Findings Of Fact Respondent Jerry O. Bryan began working for the State Road Department in 1968. In 1983, he started his most recent assignment with the agency, now called the Florida Department of Transportation, as an engineering technician III, in a career service position. An employee handbook respondent was furnished in 1983 had this to say about "JOB ABANDONMENT": After an unauthorized leave of absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policy. Petitioner's Exhibit No. 1, at page 43. Perhaps with this in mind, respondent requested leave without pay when he learned he faced six months' incarceration, as a result of his criminal conviction for cultivating marijuana on federal property. Respondent's supervisor, Robert Edward Minchin, Jr. denied his request for leave without pay, in accordance with a DOT policy against granting leave to DOT employees who are incarcerated. Mr. Bryan did not request annual leave, although some 220 hours' entitlement had accumulated. Asked whether he would have granted Mr. Bryan's leave request absent "a policy of not authorizing leave while someone was incarcerated," Mr. Minchin answered in the negative, saying Mr. Bryan "was going to be needed during ... [the time] he would be out. T.22. At no time did petitioner ever take disciplinary action against respondent, who received satisfactory or higher job performance ratings, the whole time he worked for petitioner. Aware that Mr. Bryan did not desire or intend to resign, relinquish or abandon his career service position, Mr. Minchin took steps to remove him from the payroll solely on grounds that he was absent without authorized leave for three consecutive workdays.
Recommendation It is, accordingly, RECOMMENDED: That petitioner reinstate respondent and award back pay, but without prejudice to instituting any appropriate proceedings before the Public Employees Relations Commission. DONE and ENTERED this 27th day of November, 1990, in Tallahassee, Florida. ROBERT T. BENTON, II Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 27th day of November, 1990. COPIES FURNISHED: Jerry O. Bryan Federal Prison Camp Post Office Box 600 Eglin AFB, Florida 32542-7606 William A. Frieder, Esquire Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Robert Scanlon, Esquire Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0458 Augustus D. Aikens, Jr., General Counsel Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550 Ben G. Watts, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0458 Aletta Shutes, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact At the time Respondent was advised that DHRS was processing his resignation from his position as Social and Rehabilitative Services Counselor II, effective August 31, 1983 (Exhibit 1), Fox had been employed by DHRS for some 12 years. This was termed a "voluntary" resignation by reason of abandonment of position. Fox had been on leave without pay from August 12, 1983, through August 19, 1983 (Exhibit 4). On Monday, August 22, a woman called Fox's supervisor and told him that Fox was in Miami, his sister had been involved in an automobile accident, and he would not be in to work. On August 24 Fox called his supervisor, Gilbertson, to advise that he was still with his sister but would be back to work by noon on Friday, August 26. During this period, Monday through Friday, Fox was placed on family sick leave. At noon on Friday Fox had exhausted all his sick leave. Fox did not report to work until September 2, 1983, at which time he was given a copy of Exhibit 1, the original of which had been sent to his residence by certified mail. Fox gave no explanation for his absence but took the copy of the letter given him and left abruptly. He was not asked to explain his absence, nor did he offer any such explanation. Fox had earlier had differences with his supervisor, Gilbertson, over what Gilbertson considered excessive use of sick leave by Fox. Fox presented no evidence regarding his period of unauthorized absence from August 26 until he returned September 2. The one witness he called had frequently used sick leave without incurring the displeasure of Gilbertson. However, this witness in the recent past has had his gallbladder removed, hemorrhoid problems, and hepatitis; and had given no reason for anyone to suspect he was abusing the use of sick leave.
The Issue Whether the Petitioner abandoned his position with the Respondent and resigned from Career Service?
Findings Of Fact Petitioner was employed by the Department of Corrections as a Correctional Officer I in the Food Service Department at the Union Correctional Institution. Prior to his termination, Petitioner had been employed by the Department of Corrections for approximately four years. Petitioner's immediate supervisor was Mr. Norman Hedding, Food Service Director II at Union Correctional Institution. Sometime in April or May, 1987, Petitioner filled out a request for leave, requesting three weeks annual leave to be taken in July, 1987. The request for leave was placed on Mr. Hedding's desk. Mr. Hedding told Petitioner he would see what he could do and mentioned that other officers needed to take vacation time or they would forfeit the time. However, no other officer asked to take leave during the same period of time requested by Petitioner. On various occasions during May, June and July, Petitioner asked Wanda Phillips, Mr. Hedding's assistant, whether his leave had been approved. Ms. Phillips told him she had not heard anything. During one of the conversations with Ms. Phillips, Petitioner told her that he had purchased round-trip airline tickets to California. Petitioner and Mr. Hedding did not speak about the leave request until the Petitioner's last day at work prior to having two scheduled days off and then starting the 3-week period for which leave time had been requested. During this conversation, the Petitioner informed Mr. Hedding that he had confirmed round-trip tickets to California and his grandson had surgery scheduled for the time period in question. The testimony is conflicting as to what was said during this conversation. Mr. Hedding testified that he told Petitioner that the leave was not authorized. Petitioner testified that Mr. Hedding told him that the leave "had not been approved yet." Based on the testimony given at the hearing and the actions of Petitioner after his conversation with Mr. Hedding, I find that Petitioner was never told in unequivocal and clear terms that his leave had been disapproved. Petitioner assumed his leave would be approved and, before leaving work on his last day, he filled out pay slips in advance so that his payroll records would be accurate and told people at the office that he was going on vacation. Petitioner remained in town for the next four days, without reporting for work, and left for California. On August 6, 1987, upon his return from California, Petitioner received a certified letter from Mr. Hicks, an Assistant Superintendent II at Union Correctional Institution, informing Petitioner that he had been deemed to have abandoned his position and resigned from the Career Service System. Petitioner then spoke with Mr. Ellis, the Superintendent at Union Correctional Institution, who told Petitioner he needed to talk with Mr. Hedding about getting his job back. Petitioner told Mr. Hedding he had not intended to abandon his position. The next day Mr. Hedding told Petitioner he would not take him back.