talk to Dr. Fenn about his presence at Top Bookkeeping Services. Respondent, being concerned about his job security expressed reluctance to visit the Superintendent with attorney Johnson and the Personnel Director present without the advice and assistance of his attorney. Respondent, attorney Johnson and Personnel Director Jordan could not come to an acceptable procedure to counsel with Dr. Fenn and Respondent remained at Top Bookkeeping Services. Attorney Johnson discussed the matter with Dr. Fenn and they jointly decided that Respondent should be suspended inasmuch as there was a "breach in Respondent's obligation to the School Board since he was working on other duties during school hours." Respondent was not given a copy of the Notice of Charges prior to the March 6 School Board hearing. The Board suspended Respondent at its March 6 meeting, which suspension remains effective. Norbert Wegmann, M.D., is a General Practitioner in Chipley, Florida, and was received as an expert in medicine for this proceeding. Dr. Wegmann has been treating Respondent for anxiety, tension, fatigue and irritability since approximately 1968. During this period, Respondent has undergone family and marital stresses and Dr. Wegmann has prescribed tranquilizers and analgesics for his (Respondent's) ulcer and stomach disorders. Dr. Wegmann suggested that Respondent work at a slow pace; take time off and generally do things which permit him to put his mind at ease and to remain in a relaxed condition at the onset of anxiety and stress (TR. 149). Dr. Wegmann considered that Respondent's taking time off from work would have been consistent with his prescribed treatment for Respondent. Although Dr. Wegmann last examined Respondent physically (during times material) approximately November of 1977, he sent Petitioner a written excuse to substantiate his authorization of Respondent's absence during the period involved herein based on his knowledge of Respondent's medical condition. (Testimony of Dr. Wegmann, TR 142, 143.) Janet Guthrie, Petitioner's production control clerk, is in charge of maintaining leave records and answering incoming phone calls. Ms. Guthrie reviewed Respondent's leave record before lunch on the morning of February 13, 1979, and advised Respondent that he had approximately ten (10) days of sick leave accrued at that time. At the beginning of March, 1979, Respondent earned an additional day of vacation and sick leave. Employees are permitted to call in to request sick leave. (Testimony of Janet Guthrie and Supervisor Carraway.) Dr. Ed Fenn, Petitioner's Superintendent of Schools, is the administrator and manager of the Leon County School District. He became familiar with Respondent based on conversations with supervisor Ott Carraway, to the effect that Respondent was taking sick leave to take care of his private bookkeeping services. Dr. Fenn considered that Respondent was absent without leave based on information gathered through Ott Carraway and the visits by attorney Johnson and Personnel Director Linda Jordan's visit to Respondent's bookkeeping service. Supervisor Carraway recommended that Respondent be suspended effective Monday with pay until a recommendation could be made to the School Board for a suspension without pay. Attorney Johnson delivered the suspension letter to Respondent. (Petitioner's Exhibit 1). Dr. Fenn acknowledged that Petitioner has no rule which prevents its employees from conducting personal business during non-working hours. Nor is there a rule which prevents employees from doing personal work during their vacation time. Dr. Fenn also made clear that the Board does not concern itself with the activities of its employees while they are on vacation leave. 2/ He also pointed out that when an employee exhausts all accrued sick leave, the leave category is switched to either vacation leave or leave without pay. In this regard, Respondent was not paid for leave taken on March 2, 1979. (Testimony of Dr. Fenn and Supervisor Ott Carraway.) Ott Carraway, Petitioner's Data Processing Director, is in charge of operating the computer center and supervising employees of the computer center. Carraway has known Respondent professionally approximately eight years and recommended that he be hired. Supervisor Carraway, in explaining Petitioner's leave procedures, related that leave requests must be approved in advance, with the exception of sick leave. On February 13 at approximately noon, Theresa Fountain phoned supervisor Carraway and explained that Respondent was suffering from a nervous condition and, therefore, needed time off. This was, of course, the date that supervisor Carraway advised Respondent that the payroll function of the computer center was being transferred to an outside agency. Supervisor Carraway considered the request by Ms. Fountain to be a request from Respondent for sick leave, and the request was granted. According to Carraway, when Respondent, much like other employees, are