The Issue The issue to be determined is whether Petitioners' layoffs from employment by the Respondent were lawful and if not, what remedies should be awarded.
Findings Of Fact On or about April 2, 2001, the Department notified Petitioners that their positions were recommended for transfer from Career Service to Select Exempt Service. On July 1, 2001, the Petitioners' positions were transferred from Career Service to Select Exempt Service. Prior to Special Legislative Session C of 2001, the Department's Office of Prevention and Victim Services consisted of 94 positions, organized into four bureaus: the Office of Victim Services; the Office of Partnership and Volunteer Services; the Prevention Office; and the Intensive Learning Alternative Program. During Special Legislative Session C, the Florida Legislature passed Committee Substitute for Senate Bill No. 2-C, which reduced appropriations for state government for fiscal year 2001-2002. This special appropriations bill was approved by the Governor on December 13, 2001, and was published as Chapter 2001- 367, Laws of Florida. As a result of Chapter 2001-367, 77 positions were cut from the Office of Prevention and Victim Services budget entity. The appropriations detail for the reduction from the legislative appropriations system database showed that the reduction of positions was to be accomplished by eliminating the Intensive Learning Alternative Program, which consisted of 19 positions; eliminating the Office of Victim Services, which consisted of 15 positions; eliminating the Office of Partnership and Volunteer Services, which consisted of 23 positions; and by cutting 20 positions from the Office of Prevention. Seventeen positions remained. Immediately after conclusion of the Special Session, the Department began the process of identifying which positions would be cut. A workforce transition team was named and a workforce transition plan developed to implement the workforce reduction. The workforce reduction plan included a communications plan for dealing with employees; an assessment of the positions to be deleted and the mission and goals of the residual program; a plan for assessment of employees, in terms of comparative merit; and a placement strategy for affected employees. Gloria Preston, Stephen Reid and Carol Wells were Operations and Management Consultant II's and worked in the Partnership and Volunteer Services Division. According to the budget detail from Special Session C, all of the positions in this unit were eliminated. Titus Tillman was an Operations and Management Consultant II and worked in the Prevention and Monitoring division. According to the budget detail provided from Special Session C, 20 of the positions in this unit were eliminated. On December 7, 2001, the Department notified Petitioners that effective January 4, 2002, each of their positions were eliminated due to the Florida Legislature's reduction of staffing in a number of Department program areas during the special session. Petitioners were provided with information regarding what type of assistance the Department would provide. Specifically, the notices stated that the employees would be entitled to the right of a first interview with any state agency for a vacancy to which they may apply, provided they are qualified for the position; and that they could seek placement through the Agency for Workforce Innovation. The notice also provided information regarding leave and insurance benefits, and identified resources for affected employees to seek more clarification or assistance. At the time Petitioners were notified that their positions were being eliminated, Florida Administrative Code Rules 60K-17.001 through 60K-17.004 remained in effect. These rules required agencies to determine the order of layoff by calculating retention points, based upon the number of months of continuous employment in a career service position, with some identified modifications. However, by the express terms of the "Service First" Legislation passed in the regular session of 2001, the career service rules identified above were to be repealed January 1, 2002, unless otherwise readopted. § 42, Ch. 2001-43, Laws of Fla. Consistent with the legislative directive new rules had been noticed and were in the adoption process. On January 4, 2002, each of the Petitioners were laid off due to the elimination of their positions. At the time the layoff became effective, new rules regarding workforce reductions had been adopted. Florida Administrative Code Rule 60K-33, effective January 2, 2002, did not allow for the "bumping" procedure outlined in Rule 60K-17.004. Instead, it required the Department to appoint a workforce transition team for overseeing and administering the workforce reduction; assess the positions to be deleted and the mission and goals of the remaining program after the deletion of positions; identify the employees and programs or services that would be affected by the workforce reduction and identify the knowledge, skills and abilities that employees would need to carry out the remaining program. The workforce transition team was required under one of the new rules to consider the comparative merit, demonstrated skills, and experience of each employee, and consider which employees would best enable the agency to advance its mission. Although the Department created a workforce reduction plan and Career Service Comparative Merit Checklist, it did not complete a checklist for any of the Petitioners because it had previously reclassified their positions as Selected Exempt Service. No checklist is expressly required under Rule 60L-33. While no checklist was completed on the Selected Exempt Service employees, each employee in the Office of Prevention and Victim Services was assessed based on the positions remaining and the mission of the Department in order to determine which employees to keep and which to lay off. Of the 17 remaining positions, the Department considered the legislative intent with respect to the elimination of programs and the individuals currently performing the job duties that were left. It also evaluated the responsibilities remaining, which included overseeing the funding of statewide contracts and grants. The Department also considered which employees should be retained based upon their ability to absorb the workload, their geographic location, and their skill set. The Department determined that the employees selected for the remaining positions were the strongest in their field, had fiscal management and programmatic experience, and were best equipped to undertake the workload. At the time of the layoff, Petitioners were each long- serving, well-qualified and highly rated employees of the State of Florida. Each was prepared to move in order to retain employment. In April 2002, AFSCME Florida Public Employees 79, AFL- CIO (AFSCME), filed an unfair labor practice charge with the Public Employees Relations Commission (PERC) against the Departments of Management Services and Juvenile Justice. AFSCME alleged that the Department failed to bargain in good faith over the layoff of Department employees. The parties entered into a settlement agreement, effective June 28, 2002. The settlement agreement required the Department to provide timely notice to AFSCME of impending layoffs, bargain over the impact of workforce reductions, and provide assistance for employees who were laid off between December 31, 2001, and January 4, 2002, but who had not attained other full-time Career Service employment. There is no evidence the Petitioners in this case were members of AFSCME. Nor is there any evidence that the Department failed to assist Petitioners in seeking new employment. In July of 2003, the First District Court of Appeal decided the case of Reinshuttle v. Agency for Health Care Administration, 849 So. 2d 434 (Fla. 1st DCA 2003), wherein the court held that employees whose employee classifications were changed from Career Service to Selected Exempt Service must be afforded a clear point of entry to challenge the reclassification of their positions. The Department notified those persons, including Petitioners, whose Career Service positions had been reclassified to Selected Exempt Service, that they had a right to challenge the reclassification. Each of the Petitioners filed a request for hearing regarding their reclassifications, which was filed with the Agency Clerk in August of 2003. However, the petitions were not forwarded to the Division of Administrative Hearings until May 2007. All four cases were settled with an agreement that their positions were reclassified as Selected Exempt Service positions in error, and that they should have been considered Career Service employees at the time their positions were eliminated. Petitioners and the Department also agreed that any challenge by Petitioners to the layoffs would be forwarded to the Division of Administrative Hearings. Gloria Preston began work for the State of Florida in 1975. Her evaluations showed that she continuously exceeded performance standards, and she had training and experience in managing and monitoring grants and contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, and it is unclear whether she was in a Career Service position during the entire tenure of her employment with the State. Stephen Reid began work for the State of Florida in 1977. He left state government for a short time and returned in 1984. With the exception of his initial evaluation with the Department of Corrections, he has received "outstanding" or "exceeds" performance evaluations. Reid has experience in contract creation and management. However, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Carol Wells began employment with the State of Florida in 1975. Similar to Mr. Reid, all of her evaluations save her first one were at the "exceeds" performance level, and she has experience in writing and managing contracts. However, no evidence was presented regarding how many retention points she would have been awarded under former Rule 60K-17.004, or whether she was in a Career Service position during the entire tenure of her employment with the State. Titus Tillman began employment with the State of Florida in 1993. He was subject to a Corrective Action Plan in May 2000, but received "above average" or "exceeds" performance evaluations. Like the other Petitioners, no evidence was presented regarding how many retention points he would have been awarded under former Rule 60K-17.004, or whether he was in a Career Service position during the entire tenure of his employment with the State. Likewise, no evidence was presented regarding the retention points that were earned by any of the people who were retained by the Department to fill the remaining positions. No evidence was presented regarding the qualifications of those retained employees, in terms of their comparative merit, demonstrated skills, and experience in the program areas the Department would continue to implement.
