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
The Issue Did the absenteeism of Respondent, Hector Marrero, amount to just cause to terminate his employment as a teacher with Petitioner, Polk County School Board (Board), under Article 4.4 of the County's Teacher Collective Bargaining Agreement (Agreement)?
Findings Of Fact Mr. Marrero worked 20 some years in Polk County schools as an art teacher. Most recently, he taught art to the students of Palmetto Elementary School for eight years. The Board employed him pursuant to a professional services contract. Mr. Marrero's home life was difficult for him and his children. This was due to his wife's substance abuse, her domestic violence toward Mr. Marrero, and her mistreatment of their children. In 2016, these problems reached a crescendo. Authorities filed criminal child abuse and domestic violence charges against Mr. Marrero's wife. In October 2016, the criminal charges were resolved by judgment that included a prohibition against the wife possessing weapons, a prohibition against the wife contacting Mr. Marrero, 12 months' probation, and random drug tests of the wife. The Department of Children and Families (DCF) intervened to help protect Mr. Marrero's minor children. This resulted in requirements for counseling, which Mr. Marrero fulfilled. In August 2016, Mr. Marrero began a dissolution of marriage proceeding. It was contentious and abusive with numerous issues related to the problems identified above. The issues included critical child custody disputes. The disputes were resolved with Mr. Marrero being given full-time custody with the children and their mother permitted only supervised visits. Throughout this period, courts issued several restraining orders against the mother. Mr. Marrero, as the sole responsible parent, cared for his daughters, ensuring their continued participation in events at their separate schools. These demands and disruptions caused the absences resulting in his proposed termination. The absences described below were to attend various court hearings, attend litigation related conferences, attend required counseling sessions, transport his daughters to events, attend their events, and other obligations arising from the legal and DCF issues created by the behavior of Mr. Marrero's wife. The Polk County school system suffers from a significant absenteeism problem. The Board employs over 13,000 people. Approximately 9,000 of them are teachers or other instructional staff. During the 2018-2019 school year, the system imposed attendance related discipline 302 times. The Polk County school system has taken several actions to improve attendance. The actions include providing training and guidance to school principals and other administrative employees to help them assist employees to manage available leave time. The actions also include promulgating guidelines for principals and supervisory personnel to address absenteeism as a disciplinary issue. A teacher's presence in the classroom is a critical part of the job. The interruption of continuity of instruction that excessive absenteeism causes compromises student learning. It also injures co-workers asked to cover the absent teacher's duties. The entire school suffers as a result. The Agreement governs the availability of paid leave for Polk County teachers. Section 20.1 of the Agreement grants four days of sick leave as of a teacher's first day of employment. After the first day, teachers earn one additional day of sick leave for each month of employment. The system credits the day to the employee at the end of each month. The maximum number of sick leave days an employee may earn during any given school year is twelve. Unused sick leave accrues from year-to-year. The Agreement does not limit the number of days that teachers may accrue. Section 20.2 of the Agreement grants teachers six personal leave days during the school year. They are drawn from the pool of total available sick days. The distinction between personal days and sick leave days is that sick leave is intended to be taken because of an employee's or employee's family's illness or other health problem. Personal days may be taken for any reason. Personal leave days are a subset of sick leave days. A teacher may take personal leave days only if sick leave days are available to the employee. If an employee is absent and has no available sick leave time, then the employee is absent without authorization. Article XXI of the Agreement governs unpaid leave. It includes a variety of categories including medical leave, educational leave, and parental leave. There is no indication that Mr. Marrero inquired about unpaid leave or that the school administration suggested that he consider it. Mr. Marrero's struggles with attendance reach back to 2016. By letter dated February 12, 2016, his Principal, Edgar Santiago, documented a verbal warning for excessive absenteeism. The Principal noted that he held a conference with Mr. Marrero on the 12th and had discussed the fact that attendance records showed Mr. Marrero had missed 18 days of work during the school year. Eight days were unpaid because he had exhausted his available leave time. The letter cautioned that it was the first step of the Progressive Discipline process set forth in Section 4.4-1 of the Agreement. The letter concluded, "It is important to note that further disciplinary action, up to and including termination, will follow if unacceptable behaviors continue." On March 15, 2016, Principal Santiago delivered another letter to Mr. Marrero. The letter was a written reprimand under Step 2 of the Progressive Discipline process. The letter noted that by then Mr. Marrero had missed 23 days of work that school year, 13 of which exceeded his available leave time. The letter referenced the Agreement's Progressive Discipline section and noted that further disciplinary action could result in termination of Mr. Marrero's employment. On March 29, 2017, Principal Santiago wrote the Superintendent of the Polk County schools and advised her that Mr. Marrero continued to miss work after depleting his available sick and personal leave days. Principal Santiago noted that Mr. Marrero knowingly missed work without available sick or personal leave. His letter stated, "I am of the opinion that Mr. Marrero's recent absences without pay is [sic] a continuing trend and just cause for further disciplinary action." Principal Santiago recommended imposition of Step 3 of the progressive discipline process, suspension for up to five days without pay. He provided Mr. Marrero a copy of the letter. On April 19, 2017, the school administration provided Mr. Marrero a letter from Associate Superintendent Teddra Porteous notifying him that he was suspended without pay for three days for his absenteeism. The letter stated specifically that the suspension constituted Step 3 of progressive discipline under the Agreement. The letter also stated that further disciplinary action could result in termination. Because of Mr. Marrero's absenteeism, Principal Santiago placed him on a Professional Development Plan, which included goals and strategies for improving his attendance. After the suspension and imposition of the Professional Development Plan, Mr. Marrero completed the 2017-2018 school year without absences exceeding his accrued leave time.1/ Mr. Marrero's attendance problems returned in the 2018- 2019 school year. Beginning in August of 2018, Mr. Marrero missed work for one-half or more days on 23 different dates. These dates do not include his absences on May 30 and 31, 2019, which were the result of his suspension after the Superintendent recommended termination of his employment. As of January 24, 2019, Mr. Marrero had exhausted his available sick leave and personal time for one-half day or more on ten different workdays. Yet he was absent five days in April. Principal Santiago wrote the Superintendent on April 30, 2019, recommending termination of Mr. Marrero. This was Step 4 of the progressive discipline process. The Superintendent accepted the recommendation. On May 29, 2019, Principal Santiago delivered a May 23, 2019, letter from Associate Superintendent Porteous to Mr. Marrero. The letter stated, "Based on these facts [absences history], and in accordance with Step IV of Progressive Discipline in Article 4.4-1-Progressive Discipline of the Teacher Collective Bargaining Agreement, the Superintendent has determined that 'just cause' exists to recommend termination of your employment to the School Board of Polk County." The letter advised Mr. Marrero of his right to request a hearing. He exercised that right. During the 2016-2018 period, Mr. Marrero had advised Principal Santiago of the serious personal problems causing his repeated absences. Principal Santiago authorized Mr. Marrero to occasionally arrive late for work or leave early. He did not authorize Mr. Marrero to take full days or half-days off without charging them to available leave. Nor did Principal Santiago have authority to do that.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that Petitioner, Polk County School Board, enter a final order finding just cause to terminate the employment of Respondent, Hector Marrero, and dismissing him from his position with the Polk County School Board. DONE AND ENTERED this 22nd day of January, 2020, in Tallahassee, Leon County, Florida. S JOHN D. C. NEWTON, II 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 22nd day of January, 2020.