absent, their work loads are distributed among other employees. Supervisor Carraway received confirmation of Respondent's illness from Dr. Wegmann on March 1, at which time his check was released. Supervisor Carraway considered Respondent's leave request for two additional days on February 28 to be a request for sick leave based on Respondent's discussion of his nervous condition. Respondent, in the usual situation, would have been placed on annual leave when his sick leave was exhausted. Supervisor Carraway surmised that Respondent was abusing his sick leave when he heard that Respondent had filed tax returns for two employees who worked in the Data Processing Center during the evening of March l. At supervisor Carraway's instigation employees Charles Johnson and Linda Jordan made an appointment through a fictitious name to get their tax returns prepared at Top Bookkeeping Services during the afternoon of March 2. After the visit by employees Johnson and Jordan to Respondent's offices at Top Bookkeeping Services, supervisor Carraway was made aware of Respondent's presence at the offices at Top Bookkeeping Services and recommended that he be suspended for misuse of sick leave. This recommendation was acted upon by Superintendent Fenn, which resulted in formal action by the School Board on March 6, 1979. Prior to this incident, supervisor Carraway has never requested employees to bring in a medical excuse to document their sick leave. Supervisor Carraway knew of no rule or regulation promulgated by Petitioner which required that an employee on sick leave be confined to bed.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That the Leon County School Board reinstate Respondent, Otha Reddick, to his former position as Systems Analyst (or a substantially equivalent position) effective March 2, 1979. That the Respondent be made whole for all losses of earnings he suffered as a result of the suspension less interim earnings, plus interest at the rate of eight (8 percent) percent per annum. 5/ That Respondent's leave records be credited with the appropriate amounts reflective of the leave and other employee benefits he would have earned but for his suspension of March 2, 1979. That Respondent's personnel folder be expunged of all records relative to the suspension. RECOMMENDED this 8th day of May, 1980, in Tallahassee, Florida. JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings Room 101, Collins Building Tallahassee, Florida 32301 (904) 488-9675
The Issue The issues in this case are whether Respondent engaged in an unlawful employment practice against Petitioner on the basis of disability, and whether Respondent retaliated against Petitioner in violation of the Civil Rights Act.
Findings Of Fact SLCSO is a law enforcement agency in Port St. Lucie, Florida. On April 15, 1996, Petitioner began employment with SLCSO as a corrections officer. She worked as a detention deputy overseeing inmates and was assigned to booking most of her career. Petitioner was good at her job and typically got above average on her evaluations related to her work performance. She also got along with her colleagues. After 2005, when Wesley had a conflict with Lieutenant Stephanie Lyons ("Lt. Lyons"), Petitioner began to believe that she was working in a hostile work environment and that her colleagues were out to get her at the direction of Lt. Lyons. Wesley reported and filed complaints throughout her employment whenever she believed improper behavior occurred. She reported multiple incidents, including ones where she felt employees made statements about her that were untrue. As a result, numerous investigations were conducted by her supervisors and SLCSO Internal Affairs, to which the majority were concluded unfounded. Many of the incidents Wesley reported were unsettling to her and ultimately made her depressed with anxiety, have panic attacks, and elevated her blood pressure. Lt. Lyons, Lt. Daniel O'Brien ("Lt. O'Brien"), Sergeant Jeffrey Jackson ("Sgt. Jackson"), Sgt. James Mullins ("Sgt. Mullins"), and Sgt. Johnny Henry ("Sgt. Henry") were some of Petitioner's supervisors while employed at SLCSO. One incident that has been extremely troubling to Wesley is her observation of Sgt. Jackson punching a pregnant inmate in the stomach. The incident is so upsetting to Wesley that even though she reported the incident when it occurred, she continues to be upset by the incident and continues to relive it, which distresses her. During her employment, Wesley also lost her mom and brother in the same year, 2011. The losses took an added toll on her and caused more emotional difficulties. Another major personal event that stressed Wesley was that she found out the deputy that she thought she had been in a 15-year monogamous relationship with was having an affair with another deputy on Wesley's shift. Those working conditions caused Wesley even more emotional harm. At some point, Wesley had an emotional breakdown, could not get