Recommendation Upon consideration of the facts found and conclusions of law reached, it is RECOMMENDED: That a final order be entered dismissing the petitions for relief. DONE AND ENTERED this 5th day of February, 2009, in Tallahassee, Leon County, Florida. S LISA SHEARER NELSON 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 5th day of February, 2009. COPIES FURNISHED: Jerry G. Traynham, Esquire Patterson & Traynham 315 Beard Street Post Office Box 4289 Tallahassee, Florida 32315-4289 Kimberly Sisko Ward, Esquire Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-100 Lezlie A. Griffin, Esquire Melissa Ann Horwitz, Esquire AFSCME Council 79 3064 Highland Oaks Terrace Tallahassee, Florida 32301 Manny Anon, Jr., Esquire AFSCME Council 79 99 Northwest 183rd Street, Suite 224 North Miami, Florida 33169 Jennifer Parker, General Counsel Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300 Frank Peterman, Jr., Secretary Department of Juvenile Justice 2737 Centerview Drive Tallahassee, Florida 32399-1300
Findings Of Fact The Petitioner, Alfred Greenberg, has held the position of a veterinary aide since approximately November, 1967. During October 1974, he was converted from OPS status to a regular career service employee subject to the normal six month probationary period. By letter dated June 24, 1976, from J. Patrick McCann, Division Director, Petitioner was advised that based on "action by the 1976 legislature, we most regretfully inform you that it will be necessary to abolish your position effective the close of business, June 30, 1976. In lieu of two weeks notice, you will receive two weeks termination pay." (See Respondent's Composite Exhibit Number 1). Within a few days, the Petitioner was converted back to an OPS position receiving the same hourly pay and was advised that he would be offered any vacancy which occurred within the department to which he qualified within the following 12 month period. Petitioner, through his attorney, timely appealed the Respondent's actions essentially contesting his conversion from the career service status to the OPS status and thereby losing social security benefits, retirement benefits and the accrual of vacation and sick leave. He further complained about the manner in which he was served his layoff notice. Specifically, he complained that his letter was hand delivered whereas personnel rules and regulations require that layoff notices etc. be sent by certified mail. In this regard, evidence reveals that by letter dated August 3, 1976, by certified mail, return receipt requested, Petitioner was advised that he was then being provided notice in accordance with the requirement in the department's personnel rules and regulations. Pursuant to emergency rules governing the layoff of career service employees, 22AER76-1, the Petitioner was advised that his position was abolished pursuant to action taken by the 1976 legislature. Evidence adduced during the course of the hearing reveals that the Petitioner's layoff was effected via the procedures as outlined in the above referred emergency rule and he was immediately converted to an OPS position, a position he now holds, at the same rate of pay. Evidence clearly reveals that Petitioner's layoff was effected pursuant to and authorized by the foregoing emergency rule. In view thereof, and in the absence of any evidence which would provide basis for a contrary finding, the action of the Department in effecting the Petitioner's layoff was proper and I shall accordingly recommend that such action be sustained. It is therefore recommended that the action of the Division of Pari-Mutuel Wagering, in effecting the layoff of the Petitioner, Alfred Greenberg, pursuant to emergency rule 22AER76-1, as published in the Florida Administrative Weekly on June 11, 1976, and adopted by the Administration Commission that same date, be sustained. RECOMMENDED this 28th day of June, 1977, in Tallahassee, Florida. JAMES E. BRADWELL Hearing Officer Division of Administrative Hearings 530 Carlton Building Tallahassee, Florida 32304 (904) 488-9675 COPIES FURNISHED: William Hatch, Esquire Department of Business Regulation 725 South Bronough Street Tallahassee, Florida 32304 James W. Pritchard, Esquire 1038 Alfred I. DuPont Building 169 East Flagler Street Miami, Florida 33131 Mrs. Dorothy B. Roberts Room 443, Carlton Building Tallahassee, Florida 32304
Findings Of Fact Since 1968 the Petitioner, Donald W. Hulmes has been attorney for the Broward Community College. Previously he was attorney for the Broward County Board of Public Instruction (School Board), having held this position since 1955. During the Petitioner's employment with the School Board he was a member of the State and County Officers and Employees Retirement System (SCOERS). In 1968 the college was separated from the School Board by the legislature, and became autonomous under its own Board of Trustees, which appointed the Petitioner as its college attorney. For four more years in this capacity, until 1972, the Petitioner continued to be enrolled as a member of SCOERS. The college's finances were examined on an annual basis by legislative auditors. As a result of these audits performed for fiscal years 1969-1970 and 1971-1972, the auditor commented adversely on the college's practice of processing the Petitioner's annual retainer as salary payments with applicable payroll deductions taken. When the Petitioner was employed by the college there was no change in his contract status relative to duties and responsibilities, and the college had continued to make retirement deductions for him the same as was done during his School Board employment. As a result of the adverse comments from the legislative auditor the college fiscal personnel considered whether the Petitioner's position was as an employee, or was contracted services. If the position of college attorney was to be on an employee basis, time reports would have to be maintained and other policies affecting employees would have to be adhered to. If the position was contracted services, compensation would have to be in a form other than salary payments. Based on these considerations, the college provided the Petitioner with a contract for one year with a stipulated retainer, and in 1972 the Petitioner was disenrolled from SCOERS. Alternatively, the college could have determined that the Petitioner's position was as an employee. Although the Petitioner was not formally notified of the action taken by the college, he and the college comptroller discussed the matter, and the Petitioner assumed he was going to have some problems. Subsequently, he noticed that his checks were a different color, and had different slots and blocks, but his secretary handled the deposit of the checks into his account, so little attention was paid to these changes, including the absence of a deduction for retirement. Sometime thereafter the Petitioner began to make inquiries of the college fiscal personnel relative to reentering the retirement system. However, no formal or written inquiry was made until 1978 when the Petitioner had been out of SCOERS for six years. During these years, and until 1979, the Petitioner's compensation arrangement with the college was by annual retainer for specified services, plus an hourly rate for special services. He has been and remains the senior partner of a law firm consisting of himself and four other attorneys. He is free to provide legal advice to and represent members of the public. This law firm maintains two offices, one in Hollywood and one in Fort Lauderdale, and the Petitioner has a private listing in the telephone directory. He has a $1,000 per month draw with his law firm, although he does not pay into the firm or contribute to its income substantially. When the Petitioner applied to get back into the retirement system, the college was given an Employment Relationship Questionnaire to complete, for the purpose of determining the facts relative to his eligibility. Among other