The Issue The issue is whether Petitioner is entitled to recover salary that it claims that it overpaid Respondent.
Findings Of Fact Petitioner employs Respondent as a detention care worker in a juvenile detention center in Miami. She is presently classified as a Senior Juvenile Detention Officer. Respondent's highest education is a high school diploma. She has worked 27 years for Petitioner and its predecessor agency, the Department of Health and Rehabilitative Services. In early January 2004, Respondent was hospitalized at least a couple of times for surgery. Upon her release from the hospital, Respondent's physician directed her to rest and not to return to work. She remained under these doctor orders, and thus out of work, continuously until April 29, 2004, when Respondent returned to work. Respondent exhausted her sick and annual leave prior to returning to work. The sole issue in this case is whether Respondent and her coworkers effectively completed transfers of their sick leave to her. Due to its payroll administration procedures, Petitioner paid Respondent her normal salary for a period of time for which Petitioner did not work and had no remaining sick or annual leave, so, absent an effective transfer of sick leave from coworkers, Respondent would have received overpayments during this time. The salary payments in dispute are $409.70 for the pay period ending March 25, 2004; $1399.71 for the pay period ending April 8, 2004; $1477.53 for the pay period ending April 22, 2004; and $518.08 for the pay period ending May 6, 2004. These payments total $3805.02. Petitioner has adopted a policy governing the transfer of sick leave between employees. Petitioner Policy 1002.03, Part III.F, Procedures for Sick Leave Transfer (Sick Leave Transfer Policy), sets forth the procedures applicable to leave donors, leave recipients, and Petitioner's Bureau of Personnel. With respect to the leave recipient, Sick Leave Transfer Policy provides: In order to receive donation of sick leave, the employee (recipient) must complete the Interagency Sick Leave Transfer Request (Request to Use) Form (Attachment 2) and submit it to the Bureau of Personnel on or before the pay period the employee is eligible to use the leave. The receiving employee (recipient) must submit medical certification to the Bureau of Personnel of the continued illness of the employee and the inability to return to work, by completing the Sick Leave Transfer Request (Request to Use) Form. The Request to Use Form is incorporated into the Sick Leave Transfer Policy. It is a one-page preprinted form consisting of two parts. Entitled "Request to Use Donated Sick Leave," Part I is a signed, dated statement from the employee that states the date on which the absence began or will begin and adds: I certify that I have suffered an illness, accident or injury. I further certify that I have expended all my personal leave credits and this is to request use of donated sick leave hours to cover my absence due to my current personal illness, accident or injury. I authorize my employer to use my name and release a general description of the medical circumstances in order to determine my eligibility in accessing this benefit. Entitled "Medical Documentation," Part II of the Request to Use Form comprises two subparts. The first part of the form consists of a statement from the employee that he or she is seeking donated sick leave and authorizes any medical practitioner to complete Part II and answer any questions concerning the employee's eligibility. The second part of Part II of the Request To Use Form follows a line stating: "To Be Completed by the Treating Medical Practitioner Only." The information to be supplied by the practitioner is identifying information, the "date of which patient was first examined for current condition," the "date patient is expected to recover or be released to duty," and any restrictions imposed upon the patient's release to duty. The last line of Part II states in boldface: "Return this form (marked confidential) to:" Instructions for Authorized Use of this Form: In order for the patient to comply with eligibility requirements, the treating medical practitioner must complete this form and return it to the patient's employer directly or via the patient. In smaller print, immediately following the last statement, the Request to Use Form states: "Return to Bureau of Personnel, Benefits, 2737 Centerview Drive, Tallahassee, FL 32399-3100." This case turns on whether Petitioner timely received the Request to Use Form. Petitioner does not dispute that it timely received sufficient Request To Donate Forms to cover the amount of the claimed salary overpayments. On March 31, 2004, Respondent faxed a seven-page package of documents to George Sumpter, who was Petitioner's Sick Leave Donations Coordinator in Petitioner's Benefits group in the Bureau of Personnel in Tallahassee. This package consisted of executed Request to Donate Forms. Respondent faxed these forms to 850-921-6700. On April 30, 2004, the day after she returned to work, Respondent faxed a 12-page package of documents to Mr. Sumpter. This package included an executed Request to Use Form and medical certification. Respondent's Bureau of Personnel thus received sufficient documentation to process the sick leave transfers during the pay period that ended May 6, 2004, as the policy requires that the documentation be submitted "on or before the [subject] pay period." Respondent faxed an executed Request to Use Form in late February or early March. She faxed the materials to the lone Bureau of Personnel liaison present in the Miami facility at which Respondent worked. Respondent believed either that submitting the materials to the Miami liaison would suffice or, if not, the Miami liaison would forward them to where they needed to go. It is difficult to determine what happened to these forms. No one in the Bureau of Personnel was very helpful to Respondent, who was able to obtain copies of the Request to Donate and Request to Use forms from a friend in the Department of Education. Somehow, while still recuperating from surgery and ill health, Respondent was able to obtain a copy of a list of telephone and fax numbers for various groups within Petitioner's Bureau of Personnel in Tallahassee, but the list was old and did not have Mr. Sumpter's name on it, nor did the list clearly indicate which fax number to use for submitting the Request to Use and Request to Donate forms. Learning that Mr. Sumpter claimed not to have received the first package, Respondent refaxed the package to him in March. At some point, Mr. Sumpter acknowledged that he had received the Request to Use Form package, but he told Respondent that he had received it too late for her to be able to use any of the donated sick leave. When Respondent persisted in asking that he allow her to use the donated sick leave, Mr. Sumpter told her to file a complaint with Petitioner's Inspector General's Office. Respondent contacted the Inspector General's Office, where no one was able to help her. Mr. Sumpter did not testify at the hearing. However, a document maintained in the Bureau of Personnel files discloses that Petitioner had received the Request to Use Form on April 1, 2004. However, the same form states that Petitioner did not receive the "Medical Documentation Form" until May 28, 2004. Prior to April 1, 2004, Respondent repeatedly sent faxes to Bureau of Personnel representatives in Miami and Tallahassee. Included in these faxes were all of the documentation necessary to process the sick leave transfers from the donors to Respondent. During the period in question, Petitioner was undergoing significant employee turnover. On this record, it is more likely than not that Respondent timely submitted, by no later than the first pay period in question in this case, all of the duly executed documentation necessary to effect a transfer of the donated sick leave to her.