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a final order be entered ruling that the circumstances presented in this case do not constitute abandonment as contemplated by Rule 22A-7.10(2)(a), Florida Administrative Code, and directing that Petitioner be reinstated to his former position as of July 20, 1987. DONE and ORDERED this 25th day of February, 1988, in Tallahassee, Florida. JOSE A. DIEZ-ARGUELLES Hearing Officer Division of Administrative Hearings The Oakland Building 2009 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of February, 1988. APPENDIX TO RECOMMENDED ORDER, CASE NO. 87-3828 The parties submitted-proposed findings of fact, which are addressed below. Paragraph numbers in the Recommended Order are referred to as "RO ." Petitioner's Proposed Findings of Fact Petitioner's posthearing filing is a document titled "Petitioner's Argument and Citation of Law." The first three paragraphs consist of factual information and will be considered as proposed findings of fact. Petitioner's proposed findings are generally accepted, as modified in the Findings of Fact to conform to the testimony and evidence presented at hearing. Respondent's Proposed Findings of Fact Respondent's Paragraph Number Ruling and RO Paragraph Accepted. RO 1. Accepted, as modified to reflect approximate dates. RO 2, 3. Rejected. Mr. Hedding assumed this to be the case. Accepted, generally as modified. RO 4. Accepted, generally. RO 5. Accepted, as modified to reflect approximate dates. RO 6. Accepted, as modified. RO 6, 7. First sentence accepted. RO 9. Second sentence rejected as irrelevant. Accepted, generally. RO 10. Rejected as irrelevant. COPIES FURNISHED: Rodney W. Smith, Esquire Louis A. Vargas, Esquire 409 North East First Street General Counsel Post Office Box 628 Department of Corrections Alachua, Florida 32615 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Perri M. King, Esquire Assistant General Counsel Richard Dugger, Secretary Department of Corrections Department of Corrections 1311 Winewood Boulevard 1311 Winewood Boulevard Tallahassee, Florida 32399-2500 Tallahassee, Florida 32399-2500 Adis Vila, Secretary 435 Carlton Building Tallahassee, Florida 32399-1550 Augustus D. Aikens, Jr. General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550
The Issue Whether Respondent should have been suspended from her position with Petitioner as a school bus aide, and whether Respondent should be dismissed from her position.
Findings Of Fact At all times material to this proceeding, Petitioner, The School Board of Dade County (Board), was a duly constituted school board charged with the duty to operate, control, and supervise all free public schools within the school district of Miami-Dade County, Florida,1 pursuant to Article IX, Constitution of the State of Florida, and Section 230.03, Florida Statutes. Jamella R. King (King), was employed by the Board as a school bus aide from November 1989 until her suspension in July 1997. The position of school bus aide is governed by the Collective Bargaining Agreement between the American Federation of State, County, and Municipal Employees (AFSCME) and the Board. Since 1993, King's employment history has been characterized by excessive unauthorized absences, tardiness, and a continued disregard for administrative directives. In December 1993, King participated in a conference-for- the-record (CFR) because of her excessive unauthorized absences. Respondent was referred to the Employee Assistance Program (EAP), a confidential, collectively bargained for benefit which assists employees who may be having problems that, while not associated with employment, may be interfering with their performance. King refused to attend the scheduled counseling sessions. In February 1994, King participated in another CFR to discuss her attendance problem. The seriousness of the situation was brought to King's attention, and she was directed to improve her attendance. King was again referred to EAP, but failed to avail herself of these services. On or about January 22, 1996, a Transportation Operations Procedures Reminder (Reminder) was given to King. The Reminder set forth the Board's attendance policies and advised King that she currently had four and a half days of unauthorized leave. On April 30, 1996, another Reminder was given to King, addressing her attendance deficiencies. At that time, King had accumulated the equivalent of at least ten days of unauthorized absences in the 1995/1996 school year. From August 28, 1995, to May 28, 1996, King accumulated the equivalent of 21 days of unauthorized absences. On or about June 10, 1996, a CFR was held with King to review her continued disregard of proper attendance practices. King was again referred to EAP and was advised that she must improve her attendance. King was warned that her failure to improve could result in termination of her employment. King refused to follow this directive and continued to accumulate unauthorized absences. In July 1996, King signed in for work, but failed to go to her assigned route. King was issued a letter of warning for failure to complete her assigned route. King's supervisor directed her to improve her attendance. King failed to improve her attendance. As of October 10, 1996, King had accumulated 36 days of unauthorized absences for the preceding 12 month period. On October 29, 1996, a CFR was held with King concerning her attendance problem. At the CFR King received a reasonable directive from her supervisor to improve her attendance. King failed to follow this directive. In January 1997, King was removed from her assigned placement and placed on sub-status by her supervisor because King had become unreliable at her work site due to her continued unauthorized absences. Sub-status refers to a pool of aides who substitute as needed. From January 4, 1996, to February 10, 1997, King accumulated the equivalent of 47.5 days of unauthorized absences. On February 10, 1997, a CFR was held with King regarding her attendance problems. King was again directed to improve her attendance. From March 4, 1996, to April 15, 1997, King had accumulated the equivalent of 44 days of unauthorized absences. On May 27, 1997, a CFR was held with King regarding her continued attendance problem. King's continual unauthorized absences adversely impacted her work site because her coworkers were compelled to perform King's job duties. King's unauthorized absences also adversely affected the quality of transportation being provided to the students who ride the buses to which bus aides are assigned. These students have special needs that require the presence of an aide who can properly attend to those needs. Without a bus aide, there is the potential that the bus driver will be interrupted and distracted by those students. Additionally, when different bus aides appear on the bus, these students may feel uncertain and nervous, which may also unnecessarily distract the bus driver. The Collective Bargaining Agreement between AFSCME and the Board provides: ARTICLE II -- RECOGNITION * * * Section 3. . . .It is