information submitted by the college, it indicated that the Petitioner was engaged by the college on a part-time basis. In addition, in June of 1978, the president of the college analyzed the nature of the services rendered by the Petitioner as college attorney, and estimated that on a monthly basis he spent approximately 30 hours on routine and special issue work. Further, the Petitioner provides his own office space, library, secretarial assistance, and in his absence his law partner was available to advise the college, if necessary. Faculty members at the college have a 30 hour work week, and administrative staff personnel and other classified employees are required to work 37 1/2 hours per week. The Petitioner's relationship with the college does not require him to maintain any special working hours as other college employees are required to do. He is not subject to a pre-employment physical examination. He does not receive annual leave or sick leave. No written performance evaluations are prepared for the Petitioner, as is done for other college employees except the president. Accordingly, the Petitioner has not been a full-time employee of Broward Community College. In 1979 the college began making deductions from the Petitioner's payments as contributions to the Florida Retirement System, and these contributions were reported. As a result the Division of Retirement advised the Petitioner that he is not eligible for membership in the Florida Retirement System, and denied him reinstatement in SCOERS. Previously, in 1970, the Petitioner had rejected an opportunity to become a member of the Florida Retirement System. He has left his contributions of SCOERS on deposit. His contributions to the Florida Retirement System since 1979 are in the process of being refunded. Essentially, the Petitioner contends that he was disenrolled from membership in SCOERS by the college wrongfully, as a result of administrative error; the Respondent claims that there was no error because the Petitioner was not eligible for membership in the SCOERS retirement system, and does not meet the criteria for membership in the Florida Retirement System.
Recommendation From the foregoing findings of fact and conclusions of law, it is RECOMMENDED, that the Petitioner, Donald W. Hulmes, be denied reinstatement in the State and County Officers and Employees Retirement System, and that he be denied membership in the Florida Retirement System. THIS RECOMMENDED ORDER entered on this 24th day of June, 1981. WILLIAM B. THOMAS Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 24th day of June, 1981. COPIES FURNISHED: M. Terry McNab, Esquire Post Office Box 12 Tallahassee, Florida 32302 Augustus D. Aikens, Jr., Esquire Division Attorney Division of Retirement Cedars Executive Center 2639 North ionroo Street Tallahassee, Florida 32303
The Issue Whether Petitioners received salary overpayments from the Agency for Persons with Disabilities.
Findings Of Fact At all times material hereto, Petitioners Ileana Toledo, Norma Pedraza, and Lil Guerrero have been career service employees of Respondent. The Department of Management Services (“DMS”) has a classification and pay system that is used by Respondent, and DMS is responsible for designating employment positions within Respondent. A position is either included for overtime pay or excluded from overtime pay. At issue is whether Petitioners erroneously received monetary compensation for overtime hours worked after their position was reclassified from an included career service position to an excluded career service position. Prior to March 28, 2013, Petitioners held the position of Human Services Counselor III, which was designated by DMS as an included career service position. On March 26, 2013, Respondent proposed to reclassify Petitioners’ position from Human Services Counselor III to Human Service Program Analyst, which is designated by DMS as an excluded career service position. The proposed reclassification resulted from a reorganization of Respondent’s regional offices, and an effort by Respondent to standardize its functions, services, and types of positions in its regional offices. In a letter dated March 26, 2013, Petitioners were advised by Respondent’s Human Resources Director, Dale Sullivan, that if they accepted an offer to reclassify their position from Human Services Counselor III to Human Service Program Analyst, their “current status and salary will remain unchanged.” Notably, the March 26, 2013, letter makes no specific mention of overtime. On March 28, 2013, Petitioners accepted Respondent’s offer of employment to reclassify their position from Human Services Counselor III to Human Service Program Analyst. Typically, employees of Respondent who are appointed to new positions are placed in probationary status, as opposed to permanent status, and are required to review and execute new position descriptions. However, the reclassification of Petitioners’ position by Respondent was not typical. As part of the reclassification of Petitioners’ position to Human Service Program Analyst, Respondent provided Petitioners with a new position description. However, Petitioners’ job duties, salaries, and permanent status remained the same as they had been in their prior position of Human Services Counselor III. Petitioners read and acknowledged their receipt of the new position description on March 28, 2013. On the first page of the position description, there is a heading titled “Position Attributes”. Under this heading, the term “Overtime” is shown, followed by two boxes, “Yes” and “No.” The “No” box is marked, indicating that Petitioners are not eligible to work overtime hours. The position description further indicates that Petitioners would be career service employees. However, the position description does not specifically include the terms included or excluded. Prior to the reclassification, Petitioners were paid bi-weekly based on an 80-hour pay period. If they worked more than 80 hours in a pay period, they received additional monetary compensation for their overtime hours. Payment for Petitioners’ regular and overtime work hours was based on employee timesheets submitted to the People First leave and payroll system. After the reclassification of their position, Petitioners continued to work overtime in excess of their bi-weekly contractual hours, despite the prohibition in the position description. Petitioners were required to obtain approval by their supervisors before being allowed to work overtime. Petitioners’ overtime was approved by their supervisors after the reclassification despite the prohibition on working overtime hours as indicated in the position description. During the pay periods of March 29-April 11, 2013; April 26-May 9, 2013; and May 10-June 23, 2013, Petitioner Ileana Toledo worked a total of 28 hours of overtime, and received monetary compensation in the amount of $464.63 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Norma Pedraza worked a total of 32.25 hours of overtime, and received monetary compensation in the amount of $624.14 from Respondent for these overtime hours. For the pay periods of March 29-April 11, 2013; April 12-April 25, 2013; April 26-May 9, 2013; and May 10-May 23, 2013, Petitioner Lil Guerrero worked a total of 25.50 hours of overtime, and received monetary compensation in the amount of $426.65 from Respondent for these overtime hours. Respondent’s payment of monetary compensation to Petitioners for the overtime hours worked after the reclassification of their position to Human Service Program Analyst occurred due to an administrative coding error, thereby resulting in the overpayment of monetary compensation to Petitioners by Respondent in the amounts the Respondent seeks to recover from Petitioners. The administrative coding error occurred because of Respondent’s failure to note the change from included to excluded on the People First system following the reclassification of Petitioners’ position. The