Recommendation It is RECOMMENDED that the Department of Juvenile Justice enter a final order dismissing its claim of salary overpayment to Respondent. DONE AND ENTERED this 26th day of October, 2004, in Tallahassee, Leon County, Florida. S ROBERT E. MEALE Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 26th day of October, 2004. COPIES FURNISHED: Anthony Schembri, Secretary Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Robert N. Sechen, General Counsel Department of Juvenile Justice Knight Building 2737 Centerview Drive Tallahassee, Florida 32399-3100 Linville Apkins Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-3100 Elizabeth Judd, Qualified Representative 99 Northwest 183rd Street, Suite 224 Miami Gardens, Florida 33169 Yvette Demeritte 1730 Northwest 1st Court, Apartment 7 Miami, Florida 33136
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 in this case is whether the Respondent terminated Petitioner's employment on the basis of a perceived disability, in violation of Section 760.10, Florida Statutes (2004),2 the Florida Civil Rights Act of 1992, as amended.
Findings Of Fact Ms. Seiden's Relevant Employment. Petitioner Jane Seiden is an individual who was employed by the Florida Department of Corrections at Broward Correctional Institute (hereinafter referred to as "BCI") from December 1988 until the end of March 1999 as a licensed practical nurse. From April 1, 1999, until October 7, 2001, Ms. Seiden continued to work at BCI, but was employed by a private business, Prison Health Services. On October 8, 2001, Respondent Wexford Health Sources, Inc. (hereinafter referred to as "Wexford") took over responsibility for providing medical services at BCI. Ms. Seiden became an employee of Wexford as of that date, after having received a letter dated June 20, 2001, signed by Wendy Mildner, as Wexford's Director of Human Resources/Risk Management, offering her employment with Wexford effective October 8th. Ms. Seiden accepted the offer of employment on June 25, 2001. Wexford is a provider of health care services to correctional facilities, including BCI. Throughout Ms. Seiden's employment at BCI, she received excellent work performance reviews. Wexford's Leave Policies. Wexford's policies concerning employee "Family and Medical Leave" at the time of Ms. Seiden's initial employment with Wexford were contained in the Wexford Health Sources, Inc. Employee Handbook (Respondent's Exhibit 9) (hereinafter referred to as the "Employee Handbook"). The Family and Medical Leave policy was, in relevant part, as follows: Employees who are eligible for Family and Medical Leave may take up to 12 weeks of unpaid, job protected leave. Employees are eligible if they have worked for at least one year, and for 1,256 hours over the previous 12 months. Reasons for taking unpaid leave are: . . . . ? for a serious health condition that makes the employee unable to perform the employee's job. . . . . The Wexford Employee Handbook, Revised 09/01/04 (Petitioner's Exhibit 9) (hereinafter referred to as the "Revised Employee Handbook"), established policies governing "Time Off" in Section 5. Pursuant to Policy 5.3, all employees are allowed to apply for a leave of absence for medical reasons. The period of the absence is limited, however, to 12 weeks, consistent with the Family and Medical Leave Act (hereinafter referred to as the "FMLA"), unless the employee is eligible for "income replacement benefits," for example for a short-term disability pursuant to Section 4.5, which provides the following: Wexford provides some income protection for employees who are unable to work for an extended period of time due to illness or injury through its Short-Term Disability Leave (STD) insurance program. You are eligible for STD benefits if: You Have completed one year of continuous service You work a minimum of 30 hours per week and are covered by health insurance. Eligible employees are entitled to short- term leave for up to 26 weeks in a rolling 12-month period. The rolling 12-month period is calculated by counting backwards from the date of the leave request. For example, if you request a leave in November, the rolling 12-month period is from November of the previous year to November of the current year. You will be required to provide a medical doctor's certificate to qualify for short- term disability leave. STD runs concurrent with the Family and Medical Leave Act (FMLA). Your weekly benefit is 50% of your weekly salary to a maximum of $300, whichever is less. . . . . Thus, Wexford policies, at the times relevant, allowed eligible employees to take up to 12 weeks of leave pursuant to the FMLA and 26 weeks of what Wexford termed "short-term disability" leave, the latter to run concurrently with the 12 weeks of family medical leave. Policy 5.3 describes Wexford's policy concerning "When Return to Work is Not Possible": If following 26 weeks of medical leave you remain unable to return to work your employment will be terminated. If you are able to work at a later point in time, you are welcome to reapply for employment. Your past history and work background will be taken into consideration for reemployment purposes. Consistent with this policy, Wexford does not grant extensions of the 26 week, short-term disability maximum absence. Also consistent with the policy, Wexford treats an employee as terminated at the end of the 26 week short-term disability absence if the employee does not return to work. Policies 5.3 and 5.4 provide the procedural requirements for applying for a medical leave of absence (forms to file, providing health care professional certifications of illness, etc.) and other procedures and the conditions for which FMLA leave will be granted. Of relevance to this matter, one of the conditions for which FMLA leave will be granted is: "a serious health condition that makes you unable to perform the essential functions of your job." Policy 5.4. Policy 5.7 of the Revised Employee Handbook is the established procedure for "Personal Leave of Absence - Unpaid." That Policy provides, in pertinent part" With the approval of management and the Vice President of Human Resources, you may be granted an unpaid personal leave for unusual, unavoidable situations requiring an absence from work. The unpaid personal leave is for a pre-determined period of time. Unpaid personal leaves of absence are awarded at the discretion of management and cannot be presumed or guaranteed. You must use all available PTO [personal time off] before requesting personal leave. . . . As reasonably interpreted by Wexford, the Unpaid Personal Leave of Absence policy is not used or intended for use as a method of taking off time in addition to the time off allowed by Wexford's policies governing FMLA leave and short- term disability leave. Ms. Seiden's Absence from Wexford. Ms. Seiden, who acknowledged receipt of, and responsibility for reading, the Employee Handbook at the time she was employed by Wexford, was diagnosed with kidney carcinoma in 2004. As a result of her illness she did not rest comfortably and, therefore, woke up during the night, she could not sit for long periods of time, and, although not fully developed in the record, she required hospitalization. As a result of her illness, Ms. Seiden was, due to a "serious health condition," "unable to perform the essential functions of [her] job." As a consequence, the last day that Ms. Seiden worked at BCI was April 26, 2004. Ms. Seiden was provided a Memorandum dated May 6, 2004, from Tara M. DeVenzio, Risk Management/Leave Compliance Assistant (hereinafter referred to as the "May 6th Memorandum"). The