understood and agreed that management possesses the sole right, duty, and responsibility for the operation of the schools and that all management rights repose in it, but that such rights must be exercised consistently with the other provisions of the agreement. These rights include, but are not limited to, the following: Discipline or discharge of any employee for just cause; . . . * * * ARTICLE V --DEFINITIONS * * * Section 27. Unauthorized Absence -- Any absence without pay which has not been requested by the employee and approved by the supervisor, in writing, at least five days in advance. Employees are required to notify the work location, prior to the beginning of the workday, when they are unable to report to work or intend to be absent. Absences of the employee, where notice of absence is made prior to the start of the workday, but are not covered by the employee having accumulated sick or personal leave, shall be charged as unauthorized absence and may result in disciplinary action in accordance with Article XI. Upon the employee reporting back to work, the employee shall be apprised of the unauthorized leave status; however, if the employee can demonstrate that there are extenuating circumstances (e.g., hospitalization or other unanticipated emergency), then consideration will be given to changing the status of leave. The work location supervisor has the authority to change an unauthorized leave; however, nothing herein precludes requested leave being determined to be unauthorized where the employee does not have available sick or sufficient personal leave. * * * ARTICLE XI -- DISCIPLINARY ACTION Section 4. Types of Separation Dissolution of the employment relation between a permanent unit member and the Board may occur in any of four distinct types of separation. * * * Excessive Absenteeism/Abandonment of Position -- An unauthorized absence for three consecutive workdays shall be evidence of abandonment of position. Unauthorized absences totaling 10 or more workdays during the previous 12-month period shall be evidence of excessive absenteeism. Either of the foregoing shall constitute grounds for termination. . . . Disciplinary -- The employee is separated by the employer for disciplinary cause arising from the employee's performance or non-performance of job responsibilities. Such action occurs at any necessary point in time. On July 23, 1997, the Board suspended King and initiated action to dismiss her from employment with the Dade County Public Schools.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered sustaining King's suspension without pay and dismissing her from her position with Petitioner as a school bus aide. DONE AND ENTERED this 4th day of February, 1998, in Tallahassee, Leon County, Florida. SUSAN B. KIRKLAND 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 Filed with the Clerk of the Division of Administrative Hearings this 4th day of February, 1998.
Findings Of Fact Petitioner was employed by Respondent as a clerical worker, a permanent career service position, at all times material hereto. Prior to October 3, 1988, Petitioner experienced back problems which prevented her attendance at work. Dr. Brian M. Mitteldorf, a chiropractic physician, treated Petitioner beginning September 25, 1988, and continuing through all times material hereto. On October 3, 1988, Theresa (Terry) Bartelmo, Petitioner's supervisor, advised Petitioner in writing that Petitioner would be out of sick leave and annual leave the following day. Mrs. Bartelmo enclosed two copies of the form used to request a leave of absence and advised Petitioner that it was necessary to fill in all blanks and to return the form to her by no later than October 10, 1988. Respondent does not authorize any type of leave for unspecified or unlimited duration. Ms. Bartelmo further advised Petitioner that "... If I do not hear from you by that date, (October 10,1988) then I will assume you wish to terminate your employment with the Department and will process the necessary documentation." On October 3, 1988, Petitioner's husband, Edmund DeSilva, met with Ms. Bartelmo. During the meeting, Ms. Bartelmo gave to Mr. DeSilva the letter she had written to Mrs. DeSilva, together with the forms for the leave of absence. The form for leave of absence was signed by Petitioner on October 3, 1988. Mr. DeSilva hand delivered the form to Ms. Bartelmo prior to the deadline of October 10 set by Ms. Bartelmo. This form was forwarded by Ms. Bartelmo to Martha (Marty) Anderson, Respondent's district personnel manager. Ms. Bartelmo recommended that the leave of absence be granted. Ms. Anderson approved the leave of absence on October 13, 1988. The leave of absence form submitted by Petitioner and approved by Respondent contained a tentative return-to-work date of November 23, 1988. On October 3, 1988, the date Petitioner signed the leave of absence form, it was uncertain when Petitioner would be able to return to work because of her medical condition. On or about October 18, 1988, Ms. Bartelmo telephoned Petitioner to check on her progress. After Petitioner told Ms. Bartelmo that she did not feel well enough to talk, Ms. Bartelmo asked Petitioner to call her when Petitioner felt better. Ms. Bartelmo did not talk with Petitioner again until after Petitioner's employment was terminated. Dr. Mitteldorf called Ms. Bartelmo on November 22, 1988, at approximately 3:30 p.m. Dr. Mitteldorf told Ms. Bartelmo during that telephone conversation that Petitioner was too ill to return to work. Ms. Bartelmo asked Dr. Mitteldorf for a letter stating his opinion as to when Petitioner could return to work. Dr. Mitteldorf's letter was dated December 13, 1988. During their telephone conversation on November 22, 1988, Ms. Bartelmo did not tell or indicate to Dr. Mitteldorf that their conversation was tantamount to an extension of Petitioner's leave of absence. Ms. Bartelmo did not tell Dr. Mitteldorf that she was mailing to him the forms Petitioner needed to submit to request an extension of her leave of absence. Ms. Bartelmo can recommend approval of a request for leave of absence, but she does not have the authority to grant the approval. Ms. Bartelmo did not tell Petitioner or anyone acting on Petitioner's behalf, that Petitioner had any form of authorized leave after November 22, 1988. Other than having Dr. Mitteldorf call Ms. Bartelmo, Petitioner made no effort to have her leave of absence extended. Petitioner's authorized leave of absence ended on November 22, 1988. Petitioner was absent without authorized leave of absence beginning November 23, 1988, and continuing for more than 3 consecutive work days. By certified mailing on December 2, 1988, Petitioner was advised that her career service position was terminated as of December 1, 1988. Petitioner had been given a copy of Respondent's Employee Handbook on December 16, 1986, which provides in part: After an unauthorized absence for three consecutive workdays, the Department will consider you to have abandoned your position and resigned from the Career Service. It is very important that you coordinate any personal absences with your immediate supervisor, in accordance with our current leave policies. Petitioner's request for a formal hearing was timely filed.