error occurred due to an honest mistake, and resulted in the overpayments at issue. Petitioners should not have received monetary compensation for their overtime hours in the Human Service Program Analyst position because a Human Service Program Analyst position is an excluded career service position. An excluded career service employee must earn and receive regular compensation leave credits for overtime work, but cannot receive monetary compensation for overtime work. On the other hand, included career service employees, such as those persons in Petitioners’ previous position of Human Services Counselor III, must receive monetary compensation for overtime hours worked, rather than regular compensatory leave credits. Neither Petitioners nor their supervisors were aware at the time that the overpayments were made that Petitioners could not receive monetary compensation for their overtime hours, but must instead receive regular compensatory leave credits. At hearing, Petitioners did not dispute the amounts and hours of overtime worked as set forth in paragraphs 12-14 above. In accordance with the Department of Management Services’ Bureau of Payroll Manual, the amount of salary overpaid, and the amount sought to be repaid, was calculated as set forth in paragraphs 12-14 above. When an agency has determined that a salary overpayment has occurred, it is required to follow procedures set forth in the above-referenced manual, to seek repayment. Respondent followed those procedures in making the calculations relevant in this case.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered by the Agency for Persons with Disabilities determining that: 1) Petitioner Ileana Toledo was erroneously paid salary in the amount of $464.63; 2) Petitioner Norma Pedraza was erroneously paid salary in the amount of $624.13; 3) Petitioner Lil Guerrero was erroneously paid salary in the amount of $426.65; and 4) Petitioners are entitled to be compensated by Respondent through compensatory leave credits for the overtime hours worked as reflected in paragraphs 12-14 above. DONE AND ENTERED this 25th day of November, 2013, in Tallahassee, Leon County, Florida. S DARREN A. SCHWARTZ 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 25th day of November, 2013.
The Issue Proposed transfer of Bernice Ino, as specified in letter of Anthony Ninos, Director of Division of Hotels and Restaurants, dated July 27, 1976. This is an appeal of a career service employee pursuant to Section 110.061, Florida Statutes. The appeal was referred to the Division of Administrative Hearings by the Career Service Commission on November 24, 1976.
Findings Of Fact By the General Appropriations act emanating from the 1976 state legislative session, 38 employee positions of the Respondent's Division of Hotel and Restaurants were abolished. Although the specific positions were not identified in the appropriations act, the Division director was informed by a staff representative of the legislative committee on appropriations that 25 Hotel and Restaurant Inspector I positions and six Inspector II positions should be among those eliminated. The Division previously had 103 Inspectors of the two classes. Respondent identified the positions statewide to be eliminated and requested the Secretary, Department of Administration, to approve the concept that the competitive area for layoff of employees be statewide within the Division. Approval of this plan was secured and Respondent proceeded to abolish the positions and to layoff Inspectors in its various districts throughout the state. Since the Division at the time had eight vacancies for Inspector positions only 23 employees were actually eliminated. Layoffs were carried out under a retention point system based on length of service and performance evaluations, computed and applied under the provisions of Department of Administration Emergency Rule 22AER76-1, Subject "Emergency Rule Governing Layoff of Career Service Employees". As to Inspectors I, the 83 such positions in the state were placed on a numerical list, according to total number of retention points of each employee, and those with the lowest numbers were selected for layoff. Seven employees were terminated in District I (Jacksonville) and one in District IV (Ft. Lauderdale). (Testimony of Ninos, Dorn, Exhibits 1, 9-12) As a result of the abolishment of Inspector positions, there was an imbalance in manning levels in the various state districts. In Jacksonville, there had been eight inspector positions. The abolishment of three of these left five vacancies that had to be filled. On the other hand, there were negative vacancies in the Ft. Lauderdale district. The Division director therefore instructed the Respondents' personnel officer, Lee Dorn, to reapportion the state to effectively cover all inspection areas. Specifically, he directed that five Inspector I positions be transferred to Jacksonville, 3 of them to come from the Ft. Lauderdale district. In a Memorandum to Dorn, dated July 15, 1976, the director identified the three positions in Ft. Lauderdale for transfer as those held by A. V. Maloni, Bernice N. Ino, and J. F. Friedman. The retention points of these employees had been calculated respectively at 210, 169, and 165. These three employees, and two others to be transferred to Jacksonville from District V, were those Inspectors who had the lowest number of retention points after those having less retention points had been laid off. It was stipulated by the parties that the number of retention joints calculated for Petitioner is correct based on the criteria set forth in the Department of Administration's Emergency Rule. (Testimony of Ninos, Dorn, Exhibit 2) It thereafter developed that of the three Ft. Lauderdale employees, Petitioner was the only one who would actually have had to take an involuntary transfer to Jacksonville. Mr. Friedman, who had less retention points, secured a new position with another agency. Maloni, who had more retention points than Petitioner, was reassigned to a position in the Ft. Lauderdale district that was vacated when the incumbent, in turn, was reassigned to another position made vacant by the illness and eventual separation of its incumbent, John W. Murray. The person replacing Murray, A. J. Pergament, had 792 retention points. (Testimony of Ninos, Dorn, Smith, Exhibits 4, 6-8, 14-21) Petitioner was orally informed in late June of her proposed transfer by her District Supervisor, Chauncey D. Smith. This was followed by a letter, dated July 27, 1976, from the Division director that formally advised her of the transfer of her position to the Jacksonville district, effective August 1, 1976. The letter gave as a basis for the transfer the fact that legislative abolishment of positions made it necessary for the Division to reapportion its staffing to effectively cover all inspection areas and that the proposed changes were being made to obtain "equity, effectiveness, and efficiency within our districts". The letter further advised Petitioner of her right to appeal the transfer to the Career Service Commission. Although this letter did not reach Petitioner through the mail due to an incorrect address, a copy was personally served on her on July 29. Petitioner acknowledges that the incorrect address was due to her negligence in advising Respondent correctly as to the same. In a memo to Petitioner, dated July 28, Smith had conveyed Division instructions for her to report to Jacksonville on August 2. Petitioner declined to accept the transfer. She filed her appeal by letter of July 31, 1976 and thereafter resigned, effective August 2, 1976. Her appeal letter stated that she had not been given sufficient notice to relocate and that the transfer would be a great financial hardship due to the fact that she had purchased a home in the area recently. (Testimony of Dorn, Smith, Ino, Exhibits 3, 13, 22-23) At a meeting with Smith and the Division's Chief of Enforcement, B. E. Fernandez, in