May 6th Memorandum, which Ms. Seiden read, states that Wexford had been notified that she was requesting a leave of absence and is "in need of Family Medical Leave (FML) and Short Term Disability (STD) forms." Those forms were included with the May 6th Memorandum. The May 6th Memorandum goes on to explain the procedures Ms. Seiden was required to follow in making her request for leave and the extent of leave available to her. The May 6th Memorandum also informed Ms. Seiden that, consistent with Wexford's written leave policies, the "[m]aximum amount of time allotted for Short Term Disability is 26-weeks on a rolling twelve (12) month period . . ." and that "[i]f you do not return when your leave has ended, you will be considered to have voluntarily terminated employment." Consistent with the May 6th Memorandum and the policies of the Employee Handbook, Ms. Seiden completed the forms required by Wexford to apply for FMLA and short-term disability leave to begin in April 2004, and end in October 2004. Ms. Seiden executed a Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Initial Leave Request") on May 10, 2004. (Petitioner's Exhibit 14). On the Initial Leave Request Ms. Seiden checked a box which indicated her reason for requesting leave was "Serious health condition that makes me, the employee, unable to perform the functions of my position." A space on the Initial Leave Request for "Date Leave of Absence to End" was left blank. Also provided to Wexford with the Initial Leave Request, was a Certification of Health Care Provider (hereinafter referred to as the "Certification"), as required by Wexford's leave policies. The Certification was from Nine J. Pearlmutter, M.D. Dr. Pearlmutter reported on the Certification that Ms. Seiden's "serious health condition" was a "renal mass" and that hospitalization was necessary. Dr. Pearlmutter also stated "yes at this time" in response to the following question on the Certification: If medical leave is required for the employee's absence from work because of the employee's own condition (including absences due to pregnancy or a chronic condition), is the employee unable to perform work of any kind? Ms. Seiden's Initial Leave Request was approved and she was provided a Memorandum dated May 25, 2004, from Ms. DeVenzio, memoralizing the approval. Ms. DeVenzio informed Ms. Seiden that her leave was approved "to commence on April 26, 2004." Ms. Seiden's 26-week period of leave began on April 26, 2004, ended October 25, 2004. Throughout this period, Ms. Seiden remained absent from BCI. On October 22, 2004, a Friday, Ms. Seiden telephoned Ellie Zeigler a Human Resources Generalist for Wexford, and spoke to her about the pending end of her approved leave. Ms. Seiden informed Ms. Zeigler that she wanted to request an extension of her leave, which Ms. Zeigler had not authority to grant or deny. Ms. Zeigler, who had not authority to approve or disapprove the request for an extension, told Ms. Seiden that she would send her forms, which she would have to file in order to request additional leave. Ms. Zeigler also explained to Ms. Seiden that the maximum leave available to her had been exhausted, and that, because her physician had not released her for return to work, her employment with Wexford would be considered terminated if she did not return to work the following Monday. Ms. Zeigler also told Ms. Seiden that a letter to that effect would be sent to her. Ms. Zeigler, as promised, sent Ms. Seiden a Wexford Family / Medical Leave of Absence Request. On Wednesday, October 27, 2004, two days after Ms. Zeigler's approved absence ended, Ms. Seiden executed the Wexford Family / Medical Leave of Absence Request (hereinafter referred to as the "Second Leave Request") which Ms. Zeigler provided to her. Again, she checked as the "Reason for Leave" the box indicating "Serious health condition that makes me, the employee, unable to perform the functions of my position" and the "Date Leave of Absence to End" space was left blank. A second Certification of Health Care Provider form (hereinafter referred to as the "Second Certification"), executed by Dr. Pearlmutter was provided with the Second Leave Request. Dr. Pearlmutter listed, among other things, carcinoma of the kidney as Ms. Seiden's illness. While Dr. Pearlmutter indicates a "2 month" duration for one of the listed conditions, she did not indicate when Ms. Seiden would be able to return to work at the end of two months. Again, Dr. Pearlmutter answered "yes" to the question quoted in Finding of fact 18. The Second Leave Request, which was sent by certified mail on Thursday, October 28, 2004, three days after the end of Ms. Seiden's approved leave, was received by Wexford on Monday, November 1, 2004, seven days after the end of her approved leave. The Termination of Ms. Seiden's Employment. On October 25, 2004, the last day of Ms. Seiden's approved absence, Arthur Victor, Wexford's Human Resources Manager, and Ms. Zeigler exchanged e-mails concerning Ms. Seiden. In response to an inquiry from Mr. Victor, Ms. Zeigler informed Mr. Victor that October 25, 2004, was the last day of Ms. Seiden's approved leave. In response to Ms. Zeigler's information, Mr. Victor wrote "[t]hen there is no extension. Six months is up 10/30/04. You need to talk to Ron Miller re. termination." This decision was consistent with Wexford’s written policies and was based upon Ms. Seiden's failure to return to work on October 25, 2004. Given Mr. Victor's statement that "there is no extension," it is found that Mr. Victor had been informed that Ms. Seiden intended to request an extension of her approved absence. It is also found that Wexford was aware of the reason for Ms. Seiden's absence: kidney cancer. Finally, it is found that, by terminating Ms. Seiden's employment, Wexford denied the requested extension. After receiving Mr. Victor's e-mail indicating that Ms. Seiden would be terminated, Ms. Zeigler wrote to Ron Miler and Judy Choate, Ms. Seiden's supervisor, and informed them of the following: I received a call from Jane last friday [sic] requesting an extension for her fmla. Jane's 26 weeks for her std/fmla has expired as of today (10/25/04). I just spoke with Jane and inform [sic] her that her Dr. has not released her for full duty and that she was exhausted all of her authorized fmla/std leave and that Wexford considers her to have resigned from her position. I told Jane that Judy will be sending her a letter confirming her of the above. To Ms. Choate, Ms. Zeigler continued: The letter should be sent from you. Attached you will find a copy of the letter that Art has drafted for your [sic] to send to Jane regarding her std/fmla. . . . . Also, please complete the "Termination Processing From" and forward it to the Pittsburgh office so I can term her out of the system. The draft termination letter provided to Ms. Choate and dated October 26, 2004, was signed by Ms. Choate and sent to Ms. Seiden. The letter (hereinafter referred to as the "Termination Letter") states, in part: As you are aware, you have exhausted all authorized Family and Medical/Short Term Disability leave. You were to return to work on October 25, 2004. Since you have not returned, Wexford Health Sources, Inc. considers you to have resigned your position as a Licensed practical [sic] Nurse, effective October 25, 2004. If you are in disagreement with this letter, please contact me immediately but no later than 4:00pm, on 10/28/02004 at If it is determined that there were extenuating circumstances for the absence and failure to notify, you may be considered for reinstatement. . . . . Ms. Seiden received