out of bed, and even thought she no longer wanted to live. Eventually, Wesley's illnesses became debilitating, and her high blood pressure was unstable. Wesley started missing work because of her illnesses. She physically was unable to work. On June 20, 2012, after Wesley was absent five times, she was counseled for abuse of sick leave benefits in violation of SLCSO Policy 5.1.33. During the counseling, Wesley was told she "needs to achieve and maintain an acceptable level of sick time usage to improve [her] below average status. Deputy Wesley will receive a below standard on her evaluation for sick time usage." Wesley first applied for the Family Medical Leave Act ("FMLA") on September 25, 2012, but the process was not completed. On February 25, 2014, Wesley was issued a reprimand for abuse of sick leave in violation of SLCSO Policy 5.1.33 after she was absent another five days in 12 months. She was warned that "any further absences will result in continued progressive discipline." Wesley did not lose pay when she was reprimanded. On or about August 21, 2014, Wesley submitted an Intermittent Family Medical Leave Act request for her own "Serious Health Condition" to the SLCSO Human Resources Office ("Human Resources"). Wesley's application was incomplete. On October 8, 2014, Petitioner submitted the outstanding medical certification needed for the application submitted on August 21, 2014. Human Resource Manager Lori Pereira ("Pereira") denied the FMLA request on October 13, 2014, because the medical certification was submitted untimely, 52 days from the date of Petitioner's last absence. On October 22, 2014, Wesley requested reconsideration of her FMLA application, and Human Resources denied it on October 27, 2014. On March 20, 2015, Wesley requested FMLA leave again. In her application, Wesley provided a medical certification filled out by her cardiologist, Dr. Abdul Shadani ("Dr. Shadani"), which stated the patient will be absent from work for treatment "2-6 per year," and the underlying medical condition is systemic arterial hypertension ("hypertension"). "N/A" was the response Dr. Shadani supplied on the medical certification for probable duration of patient's incapacity. The hours/week section was marked intermittent. The certification box was also checked "No" after the question, "Will it be necessary for the employee to work intermittently or to work less than a full schedule as a result of the conditions?" On April 1, 2015, Human Resources approved Wesley's request for Intermittent FMLA leave due to medical reasons. The approval cycle was from August 21, 2014, through August 20, 2015. Pereira backdated Wesley's leave to August 21, 2014, the date Dr. Shadani identified as the beginning of Wesley's medical condition. The backdating converted Wesley's unexcused absences to excused absences, and she avoided additional disciplinary action for unexcused absences. SLCSO policy required that when an employee is on Intermittent FMLA leave, the employee has to call out as needed and report which type of leave is being used. The policy for taking sick leave required that employees call in two hours prior to the shift and notify your supervisor. Wesley felt it was unnecessary to have to call in so frequently. In order to maintain FMLA leave, employees are required to get renewed medical certifications for the cycles. Human Resources notified Wesley when she needed to provide a physician recertification to continue her FMLA leave. When Wesley had to get recertifications, she felt like it was too frequently and that she was being harassed. Obtaining recertifications required that Wesley pay co-pays, which she believed were very expensive since she was not working. Wesley also felt like she was being punished for using the FMLA leave benefit. During the August 21, 2014, to August 20, 2015, FMLA leave cycle, Wesley was absent approximately 444 hours. Pereira discovered Wesley's high leave rate, 444 hours, and noticed that it did not coincide with the projected two to six absences a year on the medical certification. Pereira conferred with her supervisor, Lt. Sheeler, and they decided to verify with Dr. Shadani whether the 444 hours were absences related to Wesley's underlying medical condition to which Wesley had FMLA leave approval. On August 31, 2015, Pereira wrote Dr. Shadani a letter inquiring about the 444 hours Wesley had been absent. By facsimile dated September 4, 2015, Dr. Shadani responded to Pereira's request and confirmed that the amount of absences listed in the medical certification was correct without further explanation or reference to Wesley's hypertension. On September 9, 2015, Human Resources approved Wesley's Intermittent FMLA request for the August 21, 2015, through August 20, 2016, cycle for Petitioner's own serious health condition. It was backdated to cover the dates Wesley missed back to August 21, 2015, even though the recertification was not completed until near the end of the