Recommendation Based upon the foregoing, it is recommended that the Department of Administration enter a Final Order concluding that Petitioner has abandoned her position with Respondent in the career service due to her unauthorized absence from employment for three consecutive workdays beginning November 23, 1988. DONE and ENTERED this 17th day of May, 1989, in Tallahassee, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 17th day of May, 1989. APPENDIX The findings of fact contained in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 17, 18 of Petitioner's proposed findings of fact are adopted in substance, insofar as material. The findings of fact contained in paragraphs 9, 10, 15 and 16 of Petitioner's proposed findings of fact are unsupported by the evidence. COPIES FURNISHED: Larry D. Scott, Esquire Senior Attorney Department of Administration Office of the General Counsel 435 Carlton Building Tallahassee, Florida 32399-1550 Thomas H. Bateman, III, Esquire General Counsel Department of Transportation 562 Haydon Burns Building Tallahassee, Florida 32399-0450 Colomba DeSilva 2019 Southwest 29th Avenue Fort Lauderdale, Florida 33312 Kaye N. Henderson, Secretary Department of Transportation Haydon Burns Building 605 Suwannee Street Tallahassee, Florida 32399-0450 Adis Vila, Secretary Department of Administration 435 Carlton Building Tallahassee, Florida 32399-1550
Findings Of Fact Burney was employed by HRS until 5:00 p.m. on September 28, 1988, when she was deemed to have abandoned her position. Her regular working hours were 8:00 a.m. to 5:00 p.m., Monday through Friday. Burney was not at work on September 26, 1988. She maintains that she had someone call in for her to inform HRS that she would not be in that day. Burney does acknowledge that her supervisor, Sherry Martin, told the caller that she could not approve leave for that day. Burney did not report for work on September 27, 1988. Burney called her office and spoke with another clerk, not with her supervisor. Her supervisor was unavailable and the clerk did not have the authority to approve leave. Burney again failed to report for work on September 28, 1988. She called in and spoke with Mrs. McClenton, another supervisor. Burney informed Mrs. McClenton that she had a drug problem which was why she had not been at work. Burney asked her where she could get some help for her problem. Burney was told that her supervisor could not help her and that she would have to get help on her own. On October 4, 1988, HRS sent Burney a certified letter advising her that her absence from work on September 26-28, 1988, was not authorized and that she was deemed to have abandoned her position and to have therefore resigned from Career Service, effective 5:00 p.m. September 28, 1988. On October 7, 1988, Burney returned to her office seeking her paycheck. She was told by the personnel office that leave was not approved for that period and that she was no longer employed there. Burney did not report for work on any day between September 26 and October 7, 1988. She had not requested leave on a leave request form and no leave was authorized by her supervisor for this period. Burney knew that she was not on approved leave and had been told that her supervisor would not approve leave for that period. Leave is only authorized when it is requested on an appropriate leave request form and is approved by a supervisor. Rule 22A-7.010(2), Florida Administrative Code, provides: An employee who is absent without authorized leave of absence for 3 consecutive workdays shall be deemed to have abandoned the position and to have resigned from the Career Service...
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Administration enter a Final Order and therein find that Angela B. Burney has abandoned her position, deem that Angela B. Burney has effectively resigned from Career Service, and dismiss the petition for review. DONE and ENTERED this 20th day of February, 1988, in Tallahassee, Florida. DIANE K. KIESLING 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 20th day of February, 1988. 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 Angela B. Burney 1585 West 35th Street Jacksonville, Florida 32209 Scott D. Leemis Assistant District Legal Counsel Department of Health and Rehabilitative Services Post Office Box 2417 Jacksonville, Florida 32231-0083
Findings Of Fact Upon consideration of the oral and documentary evidence adduced at the hearing, the following relevant findings of fact are made: At all times material to this proceeding, the Petitioner was an employee of the state of Florida employed by the Department. On May 10, 1991 the Petitioner was arrested and placed in isolation without any outside contact except in the evenings by phone. By letter dated May 15, 1991, mailed to Petitioner's home address, the Department advised Petitioner that having been absence from work for three consecutive days without authorized leave of absence the Department assumed that the Petitioner had abandoned his position and resigned from career services. Additionally, this letter advised the Petitioner that he had 20 calendar days from receipt of the notice to petition the State Personnel Director for a review of the facts to determine if the circumstances constituted abandonment of position. The return receipt for this letter appears to be signed by Vickie Carpenter but does not indicate the date it was signed by her. A copy of this same letter was mailed by the Department to the Petitioner at the jail but no return receipt was ever received by the Department. However, the Petitioner testified at having received the letter around May 23, 1991. On May 23, 1991 the Respondent was released from jail and was available for work beginning on May 24, 1991. However, the Department had already terminated the Petitioner based on abandonment of position. By letter dated June 6, 1991 the Petitioner requested the State Personnel Director to review his case. By letter dated June 12, 1991 and received by Petitioner on June 14, 1991, the Department again advised Petitioner that the Department assumed that he had abandoned his position and again outlined the review process. On June 20, 1991 the Secretary of the Department of Administration entered an Order Accepting Petition and Assignment to the Division of Administrative Hearings. By letter dated August 27, 1991 the Department advised Petitioner that it was withdrawing the action of abandonment of position, and that he was reinstated to his position effective August 30, 1991. However, by letter dated August 