the Termination Letter on November 3, 2004. She did not contact Ms. Choate about the matter. Although she had been informed on October 22, 2004, that she would be terminated by Wexford during her telephone conversation with Ms. Zeigler, November 3, 2004, constitutes the first official notice of Wexford's adverse action which Ms. Seiden received. The effective date of Ms. Seiden's termination was October 25, 2004. The Reason for Ms. Seiden's Termination. Ms. Seiden was terminated because, consistent with written Wexford policies which Ms. Seiden had been informed of on more than one occasion, Ms. Seiden had exhausted the maximum family medical leave and short-term disability leave she was authorized to take. Having used the maximum authorized medical leave, Ms. Seiden was still unable to perform any of the functions and duties required of her position. Due to her illness, she was simply unable to perform any work at all during the period relevant to this case, a fact Wexford was aware of. While she testified at hearing that she had been told by her physician that she would be able to return to work in January 2005, that testimony constitutes hearsay upon which a finding of fact will not be made. More significantly, Wexford was never informed by Ms. Seiden or her physician that she would be able to work. Wexford's policies gave Ms. Seiden leave in excess of the 12 weeks required by the FMLA. Wexford was not required to do more. Ms. Seiden's Claim of Discrimination. Ms. Seiden filed her Employment Complaint of Discrimination with the FCHR on November 30, 2005, or 392 days after being informed that she had been terminated and 401 days after her actual October 25, 2004, termination date. After a Determination: No Cause was issued by the FCHR, Ms. Seiden filed a Petition for Relief in which she alleged that Wexford had "violated the Florida Civil Rights Act of 1992 by terminating [her] based upon a perceived disability." No allegation of failure to provide an accommodation for her disability was alleged in the Petition. Summary. The evidence proved that Ms. Seiden failed to file her complaint of discrimination with the FCHR within 365 days of the discriminatory act. She offered no explanation as to why she did not do so. Ms. Seiden failed to establish a prima facie case of unlawful employment discrimination. While she did prove that she suffered from kidney cancer and that, as a result of her illness she was unable to perform the duties of her position, which may constitute a disability, she ultimately failed to prove that she was a "qualified individual" with or without an accommodation. From April 2004 through October 22, 2004, when she orally informed Wexford that she desired an extension of leave, her termination from employment on October 25, 2004, and on November 1, 2004, when her formal request for an extension of leave was received by Wexford, Ms. Seiden, along with her physician, reported to Wexford that she was unable to carry out her employment duties. Ms. Seiden also failed to prove that she was terminated because of her illness, on the basis of a perceived disability. Finally, Wexford proved a non-pretextual, non- discriminatory reason for terminating Ms. Seiden's employment.
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 filed by Jane Seiden. DONE AND ENTERED this 18th day of January, 2007, in Tallahassee, Leon County, Florida. S LARRY J. SARTIN Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 SUNCOM 278-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 18th day of January, 2007.
Findings Of Fact Barbara Calhoun, Respondent, is a Career Service employee with permanent status. She has been employed by the Petitioner since approximately 1969 and is presently employed in the capacity of a Resident Lab Assistant (RLA). Mary Ellen Weaver, Nursing Director at Sunland Center at District VII, is in charge of the nurses and other staff personnel at the Sunland Center in Orlando. Mrs. Weaver testified that she approved initially the recommendation by Mrs. Calhoun's supervisor that she be suspended for a continued pattern of absenteeism which had been documented by three previous reprimands, the first of which occurred approximately September 16, 1976. The first reprimand was an oral reprimand of September 16, 1976, and was based on an excessive pattern of sick leave in conjunction with days off. The second one occurred on November 29, 1976, and was submitted by a Mrs. Renner, R.N. and the reviewing officer on that reprimand was Mrs. Graham, R.N. III. The third reprimand occurred on February 5, 1977, a written reprimand the basis therein was excessive absenteeism, with the reviewing officers being Mrs. Renner and Mrs. Graham. (See Petitioner's Exhibits Nos. 1, 2 and 3.) Documentary evidence introduced reveals that from February 11, 1976, to June 23, 1977, the Petitioner accumulated approximately 19 days of unscheduled absences with the majority of such absences occurring in conjunction with days off and most of which were leave without pay (LWOP) because during the Respondent's approximately eight year employment tenure, she had accumulated no annual or sick leave. (See Joint Exhibit 1.) Without going into a recitation of all of the numerous days in which the Respondent was absent, the following is illustrative. On February 11, 1977, Respondent called in sick which was also without pay because she had accrued no leave. The following day the Respondent called in sick and again this absence was without pay and unscheduled. On March 6, 1977, Respondent had a friend call to advise that she was sick with the flu and again a message was sent the following day, on March 7, 1977. On March 26 the Respondent called in sick which was before she was off for two days. On April 18 the Respondent again called in ill. On May 2 Respondent requested annual leave, which was granted. On May 3 the Respondent called in sick and obtained permission to use annual leave since there was no more sick leave accrued. On May 12 Respondent called in sick and again there was no annual leave accrued to cover the absence. The following day the Respondent called in sick, which was prior to her weekend off. On June 1, 1977, Respondent called in sick after being off on May 30 and May 31. On June 16, 1977, Respondent was off and used an annual leave day, which was unscheduled and without prior approval. On June 23 Respondent called in sick, which was unscheduled. It was at this juncture that Respondent's supervisor recommended a suspension, which was approved by Mrs. Weaver and ultimately sent to a Mr. Windsor for final approval. The Respondent offered no explanation to explain, refute or otherwise contradict the numerous absences nor did she offer any proof of any kind to establish that she was in fact sick in such a sporadic form which occurred in conjunction with her days off. 1/ In view of the above, the undersigned concludes that there is competent and substantial evidence to support the Petitioner's disciplinary action directed toward the Respondent.
Recommendation Based on the foregoing findings and conclusions of law, it is hereby recommended the personnel action of the Petitioner, Department of Health and Rehabilitative Services, be sustained. RECOMMENDED this 27th day of July, 1978, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings Room 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of July, 1978.
The Issue Whether or not Petitioner, pursuant to Rule 6C-770 F.A.C., abandoned her position as a Secretary Specialist, thereby resigning from Florida State University by being absent without leave for three consecutive days.