early August, Petitioner was informed that she would be given the next opening in Ft. Lauderdale. In fact, Inspector Murray was not separated until November but his job had been filled on a temporary basis by Maloni. When Murray was finally separated, Maloni stayed in the position. Petitioner had been told by Smith that it would be a hardship for Maloni to suffer a transfer because of family considerations, but would not be so difficult for her because she could obtain unemployment compensation and she need not be concerned because her husband was working. When Murray finally departed, Petitioner called the Division director regarding the promise that she would have the next opening and he wrote her in December, 1976, that, although she was next in line for any vacancy, Maloni had received Murray's job because he had more retention points. Also, during this period, Fernandez and Smith offered Petitioner openings in Gainesville and Daytona Beach, but she declined to accept them because she wished to stay in Broward County. Smith also suggested that she get a job as a hostess or cocktail waitress because she was cute and petite. (Testimony of Ino, Smith, Fernandez, Exhibit 4) Petitioner testified that she was of the opinion her sex was a factor in the matter because nothing was done for her by Division personnel and because of the comments made by Smith concerning her eligibility for unemployment compensation and his comments concerning the possibility of her becoming a cocktail waitress. (Testimony of Ino) Petitioner was employed by Respondent from June 1, 1973 to August 2, 1977. She had performed her duties in an exemplary manner. (Testimony of McCulley)
Recommendation It is recommended that the Career Service Commission deny the appeal. DONE and ENTERED this 23rd of March, 1977, in Tallahassee, Florida. THOMAS C. OLDHAM Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 COPIES FURNISHED: Lawrence D. Winson Staff Attorney Department of Business Regulation The Capitol Tallahassee, Florida 32304 Roger D. Haagenson 800 E. Broward Building Suite 610 Ft. Lauderdale, Florida 33301
The Issue The central issue in this cause is whether Petitioner abandoned his position and thereby resigned his career service position at Children, Youth, & Families Services.
Findings Of Fact Based upon the testimony of the witnesses and the documentary evidence received at the hearing, I make the following findings of fact: Petitioner was employed as a counselor working with the District XI Children, Youth, & Families (CYS) Services. Petitioner was assigned to monitor approximately twenty-five foster care children. After some past employment disputes, Petitioner was reinstated by the Department effective March 31, 1987. Petitioner returned to work on April 17, 1987, however, he was not satisfied with the working environment. In a memorandum dated April 22, 1987, Petitioner alleged: The same pattern of capricious, arbitrary and discriminatory practices which led to my previous illegal dismissal from services at a time I was disable, as the result of an accident which had occurred while fulfilling my duties for this Department, are still present. All my fundamental rights have been thoroughly violated. Even workman compensation has been denied to me. With so painful experience and in light of outstanding losses I have consequently suffered, any idea of subsidizing HRS with my own car, car insurance, car repairs and advance funding for gasoline purchase as an obligatory condition for employment at CYF is being rejected as unfair practices; and violate the equal Employment Opportunity Laws. Various efforts made to have this abusive situation corrected have been met with the flagrant opposition of fierce administrators of this department, totally obstinated not to let fairness and logic prevail. In light of all these facts, it is my conclusion that my interests can be better preserved by my abstention from any involvement at HRS until these matters are properly attended by your diligence in the best of the delays, or by a court of law. In consequence effective Friday April 24, 1987 I have decided to temporarily not to be in attendance at Unit 462 Foster Care. In response, the District Program Manager for Social Services, Frank Manning, wrote to Petitioner on April 23, 1987, and advised him that failure to report to work as scheduled would be cause for action pursuant to Chapter 22A- 7.010(2). Petitioner failed to appear or to call in to work for hour consecutive work days, to wit: April 27-30, 1987. Petitioner was not authorized to take leave during the time in question.
Recommendation Based on the foregoing findings of fact and conclusions of law, it is RECOMMENDED: That the Department of Administration enter a Final Order affirming the decision that Petitioner abandoned his position and thereby resigned from the Career Service. DONE and RECOMMENDED this 5th day of February, 1988, in Tallahassee, Florida. JOYOUS D. PARRISH 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 5th day of February, 1988. COPIES FURNISHED: Morton Laitner, Esquire Dade County Health Unit 1350 North West 14th Street Miami, Florida 33215 Gregory L. Coler, Secretary Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700 Louis C. Germaine 308 Northeast 117th Street Miami, Florida 33161 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact The State of Florida, acting through Petitioner, certified Respondent as a correctional officer and, on February 17, 1988, issued to her Certificate number 03-87-502-08. On September 21, 1987, Respondent began employment with the Florida Department of Corrections as a correctional officer at Broward Correctional Institution (BCI). On May 16, 1988, Respondent's employment with BCI was terminated. Since Respondent was still in the probationary period with BCI, it was not necessary for BCI to provide an official reason for the termination of Respondent's employment. The unofficial reason for the termination was that Respondent had failed to report to work. BCI routinely uses an attendance and leave report form covering two calendar weeks as the basis for the issuance of salary warrants and for the accruement of leave and other benefits associated with state employment. These Attendance and Leave forms have a space for the hours worked during each day of the two week period, a space for the number of hours of authorized leave taken for each scheduled work day of the two week period, a space for scheduled days off, and a place to insert the code number for the type of leave taken. Among the several types of leave available to an employee (assuming that the employee had accrued leave available) were "annual leave", "family sick leave", "sick leave", and "unauthorized leave without pay." These leave forms are usually kept in the Lieutenants' complex in books according to shifts. Each correctional officer normally completes his or her form at the end of the pay period. It is not unusual for a correctional officer to sign and to postdate the leave form if the officer does not anticipate being at work on the last day of the pay period. Thursday, April 14, 1988, was the end of a two week pay period. On April 14, 1988, Respondent received a telephone call from her husband and was told by her husband that their two year old child, who had a history of extended illnesses, was sick and would require hospitalization. Respondent informed her supervisor, Lieutenant Bernstein of her child's illness. At that time, Respondent did not know how much time she would miss because of the child's illness. Lieutenant Bernstein told Respondent to be sure to sign her Attendance and Leave Form before she left. The form Lieutenant Bernstein referred to was for the period that ended April 14, 1988. Respondent misunderstood his instructions and thought he meant that she should sign the form for the upcoming two week pay period. For the two week period beginning Friday, April 15, 1988, Respondent was scheduled to work an 