covered FMLA period. While working at SLCSO, Wesley sought mental health counseling to help deal with her feelings about the workplace. She wanted to continue working for SLCSO and perform successfully. Human Resources decided they needed a better understanding of Wesley's condition with the extensive time she had been absent contrary to Dr. Shadani's absence projection. Pereira and Lt. Sheeler decided to request a second opinion since no detailed information was provided from Dr. Shadani. Pereira contacted Dr. Joseph Gage ("Dr. Gage"), a cardiologist and requested that he provide a second opinion. Dr. Gage was asked to review Wesley's job description and evaluate if her 444 hours of absences were reasonable for her medical condition, provide the reasoning for the number of absences from work for her medical condition, and determine if Wesley was capable of performing her job functions. SLCSO also requested that they be invoiced for the co-pay for Wesley's visit to Dr. Gage. On or about September 29, 2015, Pereira spoke with Wesley and told her she needed to go get a second opinion and that SLCSO was choosing a cardiologist, Dr. Gage, for the mandatory second opinion. That same day, Wesley received a call from Stuart Cardiology that she needed to report for a second opinion. SLCSO set up the appointment for Wesley. Wesley felt that SLCSO's making her report for a second opinion was harassment after her doctor, Dr. Shadani, had already responded to the Human Resources' request. Wesley emailed Pereira and told her "I am starting to feel punished for being on FMLA." Wesley also emailed Pereira and asked for the "specific reason(s) for your request for a second opinion." On or about October 2, 2015, Pereira responded to Wesley by email and stated: As I mentioned in our phone call a few moments ago, since Dr. Shadani's medical certification states that you would be absent for treatment for your medical condition for 2-6 times per year and due to the fact that you missed 444 hours within the past year, we are requiring this second opinion with our choice of cardiologist, Dr. Gage. On October 5, 2015, Dr. Gage evaluated Wesley. On October 9, 2015, Dr. Gage provided Human Resources his results of Wesley's evaluation. Dr. Gage was not able to confirm if the absences were from Wesley's hypertension because he did not have her blood pressure measurements during the absent dates. However, Dr. Gage was concerned about Wesley's blood pressure level and instructed Wesley not to return to work until the hypertension was more regulated. Dr. Gage also recommended Wesley expedite a visit to her cardiologist, Dr. Shadani, before being released. Wesley was released to return to work by Dr. Shadani on October 6, 2015. However, she did not provide her return to work release to Human Resources, contrary to SLCSO policy. Instead, Wesley provided the doctor's note to her supervisors. SLCSO policy requires medical clearance be provided to Human Resources if a deputy has missed more than 40 hours of consecutive work. On October 20, 2015, Kimberly Briglia ("Briglia"), the then human resources manager that replaced Pereira, called and told Wesley that a physician medical clearance had to be provided to Human Resources for her to return to work. Briglia's call was followed up by an email, and Wesley felt harassed, which she reported. On October 23, 2015, Lt. Sheeler reminded Wesley by memo that she had been sent an email by Human Resources on October 19, 2015, requesting a fitness for duty evaluation be provided by her physician. The memo informed Wesley that it was a "direct order" that she provide a fitness for duty report by November 2, 2015. Human Resources had sent previous correspondences to Wesley by certified mail that were returned unclaimed. SLCSO's practice was to have documents personally served by Civil Unit deputies when certified mail was unclaimed. Since Wesley had not been claiming her certified mail, Briglia had the SLCSO's Civil Unit personally serve Wesley at her residence with Lt. Sheeler's fitness for duty report memo dated October 23, 2015, to ensure Wesley received it because of the November 2, 2015, impending deadline. Wesley believed the personal service was harassment, and having to go to another doctor for a fitness of duty clearance was also harassment. On October 30, 2015, Wesley provided the fitness for duty report to Briglia and Lt. Sheeler. On October 31, 2015, Wesley was released to full duty without restrictions. On January 5, 2016, Human Resource Specialist Caitlyn Tighe requested Wesley provide a medical recertification to continue her FMLA leave. On January 22, 2016, Wesley provided Human Resources a FMLA medical certification signed by Dr. Shadani even though she felt it was harassing when SLCSO requested such documentation. On March 7, 2016, Wesley requested a retroactive pay increase because she believed that a deputy had received a similar pay increase and that she deserved the same. Wesley