29, 1991 the Department advised Petitioner that he was to report for work on September 3, 1991 rather than August 30, 1991, and that he was to report to Ft. Myers rather than to his old job in Punta Gorda. Additionally, Mark M. Geisler, Subdistrict Administrator, the author of the letter, advised the Petitioner that since the issue of back pay had been discussed with DeLuccia it was best for Petitioner to contact him in that regard. Petitioner was reinstated by the Department on September 3, 1991. Petitioner did not at any time agree to forego any back pay in order for the Department to reinstate him. The Petitioner has never received any back pay for the period beginning Friday, May 24, 1991 (the day he was able and ready to return to work) through Monday, September 2, 1991 (the day before Petitioner returned to work). Petitioner's wife, Vickie L. Carpenter was, at all times material to this proceeding, employed by the state of Florida, and because she and Petitioner both were employed by the state of Florida their health insurance was furnished by the state of Florida at no cost to them. Upon the Department terminating the Petitioner his wife was required to pay for her health insurance until Petitioner was reinstated on September 3, 1991. Petitioner was unable to report to work during the period from May 10, 1991 through May 23, 1991, inclusive, due to being incarcerated, and was on unauthorized leave of absence during this period. Therefore, Petitioner is not entitled to any back pay for this period, and so stipulated at the hearing. However, Petitioner is entitled to receive back pay for the period from May 24, 1991 through September 2, 1991, inclusive. There is sufficient competent substantial evidence to establish that the Department was aware of Petitioner's incarceration and that it was not Petitioner's intent to abandon his position with the Department.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is, RECOMMENDED: That the Department of Administration enter a Final Order (1) confirming the action of the Department that Petitioner did not abandon his position with the Department, and (2) reimbursing Petitioner for back pay for the period from May 24, 1991 through September 2, 1991, inclusive, and for any other benefit that Petitioner was entitled to during this period, including, but not limited to, health insurance benefits. DONE and ENTERED this 12th day of December, 1991, in Tallahassee, Florida. WILLIAM R. CAVE Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, FL 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 12th day of December, 1991. COPIES FURNISHED: Thomas J. Carpenter 1669 Flamingo Blvd. Bradenton, FL 34207 Susan E. Vacca, Qualified Representative Department of Health and Rehabilitative Services P.O. Box 1415 Punta Gorda, FL 33951-1415 Augustus D. Aikens, General Counsel Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 John A. Pieno, Secretary Department of Administration 435 Carlton Building Tallahassee, FL 32399-1550 Robert B. Williams, Secretary Department of Health and Rehabilitative Services 1323 Winewood Blvd. Tallahassee, FL 32399-0700 Anthony N. DeLuccia, Esquire Department of Health and Rehabilitative Services P.O. Box 06085 Fort Myers, FL 33906
The Issue Whether the Petitioner is entitled to receive benefits pursuant to Option 3 as retirement earned by his deceased wife, Susana T. Fabian.
Findings Of Fact The Petitioner, Howard Fabian, is the spouse of the late Susana T. Fabian. Mrs. Fabian was a member of the Florida Retirement System (FRS). The Fabians were married for approximately 14 years and have two children from their union. The girls, now teenagers, reside with Mr. Fabian and depend on him for their financial support. The Respondent, DMS, is the state agency charged with the responsibility of administering the FRS. Benefits payable to FRS participants are tendered pursuant to the provisions of Chapter 121, Florida Statutes, and DMS rules. Mrs. Fabian was employed as a teacher in the Miami- Dade County Public Schools on or about December 17, 1984. As such, she was eligible to participate in the FRS. In fact, Mrs. Fabian's employer made contributions to the FRS for her benefit throughout her employment with the school system. Such contributions continued for over 13 years. It is undisputed that Mrs. Fabian was "vested" and was, therefore, entitled to receive retirement benefits from the FRS. Unfortunately, Mrs. Fabian became ill in 1997 and was unable to teach. She requested an extended sick leave for the period August 31, 1997 through May 31, 1998, which her employer granted. Mrs. Fabian returned to teaching the following year and was able to perform her duties until January 2000. At that time her medical condition worsened. Her request for unpaid leave through June 2000 was granted. Despite her best efforts to regain her health, Mrs. Fabian did not improve. Each time her employer asked whether she would return to work, forms were returned seeking an extension of leave. The employer continued to grant the extension requests and approved sick leave without pay for the period through June 14, 2002. Mr. Fabian filled out a leave form seeking leave on his wife's behalf through June 2003. By letter dated May 14, 2002, the school system denied that request. Whether or not the employer correctly calculated the time Mrs. Fabian received unpaid leave is unknown. The Petitioner asserts that had Mrs. Fabian received credit for "hardship leave and dire emergency leave" in 1997 and 2000 (for which the union contract provided), the leave request in June 2002 would or could have been granted. The record is clear that the Respondent did not have any part in the internal workings of the Miami-Dade County School District and did not have knowledge as to whether Mrs. Fabian could have been granted additional unpaid leave. The employer's decisions regarding this employee were unknown to the Respondent until the instant action. However, about the time the employer denied the last leave extension request, Mr. Fabian received a FRS application for disability retirement. The application was completed on or about June 2002. The form signed by Mrs. Fabian was out- of-date and did not have a designation of beneficiary space. Pursuant to its policy, DMS accepted the out of date form and sent Mrs. Fabian a form for designating a beneficiary. The form for designating a beneficiary listed four options: Option 1, Option 2, Option 3 and Option 4. All (Options 1-4) were clearly and unambiguously described. However, only two of the options had estimates