Findings Of Fact At all times material, Petitioner, Teresa Loewy, was employed as a Secretary Specialist in the Department of Educational Leadership at Florida State University (FSU). On October 22, 1989, Petitioner Loewy reported that she had suffered a head injury as a result of an on-the-job accident. That same day, she was seen at Tallahassee Memorial Regional Medical Center and released. On October 23, 1987, FSU placed Petitioner on administrative leave for 40 hours. Contact was made by Petitioner and her husband, Mr. Samuel Loewy, with Dr. David Leslie, Department Chairman, with Nina Mingledorff, Department Staff Assistant and Petitioner's immediate supervisor, and with Motney Gray, FSU Workers' Compensation Supervisor. The Loewys were informed that a worker's compensation report had been completed and forwarded by the Department to Ms. Gray. This is the first formal step in an employer acknowledging that workers' compensation or medical benefits may be due a worker pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law." By letter dated November 3, mailed November 5, and received by Petitioner on November 10, 1987, Chairman Leslie informed Petitioner in pertinent part as follows: As you may be aware, you have been on disability leave for a 40 hour work period. Beyond that limit, this office will not certify any additional leave for you unless we receive medical proof that you are unable to return to work. Although you may apply for workers' compensation, I believe that similar proof will be required by that office. Absent any further communication from you and absent proof to the contrary, we assume that you are capable of returning to work and have elected not to do so (R-3). By letter of November 5, 1987, (R-9) Motney Gray notified Petitioner that Ms. Gray's communications with Joe D. Rawlings, M.D. had convinced Ms. Gray that Petitioner was not still impaired and was able to work and that Ms. Gray was terminating workers' compensation medical benefits and Petitioner's disability leave as of that date. By letter dated November 12 and received November 13, 1987, Robert L. Lathrop, Dean of the College, informed Petitioner as follows: Based on Motney Gray's letter of November 5, to you, we are hereby notifying you as of 8:00 a.m. November 6, you have been on unauthorized leave. Because of your unauthorized leave of absence, I am writing this letter to determine your intentions concerning continued employment at Florida State University. You must report for work immediately, or provide your supervisor, Mrs. Nina Mingledorff, with appropriate medical certification by 4:30 p.m., Monday, November 16, or it will be assumed you have voluntarily resigned due to abandonment of your position. (R-1) In response, on November 16, 1987, Mr. Loewy, on behalf of his wife, delivered to the Department a handwritten note from Dr. Rawlings, (R-2) which read: To whom it may concern: Mrs. Teresa Loewy is still under my care for headaches dating back to her injury on 10-22-87. At that point in time, Dr. Rawlings could be accurately characterized as Petitioner's primary treating physician pursuant to Chapter 440, F.S., "The Florida Workers' Compensation Law". Copies of this letter were seen by Nina Mingledorff and by Annette Roberts, FSU Employee Labor Relations Coordinator. On November 17, 1987, Petitioner and Mr. Loewy, together with another couple, visited Petitioner's workplace. Their purpose was to have Petitioner physically on the employment premises to demonstrate that Petitioner was unable to work due to her injury. At that time, the Loewy faction spoke with Annette Roberts, with John Goldinger, Assistant Personnel Director, and with Dean Lathrop. Initially, Petitioner was given a termination letter prepared for the Dean's signature, based upon Petitioner's three consecutive days' absence without prior authorization, which letter was as yet unsigned. However, as a result of the Loewy faction's face-to-face interview with Dean Lathrop, a new memorandum was prepared and actually signed by the Dean. This second communication was addressed to John Goldinger and read as follows: I am hereby authorizing leave of absence for Ms. Teresa A. Loewy beginning November 16, 1987, at 3:00 p.m. and ending no later than 10:00 a.m. on November 20, 1987. The purpose of this leave is to provide time for Mrs. Loewy to secure medical certification that she is unable to drive herself to work. (R-4) The effect of this memorandum, signed by Dean Lathrop and handed to Petitioner, was to supersede his other unsigned/unconsummated correspondence attempting to terminate her under the three days' absence rule. On November 20, 1987, Mr. Loewy obtained a two page letter from Dr. Rawlings (R-6) dated the preceding day. That letter, which Mr. Loewy was unable to pick up at Dr. Rawlings' office in Thomasville, Georgia, until shortly after the 10:00 a.m. November 20 deadline established by Dean Lathrop's November 17 signed memorandum, may be summarized as follows: Dr. Florek, a board certified neurologist had diagnosed Petitioner as having post-concussive syndrome on October 29, 1987. Sometime between November 3 and 6, Dr. Bridges, an opthomologist had diagnosed her eye examination as "essentially within normal limits". With the concurrence of FSU's Motney Gray, Petitioner was scheduled for an MMPI (a psychological assessment), the results of which had not yet been received on the date of Dr. Rawlings' letter, November 19, 1987. She was also scheduled for an MRI (magnetic resonance imaging, a type of x-ray particularly helpful in determining head and soft tissue injuries) which was scheduled for November 24, 1987. Dr. Rawlings confirmed that the Petitioner continued to come to him with the subjective complaints of headaches, blurred vision, and diplopia. The overall tone of his letter is that Dr. Rawlings thought Petitioner could work as of November 19, 1987, although he did not specifically say so. His rather vague summation was, "I have relayed to Mrs. Loewy [on] a number of occasions that I feel this problem will be self limited and that all attempts will be made on my part to not give her any type medication which might be habit forming." (R-6) On his wife's behalf, on November 20, 1987, at approximately 11:30 a.m., Mr. Loewy presented Dr. Rawlings' November 19, 1987 letter in a sealed envelope to Evelyn Ashley, Dean Lathrop's Administrative Assistant, and also gave a copy of it to Nina Mingledorff. Dean Lathrop was not in the workplace that day. During the time he was at Petitioner's workplace on November 20, 1987, Mrs. Ashley presented Mr. Loewy with a request form for a leave of absence without pay. She and others emphasized to him that the completed form must specify a date the Petitioner could return to work, a fact clearly in contention at that point. He was requested to have Petitioner complete the form and return it. He was not told how long Mrs. Loewy would have in which to complete and return the form. From this point forward the testimony is in sharp conflict. It is debatable whether Mr. Loewy was concerned about the effect such a "form" request might have upon his wife's job status or her incipient workers' compensation claim, whether he merely felt she was entitled to leave with pay, or whether he was ever told he could sign the form for his wife. It is clear, however, that Mr. Loewy refused to complete the form on Petitioner's behalf and also refused to take it to her unless he could add a notation to the form that her job would not be jeopardized by requesting such voluntary leave. Having assessed the candor and demeanor of the respective witnesses and the internal and external credibility and consistency or lack thereof of their respective versions of the events and conversations of November 20, 1987, it is found that FSU