continued to believe that her supervisors were harassing her. On or about March 24, 2016, Wesley reported to Captain William Lawhorn ("Capt. Lawhorn") that she had been mistreated by Lt. Lyons yet again, as she had been doing since 2005. Wesley complained of the following problems with Lt. Lyons: Lt. Lyons assigned Sgt. Jackson over Wesley because he was "someone who feeds off of [Lt. Lyons]." Lt. Lyons tried to discipline Wesley while she was applying for FMLA leave. Lt. Lyons directed Sgt. Tom Siegart ("Sgt. Siegart") to call Wesley to let her know that she would need a doctor's note to return to work if she was out another day because she was on her third consecutive sick day. The "needs improvement" on Wesley's performance evaluation was only the rating because Lt. Lyons directed Sgt. Siegart to lower it. Lt. Lyons asked the deputies over radio communications had they seen Wesley who was late for roll call. Wesley believed Lt. Lyons was trying to embarrass her by calling her over the radio and not looking for her when she came in late. On April 19, 2016, Director of Finance Toby Long denied Wesley's request for a pay increase and explained that in 2007, Wesley had been provided an increase that corrected the discrepancy in her pay grade. He also informed Wesley that she had been paid properly since the 2007 increase. On April 22, 2016, Capt. Lawhorn had a meeting with Wesley and Lt. Lyons to discuss the March 24, 2016, complaint. Lt. Lyons agreed not to address Wesley publicly on the radio and talk with her privately going forward. Wesley declined the transfer Capt. Lawhorn offered, and Wesley and Lt. Lyons agreed they could work together. Capt. Lawhorn found no misconduct for any of the five complaints Wesley made on March 24, 2016. He found that the assignment of Sgt. Jackson was an arrangement based on need. The corrective action was moot because it was retracted when it no longer applied since Wesley's FMLA leave was backdated. He also determined that Lt. Lyons frequently used the radio to communicate all issues to deputies and was not singling Wesley out. Next, Capt. Lawhorn decided it was common practice to have a deputy call to check on another deputy about leave and to determine how to plan the work schedule. He also concluded Lt. Lyons used proper discretion when lowering Wesley's rating to "needs improvement," because Wesley had a zero sick leave balance and was tardy to work. Lastly, Wesley had been late at roll call; so, it was appropriate to look for her. Soon after the meeting, Wesley complained to Capt. Lawhorn that Lt. Lyons had discussed the meeting with Lt. Lyons' friend, Deputy Denetta Johnson ("Dep. Johnson"), and Dep. Johnson glared at her. Capt. Lawhorn followed up the complaint by investigating. He met with Dep. Johnson and found out that Lt. Lyons had not discussed the meeting with her. On May 27, 2016, Wesley provided SLCSO a Certification of Health Care Provider for Employee's Serious Health Condition signed by Dr. Shadani to continue her FMLA leave. In May 2016, Wesley's Intermittent FMLA was approved after she provided the FMLA medical recertification to Human Resources. In May 2016, Capt. Lawhorn tried to assist Wesley and found himself compiling a history of Wesley's career, including ten years of complaints against Lt. Lyons and other supervisors, reviewing her discipline and attendance history, medical condition, FMLA leave, and injuries. He evaluated Wesley's complaint that Lt. Lyons and the other supervisors were causing her undue stress and that she was being treated differently. Capt. Lawhorn discovered that Wesley had ten corrective actions for her whole tenure with the sheriff's office, which were related to neglect on-duty charges or sick leave abuse. Her record confirmed approved Intermittent FMLA leave for a personal, serious medical condition. Capt. Lawhorn's review found that Wesley's work history pattern of declining attendance, including periods without a full paycheck, started in 2013 and included: 2013, missed two full paychecks; 2014, missed one full paycheck; 2015, missed ten full paychecks; and 2016, missed four out of nine checks (YTD). Capt. Lawhorn addressed the possibility of Wesley qualifying for workers' compensation benefits because of her complaints about workplace stress, anxiety, and interactions with Lt. Lyons. Capt. Lawhorn addressed the issues in a memo to Major Tighe dated May 16, 2016. However, it was determined that Wesley did not qualify for workers' compensation benefits. By July 2016, Wesley's FMLA leave was running out. Human Resources Clerk JoLeah Rake prepared and sent a letter to Wesley to notify her that the FMLA leave exhausted July 26, 2016. The letter was returned unclaimed. Briglia determined that notifying Wesley that her leave was exhausted was an urgent matter and that she requested personal service to Wesley's residence by the SLCSO Civil Unit to ensure Wesley received the notice. On or about August 3, 2016, Wesley