included on the form sent to Mrs. Fabian. Estimates for Options 3 and 4 were not noted. Under Option 1 the form indicated a monthly benefit of $895.28. Option 2 indicated a monthly payment of $824.89. At that point in time DMS did not have sufficient information to calculate Options 3 and 4. To calculate Options 3 and 4 DMS must have information regarding a "Joint Annuitant." Had Mr. Fabian included information for Options 3 and 4 those amounts would have been calculated. In this case, the Respondent could not know Mrs. Fabian was married, as the initial (outdated) form did not provide that information. The Respondent could have become aware of Mrs. Fabian's marital status as a result of a telephone call from Mr. Fabian to DMS in August of 2002. At that time DMS still needed information to put Mrs. Fabian on the retirement payroll. The request for information unambiguously listed information needed for a "joint annuitant." The first notice to Mrs. Fabian, dated July 11, 2002, asked for the proof of birth for the joint annuitant. Similarly, the SECOND REQUEST-RETURN WITHIN 30 DAYS (Respondent's Ex. 12) dated September 4, 2002, indicated the following: Your name cannot be placed on the retired payroll for the reason(s) indicated below: BIRTH VERIFICATION Please see the enclosed memo outlining the acceptable means of proving your birth date. BIRTH VERIFICATION OF BENEFICIARY If you elect Option 3 or 4, we will need proof of birth for your joint annuitant. FRS-11o, OPTION SELECTION FORM The enclosed Option Selection Form is needed. If you elect option 3 or 4, we will need proof of birth for your joint annuitant. You may wait until an estimate of benefits is provided before selecting your option. FORM FST-12, BENEFICIARY DESIGNATION This form must be completed to designate a beneficiary. You must designate a beneficiary to receive any benefits due at your date of death. [Emphasis in original] Nevertheless, when the Option Selection form was submitted to DMS, Mr. Fabian, exercising a power of attorney provided by his wife, chose Option 1. Mr. Fabian claims he did not know Option 3 was available. The Option Selection form clearly and unambiguously listed all four options available to Mrs. Fabian. Mr. Fabian is an educated professional. He has taught school for the Miami-Dade County School District and has operated a real estate office for approximately 20 years. The Option Selection form signed by Mr. Fabian for himself and for his wife on September 3, 2002 (Petitioner's Exhibit. 7) required the Petitioner to complete a "Spousal Acknowledgement," recognizing that the member had chosen Option 1. The section must be completed if the FRS member is married and if Option 1 or 2 is elected. Clearly, the Petitioner knew or should have known that the form contemplated a permanent decision. In fact, the Petitioner acknowledged by signing beneath the section that stated: . . . I also understand that I cannot add additional service, change options, or change my type of retirement (Regular, Disability and Early) once my retirement becomes final. My retirement becomes final when any benefit payment is cashed, deposited, or when my Deferred Retirement Option Program participation begins. DMS received the Beneficiary Designation Form and Option Selection forms on September 12, 2002. The completed file was referred to payroll and Mrs. Fabian then received monthly retirement benefits under Option 1 (the option selected by her husband pursuant to his power of attorney). It is undisputed the first payment was negotiated upon its receipt. Prior to cashing the first payment Mrs. Fabian could have changed her option selection. On December 24, 2002, Mrs. Fabian passed away. The Respondent then notified Mr. Fabian that the option he had selected did not provide for continuing benefits beyond the month of Mrs. Fabian's death. Additionally, Mr. Fabian was advised that he was not entitled to a refund of any contribution Mrs. Fabian paid to FRS as she had not made any. The employer paid 100 percent of the contributions to Mrs. Fabian's account. Retirement benefits under the FRS are not equivalent to life insurance. That is, the retirement payments are payable to the employee who "earned" benefits or to those who may be "joint annuitants" as defined by law. At all times material to this case, the employer paid the full amount credited to Mrs. Fabian's retirement account, approximately $84,046.51. Obviously, Mrs. Fabian sought the benefits from her account prior to her anticipated retirement date. DMS allows disability retirement under such circumstances. Therefore, Mrs. Fabian's eligibility to claim her disability retirement is not disputed. The deposition testimony of Nina Barron was admitted into evidence as Respondent's Exhibit 5. Ms. Barron reviewed the retirement options with the Petitioner prior to the time the form was submitted to FRS. Ms. Barron also calculated the amounts payable to Mrs. Fabian pursuant to each option. Ms. Barron also believes she spoke to Mrs. Fabian regarding the options. Ms. Barron mailed the calculated estimates for each option to the Petitioner. The Petitioner's allegation that he was confused regarding the options and which election would best protect his family's interests has not been deemed persuasive in light of the testimony of Ms. Barron. The witness provided an unofficial estimate to Mrs. Fabian that included all 4 options.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department of Management Services, Division of Retirement, enter a Final Order denying the Petitioner's request. S DONE AND ENTERED this 15th day of June, 2004, in Tallahassee, Leon County, Florida. ___________________________________ J. D. PARRISH 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 15th day of June, 2004. COPIES FURNISHED: Sarabeth Snuggs, Interim Director Division of Retirement Cedars Executive Center, Building C 2639 North Monroe Street Tallahassee, Florida 32399-1560 Alberto Dominguez, General Counsel Department of Management Services Division of Retirement 4050 Esplande Way Tallahassee, Florida 32399-1560 Richard M. Ellis, Esquire Rutledge, Ecenia, Purnell & Hoffman, P.A. 215 South Monroe Street, Suite 420 Tallahassee, Florida 32302-0551 Larry D. Scott, Esquire Department of Management Services Division of Retirement 4050 Esplanade Way, Suite 260 Tallahassee, Florida 32399-0950
The Issue The issue is whether Respondent committed a unlawful employment practice by discriminating against Petitioner based on an alleged disability in violation of Section 760.10, Florida Statutes.