personnel refused to permit any additions or deletions to the form. They also refused to permit Mr. Loewy to submit a separate explanatory note with regard to the Loewys' position on the subject, even though it was John Goldinger's view at the time of formal hearing that it had always been normal FSU procedure to permit attachments and addendums to other requests for leave without pay. The standard forms requesting leave without pay which were presented by FSU employees to Mr. Loewy therefore were never given to Petitioner, completed by her, or submitted by the Petitioner to the University, although Mr. Loewy was repeatedly told that Petitioner's job would not be held for her unless the forms were filled out and submitted. Dr. Rawlings' November 19 letter (R-6) was not transmitted by his subordinates to Dean Lathrop at or near the time Mr. Loewy submitted it to them. Neither did Chairman Leslie contemporaneously see Exhibit R-6. According to Dr. Leslie, no one below his administrative level had the authority to determine the sufficiency of that "excuse" and the appropriate person to have decided that issue would have been Dean Lathrop. Annette Roberts and John Goldinger agreed that leave requests often went through Dean Lathrop. Although the Dean might not vary duly promulgated rules, the evidence as a whole, including Dean Lathrop's prior informal extension of Petitioner's leave, supports Annette Roberts' assertion that Dean Lathrop had the discretion to either effect the abandonment or increase the grace/leave period he had previously granted Petitioner. Thereafter, Petitioner never did return to work. On Wednesday, November 25, 1987, Dean Lathrop, unaware of the contents of the November 19 letter from Dr. Rawlings, and therefore never having decided on its sufficiency or lack thereof, prepared the following termination letter to Petitioner: You have been absent without leave of absence for 3 or more consecutive workdays . . . [Rule 6C-5.770(2)(a) is quoted] . . . Based on the above stated rule, you are deemed to have resigned from your position. . . effective this date, November 25, 1987 at 10:00 a.m. (R-10) Bracketed material and emphasis provided] It is clear from the foregoing, that regardless of Petitioner's not having submitted any leave without pay request forms, and regardless of Petitioner's nebulous status as to leave after her initial 40 hours disability leave (See Findings of Fact 4-9 supra), Dean Lathrop counted toward implementation of the three days' abandonment rule only the three consecutive "working days" (presumably 24 work hours) elapsing after his own ultimatum time and date of 10:00 a.m., November 20. The Dean's reasoning, as explained by him at formal hearing, was that the Petitioner had not requested a leave of absence. Evelyn Ashley stated that she had told Dean Lathrop both that the doctor's letter (R-6) had been submitted and also that the Dean could do nothing about processing leave for Mrs. Loewy because R-6 had to be attached to a "request for leave form" and that "form" had not been submitted by the Petitioner. Dean Lathrop testified that if he had seen R-6 and still had any doubts of its sufficiency, he probably would have approved leave on the same basis as he had on November 17, at least until he had the opportunity to consult medical personnel further. It was never determined by FSU personnel prior to formal hearing whether the December 19 communication from Dr. Rawlings (R-6) was sufficient under the terms of the Dean's November 17 memorandum granting further leave up to 10:00 a.m., November 20, 1987. As of Friday, November 20, 1987, Petitioner had only 1.7 hours annual leave and 3.5 hours sick leave status to draw upon. After her separation date, Petitioner was paid for 1.7 hours of accrued annual leave; she was not paid for any accumulated sick leave. Subsequently, Petitioner and FSU became embroiled in workers' compensation litigation and entered into a "Stipulation and Joint Petition" which was adopted and approved by an Order of the Deputy Commissioner dated August 8, 1988. (P-3) 1/ Admitted facts found therefrom which are relevant, material, and significant to the instant cause and which are not cumulative to any of the facts found supra, are as follows: . . . She [Petitioner] was scheduled for an MMPI which was done on November 20, 1987. An MRI scan of the brain was done November 23, 1987 and was interpreted as normal. . . . Dr. Bridges examined the Employee [Petitioner herein] on 11/3/87 and found irregular visual fields, more constricted in the right eye, but otherwise normal examination. The employee was then seen by Dr. Thomas J. Perkins who diagnosed occipital syndrome on the right side and recommended treatment by Dr. Seay. . . . The employer/carrier and employee/claimant stipulate and agree that the maximum medical improvement date is April 25, 1988, pursuant to the medical report of Dr. James T. Willis. [Bracketted material provided] It is clear on the record that Motney Gray, FSU's Coordinator for Insurance Risk, informed Dr. Rawlings on several occasions that it was "possible" that workers' compensation would pay for another employee to transport Petitioner from her home in Thomasville, Georgia, to work at FSU in Tallahassee, Florida, but it is not clear that this offer was ever made any more concrete than as a "possibility", and the offer apparently was never made directly to the Petitioner by any representative of FSU. It is clear that, at some point, Dr. Rawlings conveyed this offer to the Petitioner, but it is not clear on the record that this information ever reached Petitioner at any time prior to November 25, 1987 and simultaneously with a period she also was not taking a drug prescribed by some physician. Petitioner was treated, not just by Dr. Rawlings, but by Doctors Florek, Bridges, Seay, Willis, Hogan, and Perkins. At some point in time, Dr. Willis, a chiropractic physician, became Petitioner's primary treating physician. Moreover, it is clear that Dean Lathrop, who was Petitioner's only superior with authority to determine the sufficiency of the letter of certification (R-6), was concerned about Petitioner's ability or inability to drive herself, not whether someone else could or would drive her to work. In addition to the oral communications to Mr. Loewy on November 20, FSU had directly advised Petitioner concerning the general nature of its abandonment rule and of FSU's requirements for prior approval of all leave requests, first by circulating standard informational documents to all employees, and secondly, by its various letters to Petitioner which are described supra. The parties stipulated that in the event abandonment was not proven, any back wages awarded to Petitioner should be subject to all appropriate class pay increases, and should be reduced by the workers' compensation and unemployment compensation already paid to Petitioner, and should be further reduced by any income earned by her.
Recommendation Upon the foregoing findings of fact and conclusions of law, it is recommended that a Final Order be entered: Finding Petitioner has not abandoned her position. Reinstating Petitioner to her position. Ordering payment of backpay and emoluments from November 25, 1987, less unemployment and workers compensation paid by Respondent and less mitigation earnings of Petitioner, pursuant to the parties' stipulation. Denying any attorney's fees. DONE and ENTERED in Tallahassee, Leon County, Florida, this 5th day of October, 1989. 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 5th day of October, 1989.
The Issue The issues to be resolved in this proceeding, under the relevant provisions of Chapter 760 Florida Statutes, concern whether the Petitioner was discriminatorily discharged because of her race and purported disability.