8-hour shift at BCI on each of the following days April 15, 16, 17, 18, 21, 22, 23, 24, 25, and 28, and was scheduled to be off April 19, 20, 26, and 27. Respondent did not report for work at BCI at any time during this two week period. On April 14, 1988, Respondent partially completed and signed an attendance and leave form covering the period April 15-28, 1988. She signed the form on April 14, 1988, but she wrote the date April 28, 1988, next to her signature. Her signature was directly underneath the following declaration: I HEREBY CERTIFY THAT I HAVE REVIEWED THIS REPORT AND THAT IT REPRESENTS A TRUE AND CORRECT RECORD OF THE REGULAR HOURS WORKED, AUTHORIZED OVERTIME AND AUTHORIZED LEAVE. Respondent left the form she had signed April 14, 1988, and dated April 28, 1988, in the book in the Lieutenants' complex. After Respondent completed her full shift on April 14, 1988, she left work and she did not again have access to her work area or to the leave form. Respondent partially completed the form before she left work on April She filled out the portions of the form that identified the form as being her form for the period April 15-28, she marked the days she was scheduled to be off, and she marked on the form the notation "4/15 - 4/28 Baby in Hospital" as the reason for the requested leave. There were three areas of dispute between the parties relating to the completion of the leave form. First, Petitioner contends that Respondent wrote on the form the notation "4/15 - 4/28 Baby in Hospital" in the space reserved for the insertion of the reason for the administrative leave. Respondent denies making that insertion. This dispute is resolved by finding, as contended by Petitioner, that Respondent did make that insertion on the form. The testimony of Petitioner's handwriting expert, who positively identified the handwriting "4/15 - 4/28 Baby in Hospital" as being the handwriting of Petitioner is found to be more credible than the denial by Respondent that she did not make that insertion. Consequently, the testimony of Petitioner's expert is accepted and the testimony of Respondent, on this matter, is rejected. Next, Respondent disputes Petitioner's contention that she inserted on the leave form the request for either family sick leave or sick leave for each of her scheduled work days during the two week period. Finally, Respondent disputes Petitioner's contention that she inserted on the form the number of hours of leave requested for each scheduled work day. These last two areas of dispute are resolved by finding that someone other than Respondent completed these portions of the form. Petitioner's handwriting expert did not refute Respondent's denial that she completed these portions of the form. Additionally, Respondent knew at the time that she signed the leave form on April 14, 1988, and dated it April 28, 1988, that she had only six hours of sick leave available for her use and that she had 40 hours of accrued annual leave. Respondent would have had no reason to fill out the forms so as to claim some 80 hours of sick leave when she knew that she had such a limited amount of sick leave. Upon termination, correctional officers are entitled to accrued annual leave, but not for accrued sick leave. Respondent's child was not hospitalized between April 15-18, but Respondent was home attending to her sick child on those days. Respondent spoke with Lieutenant Bernstein or Lieutenant Jackson, another supervisor, to keep them advised of her situation during these four days. April 19 and 20 were her regularly scheduled days off, so she made no effort to contact BCI. On April 20, 1988, Respondent was contacted by Metro Dade Corrections and Rehabilitation (MDC) about a job for which she had applied prior to her employment with BCI. Respondent was excited about this job opportunity because she had wanted to work for MDC for a long time. She reported to the MDC personnel office as instructed late on the afternoon of April 20, 1988. On April 21, Respondent began full-time employment with MDC and began orientation and training with MDC as a correctional officer. The reason for the short notice to Respondent was that there had been an unexpected vacancy in the MDC training class. Respondent's full-time employment with MDC continued until May 16, 1988. Respondent told MDC at some undetermined point in time that she had terminated her employment with BCI by the time she was hired by MDC on April 21. Respondent attempted to contact Lieutenant Bernstein on April 21 to advise him of her change in employment, but she was unable to reach him. The representation made by Respondent to MDC that she had in fact resigned her position at BCI by the time she was hired by MDC was false. On April 22, 1988, Respondent wrote a letter of resignation to BCI, had the letter notarized, and mailed the letter to BCI. BCI did not receive this letter and was not aware that Respondent was employed at MDC until an investigator with MDC contacted the BCI personnel office during the course of a routine background investigation of Respondent. On Saturday, April 23, Respondent attempted to return her uniform to BCI, but the booth officer told her that uniforms could only be returned to the personnel office between 8:00 A.M. and 4:00 P.M., Monday through Friday. Following the close of the April 15-28, 1988, period, Lt. Jackson, another of Respondent's supervisors, reviewed the form that Respondent had left in the book in the Lieutenant's complex and affixed his initials to the form to indicate his approval of the requested leave. Lt. Jackson later changed the leave from authorized sick leave to unauthorized leave without pay after it was determined that Respondent had failed to submit a doctor's certificate following three days of sick leave as was required by BCI's personnel rules. Respondent did not receive compensation for her employment with BCI after she became employed by MDC. On April 28, 1990, Respondent talked by telephone with Joan McKinley, a personnel technician at BCI, and discussed with her overtime pay for a prior pay period. During the conversation, Respondent stated that she was out of town for two or three weeks. Respondent did not state the reasons she was out of town, and the record is not clear that Respondent made that statement to justify her absence from BCI. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received. Respondent assumed that her letter of resignation had been received. On or about May 9, 1989, Respondent talked by telephone with Paula Bussier, the personnel manager at BCI. Respondent told Ms. Bussier that she was looking forward to returning to work soon and that her child's health had improved. Respondent did not discuss her new job at MDC, nor did she ask whether her letter of resignation had been received. Officials at BCI learned of Respondent's new job when a MDC background investigator appeared at BCI to check Respondent's work record there. On May 16, 1989, Respondent's employment was terminated by BCI and by MDC. On August 29, 1988, Respondent was rehired by MDC. Since that time her job performance evaluations have been satisfactory or better and she has earned a reputation for honesty and integrity.