Findings Of Fact Respondent initially hired Petitioner as a legal secretary in 1997. At that time, Petitioner worked in Respondent's office in Chipley, Florida. Petitioner suffered no continuing medical problems in 1997. In a memorandum dated April 17, 2001, Respondent's staff advised Petitioner that employees using more leave than they had earned would have to be place on "leave without pay" for the time used in excess of time earned. In a letter dated May 14, 2001, Petitioner advised Respondent that she intended to resign her position as a legal secretary effective May 25, 2001. Petitioner wrote the letter because she was moving to Apalachicola, Florida. Instead of accepting Petitioner's resignation, Respondent offered and Petitioner accepted a transfer as a legal secretary in Respondent's office in Port St. Joe, Florida. Petitioner was able to continue working for Respondent without a break in service. In the summer of 2002, Petitioner began to suffer from an unexplained shortness of breath. Neither Petitioner nor Respondent knew the cause for the symptoms Petitioner was experiencing. By letter dated October 9, 2002, Respondent once again advised Petitioner that she could not use more leave time than the amount she earned. On at least one occasion, Petitioner's excessive time-off caused a reduction in her salary for "leave without pay." In a memorandum dated October 11, 2002, Respondent's staff documented concerns about Petitioner's attendance and performance. One of the concerns was Petitioner's chronic failure to file reports in a timely manner. Petitioner was late in filing the reports even though Respondent allowed her to prepare them at home and send them to Respondent by facsimile transmission from her husband's place of business. In February 2003, Petitioner still did not have a medical diagnosis to explain why she was sick and unable to work. On or about February 13, 2003, Petitioner and her supervisor agreed that Petitioner would take leave without pay pending an excuse from a doctor that she was unable to work. Petitioner's testimony that Respondent offered to let Petitioner have an indefinite leave of absence is not persuasive. On March 12, 2003, Petitioner provided Respondent medical documentation, excusing her from work due to unspecified illness through March 17, 2003. On or about March 14, 2003, Petitioner was admitted to the hospital. Subsequent medical tests revealed blood clots in Petitioner's lungs. Petitioner was eventually released from the hospital with prescriptions for blood thinning medication and oxygen. On or about March 20, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor's note, dated March 18, 2003, excused Petitioner from work for two weeks. On or about April 2, 2003, Petitioner sent Respondent a doctor's excuse by facsimile transmission. The doctor stated that Petitioner had been hospitalized with a serious condition called pulmonary embolus and that she continued to have significant symptoms of shortness of breath and fatigue. The doctor's note stated that Petitioner would not be able to work for six weeks. On May 5, 2003, Jackie Pooser, Respondent's Administrative Director, talked to Petitioner by telephone. Ms. Pooser advised Petitioner that she needed to provide another doctor's excuse by May 8, 2003, if she was still under a doctor's care and unable to return to work. Otherwise, Respondent expected Petitioner to resume her duties in Respondent's office in Port St. Joe, Florida. Petitioner was Respondent's only secretary in Port St. Joe, Florida. That office was in dire need of a performing secretary. However, apart from her illness, Petitioner was not anxious to return to work in the Port St. Joe office because she had a personality conflict with the only full-time attorney who worked there. During the May 5, 2003, telephone conversation, Petitioner did not tell Ms. Pooser that she was disabled or request any on-the-job accommodation. Instead, she led Ms. Pooser to believe that she intended to return to her job when authorized to do so by her doctor, hopefully in June 2003. During the hearing, Petitioner admitted that she never requested that Respondent provide her with any type of accommodation. In a letter dated May 6, 2003, Ms. Pooser confirmed the May 5, 2003, phone conversation. In the letter, Ms. Pooser further reminded Petitioner that her medical excuse expired on May 8, 2003. The letter referred to the Public Defender Classification & Pay Plan requirements for a doctor's excuse without which an employee is considered to have abandoned his or her employment position. Petitioner's medical excuse expired on May 8, 2003. Petitioner did not return to work or provide Respondent with further medical documentation. On May 16, 2003, Respondent verbally terminated Petitioner by telephone. A follow-up letter dated May 19, 2003, stated that Petitioner's work performance had not been satisfactory for some period of time. The letter also stated that Petitioner had abandoned her position by failing to provide Respondent with a doctor's excuse. Petitioner's testimony that she requested her physician to send the medical excuse directly to Respondent by facsimile transmission is not persuasive. Petitioner did not call Respondent to inquire whether Respondent received the excuse or to offer any other explanation for failing to send medical documentation to Respondent. Petitioner's doctor subsequently released her to return to work. Petitioner received unemployment compensation for at least one month. In August 2003, Petitioner began working for a real estate company, checking guests into resort rentals. She resigned that job after working for one month. Petitioner admitted during the hearing that she was not disabled when she worked for Respondent. According to Petitioner, she was diagnosed as being disabled in October 2003, after experiencing further medical problems. However, Petitioner has provided no competent (non-hearsay) evidence of that diagnosis. Respondent's attendance and leave policy states as follows in relevant part: STATEMENTS OF POLICY * * * The granting of any leave of absence with or without pay shall be in writing and shall be approved by the proper authority within the Public Defender Office. An employee who is granted leave of absence with or without pay shall be an employee of the Public Defender while on such leave and shall be returned to the same position or a different position in the same class and same work location upon termination of the approved leave of absence, unless the Public Defender and the employee agree in writing to other conditions and terms under which such leave is to be granted. Any leave of absence with or without pay shall be approved prior to the leave being taken except in the case of an emergency where the