provided a return to work note to Briglia from Dr. Denise Punger ("Dr. Punger"), stating that Wesley could return to work on August 5, 2016. Wesley had just missed five days of work. Briglia could not determine the nature of Wesley's illness because Dr. Punger's note did not provide an explanation for Wesley's five absent days of work. Also, Dr. Punger was not Dr. Shadani, the doctor who had previously provided Wesley's medical certifications for FMLA leave. Briglia was concerned for Wesley's safety and the safety of her co-workers. On August 4, 2016, Briglia made an independent Human Resources decision and requested by letter that Wesley provide a more detailed explanation from Dr. Punger for her absences, to ensure Wesley was fit for duty to return to work. Briglia had the Civil Unit personally serve the letter dated August 4, 2016, to Wesley at her residence. On August 4 2016, Wesley called Briglia to address her displeasure with the request for details from her physician and the personal service at her residence a second day in a row. Wesley described the SLCSO actions as embarrassing, harassment, retaliation, discrimination, and a violation of her rights. Wesley informed Briglia that they were making her situation worse. Briglia told Wesley she would return her call. On August 5, 2016, together Briglia and Lt. Sheeler called Wesley back to explain that it was within SLCSO policy to verify details of medical conditions. They further told Wesley that since the release was signed by a physician other than Dr. Shadani who had previously provided the explanation for her FMLA leave medical certifications and absences, the medical reasons for the absences needed to be clarified and provided. Lt. Sheeler and Briglia also told Wesley that workplace safety was the priority that created the need for the request in order to both protect employees and to make sure SLCSO is not going against the orders of Wesley's doctor. It was also explained to Wesley that civil service was necessary because she did not claim her certified mail, she needed to be notified, and she could not return to work without a fitness for duty clearance. Wesley did not believe Briglia and Lt. Sheeler. Each request for medical documents caused Wesley additional stress. Wesley admitted at hearing that she did not claim her certified mail. Afterwards, Wesley provided a medical excuse slip from Dr. Punger, clarifying that Wesley's absences were due to migraines and high blood pressure. Human Resources allowed Wesley to return to work after receiving Dr. Punger's excuse slip. On August 22, 2016, Wesley filed a complaint against Briglia. On August 22, 2016, Wesley received a corrective action for abuse of sick leave and an informal counseling for the five sick absences in four months that were not FMLA leave related. Wesley violated agency policy by taking time off without accrued sick leave. On or about September 8, 2016, Wesley provided SLCSO a Certification of Health Care Provider for Employee's Serious Health Condition signed by Dr. Shadani. On September 19, 2016, Wesley filed a complaint regarding the August 22, 2016, corrective action. After reviewing the corrective action, Capt. Lawhorn found the corrective action appropriate and the informal discipline fair and supported by policy. Wesley did not lose pay for the discipline. On September 22, 2016, Wesley filed a discrimination case with the FCHR, alleging SLCSO discriminated against her by subjecting her to harassment and discrimination, and retaliation, for taking FMLA leave due to her disability, hypertension. On March 16, 2018, FCHR issued a Determination: No Reasonable Cause. Wesley filed a Petition for Relief on or about April 12, 2018, to contest the determination. Wesley claims in her petition that the requirement that she acquire a second opinion from Dr. Gage, the personal service to her residence by the SLCSO Civil Unit deputies to deliver correspondence, and the requirement that her physician, Dr. Punger, clarify her medical condition to return to work were harassment, discrimination, and retaliation for her utilizing her FMLA leave benefit.
Conclusions For Petitioner: Peggy F. Wesley, pro se (Address of Record) For Respondent: R. W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered by the Florida Commission on Human Relations dismissing Petitioner's Petition for Relief in its entirety. DONE AND ENTERED this 30th day of August, 2019, in Tallahassee, Leon County, Florida. S JUNE C. MCKINNEY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 30th day of August, 2019. COPIES FURNISHED: Tammy S. Barton, Agency Clerk Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed) R. W. Evans, Esquire Allen, Norton & Blue, P.A. 906 North Monroe Street Tallahassee, Florida 32303 (eServed) Peggy F. Wesley (Address of Record-eServed) Cheyanne M. Costilla, General Counsel Florida Commission on Human Relations 4075 Esplanade Way, Room 110 Tallahassee, Florida 32399-7020 (eServed)