Findings Of Fact The Respondent, Escambia County Area Transit, Inc., operates a passenger bus service in the area of Escambia County, Florida. The Petitioner was employed as a bus operator since August of 1999. On September 7, 2006, the Petitioner took FMLA leave for a condition involving migraine headaches. That leave extended through October 9, 2006. The Petitioner returned to work from that FMLA leave on January 9, 2007, however. A notice was sent to the Petitioner from Dawn Groders, an administrator with the Respondent, on April 19, 2007, informing the Petitioner that she had exhausted her FMLA leave for the twelve month "rolling calendar year" and that she would not begin accumulating additional FMLA leave until October 9, 2007. The Respondent's policy regarding FMLA leave is as follows: "If a family leave of absence exceeds 12 weeks on a rolling twelve month period, the employment status may be in jeopardy, which could result in termination of employment." There is a labor contract between the Respondent and the Amalgamated Transit Union, Local 1395, the Petitioner's union. That contract contains no provision regarding warning or noticing an employee about obtaining exhaustion of FMLA leave. On October 19, 2007, the Petitioner commenced additional FMLA leave for an injury to her finger. The collective bargaining agreement contains a provision regarding a discretionary leave of thirty days which may be discretionarily granted by the employer. Because the Petitioner had previously exhausted her FMLA leave, based on the rolling twelve month calendar, and had yet to re-acquire any leave, the Petitioner was granted discretionary leave by the Respondent because of having exhausted her FMLA leave. The Petitioner contends that she should have been given alternative light-duty work by the Respondent. On December 3, 2007, however, the Petitioner received a letter from Richard Deibler, the Respondent's Director of Safety Training and Planning, which stated that there was no temporary alternative- duty work available at that time. (Respondent's Exhibit 4, in evidence). The witness for the Respondent established that there was no available part-time or light-duty work at the time the Petitioner was on FMLA leave or attempted to be on FMLA leave. The union contract does not require that part-time, light-duty work be available, with the exception of one individual who was so authorized and who was "grandfathered-in" in that status from a previous union contract. The Petitioner presented no persuasive evidence which would establish that light-duty, part-time work was available at the time in question, in late 2007. Thereafter, the Petitioner remained on re-activated FMLA leave due to her previous injury during the month of December 2007. On December 11, 2007, she received a notice from the Respondent to the effect that she must report for duty by December 27, 2007, because of exhaustion of her FMLA leave and was advised that her employment might be terminated if she were not at work by that date. On December 27, 2007, the Petitioner failed to return to work and her employment was terminated because of exhaustion of her FMLA leave, in accordance with the Respondent's policy. As of the date of her termination, the Petitioner had used a total of 64 days of FMLA leave during the course of the rolling calendar year, dating back to December 27, 2006. The Respondent was aware that the Petitioner had exhausted her FMLA leave based on a rolling calendar year in October 2007, and yet still extended her leave, not just for the referenced thirty days discretionary leave, but for nearly ninety additional days. The Petitioner has asserted no dispute with the number of days the Respondent contends (and the evidence supports) that she was not present at work due to using FMLA leave or other forms of leave, such as discretionary leave. The Petitioner offered no persuasive evidence to show that she was terminated from her employment due to her race or any other reason aside from exhaustion of her FMLA leave and the company's policy with regard thereto. The Respondent's representative and witness established, with her testimony, that the Petitioner was not terminated because of any perceived or actual disability. Although the Respondent knew of the medical reasons the Petitioner stated necessitated her absence, the Respondent was not aware that any physical impairment had resulted in an impairment of any major life activity of the Petitioner. The testimony of Ms. Chizek, is accepted as persuasive in establishing that the Petitioner was not terminated because of any perceived or actual disability or for reasons of her race, but rather was terminated solely because she had exhausted her FMLA leave and in fact the substantial amount of discretionary leave voluntarily granted to her by the Respondent. The Petitioner presented no persuasive evidence that employees or former employees, outside her protected class (African-American) had been treated dissimilarly and more favorably, for the same or similar violations of company policy, to wit, the exhaustion of FMLA leave and subsequent continued failure to return to work. In fact, the persuasive, preponderant evidence shows that the Respondent uniformly applied its policy regarding FMLA exhaustion and subsequent termination of employment. Patty Chizek conducted an audit of all employee files in the fall of 2007 concerning the question of FMLA exhaustion. That audit was not an attempt to single out the Petitioner in any way due to her race or any disability, if one existed. Her investigation revealed that, in fact, a number of employees had exhausted their FMLA leave. They were all terminated during the month of December 2007, similarly to the Petitioner. Thus, Mary Nelson, Nadine Harris, Eurethia Davies, and Linda Donaldson, all of whom are Caucasian women, were terminated during December 2007 because of exhaustion of their FMLA leave. Derrick Roberts, an African-American male, was terminated during that month, for the same reason. All of these employees were terminated for that reason after not being able to return to work for a reasonable period of time after exhaustion of FMLA leave. Moreover, the Petitioner testified that she was first absent from work due to a migraine headache-related medical problem and, on the later occasion, due to injury of her finger, apparently caused by wrestling with the steering wheel of her bus, after it ran on the curb of a street she was traversing. Although it might be recognized, and indeed is undisputed, that these injuries or medical conditions were experienced by the Petitioner, the Petitioner did not establish that they truly impaired her in a major life activity. Even if they were significant, physical reasons for being absent from work for some of the time during which the Petitioner was absent, she did not establish, with persuasive evidence, that they impaired a major life activity and constituted any permanent, or relatively permanent, impairment of her ability to perform the duties of her job. Even if the Petitioner had established that there was a permanent impairment which might constitute a disability, she did not establish that the Respondent had refused a reasonable request for an accommodation therefor. Although the Petitioner requested light-duty employment, the Respondent established with persuasive evidence that, at the time it was requested by the Petitioner, there was no such employment available. Therefore, it was not an accommodation the Respondent could reasonably offer the Petitioner at that time, even if the Petitioner had a known, perceived or recognized disability at that time.
Recommendation Having considered the foregoing findings of fact, conclusions of law, the evidence of record, the candor and demeanor of the witnesses and the pleadings and arguments of the parties, it is, therefore, RECOMMENDED that a Final Order be entered by the Florida Commission on Human Relations dismissing the subject petition in its entirety. DONE AND ENTERED this 10th day of December, 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 10th day of December, 2009. COPIES FURNISHED: John J. Marino, Esquire McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 James N. Foster McMahon & Berger 2730 North Ballas Road Suite 200 St. Louis, Missouri 63131 Tricia Dubose 1349 43rd Ensley Street Birmingham, Alabama 35208 Larry Kranert, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Derick Daniel, Executive Director Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301