employee must be absent prior to receiving approval from the proper authority for the absence. * * * (b) If an employee's request for leave of absence is disapproved and the employee takes unauthorized leave, the Public Defender may place the employee on leave without pay and after an unauthorized leave of absence for 3 consecutive workdays may consider the employee to have abandoned the position and resigned from the Public Defender's Office. * * * 3.14 FAMILY AND MEDICAL LEAVE In accordance with the federal Family and Medical Leave Act (FMLA) regulated by the U.S. Department of Labor, eligible employees can receive up to 12 weeks of unpaid leave during any 12-month period for the following reasons: . . . taking care of one's own serious health condition. Employees are not required to take all 12 weeks at once. The employee may request a few days or weeks off at a time (referred to as intermittent leave) or continue to work on a part-time basis (reduced leave). Unless written medical justification deems it necessary, the Public Defender is not required to grant intermittent or reduced leave. * * * (4) Employees must provide reasonable notice (30 days if possible) and make an effort to schedule their leave so as not to unduly disrupt agency operations. The Public Defender may request progress reports from the employees regarding leave status. * * * (7) The Public Defender may require certification from a healthcare provider regarding the need for medical leave, as well as certification of an employee's fitness to return to work. From August 1, 2002, through May 16, 2003, Respondent approved 518 hours or 12 weeks and 38 hours of leave without pay. During the hearing, Petitioner acknowledged that she received the leave without pay. Her testimony that she was not familiar with the above-referenced policies is not credible.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED: That FCHR enter a final order dismissing the Petition for Relief. DONE AND ENTERED this 23rd day of December, 2004, in Tallahassee, Florida, Leon County, Florida. S SUZANNE F. HOOD 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 23rd day of December, 2004. COPIES FURNISHED: Cecil Howard, General Counsel Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Denise Crawford, Agency Clerk Florida Commission on Human Relations 2009 Apalachee Parkway, Suite 100 Tallahassee, Florida 32301 Herman D. Laramore, Esquire Public Defender, Fourteenth Circuit Jackson County Courthouse Post Office Box 636 Marianna, Florida 32447 Christian C. Griggs 130 25th Avenue Apalachicola, Florida 32320
The Issue Whether Respondent, John R. Blum (Mr. Blum), violated the re-employment provisions set forth in section 121.091(13)(c)5.d., Florida Statutes (2013), and, therefore, must repay his Deferred Retirement Option Program (DROP) distribution and subsequent monthly retirement benefits.
Findings Of Fact The Division is the state agency charged with the responsibility of administering the Florida Retirement System (FRS). Mr. Blum was employed as a highway patrol officer with the Department of Highway Safety and Motor Vehicles (DHSMV). He made the decision to enter DROP, and, for the last five years of his employment with DHSMV, he participated in DROP. Prior to ending his DROP participation, Mr. Blum completed a Deferred Retirement Option Program Termination Notification, confirming he would terminate employment on May 31, 2013. The notification was also signed by the retirement coordinator for DHSMV confirming Mr. Blum’s employment termination date, and reads in pertinent part: In order to satisfy your employment termination requirement, you must terminate all employment relationships with all participating FRS employers for the first 6 calendar months after your DROP termination date. Termination requirement means you cannot remain employed or become employed with any FRS covered employer in a position covered or non-covered by retirement for the first 6 calendar months following your DROP termination date. This includes but is not limited to: part-time work, temporary work, other personal services (OPS), substitute teaching, adjunct professor or non-Division approved contractual services. * * * If you fail to meet the termination requirement, you will void (cancel) your retirement and DROP participation and you must repay all retirement benefits received (including accumulated DROP benefits). The form has been incorporated by reference into Florida Administrative Code Rule 60S-11.004(9). Mr. Blum terminated his employment with DHSMV on the agreed termination date of May 31, 2013. In July 2013, Mr. Blum began to work once again with DHSMV. He had applied and was hired to return as a reserve officer to work security at Florida turnpike stations. The Florida Highway Patrol provided Mr. Blum with access to the online system for payroll, and he was paid for his work through direct deposit from DHSMV, an FRS employer. Mr. Blum was under the mistaken impression that, when he worked the security for the turnpike stations, he was working for a private vendor. He had no intention of violating the termination of employment provisions. In September 2013, after working for almost three months, Mr. Blum was notified that he had violated the termination of employment provisions of DROP, and he ceased working as a reserve officer. On May 8, 2014, the Division sent a letter to Mr. Blum, notifying him that his DROP participation and retirement had been voided and that he must repay all retirement benefits, including his DROP accumulation. The total amount paid is $227,755.51, which the Division seeks to recover. He was also informed that his retirement account would be credited to reflect membership from March 2009 through May 2013. Mr. Blum has returned to work as a highway patrol officer, and his DROP application has been approved effective May 1, 2014.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division enter a final order finding that Mr. Blum violated the re-employment provisions of section 121.091(13)(c)5.d., Florida Statutes, and, therefore, must repay retirement payments in the amount of $227,755.51 to the Division. DONE AND ENTERED this 25th day of August, 2014, in Tallahassee, Leon County, Florida. S JESSICA E. VARN 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 August, 2014. COPIES FURNISHED: John R. Blum 5050 Southwest Eleventh Place Margate, Florida 33068-4060 Larry D. Scott, Esquire Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950 Dan Drake, Director Division of Retirement Department of Management Services Post Office Box 9000 Tallahassee, Florida 32315-9000 Bruce Conroy, Interim General Counsel Office of the General Counsel Department of Management Services 4050 Esplanade Way, Suite 160 Tallahassee, Florida 32399-0950