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is: RECOMMENDED that Petitioner, Florida Department of Law Enforcement, Criminal Justice Standards Training Commission, enter a final order which dismisses the Administrative Complaint filed against Respondent. DONE AND ENTERED this 1st day of June, 1990, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 904/488-9675 Filed with the Clerk of the Division of Administrative Hearings this 1st day of June, 1990. APPENDIX TO RECOMMENDED ORDER IN CASE NO. 89-2771 The following rulings are made on the proposed findings of fact submitted by Petitioner: The proposed findings of fact submitted by Petitioner in Paragraph 5 are rejected to the extent the findings conflict with the findings made in Paragraphs 6-9 of the Recommended Order. The proposed findings of fact submitted by Petitioner in the first sentence of Paragraph 6 are rejected as being contrary to the findings made in Paragraph 9 of the Recommended Order. All other proposed findings of fact submitted by Petitioner are adopted in material part. The following rulings are made on the proposed findings of fact submitted by Respondent: The proposed findings of fact submitted by Respondent in Paragraphs 13- 15 are rejected as being subordinate to the findings made in Paragraphs 6-9 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraph 16 are rejected as being subordinate to the findings made in Paragraph 14 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraph 23 are rejected as being subordinate to the findings made in Paragraph 11-12 of the Recommended Order. The proposed findings of fact submitted by Respondent in Paragraphs 24, 25, 29, and 33 are rejected as being unnecessary to the conclusions reached. The proposed findings of fact submitted by Respondent in Paragraphs 37- 45 are rejected as being subordinate to the findings made in Paragraph 19 of the Recommended Order. All other proposed findings of fact submitted by Respondent are accepted in material part. Copies furnished: Joseph S. White, Esquire Assistant General Counsel Florida Department of Law Enforcement Post Office Box 1489 Tallahassee, Florida 32302 Richard E. Lober, Esquire 10680 N.W. 25th Street Suite 202 Miami, Florida 33172 Jeffrey Long, Director Department of Law Enforcement Criminal Justice Standards Training Commission Post Office Box 1489 Tallahassee, Florida 32302 James T. Moore, Commissioner Department of Law Enforcement Criminal Justice Standards Training Commssion Post Office Box 1489 Tallahassee, Florida 32302
Findings Of Fact Petitioner, Rhonda K. Lenfest, was hired by respondent, Orange County Emergency Services, Inc., on June 13, 1979, in the position of emergency medical services communicator. Her employer is under the control and supervision of the Orange County oar of County Commissioners. Lenfest received a gunshot wound to the abdomen in late 1974 or early 1975. As a result, she is paraplegic and required to use a wheelchair. Lenfest was one of seven communicators employed by respondent. The duties of a communicator included communication by radio to emergency vehicles and hospitals from respondent's headquarters in the Orange County Courthouse. The communications center was staffed twenty-four hours per day, seven days per week. Those employees with the most seniority got the best shifts, and any last minute changes in shifts caused by illness or vacation were generally filled by those with the least seniority. The seniority basis was fully explained to Lenfest when she was initially hired. When first hired, Lenfest was under the impression that her supervisor would schedule her shift work so that twice a week therapy sessions could be continued, and arrangements made to provide care for her seven year old child. She was initially assigned to the 9:00 a.m. - 5:00 p.m. and 8:00 a.m. - 4:00 p.m. shifts. However, during the last four months of her employment she was frequently required to man the 1:00 a.m. - 7:00 a.m. shift when she was the only employee manning the communications center. This as due to a number of shift schedules caused by vacations, illnesses and schedule changes requested by other employees, and Lenfest having the lowest seniority. At various times, Lenfest was observed sleeping on the job. This was confirmed by several independent witnesses. She attributed this to bad shift hours, lack of sleep, and an "understanding" that napping at work was permissible. According to activity logs introduced by petitioner, she was late to work seventeen times between June 13 and November 10, 1979, which was more than any other employee in her section. She attributed this to a difficulty in finding a parking place around the courthouse. On each occasion that she was late, the on-duty employee could not leave his or her shift until Lenfest reported to her station, was briefed as to any existing problem areas, and actually assumed her duties. County personnel policy provides that "(e)xcessive, or habitual lateness will not be tolerated", and that "if such occurs, disciplinary measures . . . will be implemented." Lateness is defined as "not being able to start duty on time." On Saturday, November 10, 1979, Lenfest's immediate supervisor, John Spurlock, presented her with a supervisor counseling form dated October 30, 1979. It indicated she was being counseled for "sleeping on the job, security of building, not paying attention to records and logs, on county phones long periods of time for personal use, being late for work and attitude". At the bottom of the form, Spur lock noted that "(i)f these problems listed above can be solved Rhonda will be the same good worker that she was in the beginning." This was the sixth or seventh occasion on which Lenfest had been counseled. After being presented with the form, Lenfest called her supervisor "a damn liar, immature", "no good", and "lower than a snake's belly". The comments were loud enough for other persons in the area to hear. Spurlock attempted to calm Lenfest, but after these efforts were unsuccessful, he told her she could go home for the day. He then asked her to sign the counseling form. Lenfest said "you make me sick" and tore up the form into four pieces. Spurlock then told her "unless you can prove otherwise, you (can) consider yourself fired." On November 11, 1979, Lenfest was informed by telephone that she should contact her overall supervisor prior to returning to work. She failed to contact him the next working day (November 12) and did not report to work. On November 14, 1979, Lenfest was formally terminated by her manager with such termination to be effective on November 13. Under the Orange County personnel policy manual, a temporary employee is always on probation. Once an employee achieves permanent status he or she is on probation for the first six months. While on probation, an employee can be terminated without any notice or cause. Lenfest became a permanent employee on October 27, 1979, but still was on probation when she was terminated less than a month later. Therefore, Lenfest had no recourse to the grievance procedures afforded permanent status employees of the County. Her reclassification to permanent status had been made two days earlier than another employee so that she would have seniority over that employee. A non-handicapped employee, Ralph S. Bailey, was fired by respondent in 1979 for excessive tardiness. After talking with the personnel department and explaining what had occurred, he was rehired within a few days. Another non-handicapped employee, Brady Parsons, was counseled in 1979 for sleeping on the job. Respondent received no federal funds for the purpose of providing, aiding, assisting in or defraying the expenses of employment.
Recommendation Wherefore, in consideration of the foregoing findings of fact and conclusions of law, it is RECOMMENDED that the petition of Rhonda K. Lenfest be DENIED. DONE and ENTERED this 20th day of September, 1983, in Tallahassee, Florida. DONALD R. ALEXANDER Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 20th day of September, 1983. COPIES FURNISHED: Homero Leon, Jr., Esquire Greater Orlando Area Legal Service, Inc. P. O. Box 1790 Orlando, Florida 32802 John A. Gehrig, Jr., Esquire P. O. Box 3068 Orlando, Florida 32802 Robert Woolfork, Executive Director The Florida Commission on Human Relations Building F, Suite 240 325 John Knox Road Tallahassee, Florida 32303
The Issue Consideration of the matter set forth in the September 22, 1977, letter of suspension served on Respondent, for events which allegedly transpired from September 13 through September 20, 1977, concerning the Respondent's fitness for duty and duty performance in the job position Pharmacist II, State of Florida, Department of Health and Rehabilitative Services.
Findings Of Fact Aldridge M. McMahan is a Career Service employee with the State of Florida, Department of Health and Rehabilitative Services. His specific employment is as a Pharmacist II, permanent status. This case concerns the action by the Petitioner, State of Florida, Department of Health and Rehabilitative Services, in which the Petitioner by letter of September 22, 1977, suspended the Respondent, Aldridge M. McMahan, for a period of thirty (30) days without pay, effective September 21, 1977. The suspension without pay was subject to being lifted upon receipt by the Petitioner of a satisfactory report prior to the end of the thirty (30) day suspension, on the question of the Respondent's fitness for duty. It was further stated in the letter of suspension that if such a satisfactory report was forthcoming, the Respondent would be afforded necessary sick leave to attend to his health needs, thus taking the amount of remaining time in the thirty day suspension out of the category of a disciplinary action without pay and placing it into sick leave status with pay, if the Respondent had earned sufficient sick leave time. The Respondent has disagreed with the conclusions drawn by the Petitioner and has appealed the action of suspension. To clearly understand the steps taken by Petitioner, it is necessary to consider the events of late 1976 and early 1977 pertaining to the Respondent's employment status. Beginning in October, 1976, the Respondent had occasions when he appeared to be groggy, was unable to speak intelligibly and had problems in filling prescriptions which was his primary duty within his employment position. Several alternatives were considered to assist Mr. McMahan with those difficulties including possible psychiatric counselling. In the beginning of 1977 the problems of Mr. McMahan intensified and he was required to see a psychiatrist. Eventually, Mr. McMahan was treated by David Hicks, M.D., a psychiatrist in Jacksonville, Florida. The contact began in earnest in March, 1977, and on April 19, 1977, Mr. McMahan was admitted to St. Luke's Hospital for assessment. At that point, Mr. McMahan was asking for tranquilizing medication for his condition. Mr. McMahan was discharged from the treatment with outpatient follow-up. The discharge occurred on May 3, 1977. On May 18, 1977, McMahan saw Dr. Hicks again and Mr. McMahan appeared very tired. Some of the tests that were performed in April of 1977 indicated that Mr. McMahan had been showing declining levels of long-acting barbiturates, specifically between April 19 and April 26, 1977. Dr. Hicks felt that the taking of barbiturates was consistent with the mannerisms of slurred speech and problems of communication. During the treatment with Dr. Hicks, and particularly from April 18, 1977, the Respondent by agreement with his employer was allowed to take sick leave to be treated for his condition and in fact took 160 hours of sick leave. When the Respondent returned, his work performance improved and there was no difficulty with his ability to perform his job, until September, 1977. The events in September, as stated before, give rise to the current action. Beginning in the middle part of September, 1977, identified as being September 13 through September 20, 1977, excluding the intervening weekend, McMahan was observed to have been hesitant in his walking and wavering in his walking, to have run into walls; to have evident slurred speech, to have appeared to have been dozing while sitting in the chair in his office, to have taken a number of pills and to have been extremely difficult to communicate with in the context of his job. All these matters occurred in the aforementioned period, September 13 through September 20, 1977, while Mr. McMahan was at work. He also evidenced a poor physical appearance in the sense of being gray in appearance, in terms of skin coloring. One of his coworkers who is a pharmacist in the same office felt that Mr. McMahan was rushing the prescriptions too quickly during this time sequence and it was also stated at the hearing that some complaints had been received about filling the prescriptions. Those complaints were rendered from outside sources other than by the Petitioner. It is significant that the symptoms observed by a number of employees who work with Mr. McMahan were the same symptoms that they had observed in April, 1977, when Mr. McMahan took leave to be treated for a problem with meprobamate. During the course of events between September 13 and September 20, 1977, no specific discussion was had with the Petitioner other than one occasion in which Embry Coalson, Chief of the Consumer Drugs and Devices Control Section of the State of Florida, Department of Health and Rehabilitative Services, made inquiry about why the Respondent had come to work on September 16 after his wife had called in saying that Respondent was ill. The Respondent had shown up for work looking very ill on that date. Nonetheless, after gathering all the facts and details of the events of September 13 through September 20, 1977, Mr. Coalson called the Respondent in to apprise him that he was being placed on suspension under the terms that are discussed above. Respondent indicated in the course of the discussion that was held on September 21, 1977, that he felt it was unfair treatment because he had been sick with diarrhea and had been taking Dramamine and Lomotil for this condition. In Respondent's mind this would appear to make him drowsy. Coalson suggested that a medical evaluation be made of the Respondent's condition and the Respondent suggested that he would be willing to have a blood test to show that there were no inappropriate drugs in his system. The conversation of September 21, 1977, ended with the Respondent being told that he could have a medical evaluation and blood test done and that of the report was satisfactory to the employer, the Respondent would be reinstated. The Petitioner was not willing to go with the Respondent on the date of the actual interview, i.e., September 21, 1977, to have tests done in the presence of the employer's representative. Coalson took the position that the responsibility to clear the matter resided with the Respondent and not the Petitioner. The attitude by the employer's representative was premised on the idea that the performance during the period of September 13 through September 20, 1977, on the part of the Respondent showed him to be unfit for duty and below standards in the duty performance; however, it allowed the punishment to be mitigated upon a satisfactory explanation of the Respondent's condition during the period in question. Beginning September 26, 1977, the Respondent went to see Dr. Hicks, the psychiatrist, who in his deposition in the course of the hearing indicated that he was convinced that McMahan's drowsiness was part of the physical ailment associated with nausea and diarrhea and not due to any drug-related problem. Dr. Hicks was of this persuasion although he administered no test for drugs and even though he had not observed Mr. McMahan's demeanor during the period of September 13 through September 20, 1977. A letter was written from Dr. Hicks to Mr. Coalson which was dated October 10, 1977, expressing the opinion of Dr. Hicks on the question of whether or not Mr. McMahan was suffering sensorial disturbance or other physical or psychiatric phenomenon suggesting any use of any chemical at the time of the initial interview with Dr. Hicks which took place on September 26, 1977. Mr. Coalson found this letter and explanation sufficient to reinstate the Respondent in is job position and Respondent remains in that position today. After analyzing all the facts in this cause, it is uncertain whether or not Mr. McMahan was truly ill at the time of September 13 through September 20, 1977, while he was at his work station. However, it is apparent that Mr. McMahan was unfit to perform duties of his position and performed those duties at such a substandard level that he was subject to the suspension that was entered against him, and not entitled to any reinstatement until the employer's representative received Dr. Hicks' letter and accepted it for purposes of establishing the reinstatement.
Recommendation It is recommended that the appeal of the Respondent be denied and that the suspension of September 22, 1977, be upheld. DONE and ENTERED this 2nd day of June, 1978, in Tallahassee, Florida. CHARLES C. ADAMS 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 2nd day of June, 1978. COPIES FURNISHED: Robert M. Eisenberg, Esquire Post Office Box 2417F Jacksonville, Florida 32231 Thomas E. Crowder, Esquire 1320 Barnett Bank Building Jacksonville, Florida 32202 Dorothy Roberts Appeals Coordinator Career Service Commission 530 Carlton Building Tallahassee, Florida 32304
